Manly v. . City of Raleigh , 57 N.C. 370 ( 1859 )

By an ordinance of a Convention of the people of North Carolina, dated 21st of July, 1788, and an act of the General Assembly, dated 30th of September, 1792, the seat of Government was permanently established on a tract of land adjoining the tract whereon Joel Lane lived, at Wake County Court House, and four hundred acres of land embraced in that tract, was laid off and erected into a city, named the "city of Raleigh." By an act of the General Assembly dated 7th of February, 1795, said city was constituted a muncipal [municipal] corporation by the name of the "Commissioners of the city of Raleigh," and the corporate powers and authorities thereof were vested by the said act, and others passed in amendment thereof, in an "Intendant or Mayor and seven Commissioners," to be elected annually by the resident citizens, who were empowered to lay taxes and collect the same by distress or sale of property, and to do many other official acts therein prescribed, and up to the 3rd of February, 1857, the said corporation existed within the limit of said tract of 400 acres, and exercised its rights, powers and authority by and through the officers aforesaid. On that day, 3rd February, 1857, an act was passed and duly ratified, entitled "an act to revise and consolidate the charter of the city of Raleigh;" in the 86th section of which is enacted that "the present corporate limits of the city of Raleigh shall be extended one quarter of a mile in all directions around the said city, North, South, East and West; and that the boundary line shall run parallel with the old boundary, until the lines shall intersect at each corner." The act then proceeds to divide the newly added territory among the three wards of the city, and to provide for the election of nine commissions instead of seven. — It also changes the name of the presiding officer from Intendant to Mayor, and the title of the corporation to "The city of Raleigh."

The 79th section of the same act provides "that this act shall be accepted within one month from and after the ratification thereof, else it shall be of no effect," and then provides that the acceptance shall be made by the then existing commissioners, recorded in their minutes, signed by the commissioners, and proclaimed by the mayor through two news-papers. The ratification and acceptance were duly made by the seven commissioners, then in office, and proclaimed by the mayor.

The plaintiffs, in their bill, complain that they are, with many others, owners of the territory proposed to be added; that they, and those under whom they hold, had long enjoyed these tracts, without any apprehension that they should be brought within the corporate limits of Raleigh against their will, and they deny the authority of the Legislature to pass an act to compel them to submit to the burdens which had accumulated in the shape of a debt, and to the onerous taxes incident to the corporate government — they deny also its constitutional power to pass any act to amend the charter of Raleigh, without submitting it to the vote of the citizens for acceptance; and further, they insist that the Legislature could not constitutionally pass a law, which was to be dependent, for its efficacy, on the will of other persons. The prayer is for an injunction against the municipal corporation of Raleigh, to enjoin them from proceeding to levy town taxes on them and others similarly situated, and otherwise to abstain from enforcing the said act of assembly.

The several acts of incorporation of the city of Raleigh, and the proceedings of the board of commissioners accepting the amendment to the charter, are filed as exhibits.

The answer of the defendant goes into the justice and reasonbleness [reasonableness] of the law, and insists upon its validity. The cause was set down for hearing on the bill, answer and exhibits, and sent to this Court. 1. Has the General Assembly power to extend the limits of an incorporated town, without the consent, and against the wish of the citizens who live on, or own the land comprising the part to be annexed?

"All legislative power is vested in the General Assembly." The Constitution of the United States, the Declaration of rights, and the Constitution of the State, impose the only restrictions to which this otherwise unlimited power is subject; frequency of elections being relied on to prevent its abuse, or mitigate the effect of abuse, by the repeal of an unwise enactment.

Counties and towns are instruments used for the good government and management of the whole State. To establish a county, or incorporate a town, is a legislative act, consequently, the General Assembly may exercise this power, whenever, and in such manner, as in in its opinion, the public good will be thereby promoted; unless the time, manner, or other circumstance of the act violates some provision of the Constitution.

Counties and towns are usually made upon the petition of the citizens, especially interested, or a majority of them; but there is no ground to support the position, that the consent of this particular portion of the community, is a circumstance necessary to give validity to the exercise of the power of the General Assembly. Ours would be a strange sort of government, if the Legislature could not make a new county without the consent of the people there residing being first had and obtained, or if, when in the opinion of the Legislature, the population of a particular locality has become so dense that it cannot be well-governed by the ordinary county regulations, and requires the special "rules and by-laws" of an incorporated town, to secure its good order and management, such locality cannot be incorporated into a town, or annexed to one already incorporated, without the consent of the inhabitants; and by a logical deduction, without the consent of every single individual. For, there being no social connection, each person must answer for himself, and is not bound by the acts of the others; so that the objection of one man, takes from the Legislature the power of doing what is necessary to promote the general welfare, unless he is specially excepted, and thus allowed to enjoy the benefits, without being subjected to the burthens of the incorporation.

The position assumes that such legislative acts involve a contract between the General Assembly on the one part, and the citizen, or citizens of the locality on the other part. Herein lies the fallacy. There is no contract in respect to it. This is settled by Mills v. Williams, 11 Ired. 558, where it is decided that the General Assembly has power to abolish a county, although a majority of the inhabitants are opposed to the passage of the repealing act. The subject is there fully discussed. An extract will serve our turn:

"The purpose, in making all corporations, is the accomplishment of somepublic good." 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 exereised [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 accomplish, 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 on 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. 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, when he chooses. The sovereign has the same right to change the limits of counties and 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." So, the incorporation of towns is an instance of the former. There is no contract — no second party, and the General Assembly has power to incorporate a town, or to extend, or contract the limits of one already incorporated, whenever in its opinion, public policy requires it to be done. It is a legislative act, in which no second party has a direct interest.

