13 S.E. 271 | N.C. | 1891
Lead Opinion
The Courts of this country have generally adopted the common lawr principle that, if an act is to be done by an indefinite body, the law, resolution or ordinance
The powers delegated to a county can, as a general rule, be exercised only by the Board of County Commissioners or in pursuance of a resolution adopted by them. The Code, §703. The Commissioners, organized and acting as a board are the embodiment of municipal authority. In their names the county must sue and be sued. The only limitations upon their exercise of the corporate functions of the municipality is to be found in subsections 1, 8, 9, 10, 11, 17 and 20 of section 707 of The Code. Subsection 10 provides, that where the cost of building or repairing a bridge shall exceed five hundred dollars, the commissioners can order the construction or repair only “with the conmrrence of a majority of the Justices of the Peace,” as subsection 1 imposes the restriction that taxes shall not be levied by the board except “with the concurrence of a majority of the Justices of the Peace sitting with them.”
Before the Constitution of 1868 was adopted, the Justices of the Peace in the several counties exercised the powers delegated to the counties by the Legislature. The Justices of the Peace were the Judges of the Courts of Pleas and Quarter Sessions. For convenience the various statutes specified the particular number that must sit to discharge certain judicial duties or exercise police powers of different kinds. Rev. Code, ch. 31, §1. “A majority, or twelve,”
In addition to the four instances already mentioned in which the Justices of the Peace of several counties are required to participate in their government, we find that it is provided in subsections 11 and 20 of section 707 that the Commissioners shall be clothed with authority to meet the
Under the system of county government, established by the Constitution of 1868, the several Justices of the Peace were made each a judicial officer, with a limited jurisdiction, and those residing in each township were created a body politic for certain purposes. But there were no powers exercised by all the Justices of a county as-a body, and consequently no provision of law recognizing them as an organization. After the amendments had been.ratified, the Legislature of 1876-77 provided (The Code, § 717) that they might organize at their meeting, to be held not oftener than four times a year, with the Register of Deeds as ex officio Clerk, and in the absence of a specific requirement, empowered a majority constituting a quorum to transact business. It seems probable that the General Assembly did not propose, originally, to recognize the Justices in their organized capacity, except for the seven purposes mentioned, and, therefore, in entrusting them with the supervisory power to ratify or annul the action of the Commissioners in five out of seven, it was deemed best to declare what number should be requisite for each purpose, though the number prescribed might amount to an affirmance of the common law rule.
Judge Cooley says: “A simple majority of a quorum is sufficient, unless the Constitution establishes some other rule; and where, by the Constitution, a two-thirds or three-fourths vote is made essential to the passage of any particular class of bills, two-thirds or three-fourths of a quorum will be understood, unless the terms employed clearly indicate that this proportion of all the members, or of all those elected, is intended.” The Constitution of Michigan provided that no act of incorporation should be passed by the Legislature unless with the assent of at least two-thirds of each house. The Supreme Court of that State held that, by the phrase mentioned, two-thirds of the legislative body, comprising a majority of the members elected and qualified, was meant. Southworth v. Railroad Co., 2 Mich., 287.
The custom has been, where the framers of constitutions have meant a majority of the whole number, to indicate the intent to take the provision of the organic law out of the general rule of construction by using the words “a majority” (or two-thirds, as the case may be) of the members elected. Sedgwick Lim., 573. The Constitution of North Carolina, Art. 13, §3,'provides that no part of that instrument shall be altered “unless a bill to alter the same shall have been agreed to by three-fifths of each house of the General Assembly.” This clause received a legislative construction from the House of Representatives when an amendment was passed by the votes of sixty'out of one hundred present, and out of an aggregate membership of one hundred and twenty. House Journal 1887, pp. 530 and 707. When a case involving the construction of a similar clause in the Constitution of Missouri (Harshmore v. Bates, 92 U. S., 569) first came before the Supreme Court of the United States for interpretation, upon an analysis of the language (“unless two-thirds of the qualified voters of such city or town, at a
We attach no importance to the paper signed by an actual majority of the whole .number of Justices of the Peace of the county. The action contemplated by the law was that of the Justices of the Peace in a lawfully constituted meeting as a body, as in cases where the validity of an agreement made by the governing officials of any other corporation is drawn in question. Duke v. Markham, 105 N. C., 131. It was not intended that the two bodies (the Board of County Commis
Concurrence Opinion
concurring in the judgment: The plain, express words of the statute (The Code, § 707, par. 10), and as well its obvious purpose, exclude and forbid the interpretation that the concurrence of a majority of a simple quorum, or of a majority of one of the whole number of the Justices of the Peace of the county, shall be sufficient to make valid a contract of the Board of Commissioners of the county for the construction or repair of a bridge or bridges that cost exceeding five hundred dollars. The words employed are “with the concurrence of a majority of the Justices of the Peace.” These words are significant and important. They cannot be treated as mere surplusage and meaningless, as they must be, if a majority of a majority of one of the whole number is sufficient; because, if such words had not been employed, such majority would have been required and sufficient. In the absence of such words, and in the absence of all limiting words, a majority of a quorum, or a majority of a simple majority would be necessary when such concurrence might be required. Such is the rule in all deliberative bodies and judicial tribunals. Then what useful, effective purpose does the words cited of the statute serve ?
