Martin County v. Wachovia Bank & Trust Co.

• Decision Date: 10 September 1919
• Docket Number: 65.
• Citation: 100 S.E. 134,178 N.C. 26
• Parties: MARTIN COUNTY ET AL. v. WACHOVIA BANK & TRUST CO.
• Court: North Carolina Supreme Court

100 S.E. 134

178 N.C. 26

MARTIN COUNTY ET AL. v. WACHOVIA BANK & TRUST CO.

No. 65.

Supreme Court of North Carolina

September 10, 1919

Appeal from Superior Court, Martin County; Connor, Judge.

Controversy submitted without action by Martin county and others against Wachovia Bank & Trust Company. From the judgment rendered defendant appeals. Affirmed.

Const.Amend art. 2, § 29 (see Pub.Laws 1915, c. 99), prohibiting enactment of local, private, or special act authorizing the laying out or construction of streets, highways, bridges, or alleys, does not prohibit legislation authorizing the raising of proper funds by a sale of bonds, or by taxation, required for the public good, though such bonds should be for improvements in some fixed place, or in restricted territory determined upon by local authorities, in pursuance of general laws on the subject.

This is a controversy submitted without action upon facts agreed, and involves the validity of $150,000 bonds proposed to be issued by the county of Martin under authority of Pub. Loc. Laws 1919, c. 53, entitled "An act to authorize the boards of commissioners of Martin and Bertie counties to build a bridge over the Roanoke river at Williamston, N. C., and for other purposes."

The defendant put in the highest bid for this issue, $160,669.50 and accrued interest to date of delivery, which bid was accepted by the county of Martin, but the defendant now declines to accept and pay for said bonds upon the ground that the bonds are not legal and binding obligations of said county. The court upheld the validity of the bonds, and adjudged that the county of Martin should execute and deliver the same to the defendant and that the defendant should pay said bid and costs of action. Appeal by defendant.

Manly, Hendren & Womble, of Winston-Salem, for appellant.

Dunning & Moore, and H. W. Stubbs, all of Williamston, John W. Hinsdale, Jr., of Raleigh, and Reed, McCook & Hoyt and W. Henry Hoyt, all of New York City, for appellees.

CLARK C.J.

This is a controversy submitted upon an agreed case without action, relating to a proposed issue of $150,000 of bonds of Martin county for the purpose of paying the county's share of the cost of building a bridge at Williamston over the Roanoke river, which divides Martin and Bertie counties, including the causeway or continuation of the bridge through the swamp on the Bertie side to the highlands.

It is provided that the entire work is to be constructed by the two counties jointly, at their joint expenses, with federal and state aid. The proposed road or approach on the Bertie side will run through swamps and other lowlands, and is necessary to the use of the bridge and practically a part of it. The bonds were awarded by Martin county to the appellant as the highest bidder on 30th June, 1919. The appellant is willing to comply with its bid, provided the county can lawfully issue these bonds and levy sufficient taxes to pay them. This proceeding was instituted in order to determine this question.

The defendant bank refuses to take and pay for said bonds upon the ground that they are not legal because--

"The act authorizing such bond issue violates the constitutional amendment, art. 2, § 29 (see Pub. Acts 1915, c. 99), which declares that the Legislature shall not pass any local, private, or special act relating to ferries or bridges; and for the further reason that the Legislature had no power under the Constitution to authorize Martin county to issue bonds to pay a part of the costs of building the road in Bertie county under the exclusive control of Bertie."

The court below adjudged that the bonds are valid obligations of the county; that the county is authorized to levy a sufficient tax to pay the principal and interest of the bonds without regard to the tax limit prescribed by the state Constitution; and that the proceeds of the sale of the bonds may be used by Martin county--

"In constructing the road approaching the bridge in the county of Bertie, whether said road be wholly in the county of Bertie, or partly in the county of Bertie and partly in the county of Martin."

The plaintiff relies upon three different statutes for authority to issue the bonds and to levy sufficient taxes to pay principal and interest thereof, i. e.:

(1) Chapter 53, Public Local Laws 1919, entitled "An act to authorize the board of commissioners of Martin and Bertie counties to build a bridge over the Roanake river at Williamston and for other purposes."

(2) Chapter 103, Laws 1917, amending Rev. § 2696, as amended by chapter 185, Laws 1919, which is now sections 137-143, c. 69, Cons. Stat.

