133 S.E. 164 | N.C. | 1926
At the session of 1925 the General Assembly passed an act for the building of a bridge across the Yadkin River at Rockford between Yadkin and Surry counties. The first, second, and third sections provide that the defendants, acting jointly, shall construct or cause to be constructed a serviceable and satisfactory bridge at the place designated; shall make contracts; shall refer their material differences to arbitration; and unless and until otherwise directed by the General Assembly, shall charge and collect tolls for the privilege of using the bridge. In section 3 the defendants are authorized and directed to issue and sell the bonds of their respective counties in such amount as may be necessary, up to and not exceeding $15,000 for each county, the proceeds of which shall be used for building the bridge and its approaches. In section 4 it is provided that if the tolls are not sufficient to maintain the installments of principal and interest, "the full faith and credit of the two counties is pledged to the validity of said bonds, and the commissioners of said counties are hereby authorized to levy sufficient tax to carry out this provision." Section 5 provides that the total cost shall be covered by the bonds of the two counties as contemplated by C.S., 3767. Public-Local Laws 1925, ch. 580.
The plaintiffs brought suit to compel the defendants to issue the bonds and build the bridge. The defendants filed separate answers setting up the following defenses: 1. The act is inhibited by Art. II, sec. 29 of the Constitution. 2. It does not provide a sufficient amount of money. *781
3. It requires the counties to engage in the business of maintaining a toll bridge. 4. No time is named for levying the tax. The cause was heard at Chambers, and it was ordered that a writ of mandamus issue to the defendants commanding them to build the bridge as prayed in the petition. The defendants excepted and appealed.
The Constitution enjoins upon the commissioners of the several counties the duty to exercise a general supervision and control of penal and charitable institutions, schools, roads, and bridges, of the levying of taxes, and of the finances of the counties, as prescribed by law. Constitution, Art. VII, sec. 2. After the adoption of the Constitution the Legislature conferred upon the counties, not only the functions of a corporate body, but certain statutory powers which could be exercised only by the commissioners, or in pursuance of a resolution approved by them. Among such powers are those of building, repairing; and keeping up bridges whether entirely in one county or over a stream dividing one county from another. C.S., 1297, (18), (20), (22); 3750, 3751, 3767. True, the powers conferred and the duties imposed on the commissioners by these and other statutes have in some instances been transferred to the board of road commissioners, or to the board of highway commissioners or other "bridge governing board" (C.S., 3778); but as distinguishable from a ministerial duty, these powers when exercised by the county commissioners under the general law involve judgment and discretion, which as a general rule the courts will not attempt to control. Brodnax v. Groom,
The defendants say that the avowed purpose of the act is to take away their discretion, to deprive them of the right to exercise their judgment, and thus to destroy their jurisdiction over a matter of local self-government. In proof they cite the imperative language of the act: they "shall construct . . . a bridge"; they "shall make contracts"; they "shall arbitrate their disagreements"; they "shall charge and collect tolls"; and "the credit of the counties is pledged." In reply it may be said that a mandatory statute which shuts out the exercise of discretion is not for that reason in conflict with the Constitution. Counties are agencies of the State and in the exercise of governmental functions, unless directed or restrained by the organic law, are subject practically to the unlimited control of the Legislature. S. v. Jennette,
This amendment went into effect 10 January, 1917. Reade v. Durham,
None of these cases is finally decisive of the present appeal. As we have seen, the amendment prohibits the passage of any local, private, or special act relating to ferries or bridges. If we pass by the sale of the bonds and the levy of the tax, we are confronted with the question whether the legislative mandate in the first section of the act under consideration is local, private, or special. The language is: "The board of county commissioners of Yadkin County and the board of county commissioners of Surry County shall construct or cause to be constructed a serviceable and satisfactory bridge across the Yadkin River between Yadkin County and Surry County at Rockford at a cost not to exceed twenty-five thousand dollars." In Mills v. Comrs., supra, it is said that the word "local" has received no fixed or generally recognized meaning and must be defined by reference to the context; that the General Assembly had previously been urged many times to authorize a particular highway or to establish a bridge or ferry at a specified place by direct legislation; and that it was in reference to local, private, and special measures of this character that the amendment was adopted. Mr. Justice Holmes observed, "The phrase `local law' means, primarily, at least, a law that in fact; if not in form, is directed only to a specific spot." Gray v. Taylor,
Reversed.