That these words imply, and were intended to imply, the concurrence of a majority of the whole number of Justices of the Peace of the county further appears in this: the same statute (The Code, §716) prescribes that the Justices of the Peace “ shall assemble at the court-house of their respective counties, and a majority being present (at the time desig
The Legislature was clearly advertent to distinctions and differences made as to the voice of the Justices of the Peace. It cannot reasonably be said that it incautiously and carelessly made such difference with no practical purpose in view.
The same statute (The Code, §717) further prescribes that “ for the proper discharge of their duties, the Justices of the Peace shall meet annually with the Board of Commissioners on the first Monday in June, unless they shall be oftener convened by the Board of Commissioners, which is empowered to call together the Justices of the Peace not oftener than once in three months.”
It is further prescribed (section 707, par. 1) that at such annual meeting, “ the Board of Commissioners is authorized, with the concurrence of a majority of the Justices of the Peace sitting with them, to levy, in like manner with the State taxes, the necessary taxes for county purposes,” etc. It is further provided, in paragraph nine of the same section, that “with the concurrence of a majority of the Justices of the Peace,” the Commissioners may “erect and repair the necessary county buildings, and to raise by taxation the moneys there
As the wrords of the Constitution under consideration, and the like words of the statute to be interpreted, are substantially the same, and are used for and intended to serve and subserve the same purpose, is it not reasonable, just and necessary that they must and shall receive the like interpretation? It is very difficult to see how any other conclusion can be reached. Hence the words to be interpreted of the statute, “with the concurrence of a majority of the Justices of the Peace,” imply a majority of all the Justices of the of the county.
I, nevertheless, concur in the judgment of. affirmance, because it was clearly within the power of the County Commissioners to contract for the construction of the bridge
I am further of opinion that the Justices of the Peace did concur in the contract in question. After the bridge was constructed, and after it was accepted by the defendants, they paid the first installment of the price agreed to be paid for it. Regularly, under and in pursuance of the statute [The Gode, § 707 (1)], a majority of the Justices of the Peace sitting with the defendants must have concurred in levying taxes to pay such installment paid, and thus they informally, but in effect, concurred in the contract for the construction of the bridge. In the absence of allegation and evidence to the contrary it must be taken that they did. A regular formal concurrence would be better aiid more satisfactory, but a concurrence in such joint meeting, appearing by presumption and reasonable implication, is sufficient if nothing to the contrary appears.' It is not to be presumed that the Justices of the Peace at their regular joint meeting with the defendants on the first Monday in June, 1888, for the purpose of levying taxes for county purposes, including bridges, were ignorant of the bridge in question, and the county debt created on account of it, to pay part of which they presumedly made provision. On the contrary, the presumption, is that they knew of it and concurred in the contract under which it arose, and hence concurred in the tax levy to pay part of it, and that, afterwards, the defendants, in the orderly course of their duties, paid that part. Otherwise they would not have made such payment. Such presumption arose from the record of the procedure and pertinent action of the Justices of the Peace in the joint meeting of themselves and the defendants. It had and has permanency and continues until, in some proper way, the contrary
Lead Opinion
The plaintiffs contracted in writing with the defendants to construct for the latter a bridge across First Broad River, in the county of Cleveland, and the latter stipulated and promised to pay the former for the same the actual cost of the bridge; the price was not otherwise specified. A majority of the justices of the peace of that county, not in session with the defendants at the time, signed a paper-writing, in which they "do by our (their) signatures ratify and confirm and concur in the above contract, made on 21 May, 1888, between the County Commissioners of Cleveland County and Cleveland Cotton Mills," etc. In the contract it is stipulated that "the payments [are] to be made in annual installments in amounts equal to the tax on its (the plaintiff's) property in this county each year, until full payment shall be made."
Afterwards, at a regular joint meeting in June, 1890, of the commissioners and justices of the peace, a quorum of the latter being present, the plaintiffs asked in writing that the justices of the peace "ratify and concur in the contract" mentioned above. A motion in this joint meeting was made to that effect, which was adopted, twenty-three justices of the peace voting for and thirteen against it. The defendants did not vote.