(3) Chapter 312, Laws 1919, entitled "An act to enable all counties to provide funds to pay the cost of constructing or improving roads with federal aid, and to pay the cost of maintaining such roads."

Under each of these three acts Martin county is authorized to issue bonds for road and bridge purposes and to levy sufficient taxes to pay such bonds.

The first act is applicable only to Martin and Bertie counties, and specifically authorizes them, "by joint action and agreement, to build and construct a bridge over the Roanoke river at Williamston, as the same has already been surveyed and laid out, and to build and construct the road leading from the bridge on the Bertie side to the highlands of Bertie county"; authorizes each county to issue bonds for this purpose, the total amount not to exceed "the actual cost of said bridge and road," the Martin county bonds not to exceed $150,000, and the Bertie county bonds not to exceed $50,000, and further authorizes each county to levy a "sufficient tax to pay the bonds issued by it."

The second act provides, in substance, that "any county in the state" may build a public road or a bridge in the county, and any two counties may jointly build a highway bridge over a stream which divides them, and may apportion the cost between themselves in such proportion as they may agree upon; but the cost must not exceed 2 per cent. of the assessed valuation of the taxable property in the two counties. County bonds may be issued for such roads or bridges in an amount not exceeding "the actual cost" thereof, and a "sufficient" county tax may be levied to pay the bonds.

The third act provides that any county may issue its bonds to pay its share of the cost of constructing or improving public roads in the county with federal or state aid, or both, and may levy a "sufficient" tax to pay such bonds; and that the term "road," as used in the act, includes bridges and culverts in all cases where they constitute a part of the road which is to be so constructed or improved. The act provides, however, that certain portions of it shall not be enforced in 31 counties named therein (which do not include Martin), unless it is adopted by the voters at an election.

Pursuant to the first act, which for convenience may be called the "special act," Martin and Bertie counties having previously taken appropriate action for building at their joint expense the bridge and road prescribed in that act, Martin county now proposed to issue the $150,000 of bonds in question to pay its share of the cost. It appears upon the face of the special act that the road or approach referred to therein is to be almost wholly in Bertie.

It may be noted here that the bridge proper across the river is in Bertie, for the boundary of Martin county is the low-water mark on the south side of the river. This appears from chapter 4, Laws 1729; 25 St. Records, 212; 2 Rev. Stat. 164; which boundary is recognized by the subsequent acts creating Edgecombe county out of Tyrrell (Laws 1741, c. 7; 23 St. Records, 164; 2 Rev. Stat. 124); the act creating Halifax county out of the territory of Edgecombe (Laws 1758, c. 13; 23 St. Records, 496; 2 Rev. Stat. 133); and, finally, the act creating Martin county out of Halifax and Tyrrell (Laws 1774, c. 32; 25 St. Records, 976; 2 Rev. Stat. 145). Indeed, it has been the usual procedure in establishing new counties that, where a river or other stream is the dividing line, said river has remained within the limits of the county from which the new county has been taken.

But counties are merely instrumentalities and agencies of the state government.

It has been enacted that, when a crime has been committed on a boundary water course which lies wholly in another county, either county has jurisdiction of the offense (Rev. § 3234); and that a grand jury may be authorized to indict for offenses committed in another county (State v. Lewis, 142 N.C. 626, 55 S.E. 600, 9 Ann. Cas. 361); and that, as to civil matters, not only the Legislature can change the boundaries at will with or without provision that the annexing county shall pay a part of the debt of the county from which the territory was taken (Mills v. Williams, 33 N.C. 558; Com'rs v. Com'rs, 95 N.C. 189; Com'rs v. Com'rs, 79 N.C. 565; Watson v. Com'rs, 82 N.C. 17), but the establishment of the boundary being a political question, the Legislature, even after taxes are assessed, can decide where the boundary is (even though erroneously in fact), and direct to which county the tax from the disputed territory shall be paid. R. R. v. Washington, 154 N.C. 333, 70 S.E. 634.

The act of the Legislature here has authorized Martin county to issue $150,000 bonds as its just contribution to the entire cost of the bridge and its approaches from its beginning in Martin to the highlands in Bertie. The Legislature was doubtless moved to so enact by the representatives of that county in the General Assembly. As the bridge itself and the long approach through the swamp are in Bertie county, almost the entire expense, but for the apportionment authorized in the act by agreement of the commissioners, would...