Mills v. Williams
| Decision Date | 31 December 1850 |
| Citation | 33 N.C. 558,11 Ired. 558 |
| Court | North Carolina Supreme Court |
| Parties | COLUMBUS MILLS v. P. B. WILLIAMS. |
T??e legislature has the constitutional power to repeal an act establishing a County. It has the same power to consolidate, as to divide, Counties, the exercise of the power in both cases being upon considerations of public expediency.
The purpose of making all corporations is the public good. The only substantial difference between corporations is, that, in some cases, they are erected by the mere will of the legislature, there being no other party interested or concerned, and these are subject at all times to be modified, changed or annulled.
Other corporations are the result of contract; the legislature, for the purpose of accomplishing a public good, chooses to do it by the instrumentality of a second party. These two parties make a contract; the legislature, in consideration of certain labor and outlay of money, conferring upon the party of the second part, the privilege of being a corporation, with certain powers and capacities. Being a contract, it cannot be modified, changed or annulled without the consent of both parties.
Counties, &c., belong to the first class ; Rail Road and Turnpike Companies, & c., are instances of the second class.
Appeal from the Superior Court of Law of Rutherford County, at the Spring Term 1849, his Honor Judge BAILEY presiding, to the Supreme Court at Morganton, and thence transterred, by an order of that Court, to the Supreme Court at Raleigh.
This was an action of trespass, vi et armis, for an assault and battery on the plaintiff's person, tried at Rutherford Spring Term 1849, upon the following facts, submitted to the Court for judgment, as a case agreed.
The General Assembly, at its session of 1846 and '7, passed an act establishing a County by the name of Polk, out of certain portions of the Counties of Rutherford and Henderson?? By virtue of that act and a supplemental act, passed at the same session, Courts, both County and Superior, were organized, and all County officers were appointed and elected, and entered upon the discharge of their duties as such.
The site for the County Town and Court House was selected, and a deed to the Chairman of the County Court was duly executed and delivered. At the general election for sheriff, in August, 1848, the defendant was duly elected sheriff of Polk County, for two years, next ensuing--entered into bond according to law, and was qualified as such and acted as sheriff of said County, and claimed the right to act as such, at the time of executing the writ, under which the arrest was made, which issued from the Superior Court of Rutherford, with the County seal attached, tested of the Fall Term 1848, and was directed to the Sheriff of Polk County. The writ was issued on the 1st day of April 1849, came to the defendant's hands on the 2nd day of that month, and it was immedidiately executed by arresting the plaintiff.
The said Act of Assembly was repealed at the Session of 1848.
It is further agreed that a majority of the people of Polk County were opposed to the passage of the repealing act.
On the above statement of facts it is contended by the plaintiff, that the defendant, being no longer sheriff of Polk County, after the act went into operation which repealed the act establishing it, his arrest was not authorised, and, therefore, a trespass. On the other hand it is contended by the defendant, that the repealing act was unconstitutional and void, and therefore he was sheriff of Polk County, at the time of arresting the plaintiff, and well justified therein by virtue of the writ aforesaid.
And it was further agreed, that, if the repealing act be constitutional, there is to be judgment for the plaintiff for six pence and costs of suit; if otherwise, then the plaintiff is to have judgment of non suit. And his Honor being of opinion that the repealing act was constitutional, gave judgment against the defendant, accordingly, for six pence and costs, from which the defendant prays an appeal to the Supreme Court, which is granted.
B. F. Moore, for the plaintiff .
N. W. Woodfin and Bynum, for the defendant .
In 1816, the Legislature established a County by the name of “Polk” In pursuance thereof justices of the peace were appointed, Courts organized, and a sheriff and other County officers elected, who entered upon the discharge of the duties of their respective officers. In 1848 the act of 1846 was repealed, and the question is presented, has the legislature a right, under the Constitution, to repeal an act, by which a County is established?
From the formation of our State government, the General Assembly has, from time to time, changed the limits of Counties, and has, over and over again, made two Counties out of one, so that, in many instances, even the name of the old County has been lost; and it would seem to an unsophistieated mind, that, where there is the power to make two out of one, there must be the corresponding power to make one out of two?? In other words, as the legislature has, undoubtedly, the power to divide Counties, where they are too large, that there is the same power to unite them, when they are too small: The power in both cases being derived from the fact, that by the Constitution “all legislative power is vested in the General...
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...to him." When he concedes that the office may be abolished, such concession very greatly weakens the force of his conclusion. In Mills v. Williams, 33 N. C. 558, Pearson, J., in his usual clear and concise style, thus states the distinction between legislation which is contractual and that ......
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...494–95 (1883) (affirming the legislature's creation and subsequent repeal of the charter of the Town of Fayetteville); Mills v. Williams , 33 N.C. 558, 560, 563–64 (1850) (upholding the legislature's "power to create and abolish" Polk County); see also In re Ordinance of Annexation No. 1977......
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