The plaintiffs complied fully on their part with the contract, and the defendants accepted the bridge, which cost $2,730.95. A new road was established leading across this bridge, and it and the bridge have been constantly used by the public, and there is no other way of (680) crossing the river in the northern part of the county when the water is high.
The board of commissioners for 1888, after the completion and acceptance of the bridge, "made the first payment on said bridge, amounting *473 to $185.21, an amount equal to the tax on plaintiff's property in this county for that year." Between the time of this first payment and the time when, under the contract, the second payment to be made came due, a new board of county commissioners came into office, and, upon demand, they refused, and still refuse, to pay the second installment of the contract price due the plaintiffs, but, nevertheless, they exercise control over the new road which leads to and across the said bridge, and it and the road have been constantly used by the public as a highway, and the supervisors control the road.
This action is brought to recover the sum of money alleged to be due to the plaintiffs upon and by virtue of the said contract. The defendants contend that the contract sued upon is void and of no effect, because it was not made "with the concurrence of a majority of the justices of the peace" of the county, as required by the statute (The Code, sec. 707, par. 10); and, further, that it is void because it undertakes to provide in advance that a part of the regular revenues of the county coming from the plaintiffs shall be devoted to a specified purpose, etc.
The court gave judgment for the plaintiffs for the amount due, and the defendants, having excepted, appealed to this Court.
The courts of this country have generally adopted the common-law principle, that if an act is to be done by an indefinite body, the law, resolution, or ordinance authorizing it to be done is valid if passed by a majority of those present at a legal meeting. (681) 1 Dillon, sec. 277 (215). Where the law creating a municipal corporation is silent on the subject, the majority of the officers or persons authorized to act constitute the legal body, and a majority of the members of the legally organized body can exercise the powers delegated to the municipality. 1 Dillon, sec. 278 (216); Hieskell v. Baltimore,
The powers delegated to a county can, as a general rule, be exercised only by the board of county commissioners or in pursuance of a resolution adopted by them. The Code, sec. 703. The commissioners, organized and acting as a board, are the embodiment of municipal authority. In their names the county must sue and be sued. The only limitations upon their exercise of the corporate functions of the municipality is to be found in subsections 1, 8, 9, 10, 11, 17, and 20 of section 707 of The *474 Code. Subsection 10 provides that where the cost of building or repairing a bridge shall exceed $500, the commissioners can order the construction or repair only "with the concurrence of a majority of the justices of thepeace," as subsection 1 imposes the restriction that taxes shall not be levied by the board except "with the concurrence of a majority of thejustices of the peace sitting with them."
Before the Constitution of 1868 was adopted, the justices of the peace in the several counties exercised the powers delegated to the counties by the Legislature. The justices of the peace were the judges of the Courts of Pleas and Quarter Sessions. For convenience, the various statutes specified the particular number that must sit to discharge certain judicial duties or exercise police powers of different kinds. Rev. Code, ch. 31, sec. 1. "A majority, or twelve," were required to meet (682) on the second and third days of the term of the County Court first held after the election, to take the sheriff's bond. Rev. Code, ch. 105, sec. 10. The justices of the peace, "a majority being present," were required, at their first court held after the first of January of every year, to levy a tax for county purposes. Rev. Code, ch. 28, sec. 1. The justices being then the representatives of the county as a corporation, and recognized by the law as a body clothed with judicial authority and charged with administrative duties, it followed that powers delegated to them were to be exercised by a majority constituting a quorum according to the common-law rule, unless some statute prescribed that a smaller number would be sufficient or more than a majority would be required to discharge a specified official duty. After the constitutional amendments had been ratified and had taken effect (on 1 January, 1877), the Legislature, having entire control of county government, provided (The Code, sec. 716) that the justices should meet biennially on the first Monday in June, and, a majority being present, "should proceed to elect not more than five nor less than three county commissioners." The commissioners can call the justices of the peace together not oftener than once in three months. The Code, sec. 717. The justices are required, by section 719 of The Code, to fill vacancies occurring in the board of commissioners of a county. It is clear that, by implication of law, a majority of the majority of the whole number necessary to constitute a quorum may fill a vacancy in the board of commissioners and elect all of the commissioners in the biennial meeting ("a majority being present") by the express terms of the law in the same way.
In addition to the four instances already mentioned, in which the justices of the peace of several counties are required to participate in their government, we find that it is provided in subsections 11 and 20 of section 707 that the commissioners shall be clothed with (683) authority to meet the necessary expenses of the several counties, *475 or to sell or lease real estate belonging to the county, only with the "assent of a majority of the justices of the peace therein." We think it clear that the purpose of the General Assembly, according to the ordinary meaning of the language employed by it, was to require the concurrence of a majority of the whole number constituting a quorum, to be expressed in the usual way by a majority of those present, where the justices should ratify or express their approval of an order for the levying of taxes for county purposes, or provide for constructing bridges, involving an expenditure of more than $500, just as a majority (under chapter 28, section 1, Revised Code) levied the tax before 1868.
