Trustees v. . Webb , 155 N.C. 379 ( 1911 )

The provisions of our Constitution applicable to the question presented and authoritative decisions construing statutes of similar import are against the ruling of the lower court by which these bonds were declared invalid. Thus in Jones v. Commissioners of Madison County, 137 N.C. 579-596, speaking to the action of counties in matters governmental and the power of the Legislature over them in this respect, the Court said: "In the exercise of ordinary governmental functions they are simply agencies of the State constituted for the convenience of local administration in certain portions of the State's territory, and in the exercise of such functions they are subject to (384) almost unlimited legislative control except when restricted by constitutional provisions."

Citing Hamilton v. Miguels, 7 Ohio St. 109; 1 Dillon on Mun. Cor., sec. 23; 1 Smith Municipal Corporations, sec. 10; People v. Flagg,46 N. Y., 401; Galveston v. Pomanski, 62 Tex. 118[62 Tex. 118]; Phil v. Fox,64 Pa. 160; Locomotive Co. v. Emigrant Co., 164 U.S. 559-596, and authorities from our own Court: Tate v. Commissioners, 122 N.C. 812;White v. Commissioners, 90 N.C. 437; Mills v. Williams,33 N.C. 558, and many others could be cited, notably with us McCormacv. Commissioners, 90 N.C. 441. On this subject in Mills v. Williams it was held: "The 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." And in Locomotive Works v. Emigrant Co., supra, the position is referred to in this way: "The county of Calhoun is a mere political subdivision of the State, created for the State's convenience to aid in carrying out within a limited territory the policy of the State. Its local government contains no will contrary to the will of the State, and it is subject to the paramount authority of the State as well in respect to its acts as of its property and revenue held for public purposes. The State made it and could, in its discretion, unmake it and administer such property and revenue through other instrumentalities." In McCormac's case,supra, Merrimon, J., for the Court said: "That it is within the power and is the province of the Legislature to subdivide the territory of the State and invest the inhabitants of such subdivisions with the corporate functions, more or less extensive and varied in their character, for the purpose of government, is too well settled to admit of any serious question. Indeed, it seems to be a fundamental feature of our system of free government that such power is inherent in the legislative branch of the Government, limited and regulated, as it may be, only (385) by the organic law. The Constitution of the State was formed in view of this and like fundamental principles. They permeate its provisions, and all statutory enactments should be interpreted in the light of them, when they apply. It is in the exercise of such power that the Legislature alone can create, directly or indirectly, counties, townships, school districts, road districts and like subdivisions, and invest them, and agencies in them, with powers, corporate or otherwise in their nature, to effectuate the purposes of the Government, whether these be local or general, or both. Such organizations are intended to be instrumentalities and agencies employed to aid in the administration of the Government, and are always under the control of the power that created them, unless the same shall be restricted by some constitutional limitation." The same principle has been applied and upheld with us in reference to townships. Jones v. Commissioners of Stokes, 143 N.C. 59;Jones v. Commissioners of Person, 107 N.C. 248; Brown v. Commissionersof Hertford, 100 N.C. 92. In Jones v. Commissioners ofStokes, supra, the present Chief Justice, speaking to the subject, said: "The defendant suggests, however, that it infringes upon the provisions of the Constitutions establishing counties and requiring them to be maintained in their integrity. But we do not find any such provisions. The Constitution recognizes the existence of counties, townships, cities and towns as government agencies (White v. Commissioners, 90 N.C. 437), but they are all legislative creations and subject to be changed (Dare v.Currituck, 95 N.C. 189; Harriss v. Wright, 121 N.C. 178), abolished (Mills v. Williams, 33 N.C. 558), or divided (McCormac v. Commissioners,90 N.C. 441) at the will of the General Assembly."

Again, in Smith v. School Trustees, 141 N.C. 143, the Legislature incorporated a school district, confined territorially to portions of two existent townships, authorized the trustees of the district to issue bonds, levy and collect taxes, etc., and the Court after full and careful (386) consideration held that this power of the Legislature over counties, townships, etc., when acting as governmental agencies, was not confined to the ordinary political subdivisions of the State, but that it authorized and extended to creating special public quasi corporations for governmental purposes in designated portions of the State's territory, and that in the exercise of such power, county and township lines could both be disregarded if such action was, in the judgment and expressed declaration of the Legislature, best promotive of the public welfare. And within the proper exercise of this power were included levee, school, drainage, road and highway and other special taxing districts. Citing among other authorities, A. E. Enc., of Law, p. 906, as follows:

