Commissioners
v.
McDaniel

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of North CarolinaDec 1, 1859
52 N.C. 107 (N.C. 1859)

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(December Term, 1859.)

1. Where an act of Assembly appointed commissioners to purchase land and lay it off into lots, with convenient streets, and provided that when so laid off it was, by force of that act, "constituted and erected a town," and the land was laid off accordingly with ascertained limits, and these boundaries were acknowledged by the inhabitants for sixty years, and the place recognized as a town by several subsequent acts of Assembly, it was Held, it was a town incorporated with defined limits and boundaries.

2. Where the election of commissioners of an incorporated town was vested in the free male citizens thereof, it was Held that mere failure, for a long time, to elect commissioners did not destroy the right; but it continued as long as there were free male citizens enough to fill vacancies.

3. Persons entering into office under color of an election, although irregular, are thereby constituted officers de facto, and their official acts have full force until they are removed by a writ of quo warranto.

TRESPASS, tried before Saunders, J., at the last Fall Term of JONES.

Hubbard and J.H. Haughton for plaintiffs.

Green, Stevenson, and J. W. Bryan for defendant.


The plaintiffs declared for a seizure of a hog, and offered evidence of the incorporation of the town of Trenton as is hereinafter set out.

First, they gave in evidence an act, passed in 1784, entitled "An act for establishing a town in the county of Jones, upon the lands of Thomas Webber and others." The first section of this act recites that "Whereas it is represented to the General Assembly that a town on the lands of Thomas Webber, Louis Bryan, etc., etc., on the south side of Trent River, in Jones County, where the courthouse now stands, would tend to the promotion of commerce, and the inhabitants of said county be greatly benefited thereby.

"II. Be it, therefore, enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same, that the directors or trustees hereafter appointed, or a majority of them, shall, as soon as may be after the passing of this act, agree with and purchase from the said Thomas Webber, Louis Bryan, etc., etc., 100 acres of land for the purpose aforesaid; and after having so agreed for the said land, shall, as soon as may be, lay off 40 acres in half-acre lots, exclusive of streets, with convenient streets, lanes and alleys, and (108) 60 acres for town commons, which lots, so laid off according to the directions of this act, are hereby constituted and erected a town, and shall be called by the name of Trenton.

The third and fourth sections of this act proceed to appoint directors and trustees for the purchasing of the land, and laying it off according to the direction of the second section; they also prescribe the manner in which the lots shall be disposed of and the terms of the sale. The fifth section is an follows: "And for continuing the succession of the directors until the said town shall be incorporated, be it further enacted by the authority aforesaid, that in case of the death, refusal to act, or removal out of the county of any of the said directors, the surviving directors, or a majority of them, shall assemble and are hereby empowered, from time to time, by instrument of writing under their respective hands and seals, to nominate some other person, being a freeholder of the said town, in the place of him so dying, refusing to act, or removing out of the county, which director so nominated and appointed shall from thenceforth have the same power and authority in all things, in the matters herein contained, as if he had been expressly named and appointed in and by this act."

They next introduced an act of Assembly, passed in 1803, entitled "An act to amend an act for establishing the town of Trenton, in Jones County." This act, after reciting that the commissioners are not fully authorized to lay a town tax to defray the necessary contingencies of said town, proceeds to invest them with full power to impose such tax, and to apply the money for the benefit of the town.

The next act, in order of time, introduced by the plaintiffs is the one passed in 1810, entitled "An act for the better regulation for the town of Trenton, in Jones County," and it recites that "Whereas the commissioners, trustees, and directors appointed in the year 1784 for establishing a town in Jones County are all dead or removed, and have failed to appoint successors for the regulation of the said town of Trenton: (109) "Be it enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same, that William H. Conner, John McDaniel, Adonijah Perry, Henry Bryan, and Thomas Simmons be and the same are hereby appointed commissioners for the town of Trenton, in the county of Jones, who are hereby vested with the same powers and authorities for the regulation of the said town of Trenton as those who have heretofore been appointed by law."

