upholding the legislature's "power to create and abolish" Polk CountySummary of this case from Town of Boone v. State
December Term, 1850.
1. 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.
2. 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.
3. 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.
4. Counties, etc., belong to the first class; railroad and turnpike companies, etc., are instances of the second class.
APPEAL from the Superior Court of Law of RUTHERFORD, at Spring Term, 1849, Bailey, J., presiding, to the Supreme Court at Morganton, and thence transferred, by an order of that Court, to the Supreme Court at Raleigh.
B. F. Moore for plaintiff.
N.W. Woodfin and Bynum for defendant.
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 1847, passed an act establishing a county by the name of Polk out of certain portions of the counties of Rutherford and Henderson. (559) 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 courthouse 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 1 April, 1849, came to the defendant's hands on the 2d day of that month, and it was immediately 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 authorized, 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 (560) constitutional, there is to be judgment for the plaintiff for sixpence and costs of suit; if otherwise, then the plaintiff is to have judgment of nonsuit. And his Honor being of opinion that the repealing act was constitutional, gave judgment against the defendant accordingly for sixpence and costs, from which the defendant prays an appeal to the Supreme Court, which is granted.
In 1846 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 offices. 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 unsophisticated 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 Assembly," which necessarily embraces the right to divide the State into counties of convenient size, for the good government of the whole. Political and other collateral considerations are apt to connect (561) themselves with the subject of corporations, and thereby give to it more importance than it deserves as a dry question of law; and the unusual amount of labor and learning bestowed on it has tended to mystify rather than elucidate the subject. Divested of this mystery, and measured in its naked proportions, a corporation is an artificial body, possessing such powers and having such capacities as may be given to it by its maker. The purpose in making all corporations is the accomplishment of some public good. Hence, the division into public and private has a tendency to confuse and lead to error in the investigation; for, unless the public are to be benefited, it is no more lawful to confer "exclusive rights and privileges" upon an artificial body than upon a private citizen.
The substantial distinction is this: some corporations are created by the mere will of the Legislature, there being no other party interested or concerned. To this body a portion of the power of the Legislature is delegated to be exercised for the public good, and subject at all times to be modified, changed, or annulled.
Other corporations are the result of contract. The Legislature is not the only party interested, for, although it has a public purpose to be accomplished, it chooses to do it by the instrumentality of a second party. These two parties make a contract. The Legislature, for and in consideration of certain labor and outlay of money, confers upon the party of the second part the privilege of being a corporation, with certain powers and capacities. The expectation of benefit to the public is the moving consideration on one side; that of expected remuneration for the outlay is the consideration on the other. It is a contract, and, therefore, cannot be modified, changed or annulled without the consent of both parties.
(562) So corporations are either such as are independent of all contract or such as are the fruit and direct result of a contract.
The division of the State into counties is an instance of the former. There is no contract — no second party, but the sovereign, for the better government and management of the whole, chooses to make the division in the same way that a farmer divides his plantation off into fields and makes cross fences where he chooses. The sovereign has the same right to change the limits of counties, and to make them smaller or larger by putting two into one, or one into two, as the farmer has to change his fields, because it is an affair of his own, and there is no second party having a direct interest.
A railroad is an instance of the latter — certain individuals propose to advance capital, and make a road by which it is supposed the public are to be benefited, in consideration that the Legislature will incorporate them into a company with certain privileges. The bargain is struck: neither party has a right to modify, change, annul or repeal the charter without the consent of the other; and (still to borrow an illustration from the farmer) he has in this case leased out his field at a certain rent, and has no right to make one larger and another smaller without the consent of his tenant.
Roads furnish another familiar illustration. The County Court has a public road laid out, and an overseer and hands appointed. It may be altered or discontinued by the county authorities, and the overseer and hands have no direct interest or right to be heard in the matter, except as other citizens. But, if the Legislature, instead of acting by its agent, the county authorities, choose to make a contract with certain individuals that if they will raise funds and make a road they shall be incorporated with the right to exact tolls, etc., then (563) the road cannot be altered or discontinued without the consent of the corporation.
When a county is established it is done at the mere will of the Legislature, because, in its opinion, the public good will be thereby promoted. There is no second party directly interested or concerned. There is no contract, for no consideration moves from any one, and without a consideration there cannot be a contract. The discharge of certain duties by the persons who are appointed justices of the peace, or sheriff, clerk, or constable, can, in no sense of the word, be looked upon as a consideration for establishing the county. In legal parlance, the "consideration is past" — the thing is done, before their appointment. Some act for the honor of the station, others for the fees and perquisites of office, but their so doing did not form a consideration for the erection of the county, and is a mere incident to their relation as citizens of the county.
It was ingeniously argued that, upon the erection of a county, certain rights attach by force of the Constitution, as the right to have at least one member in the House of Commons; and as these rights are conferred by the Constitution, it is insisted that, having attached, it is not in the power of the Legislature to take them away.
The argument is based upon a fallacy. It is true, the Constitution invests every county with certain rights as incident to its existence as a county. But by no sound reasoning can the incident be made to override the principal; and the Constitution, by conferring these incidental rights, cannot be, by any fair inference, made to interfere with the control of the Legislature on the subject of counties, as instruments for the good government and management of the whole State.
The Constitution preordains these rights, but they are put expressly as incidents to the existence of counties; and although they may very properly enter into the question of expediency, they have no legislative bearing upon the power to (564) create and abolish counties, as may to the wisdom of the Legislature seem fit. Such statutes are not the result of contracts. There is no second party who pays a consideration, which is the essence of every contract. Terrett v. Taylor, 9 Cranche, 43; Dartmouth College v. Woodward, 4 Wheaton, 663; Phillips v. Bury, 2 Term, 346.
PER CURIAM. Judgment affirmed.
Cited: Justices v. Simmons, 48 N.C. 189; S. v. Petway, 55 N.C. 404; Manly v. Raleigh, 57 N.C. 373; Nav. Co. v. Costen, 63 N.C. 266; R. R. v. Reid, 64 N.C. 158; Comrs. v. Ballard, 69 N.C. 19; R. R. v. Rollins, 82 N.C. 532; McCormac v. Comrs., 90 N.C. 445; Barksdale v. Comrs., 93 N.C. 485; Comrs. v. Comrs., 95 N.C. 192; Brown v. Comrs., 100 N.C. 98; Ward v. Elizabeth City, 121 N.C. 3; Harriss v. Wright, ib., 181; Tate v. Comrs., 122 N.C. 813; Gattis v. Griffin, 125 N.C. 333; Mial v. Ellington, 134 N.C. 152; Jones v. Comrs., 135 N.C. 225; Bank v. Comrs., ib., 247; Waynesville v. Satterthwait, 136 N.C. 240; Jones v. Comrs., 137 N.C. 597; S. v. Cantwell, 142 N.C. 616; Jones v. Comrs., 143 N.C. 64; Lutterloh v. Fayetteville, 149 N.C. 71.