Under the system of county government established by the Constitution of 1868 the several justices of the peace were made each a judicial officer, with a limited jurisdiction, and those residing in each township were created a body politic for certain purposes. But there were no powers exercised by all the justices of a county as a body, and consequently no provision of law recognizing them as an organization. After the amendments had been ratified, the Legislature of 1876-77 provided (The Code, sec. 717) that they might organize at their meeting, to be held not oftener than four times a year, with the register of deeds as ex officio clerk, and, in the absence of a specific requirement, empowered a majority constituting a quorum to transact business. It seems probable that the General Assembly did not propose, originally, to recognize the justices in their organized capacity, except for the seven purposes mentioned, and, therefore, in intrusting them with the supervisory power to ratify or annul the action of the commissioners in five out of seven, it was deemed best to declare what number should be requisite for each purpose, though the number prescribed might amount to an affirmance of the common-law rule. It must be remembered that, unless a contrary intent is apparent from the words (684) of the statute, in each case a majority of the organized body is to constitute a quorum and express their will in the usual way. We must also note the fact that the powers to levy the taxes to build costly bridges and to erect houses of correction are exercised by the commissioners, subject to "the concurrence of a majority of the justices of the peace," while the authority to borrow money to meet the necessary county expenses, and to sell or lease the real estate of the county, is made to depend upon the "assent of a majority of the justices of the peacetherein." The language used in these subsections is much more restricted than that employed in the Constitution, Art. VII, sec. 7. That section provides that "No county, city, town, or other municipal corporation shall contract any debt, pledge its faith, or loan its credit, nor shall any tax be levied or collected by any officers of the same, except for the necessary expenses thereof, unless by a vote of the majority of *476 the qualified voters therein." The language of the Constitution is very widely different from that used in any of the statutes defining the powers of justices of the peace to which we have referred. The constitutional inhibition is intended to prevent the creation of any such debts as those specified, not without the assent or concurrence of a majority (which may be expressed by an organization comprising a majority), but unlessby a vote (actually cast) of a majority of the qualified voters therein (in the county) in favor of creating it. We think that the words, "by a vote of a majority of the qualified voters therein," as an entirety, cannot be interpreted as equivalent to "with the concurrence," or "with the assent of a majority," which can be manifested just as each house of the General Assembly is in the habit of giving the assent of the body to a law by a majority of a quorum. Cooley's Const. Lim., marg. p. 141. Where the word "majority" is used in the statute to define a (685) quorum, as in the subsections cited, the concurrence of the majority is ascertained by the universal rule governing deliberative bodies.
Judge Cooley says: "A simple majority of a quorum is sufficient, unless the Constitution established some other rule; and where, by the Constitution, a two-thirds or three-fourths vote is made essential to the passage of any particular class of bills, two-thirds or three-fourths of a quorum will be understood, unless the terms employed clearly indicate that this proportion of all the members, or of all those elected, is intended." The Constitution of Michigan provided that no act of incorporation should be passed by the Legislature unless with the assent of at least two-thirds of each house. The Supreme Court of that State held that, by the phrase mentioned, two-thirds of the legislative body, comprising a majority of the members elected and qualified, was meant. Southworth v. R. R.,
The custom has been, where the framers of constitutions have meant a majority of the whole number, to indicate the intent to take the provision of the organic law out of the general rule of construction by using the words "a majority" (or two-thirds, as the case may be) of the members elected. Sedgwick Lim., 573. The Constitution of North Carolina, Art. XIII, sec. 3, provides that no part of that instrument shall be altered "unless a bill to alter the same shall have been agreed to by three-fifths of each house of the General Assembly." This clause received a legislative construction from the House of Representatives when an amendment was passed by the votes of 60 out of 100 present, and out of an aggregate membership of 120. House Journal 1887, pp. 530 and 707. When a case involving the construction of a similar clause in the Constitution of Missouri (Harshmorev. Bates,
We attach no importance to the paper signed by an actual majority of the whole number of justices of the peace of the county. The action *479
contemplated by the law was that of the justices of the peace in a lawfully constituted meeting as a body, as in cases where the validity of an agreement made by the governing officials of any other corporation is drawn in question. Duke v. Markham,
Concurrence Opinion
I concur with the Chief Justice that a vote of a majority of all the Justices of the county is requisite, and that the vote of a majority of a quorum is not sufficient.
Per Ou/riam. Affirmed.
AI-generated responses must be verified and are not legal advice.