In Tate v. Comrs., 122 N.C. 812, the Court, speaking of counties, says: "They are but agencies of the State government.... They are subject to legislative authority which can direct them to do as a duty all such duties as they can empower them to do."Summary of this case from Jones v. Commissioners
(Decided 24 May, 1898.)
Mandamus — Counties — Legislative Control of Counties — Compulsory Road Improvement — Public Roads — Taxation.
1. Counties are but State agencies and subject to legislative authority which can direct them to do as a duty all such matters as it can empower them to do.
2. The Constitution does not require that, in the exercise of its police power, The Legislature shall require its regulations to be uniform throughout the State; and, hence, the General Assembly may require public roads in one county to be improved by taxation and those in other counties by a different method.
3. Working the public roads is a necessary county expense, and hence, under section 6, Article V of the Constitution, the county commissioners, when authorized or commanded to do so, may levy a tax in excess of the constitutional limit for the purpose of road improvement without the sanction of a popular vote.
ACTION pending in HAYWOOD, and heard before Hoke, J., at chambers, in Asheville, on 22 March, 1898. The nature of the action and the essential facts appear in the opinion. It being admitted that the defendants had, on the first Monday in June, 1897, levied taxes for the general State and county purposes up to the constitutional limit. His Honor denied the plaintiff's application for a mandamus, and plaintiff appealed.
Geo. H. Smathers for plaintiffs.
W. T. Crawford for defendants.
This is an action brought to compel the defendant county commissioners, by mandamus, to levy a tax for road purposes as provided by chapter 249, Laws 1897.
The first section of the act reads as follows: "That the board (813) of county commissioners of Haywood County shall, in order to provide for the proper working and constructing of the public roads of said county of Haywood, at their regular meeting in June, 1897, and at each regular annual meeting thereafter, and it is hereby made their duty to levy a special tax on all property subject to taxation under the State law, in said county of not less than ten cents nor greater than twenty cents on the $100 worth of property, and not less than thirty cents nor greater than sixty cents on the poll, the constitutional equation to be observed at all times, said taxes to be collected as all other taxes are, to be kept separate in the tax book of the county, to be set aside as a special road fund to be used in the construction, improvement, and maintenance of the public roads, culverts and bridges of the county of Haywood, and the purchase of such implements, teams, wagons, camp outfit, quarters or stockade for the use and safe-keeping of the convict force as may be found necessary in the proper carrying on of this work."
The act is explicit and mandatory. The defendants contend that the act is unconstitutional (1) because, while the Legislature may authorize and empower the county commissioners to levy the special tax for a special purpose it cannot direct or order them to do so. This contention is unfounded. Counties are but agencies of the State government. White v. Comrs., 90 N.C. 437. They can be created, changed ( Dare v. Currituck, 95 N.C. 189) or abolished ( Mills v. Williams, 33 N.C. 558) at the legislative will. The names of no less than thirteen counties, formerly existing, have disappeared from the map of the State, to wit: Albemarle, Bath, Clarendon, Berkley, Shaftesbury, Pampticough, Archdale, Wickham, Bute, Tryon, Dobbs, Fayette, and Glasgow. Another (814) (Polk) was abolished, but afterwards recreated. They are subject to legislative authority which can direct them to do as a duty all such matters as they can empower them to do. Harris v. Wright, 121 N.C. 172; McCormac v. Comrs., 90 N.C. 441. Brodnax v. Groom, 64 N.C. 244, in no wise militates against this. It merely holds that as to those matters which the statute has legally committed to the discretion of the county commissioners the courts cannot interfere to restrain or supervise the exercise of that discretion. But this is no authority that the lawmaking power cannot restrict the authority it confers upon the county commissioners by making the manner of working the roads mandatory in any county.
(2) It is further objected that it is unconstitutional for the Legislature to provide that the roads of one county shall be worked by taxation while others are worked in another method. There is nothing in the Constitution which hampers the Legislature by requiring that in the exercise of its police powers its regulations must be uniform throughout the State. Brown v. Comrs., 100 N.C. 92. It would be exceedingly unfortunate if there was. A mode of working the roads, or regulations as to selling liquor, or the total prohibition of it, or provisions as to fence laws, or the sale of seed cotton, or inspection of fertilizers or of cattle which would be highly advantageous in one county might be very inconvenient or obnoxious in another. Accordingly, such statutes of local application have been time and again enacted and have always been sustained by the Court. One of the latest cases, citing many authorities, is Guy v. Comrs., ante, 471.
(3) That this road tax, added to the taxation levied for ordinary county purposes, will cause the total State and county tax to exceed the constitutional limitation, and further, that this tax was not (815) authorized by a vote of the people of the county. The same point was raised in Herring v. Dixon, at this term. The authorities were there cited and their ruling was thus summed up:
A. For necessary expenses, the county commissioners may levy up to the constitutional limitation without a vote of the people or legislative permission.
B. For necessary expenses, the county commissioners may exceed the constitutional limitation by special legislative authority, without a vote of the people. Constitution, Art. V, sec. 6.
C. For other purposes than necessary expenses a tax cannot be levied either within or in excess of the constitutional limitation except by a vote of the people under special legislative authority. Constitution, Art. VII, sec. 7.
Working the roads has uniformly been held a necessary county expense ( Herring v. Dixon, supra), and this levy is not only authorized by special legislative authority but is commanded. Hence, no vote of the people is required and the constitutional limitation does not apply. "Upon the admissions and facts stated in the pleadings" the mandamus should have issued, and judgment will be so entered here.
Cited: Comrs. v. Payne, 123 N.C. 488; Bennett v. Comrs., 125 N.C. 470; Smathers v. Comrs., ibid., 485, 488; S. v. Sharp, ibid., 633; Black v. Comrs., 129 N.C. 126; Cotton Mills v. Waxhaw, 130 N.C. 297; Jones v. Comrs., 135 N.C. 223; Bank v. Comrs., ibid., 248; Jones v. Comrs., 137 N.C. 597, 610; Glenn v. Comrs., 139 N.C. 420; Crocker v. Moore, 140 N.C. 432; Smith v. School Trustees, 141 N.C. 153; Jones v. Comrs., 143 N.C. 64; S. v. Wolf, 145 N.C. 445; Ward v. Comrs., 146 N.C. 538; R. R. v. Comrs., 148 N.C. 237, 251; Board of Education v. Comrs., 150 N.C. 123, 126; Burgin v. Smith, 151 N.C. 566, 567; Trustees v. Webb, 155 N.C. 384; Comrs. v. Comrs., 157 N.C. 517; S. v. Blake, ibid., 610; Bunch v. Comrs., 159 N.C. 336; Pritchard v. Comrs., 160 N.C. 478; Withers v. Comrs., 163 N.C. 345; Hargrave v. Comrs., 168 N.C. 627; Newell v. Green, 169 N.C. 463, 464, 466; Moose v. Comrs., 172 N.C. 429, 451.