{
  "id": 8658752,
  "name": "JOHN R. HAWES et al. v. COMMISSIONERS OF PENDER COUNTY",
  "name_abbreviation": "Hawes v. Commissioners",
  "decision_date": "1918-03-27",
  "docket_number": "",
  "first_page": "268",
  "last_page": "269",
  "citations": [
    {
      "type": "official",
      "cite": "175 N.C. 268"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "133 N. C., 114",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    }
  ],
  "analysis": {
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  "last_updated": "2023-07-14T19:50:36.007196+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JOHN R. HAWES et al. v. COMMISSIONERS OF PENDER COUNTY."
    ],
    "opinions": [
      {
        "text": "Olabk, C. J.\nThis is an action by sundry citizens and taxpayers of Pender County and owners of real estate therein, alleging that the Board of Commissioners of Pender had levied an assessment upon all real estate within the boundaries of the county, excepting a part of Rocky Point Township, for the purpose of raising funds to construct a fence around the outer boundaries of said district, and would order the sheriff to collect the said assessment out of the real estate of said county.\nThe Court finds as a fact that the defendants have been restrained in another action pending in the Superior Court of Pender from levying a tax upon all the property, real and personal, located in the said district under authority of Revisal, 1675, as amended by chapter 99, Public-Local Laws 1917. Tbe validity of sucb \u201ctax\u201d is not before us in tbis proceeding.\nTbe court properly beld as a conclusion of law tbat \u201ctbe Board of County Commissioners of Pender bave no lawful authority to levy sucb assessment upon tbe real estate of said district.\u201d\nThere are only two statutes under which tbe commissioners of Pender could claim authority to levy tbis assessment, i. e., Revisal, 1675 and 1685. Revisal, 1675, provides tbat upon tbe conditions therein prescribed under which territory may be allowed to \u201cwithdraw from a stock-law district,\u201d tbe expense incurred in changing tbe fence in sucb territory shall be provided for by \u201ca tax upon tbe property holders within said district.\u201d Tbat section certainly does not authorize tbe levy of an assessment which must be laid solely upon tbe real estate of tbe district benefited. \u25a0 Tbe order herein enjoined does not levy a \u201ctax\u201d upon all \u201cproperty holders.\u201d\nRevisal, 1685, does authorize tbe county commissioners to levy an assessment, but only for tbe purpose therein stated \u201cof building stock-law fences,\u201d' for which purpose \u201cthe board of commissioners of tbe county may levy and collect a special assessment upon all real property taxable by tbe State and county, within tbe county, township, or district which may adopt the stock lew).\u201d Tbis is an assessment, but it is not for sucb purpose, and is, therefore, unauthorized. Tbis has been expressly beld. Harper v. CoMrs., 133 N. C., 114.\nTbe restraining order was properly continued to tbe final bearing, at which time, upon tbe admissions in tbe defendants\u2019 answer, tbe injunction should be made perpetual.\nUpon tbe merits of tbe stock-law and antistock-law controversy in tbe county of Pender, tbe Court has no authority nor desire to pass. Tbe sole question presented to us is whether there is any authority conferred by law upon tbe commissi oners of said county to pass tbe resolution levying an assessment upon real estate to build tbis fence for the purpose set out in tbe resolution of keeping tbe stock in an antistock-law territory from trespassing upon people in tbe adjoining counties of Duplin, Sampson, Bladen, Columbus, Brunswick and New Hanover and Rocky Point Township in Pender, in which tbe stock law prevails, and it is very clear tbat sucb authority is not conferred by any statute, and tbe judgment.of bis Honor is\nAffirmed.",
        "type": "majority",
        "author": "Olabk, C. J."
      }
    ],
    "attorneys": [
      "G. D. Weelcs and G. E. McGullen for plaintiffs.",
      "J. II. Burnett and John D. Bellamy <& Son for defendants."
    ],
    "corrections": "",
    "head_matter": "JOHN R. HAWES et al. v. COMMISSIONERS OF PENDER COUNTY.\n(Filed 27 March, 1918.)\nStock Law \u2014 Taxes\u2014Assessments\u2014Real Property \u2014 Statutes\u2014Injunction.\nRevisal, sec. 1675, authorizes, upon certain conditions, \u201ca tax upon the property holders within the district,\u201d when withdrawing \u201cfrom a stock-law district\u201d; and section 1685 authorizes an \u201cassessment\u201d upon all real property, etc., for the purpose \u201cof building stock-law fences\u201d within counties \u201cwhich may adopt the stock laws\u201d; but an assessment by a county upon the real estate to build a fence for the purpose of keeping the stock in antistock-law territory from trespassing is unauthorized by law; and a restraining order should be continued and, under the facts of this case, made perpetual at the final hearing.\nAppeal by defendants from Devin, J., at chambers in Wilmington on 12 December, 1917, continuing a restraining order to the final hearing.\nG. D. Weelcs and G. E. McGullen for plaintiffs.\nJ. II. Burnett and John D. Bellamy <& Son for defendants."
  },
  "file_name": "0268-01",
  "first_page_order": 322,
  "last_page_order": 323
}