The plaintiffs further produced in evidence a certified copy of an act of Assembly, passed in 1813, entitled "An act for the better regulation of the town of Trenton, in Jones County, and for other purposes":

"Be it enacted by the General Assembly of the State of North Carolina. and it is hereby enacted by the authority of the same, that an act passed in the year 1810, entitled `An act for the better regulation of the town of Trenton, in Jones County, and for other purposes,' be and the same is hereby repealed and made void." The second section of this act proceeds to appoint commissioners, and constitutes them a body politic with all the powers incident thereto. The fourth section enacts: "That if any of the said commissioners hereby appointed shall die, remove out of the county, or refuse to act, it shall be lawful for the rest, or a majority of those remaining, to appoint one or more (as the case may be) to fill such vacancy, who shall be vested with all the powers and authorities of those already appointed by this act, any law to the contrary notwithstanding."

The plaintiffs further produced in evidence a certified copy of an act of Assembly, passed in 1825, entitled "An act to amend an act to incorporate the town of Trenton, in Jones County":

"Be it enacted by the General Assembly of the State of North Carolina, and is hereby enacted by the authority of the same, that the free male inhabitants of the said town shall meet at the courthouse on the first Saturday in April next, and on the same day annually thereafter, (110) and shall elect three commissioners, who shall be freeholders in said town, which election shall be held by three freeholders, under the same rules and regulations as other elections.

"2d. And be it further enacted, that the said commissioners shall have power and authority to pass such by-laws and regulations for the government of said town as shall not be inconsistent with the Constitution and laws of the State.

"3d. And be it further enacted, that all laws and clauses of laws coming within the purview and meaning of this act be repealed."

The plaintiffs offered evidence that under the last-mentioned act the citizens of Trenton had, from time to time, elected commissioners, who had acted as such, as late as 1843 or 1844, since which time no election was held, until April, 1857.

It was admitted that the election of 4 April, 1857, which was the first Saturday of April, was held after a notice had been put up at the courthouse some eight days before said election, but it was not shown, or admitted, by whom or under what authority the said notice was posted, or whether the same was required. And it also appears that all the citizens of Trenton, except two, voted at said election, and that the commissioners elected on 4 April, 1857, acted in that capacity from that time until the bringing of this suit. It was admitted that plaintiffs in this suit received the highest number of votes at said election, and that the said election was held by John Hyman, J. P., and William F. Huggins and Charles Gerock, inspectors; but it did not appear how they were appointed, and it was admitted they were not appointed by the county court. The plaintiffs then offered in evidence a town ordinance, in the following words:

"At a meeting of the commissioners of the town of Trenton, 27 May, 1857, for the regulation of said town, it is ordered and decreed, that whereas hogs being permitted to run at large and range in the (111) streets of said town has become a nuisance and disagreeable to the good citizens thereof: now, to prevent the said nuisance, it is resolved by the board of commissioners that all hogs so permitted to run at large in said town, after due notice being given by public advertisement at the courthouse, shall be taken up by the town sergeant and secured in a pen or lot, and kept confined at the expense of the owner of said hog or hogs; and if the same is not taken away in the space of three days, then the town sergeant is directed to sell them at public vendue, to the highest bidder, and after paying all charges and expenses, with all costs that may accrue on the proceedings, the residue of sale to be paid to the commissioners, to be disposed of by them either by returning it to the owner or applying it for the town. And it is further decreed that for every hog so taken up the owner shall pay the town sergeant the sum of 25 cents."

It was admitted that the hog in question, the property of the defendant, crossed the line of said town (as the same has been known and used) and was found in the streets, and was impounded into the custody of the "town sergeant," out of whose custody, and without whose consent, the hog was taken by the defendant.

Defendant offered no evidence.

It was contended for the defendant:

1. That there was no act of incorporation of the town of Trenton with defined limits and boundaries.

2. That the long nonusage of the right to elect commissioners worked a prohibition of the right.

3. That the said election was void, because no due notice had been given thereof, and because said election did not appear to have been properly held.

