McLin v. City of Newbern

70 N.C. 12

• Court: Supreme Court of North Carolina
• Decided: January 5, 1874
• Status: Published

Opinion

Bystum:, J.

This case is governed by that of Smith v. the city of Newbern, decided at the present term of this Court.

In a city of the commercial character and population of Newbern, it would be difficult and extremely inconvenient duly and efficiently to administer the public powers and ordinances of the corporation without the aid and benefit of a guard house or jail. In addition to the section of the charter set forth in the opinion before referred to, chapter 31, section 1, acts of 1791, being “ an act for the further regulation of the town of Newbern,” vests in the corporation the power to levy taxes for specific purposes, “ and for such other good purposes as the said commissioners may judge necessary;” and chapter 4, section 3, acts of the special session of 1866, to reorganize the government of the city of Newbern, vests in the mayor and council the power “ by all needful ordinances, rules and regulations to secure order, health and quiet within the same and for one mile around.”

It would therefore seem that these several provisions for the good government of the city confer sufficient power to build a guard house, and certainly to repair and preserve one already built, as is the case here.

His Honor was asked by the defendant to instruct the jury that the plaintiff could not recover because the city had no power under the charter to repair the jail or guard house, which instruction his Honor refused to give, but charged the jury, that it was for the defendant to show that it had no such power, to which charge the defendant excepted.

As the verdict and judgment were for the plaintiff, apd as in law he was entitled to recover, no exception to the charge can avail the defendant.

Per Curiam. Judgment affirmed.