Marshburn v. . Jones

Supreme Court of North Carolina

Marshburn v. . Jones

97 S.E. 422, 176 N.C. 516, 1918 N.C. LEXIS 286

CourtSupreme Court of North Carolina

DecidedNovember 27, 1918

StatusPublished

Cited by1 cases

This text of 97 S.E. 422 (Marshburn v. . Jones) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marshburn v. . Jones, 97 S.E. 422, 176 N.C. 516, 1918 N.C. LEXIS 286 (N.C. 1918).

Pincite

Opinion

Claek, C. J.

Tbe General Assembly of 1913, chapters 248 and 276 placed tbe county of Pender within tbe public policy now prevailing over nine-tentbs of tbe territory of tbis State, under wbat is known as tbe “no-fence” law, by wbicb stock are not allowed to run at large on tbe lands of others than tbeir owners, and requires that such owners shall fence up tbeir stock instead of other people fencing them out in order to protect tbeir crops.

Tbe Legislature, by Public-Local Laws 1915, chapters 116 and 505, permitted tbe people of a certain part of Pender County to decide by vote whether they should return to tbe former system of letting' stock run at large, but made such provision, if adopted by such vote, dependent upon tbe condition precedent, that tbe change should not take effect until a fence should be constructed by such territory to prevent the stock therein trespassing upon tbe people of tbe adjoining counties in wbicb the owners of crops are protected by law against stock running at large. Tbe act further provided that in tbe tax levy to build such fence tbe property of natural persons in Eocky Point Township should be exempted.

*518 On such vote being held, the majority was cast for a return of the county (exclusive of Eocky.Point Township) to the former system of stock running at large; but this Court held in Keith v. Lockhart, 171 N. C., 451, that the stock could not be turned out until the condition precedent of building the county fence to protect adj acent counties from the depredations of Pender County stock was complied with, and that funds to build such fence could not be raised under authority of that act because it exempted the property of natural persons in Eocky Point Township, which was a violation of Constitution, Art. VII, sec. 9, which requires that “All taxes levied by any county, city, town, or township shall be uniform and act valorem upon all property in the same, except property exempt by the Constitution.”

. Under the laws in force, the property of the citizens is protected from stock running at large in the adjoining counties of Duplin, Sampson, Bladen, New Hanover, and Eocky Point Township in Pender; that is to say, in all the adjoining territory except Onslow on the east. By the terms of the Acts in question, it was expressly provided that “It should not go into effect until the fence was built,” for the people of the adjoining territory were deemed by the Legislature to be entitled to the protection against stock running at large no matter whence they came, whether from their own territory or from the county of Pender.

Public-Local Laws 1917, ch. 99, amended Eevisal, 1675, by placing Pender among the counties authorized to withdraw from stock-law territory upon a vote of the people upon compliance with certain provisions, and repealed “all laws in conflict therewith.” The proposition was thereupon submitted to the people and adopted; but the fence around the territory in Pender voting to withdraw has-not yet been built. Eevisal, 1675, contains as the first proviso the following as a condition for the withdrawal of any territory from the stock-law territory after such vote has been had in its favor: "Provided, the expense incurred in changing the fence in such boundary, district, or territory so released be paid by the property holders in such boundary, district; or territory, and that the commissioners of the county levy the tax to pay the same on the property holders of such boundary, district or territory so released, but shall not be further liable for keeping up said stock-law fence.”

Upon the election held after such amendment to Eevisal, 1675, the majority voted to withdraw from the stock-law territory all the county outside of Eocky Point.Township. The commissioners then attempted to levy a tax upon all the property in the county, outside of Rocky Point Township, to build such fence, but in Godwin v. Comrs. theye were restrained from levying the tax because it was laid upon all property, both real and personal, and was therefore void because not authorized by a vote and no appeal was taken. The commissioners then levied the *519 tax as an assessment, and this was enjoined'because it was not authorized by the statute in question. Hawes v. Comrs., 175 N. C., 268. Thereupon the defendants and others who wished their stock to run at large turned them out notwithstanding the provision that the stock-law fence must first be erected had not been complied with. There is no repeal, express or implied, of such requirement, for it does not conflict with Revisal, 1675. This conduct by defendants is enjoined bythe order of the judge in this case. The action of the judge is in accordance with the law and must be sustained.

• 1. Revisal, 1675, under which the vote to change to stock running at large was held, contains a proviso that the “expense incurred in changing the fence” in territory wishing to return to the former condition of stock running át large must be paid by the property holders of such district. The defendants contend that such provision amounts to nothing because the fences in Pender having been abolished since 1 March, 1913, putting-up such fence is not “changing the fence.” This is “sticking in the bark.” The evident intent, and the only possible meaning of the provision, is to require a fence to be put up for the protection of the territory left in the stock-law territory where the people are still to be protected against stock running at large. It means a “change” to the system where every man has to fence his crops against the stock of any one who permits them to run at large on his neighbors from the system now prevailing throughout almost the entire State of each man fencing up his stock on his own land to prevent their depredating on the property of others, for the section (1675) adds “they shall not be further liable for keeping up said stock-law fence.”

2. The defendants contend that the provision repealing all laws in conflict with this provision, placing Pender under section 1675, repeals all need of fences on the outer boundary of the territory voting to change “its fence system,” but clearly it does not repeal the provision in the act of 1915 that before stock shall be allowed to run at large in Pender the fence shall be erected to protect the people of Duplin, Sampson, Bladen, and New Hanover counties, and Rocky Point Township, nor the general law of the State, which prohibits stock running at large in their territory. Certainly this burden has not been put upon those people, who are many times as numerous, collectively, as the people of that part of Pender who have voted to return to the system of stock running at large. The latter are authorized to do so by the Legislature, but there is no provision that they may disregard the general policy of the State which protects the people outside from stock running at large. It is for that part of Pender which desires to let stock run at large- to bear the expense of keeping their stock off no-fence territory, and not the people of the adjoining counties named.

3. The defendants contend that under the decisions of the Court in

*520

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