Smalley v. Board of Commissioners

Faircloth, 0. J.

The subject of “Fences and Stock Law” is regulated by The Code, Volume 2, Chapter 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 February 1, 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 April 1, 1898.

This action, commenced on March 26, 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 February 1, 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, Chapter 20, is to refer the question to the will of the people in Counties, and 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 adross 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.