Opinion · Supreme Court of North Carolina
State Ex Rel. Hill and Another v. . Bonner and Others
44 N.C. 257
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1853-06-05
- Topic
- general
*258 Nash, C. J. At the session of the General Assembly in the year 1851, an Act was passed to divide the County of Surry, “provided a majority of free white men, entitled to vote for members of the House of Commons, shall vote for the same.” By the same Act the defendants were appointed commissioners “ to select and determine upon a site for a permanent seat of justice for Surry County, who shall locate the same as near the cen-tre of said County as a suitable location can be obtained, taking' into consideration both the extent of territory and population.” The commissioners, in their return, state that they have performed their duty with a strict and conscientious regard to the requirements of the act. These commissioners are the servants of the General Assembly to perform the acts required of them ; in their ability and fidelity the Legislature confided; and to their discretion the business was entrusted. With the exercise of that discretion we cannot interfere, as they in their return state their compliance substantially with the act.
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2.Held, also, that the relators, at whose instance this application was made, having no particular or private interest in the controversy, which was entirely of a public nature, were not liable on dismission of the application, to pay costs to the defendants.
(The case ofS. v. King,23 N.C. 22, cited and approved.)
(259) It has been suggested, that the proceedings might be sustained as an information in the nature of aquo warranto. To this the answer is, that the information filed charges that the statute, under which the defendants are required to act, is unconstitutional. If so, the power conferred upon them is void. It was said that the statute was void, because it submitted to the people of the county of Surry, to say whether it should become a law — thereby enabling a very smallPage 247portion of the citizens of the State to establish a public law, binding, if at all, upon the whole State; and because it alters the fundamental principles of the government, by converting it from a representative republican government, as established by the Constitution into a pure democracy — calling on the people to do that which the people themselves had said by the Constitution, which was their act, they would not do. At a subsequent session of the Legislature, an act was passed ratifying and confirming what had been done under the original act.fn*It is not now, therefore, necessary for us to pronounce any opinion upon the constitutional question. But while we decline expressing such opinion, as being unnecessary to the decision of the case, we have no hesitation in saying, that it is only whilst the several departments of the government confine their action within the limits assigned them in the Constitution, and fearlessly and firmly exercise the power there given them on all fit occasions, that our pure and noble Constitution can secure to us the blessings of peace, harmony, and prosperity. The officers of each department are sworn to support the Constitution of the State and are, therefore, on all proper occasions, as much bound to execute the power by it conferred upon them, as they are, not to assume authority by it not conferred.
His Honor below dismissed the petition at the costs of the relators. We concur with him in his judgment, dismissing the proceedings; but not as to the costs. The judgment below dismissing the proceeding is affirmed, but each party is to pay his own costs. This is clearly settled by the case ofS. v. King,23 N.C. 22— the matter in dispute being of a public nature, and the relators having no particular or private interest in the controversy, apart from the rest of the citizens of (260) Surry County.
PER CURIAM. Judgment affirmed, but without costs.Cited: Taylor v. Commissioners,55 N.C. 145;Manly v. Raleigh,57 N.C. 375;Herbert v. Sanderson,60 N.C. 281;Brown v. Turner,70 N.C. 104;Blount v. Simmons,120 N.C. 20;Barnes v. Commissioners,135 N.C. 38;Battle v. Rocky Mount,156 N.C. 336.Page 248
- See Acts of 1852, chap, 22, page of pamphlet Laws, 71. ↩