"Districts for schools, highways, levee, irrigation, drainage and other similar purposes may be and often are invested by the State with a corporate character and may be endowed with the taxing power. These are quasi corporations, mere subdivisions of the State for political purposes." Desty on Taxation, 226, has the following: "As distinct from its power of local assessment, the Legislature may create special taxing districts which may include all or mere subdivisions of the State or parts of subdivisions. It is not essential that such districts shall correspond with the territorial limits of such subdivisions. So it may create levee, school, swamp land, road highway and other taxing districts" — an extension of the principle affirmed and applied to school districts inMcCormac's case, supra; and to drainage districts, Sanderlin v. Luken,152 N.C. 738; and to highways in townships, Highway Commissionersv. Webb, 152 N.C. 710. In Smith v. School Trustees, supra, it was held, also, that when these special districts were incorporated for governmental purposes, they came within the limitations and restrictions as to the methods, purposes, and powers of taxation contained in Article VII, secs. 7, 9, 13. Section 7 being the prohibition against "contracting debts, loaning credits, or levying taxes except for necessary expenses, unless by a vote of the majority of the qualified voters therein." Section 9 requiring that all taxation shall be uniform and ad (387) valorem. Section 13 prohibiting the payments of debts contracted in support of the Confederate Government. And with the exception of these sections above noted, there was not only no further restraint on the power of the Legislature contained in the Constitution, but under section 14 of the same article express provision was made for its fullest exercise. And speaking further to the question, the Court said: "The language of section 14 is very broad in its scope and terms, and the Supreme Court in construing the section has decided that it is not necessary to effect changes in municipal government that an act for the purpose should be general in its operation or that it should, in terms, abrogate one article and substitute another in its stead; but that an act of the General Assembly making such change, and local in its operations, must be given effect under this amendment, if otherwise valid. After declaring this as a principle of construction, the Court, in Harrissv. Wright, 121 N.C. 179, further holds as follows: "In 1875 a constitutional convention amended Article VII in these words: `The General Assembly shall have the full power by statute to modify, change, or abrogate any and all the provisions of this article and substitute others in their place, except sections 7, 9, 13.' Thus was placed at the will and discretion of the Assembly the political branch of the State Government, the election of court officers, the duty of county commissioners, the division of counties into districts, the corporate power of districts and townships, the election of township officers, the assessment of taxable property, the drawing of money from the county or township treasury, the entry of officers on duty, the appointment of justices of the peace, and all charters, ordinances and provisions relating to municipal corporations. Our Constitution, therefore, so far from restricting the power of the General Assembly on the matter now before us, has conferred upon that body full and ample power to establish any form of municipal government which the public interests and special needs of a given community may require." And it is no objection to this legislation that the issuing of the bonds, and the control and ordering of the road work are given to the local authorities, while the county commissioners are directed to levy and collect the taxes. This is the plan contained in our general statute in reference to school districts — adopted, (388) no doubt, for convenience and to avoid possible friction between different sets of officers and unnecessary harassment of the citizens in the collection of taxes. As declared, however, in Perry v. SchoolCommissioners, 148 N.C. 526: "Whether the collection of this tax was done by specified local agencies or by the general authorities of the county, this was only an immaterial matter, a question of method simply, which was not of the substance and should in no way affect the result."

The power of the Legislature, then, over these local agencies, when acting in matters governmental, being ample, certainly when given territorial placing and whether designated as counties, townships, or as special districts, it is well established with us that the construction and maintenance of public roads is a governmental purpose, and the cost thereof is a necessary expense to be paid for by current taxation or by issuing bonds, having regard always to the requirements and limitations of the legislation under which these local authorities are acting, and for such purpose, and unless the statute so requires, no election by the people is necessary. Within the range of governmental action there could not be a more beneficent purpose or a more compelling need, and numerous and repeated decisions of our Court are in furtherance of the enlightened policy of which this statute is an expression. Highway Commissioners v.Webb, 152 N.C. 710; Ellison v. Williamston, 152 N.C. 147; Jones v. NewBern, 152 N.C. 64; Hendersonville v. Jordan, 150 N.C. 35; Commissionersv. McDonald, 148 N.C. 129; Crocker v. Moore, 140 N.C. 429; Herring v.Dixon, 122 N.C. 420; Tate v. Commissioners, 122 N.C. 812.

Speaking to this subject in his learned and able argument counsel for the plaintiff well said: "Today, when the industrial activities of men have multiplied, when specialization is the order of the hour, and every man is to some extent dependent upon the products and the purse of his fellowman, when the social instinct has become a habit and demands a larger field than the neighborhood, the need for roads has become a necessity both to the commercial and social life of our people. (389) Without them the State can not maintain effective order nor administer adequate justice. In equal measure, they are dependent upon the power of the State. They can not be constructed without the right of eminent domain, nor maintained save by a community of interests made stable by legislative enactment."

The statute in question expressly creates the municipal corporation to be known as the Board of Trustees of Youngsville Township; gives them as such the entire management and control of the public roads of the township; confers upon them the power to issue and sell the bonds and apply the proceeds to the purpose designated. On authority, therefore, we are of opinion that the bonds are valid and that no good reason is shown why performance of the contract of sale should not be enforced.

For the reasons stated, the judgment of the lower court must be

Reversed.

Cited: Ellis v. Trustees, 156 N.C. 12; Comrs. v. Bank, 157 N.C. 193;Comrs. v. Comrs., ibid., 517; Bunch v. Comrs., 159 N.C. 336; Pritchard v.Comrs., ibid., 637; S. c., 160 N.C. 478; In re Drainage District,162 N.C. 128; Comrs., 165 N.C. 635; Drainage Comrs.v. Farm Asso., ibid., 700; Hargrave v. Comrs., 168 N.C. 627.