dissenting: Soon after the adoption of the first Constitution of North Carolina, the State, by *611legislative enactment, changed the English rule of fencing in, and adopted the rule of fencing out stock. This remained the law until within the last 25 years, when a revolution was commenced. It is said revolutions never go backwards and certainly this has not. It commenced by the passage of local acts, many of them against the expressed will of-the people, who had voted against the change, as in Rowan and other counties. Other Acts were styled local option Acts, but many of them were not submitted to a vote of the people, but by allowing the Board of County Commissioners to determine upon petition when a majority of the county wanted it, as in Davie county, where all the names signed to the petitions were counted; whether they were non-residents or minors made no difference. Cain v. Commissioners, 86 N. C., 8.
In the history of fence laws, to he found in our Statute books and in our Supreme Court Reports, it will be found that the means of making these changes was always adequate to effect the end in view — the “no fence law” side of the question. Cain v. Commissioners, 86 N. C., 8; Newsom v. Earnheart, 86 N. C., 391; Simpson v. Commissioners, 84 N. C, 158.
At the commencement of this revolution against the fence law, as it had stood for more than a hundred years, there was not a man in North Carolina who did not hold his out-lying lands (those not inclosed) subject to the right of common pasture, and this change was a great hardship on the poor, non-land owners of the State, and those who only owned a small piece of land with a cabin on it filled with tow-headed children.
I do not deny but what the old law of fencing out stock might be changed by legislation, but I do deny that it has been done in many instances by the fair *612honest vote of a majority of the qualified voters. There may be exceptional cases where this has been done, but the rule has been the other way. This revolution will move on, and what I may say will not arrest it in its movements. It is not said with that expectation.
But the opinion in this case is put on the ground of local self government, the right of • the majority to govern. I am a friend of local self government, but it is a mistake to call this local self government. It is true that Section 2812 of The Code provides for submitting the question to the vote of the county; Section 2813 for submitting the question to a township; and Section 2814 for submitting the question to a territory, less than a township. Upon these Sections the opinion of the Court is placed, and I rest this dissenting opinion upon these Sections.
The election was ordered in January, 1898, and it is admitted that several townships of Rutherford. county were then under the operation of the no-fence law, by reason of former elections in those townships. It is admitted that citizens in these townships already under the no-fence law, petitioned for and voted iñ this election of January, 1898. That while the law provides for a resubmission of the question of no-fence to territories, where it has failed to carry, there is no authority for submitting the question to a county, township or territory where it has carried. This being so I hold that it was error and the commissioners had no right to submit this question to such townships or territories as already had the law.
The outside territory had not been allowed to vote in the elections that had established the no-fence law in. the territories that had adopted it; then why should they he allowed to interfere and vote it upon other *613townships that did not want it? Suppose upon the whole vote of the county (election January, 1898) a majority in the county had been against the no-fence law; will it be contended that the townships that had theretofore adopted it would be deprived of it by this vote? That is, would the no-fence law right have been taken from them and they remitted to the old-law? If not (and it is not contended that they would) what right had they to vote? The right to vote when they would not be affected by the result, let that be one way or the other? A right to vote to place a burden on others that does not affect them? My idea of local self government has been the submission of a question to the vote of the people to be affected by the result. This is the true theory of local self government. But to submit the rights of one territory to the vote of another territory, not to be affected by the result of their vote, is not local self government.
It is said that, unless this were so, that the territory already having the no-fence law, are allowed to vote— the outside territory is powerless, that they can never have the benefit of this law. I do not admit the truth of this proposition. The whole of the outside territory can join and have an election, or any one or more of the townships may do so. This had been done as to the township that already had the no-fence law. Why may not the other townships do like those that had the no-fence law?