And it was agreed that if, on the foregoing facts, the court should be of opinion that the plaintiffs were entitled to recover, that judgment should be rendered for them for sixpence and costs, and if not, then judgment should be rendered for defendant.

The court being of opinion with plaintiffs, judgment was (112) rendered accordingly, from which the defendant appealed to this court.


We concur with his honor in the opinion that neither of the objections taken on the part of the defendant are tenable.

1. The several acts of the Legislature set out as a part of the case, connected with the fact "that the place" has been inhabited as a town, and has been laid off into lots and streets with known lines, among others the line which was crossed by the hog of the defendant, for upward of sixty years, show that is incorporated with "defined limits and boundaries."

The act of 1784 empowers certain persons, as trustees and directors, to purchase 100 acres, and to lay off 40 acres in half-acre lots, with convenient streets, lanes and alleys, "which lots so laid off according to the directions of this act are hereby constituted and erected a town, and shall be called by the name of `Trenton.'" The question is, Was the 40 acres so laid off? That is conclusively established by the facts above set forth, and the additional fact that in 1803, 1810, 1813, and 1825 the existence of the "town of Trenton" is assumed and recognized by acts of the Legislature, passed for its better regulation.

2. When a number of persons are made a corporation, with power in its members to fill vacancies for the purpose of continuing its succession, and this duty is neglected so that the corporators cease to exist, as if they all be dead or removed, the corporation can no longer have an existence, and an act of the Legislature is then necessary to call it into life again, as was done by the act of 1813, which appoints another set of commissioners, with power in its members to fill vacancies.

In order to prevent a recurrence of a like necessity in future, the act of 1825 amends the prior acts, and among other things provides that instead of vacancies in the body of the commissioners being filled by its members, the commissioners shall be annually elected by the free male inhabitants of the town, which provision has the (113) legal effect of preventing the corporation from ceasing to have an existence as long as there are free male inhabitants of the town enough to hold an election; on the same principle that a corporation, when vacancies are to be filled by its members, has an existence so long as there are members enough to fill vacancies; for it only becomes defunct when there are no members of the corporation and no mode of supplying their places.

3. Let it be admitted that the election of the plaintiffs as commissioners was irregular, and that they may be removed from office by a writ of quo warranto, still they went into office after an election, which cannot be treated as a mere nullity, but is color of title, so as to constitute them officers de facto, and the law will not allow their authority to be impeached in a collateral way; because, to do so would tend to produce disorder and collision among citizens of the country, and encourage every one to attempt the redress of his supposed wrongs by force and with a high hand, as was done by the defendant in this instance.

The doctrine that an officer de facto is one who enters under color of an election or appointment, although irregular, and is not a mere usurper, is so clearly and fully explained in Burton v. Patton, 47 N.C. 124, and Burke v. Elliott, 26 N.C. 355, as to render any remark unnecessary. I will only add a reference to Scadding v. Lorant, 5 Eng. Eq., 16. In answer to a question proposed to them, the judges were unanimously of opinion "that the vestrymen de facto were as competent to join in making a rate as the vestrymen de jure," and the Lord Chancellor remarked: "The opinion of the judges as to vestrymen de facto and de jure was of great importance. When it was considered that there were many persons charged with very important duties, and whose title to perform those duties, or to exercise the powers necessary for their performance, the public could not easily ascertain at the time, and when it was remembered what inconveniences would arise if the validity of their acts depended upon the propriety of the election of the (114) persons who had to perform them, the value of the clear enunciation of the principle thus made by the judges was very great, and in the correctness of it he begged to declare his entire concurrence."

PER CURIAM. Affirmed.

Cited: R. R. v. Thompson, post, 389; R. R. v. Johnston, 70 N.C. 350; Norfleet v. Staton, 73 N.C. 550; Van Amringe v. Taylor, 108 N.C. 200; Wood v. Staton, 174 N.C. 253; Rogers v. Powell, ib., 389; Markham v. Simpson, 175 N.C. 139.