Manly v. The City of Raleigh

• Decision Date: 30 June 1859
• Citation: 4 Jones 370,57 N.C. 370
• Court: North Carolina Supreme Court
• Parties: CHARLES MANLY AND R. M. SAUNDERS v. THE CITY OF RALEIGH.

4 Jones Eq. 370

57 N.C. 370

CHARLES MANLY AND R. M. SAUNDERS

v.THE CITY OF RALEIGH.

Supreme Court of North Carolina.

June Term, 1859.

The General Assembly has power to extend the limits of an incorporated town without the consent, and against the wishes of the citizens who live on, or own land comprising the part to be annexed.

It is within the constitutional power of the Legislature to provide that an act, extending the limits of a town, shall depend for its validity on the acceptance of the Mayor and Commissioners of such town.

CAUSE removed from the Court of Equity of Wake County.

By an ordinance of a Convention of the people of North Carolina, dated 21st of July, 1788, and an act of the General Assembly, dated 30th of September, 1792, the seat of Government was permanently established on a tract of land adjoining the tract whereon Joel Lane lived, at Wake County Court House, and four hundred acres of land embraced in that tract, was laid off and erected into a city, named the “city of Raleigh.” By an act of the General Assembly dated 7th of February, 1795, said city was constituted a muncipal corporation by the name of the “Commissioners of the city of Raleigh,” and the corporate powers and authorities thereof were vested by the said act, and others passed in amendment thereof, in an “Intendant or Mayor and seven Commissioners,” to be elected annually by the resident citizens, who were empowered to lay taxes and collect the same by distress or sale of property, and to do many other official acts therein prescribed, and up to the 3rd of February, 1857, the said corporation existed within the limit of said tract of 400 acres, and exercised its rights, powers and authority by and through the officers aforesaid. On that day, 3rd February, 1857, an act was passed and duly ratified, entitled “an act to revise and consolidate the charter of the city of Raleigh;” in the 86th section of which is enacted that “the present corporate limits of the city of Raleigh shall be extended one quarter of a mile in all directions around the said city, North, South, East and West; and that the boundary line shall run parallel with the old boundary, until the lines shall intersect at each corner.” The act then proceeds to divide the newly added territory among the three wards of the city, and to provide for the election of nine commissions instead of seven.--It also changes the name of the presiding officer from Intendant to Mayor, and the title of the corporation to “The city of Raleigh.”

The 79th section of the same act provides “that this act shall be accepted within one month from and after the ratification thereof, else it shall be of no effect,” and then provides that the acceptance shall be made by the then existing commissioners, recorded in their minutes, signed by the commissioners, and proclaimed by the mayor through two news-papers. The ratification and acceptance were duly made by the seven commissioners, then in office, and proclaimed by the mayor.

The plaintiffs, in their bill, complain that they are, with many others, owners of the territory proposed to be added; that they, and those under whom they hold, had long enjoyed these tracts, without any apprehension that they should be brought within the corporate limits of Raleigh against their will, and they deny the authority of the Legislature to pass an act to compel them to submit to the burdens which had accumulated in the shape of a debt, and to the onerous taxes incident to the corporate government--they deny also its constitutional power to pass any act to amend the charter of Raleigh, without submitting it to the vote of the citizens for acceptance; and further, they insist that the Legislature could not constitutionally pass a law, which was to be dependent, for its efficacy, on the will of other persons. The prayer is for an injunction against the municipal corporation of Raleigh, to enjoin them from proceeding to levy town taxes on them and others similarly situated, and otherwise to abstain from enforcing the said act of assembly.

The several acts of incorporation of the city of Raleigh, and the proceedings of the board of commissioners accepting the amendment to the charter, are filed as exhibits.

The answer of the defendant goes into the justice and reasonbleness of the law, and insists upon its validity. The cause was set down for hearing on the bill, answer and exhibits, and sent to this Court.

Graham, for the plaintiffs .

B. F. Moore, for the defendant .

PEARSON, C. J.

1. Has the General Assembly power to extend the limits of an incorporated town, without the consent, and against the wish of the citizens who live on, or own the land comprising the part to be annexed?

“All legislative power is vested in the General Assembly.” The Constitution of the United States, the Declaration of rights, and the Constitution of the State, impose the only restrictions to which this otherwise unlimited power is subject; frequency of elections being relied on to prevent its abuse, or mitigate the effect of abuse, by the repeal of an unwise enactment.

Counties and towns are instruments used for the good government aud management of the whole State. To establish a county, or incorporate a town, is a legislative act, consequently, the General Assembly may exercise this power, whenever, and in such manner, as in in its opinion, the public good will be thereby promoted; unless the time, manner, or other circumstance of the act violates some provision of the Constitution.

Co unties and towns are usually made upon the petition of the citizens, especially interested, or a majority of them; but there is no ground to support the position, that the consent of this particular portion of the community, is a circumstance necessary to give validity to the exercise of the power of the General Assembly. Ours would be a strange sort of government, if the Legislature could not make a new county without the consent of the people there residing being first had and obtained, or if, when in the opinion of the Legislature, the population of a particular locality has become so dense that it cannot be well-governed by the ordinary county regulations, and requires the special “rules and by-laws” of an incorporated town, to secure its good order and management, such locality cannot be incorporated into a town, or annexed to one already incorporated, without the consent of the inhabitants; and by a logical deduction, without the consent of every single individual. For, there being no social connection, each person must answer for himself, and is not bound by the acts of the others; so that the objection of one man, takes from the Legislature the power of doing what is necessary to promote the general welfare, unless he is specially excepted, and thus allowed to...