Opinion
(Decided 26 April, 1898.)
Injunction — Fence Law — County and Township Elections for Fence Law — Constitutional Law — County Charge.
1. The provisions of chapter 20, Vol. II of The Code, relating to the submission of the stock or fence law to the electors of counties or smaller territorial divisions thereof, are not inconsistent with the principle of local self-government.
2. While certain townships or smaller subdivisions of a county have adopted the fence law the electors therein may petition and vote in an election for its extension to include the county limits. In such case, however, the expense of the township or smaller territorial adoption of the law, previously incurred, should be made a charge upon the county.
MOTION for an injunction to restrain defendants from levying an assessment on lands of plaintiff and from attempting to build a fence and enforce the stock law in a certain territory in RUTHERFORD County, heard before Greene, J., at chambers in Lincolnton, on 8 April, (608) 1898.
R. C. Strong, A. C. Avery, and Avery Erwin for plaintiff.
M. H. and T. B. Justice for defendants.
His Honor rendered judgment denying the motion for injunction, dissolving the temporary restraining order, and taxing the plaintiff with costs of the motion.
To which ruling and judgment the plaintiff excepted and appealed, and assigned the following as errors:
1. That it being admitted in the answer that the voters in a large portion of Rutherford County, which was already under the operations of the stock law, were allowed to vote and did vote in the election held in said county on 1 February, 1898, on the question of extending the stock law over that portion of said county which was not theretofore under the operation of the stock law, it was error in the court to refuse to grant an injunction until the hearing.
2. That it being admitted in the answer that a part of Rutherford County, which had voted on the question of stock law or no stock law within one year prior to 1 February, 1898, was allowed to vote and did vote in the election on said 1 February, 1898, it was error to deny the motion to continue the injunction till the hearing.
3. That it being admitted in the answer that the order of the commissioners providing for the election on 1 February, 1898, was based upon petitions signed by voters of Rutherford County, many of whom resided in that portion of said county where the stock law already prevailed, the plaintiff insists that the said order was improvidently made and the injunction ought, therefore, to have been continued till the hearing.
4. It being doubtful, from the complaint and answer, whether or not a majority of the qualified voters, either in the old or new territory to be affected, signed the petitions upon which the order of (609) election was made, and it appearing from the complaint that the main relief sought is an injunction, the same should have been continued till the hearing."
The subject of "Fences and Stock Law" is regulated by The Code, Vol. II, ch. 20. We find that prior to 1898 certain townships, districts, or territories in Rutherford County had, in pursuance of sections 2813 and 2814 of The Code, by regular proceedings, adopted the stock law, and that the county commissioners, on petition of the required number of qualified voters, caused a county election under section 2812 to be held on 1 February, 1898, at which election a majority of the voters of the county, including those already under the law and those not under the stock law, voted in favor of the "stock law," and that the regulations, fencing, etc., were about completed on 1 April, 1898.
This action, commenced 26 March, 1898, by a citizen of the territory not within the limits of the territories already under the stock law, is brought to restrain the defendants from proceeding under the election of 1 February, 1898, and to restrain them from levying a county tax to defray the expenses thereof. His Honor refused to issue such an order, and the plaintiff appealed to this Court.
The underlying idea in this purely statutory law, ch. 20, is to refer the question to the will of the people in the counties, and (610) in less territorial divisions, when circumstances and different local conditions justify or require it. It is difficult to see how such a law can be inconsistent with the principle of local self-government. It appears to be just the reverse. The plaintiff's contention is that those townships already under the operation of the law have no right to petition or vote for its extension to include county limits. If that be so, it would be within the power of one township to adopt the law, and the county would be thereby deprived of its privilege under section 2812. So that if a large majority of townships desired the law they must have it as townships only, resulting in "stock law" and no "stock law" territories lying around each other, with separate fences and gates across the public roads at an expense much greater than one county system. This would be an extreme view of the principle of local self-government, and we cannot believe the Legislature so intended.
The imposition complained of by the plaintiff is the imposition necessarily imposed by the principle that the majority must rule. A government which protects must control, and when it does so through the will of the majority, there is no wrong done, except the rule that minorities must submit to the will of the majority. Damnum absque injuria. We approve his Honor's ruling, but we think the cost and expense of the township or territorial adoption of the law, previously incurred, should not be made a charge on the county.
Affirmed.