Grady v. County Commissioners, 74 N.C. 101 (1876)

Jan. 1876 · Supreme Court of North Carolina

74 N.C. 101

ELISHA GRADY and others v. THE COUNTY COMMISSIONERS OF LENOIR COUNTY.

The creation or alteration of Townships in the several counties of the State, after the first division by the County Commissioners under Art. VII, sec. 8, of the Constitution, is left with the Legislature.

This was a civil actioN tried before Seymour, J., at Spring Term, 1875, of the Superior Court of Lenoer county.

The plaintiffs, Elisha Grady and others, sueing in behalf of themselves and “all other voters of that portion of Kinston township on the south side of Neuse river,” brought this action to enjoin the defendants, the County Commissioners of Lenoir county, from providing for an election of officers, under the act of the General Assembly entitled “An act to create a township in the county of Lenoir, to be known as Woodington township,” ratified the 28th day of February, 1875, upon the ground that said act was unconstitutional.

Upon the affidavit of the plaintiffs, a restraining order was issued by his Honor, Judge Seymour, and the defendants were ordered to show cause at Trenton, on March 27th, why the injunction should not be continued.

At Spring Term, 1875, J. C. Wooten and others filed a petition in behalf of themselves, “and a large majority of that portion of Kinston township on the south side of Neuse river now known as Woodington township,” &c., praying that they might be made parties defendant in this action, y

This was objected to by both the plaintiffs and defendants in the action as originally commenced. The objection was overruled by the court, and thereupon both the plaintiffs and. the defendants appealed.

Ilaughton and Smith cfi Strong, for the appellants.

Oreen, contra.

Reads, J.

1. In a matter of public concernUheiUis manifest propriety in allowing ány one who has a common interest to become a party, and it is the duty of the court to see that a class is fairly represented whenever one or more”sue for a ■class.

2. The plaintiffs allege that the act of 26th February, 1876, laying off the township in question and directing the County Commissioners to provide for an election of officers for the township is unconstitutional, because they say the Constitution confers the power upon the County Commissioners to lay off townships.

Art. VII, sec.. 3, of the Constitution does provide that the first division of counties into towhships shall be by the Coimty Commissioners, but it does not authorize them to make any subsequent disvision or alteration. And so the subsequent creation or alteration of counties is left with the Legislature. The act in question is therefore constitutional. And it was the duty of the County Commissioners to provide for the election of officers, and therefore the injunction ought not to issue.

We suppose that when the Commissioners ascertain their duty to provide for organizing the township which has been created and now exists, they will be ready to perform it, but they will now be met with the difficulty that the time named in the'act for holding the election has passed. Can they order an election at some time to be fixed by them ? This is not directly before us and may never be, as the township may prefer to wait until the next regular election ; but we have considered it, and incline to the opinion that as time was not essential and the failure to observe it was iunavoidable, and as the public good may require the offices to be immediately filled, the Commissioners may order an election upon reasonable notice.

The injunction will be refused. Let this be certified.

Pee Cueiam. Judgment accordingly.