2. Is the act void because of the provision, that it shall be of no effect unless accepted by the Mayor and Commissioners within one month after the ratification thereof? It is insisted by the plaintiffs that by the true meaning and spirit of the Constitution, the Legislature is required to pass all statutes upon its own responsibility, and its own judgment as to the expediency; that it has no power to delegate its authority, or make a statute depend upon the opinion or wishes, of any man, or set of men, and that, in this instance, the interest of the persons without whose acceptance the act is not to take effect, is opposed to that of the plaintiffs; so that they are put at the mercy of persons interested against them, and are aggrieved in their rights and estates by a statute, in respect to the expediency of which, and its necessity for the public good, there has been no absolute and unconditional expression of opinion by the law-making power, as is required by the Constitution. This position receives some countenance from a doctrine of the late Chief Justice NASH, in Hill v. Bonner, Busb. 257. That was a proceeding under the act to divide the county of Surry, which was made to depend upon a vote of the people. At a subsequent session, an act was passed confirming the first act, so the point was not presented; but the learned Judge intimates an opinion, that the original act was unconstitutional, and protests against that mode of legislation, "because it alters the fundamental principles of the government, by converting it from a representative republican government, into a pure democracy." And it is supported by Basto v. Himrod, 4 Selden, 483. The action involved the constitutionality of an act of the Legislature of New York, (1849,) "to establish free schools throughout the State," which was made to depend on a vote of the people of the State. At a subsequent session, (1851,) it was re-enacted in the usual mode, which greatly diminished the practical importance of the question; it was, however, elaborately discussed, and the Court decided that the first act was unconstitutional. The argument upon that side of the question is strongly stated in the opinions delivered by two members of the Court. RUGGLES, C. J. says: "It is not denied that a valid statute may be passed, to take effect upon the happening of some future event, certain or uncertain. The event, or change of circumstances, on which a law may be made to take effect, must be such, as, in the judgment of the Legislature, affects the question of the expediency of the law — an event on which the expediency of the law, in the judgment of the law-makers depends. On this question of expediency, the Legislature must exercise its own judgment definitively and finally. When a law is made to take effect upon the happening of such an event, the Legislature, in effect declares the law inexpedient, if the event should not happen; but expedient if it should happen. They appeal to no other man, or men, to judge for them in relation to its present or future expediency. But in the present case, no such event or change of circumstances, affecting the expediency of the law was expected to happen. The wisdom or expediency of the free school act, abstractly considered, did not depend on the vote of the people. The Legislature has no power to make a statute dependent on such a contingency, because it would be confiding to others that legislative discretion which they are bound to exercise themselves, and which they cannot delegate. They are no more authorised to refer such a question to the whole people, than to an individual. The people are sovereign, but this sovereignty must be exercised in the mode which they have pointed out in the Constitution." — WILLARD, J. says: "If this mode of legislation is permitted, and becomes general, it will soon bring to a close the whole system of representative government, which has been so justly our pride. The Legislature will become an irresponsible cabal, too timid to assume the responsibility of law-makers, and with just wisdom enough to devise subtle schemes of imposture to mislead the people."

This decision, and the reasoning offered in support of it, fail to satisfy us that the Legislature has not the power to pass a law dependent upon a vote of the people, or the acceptance of a corporation. It is certain the Legislature has power to pass a law to ascertain these facts, and may, afterwards, make a law in conformity thereto; so, in its practical result, it makes no difference which act precedes the other. In the instance of the division of the county of Surry, and also, that of the free schools in New York, subsequent acts were passed confirming the first, and in regard to the latter, no question as to the power of the Legislature could be raised. It is not denied that a valid statute may be passed to take effect upon the happening of an uncertain future event, upon which the Legislature, in effect, declares the expediency of the law depends, and when it is provided that a law shall not take effect, unless a majority of the people vote for it, or it is accepted by a corporation, the provision is, in effect, a declaration that in the opinion of the Legislature, the law is not expedient, unless it be so voted for, or accepted. It seems to us, the Court in New York, fell into error by not discriminating between a want of power and an abuse of power. All legislative power is vested in the General Assembly, restricted only by the Constitution. There is no prohibition in the Constitution against this mode of legislation, consequently, although it may be an abuse of power, greatly to be deprecated, as tending to subvert the principles of our representative form of government, still the power has been granted, and it is not the province of one branch of the government to correct the supposed abuses of another. The Judiciary can only interfere when the Legislature acts without power, i. e. in violation of the Constitution. In respect to the delegation of its power, supposed to be involved in an act of the General Assembly, making a law depend upon a vote of the people, or the acceptance of a corporation, or the action of the justices of the peace, or any other set of men, Thompson v. Floyd, 2 Jones', 313, is a direct authority in support of our conclusion. It is there decided that a statute giving the justices of a county power to abolish jury trials in the county courts, if at any time thereafter, a majority of the justices may deem it expedient, is not a violation of the Constitution. The subject is there fully discussed, and such delegation of power is shewn to have been of frequent occurrence, ever since the organization of the government.

It will be declared to be the opinion of the Court, that the plaintiff's have no equity, and the bill will be dismissed with costs.

PER CURIAM, Decree accordingly.