(130 N. C. 472) HOOKER et al. v. TOWN OF GREENVILLE. (Supreme Court of North Carolina. June 17, 1902.) CONSTITUTIONAL LAW-SCHOOLS-RACE DIS CRIMINATION-STATUTE-ENACTMENT. 1. Pub. Laws 1901, c. 497, establishes graded schools in Greenville, N. C. Section 8 provides that, if there shall be so few of either race in a district that the board of trustees shall deem it inadvisable to organize a school for that race, they may give the pro rata proportion of the fund raised for such children to the public schools for that race in the adjoining district. Const. art. 9, § 2, provides that the children of the white and colored races shall be taught in separate public schools, but that neither shall be discriminated against. Held, that the act is unconstitutional unless it should be made to appear there are no children of either race in the district to be discriminated against, or unless there are enough children of both races to warrant a school for each. 2. Priv. Laws 1901, c. 121, authorizing the town of Greenville to issue bonds for improvement purposes, and Pub. Laws 1901, c. 497, establishing graded schools in such town, are unconstitutional, having been passed without the recording of the yeas and nays in the house on either the second or third reading. Appeal from superior court, Pitt county; Winston, Judge. Injunction by S. T. Hooker and others against the town of Greenville. From an order refusing the writ, plaintiffs appeal. Reversed. Skinner & Whedbee, for appellants. Fleming & Moore and Simmons & Ward, for appellee. FURCHES, C. J. The defendant, the town of Greenville, believing it was authorized by chapter 121 of the Private Laws of 1901 to raise, by the issue and sale of $75,000, par value, of coupon bonds, money for the purposes stated in said act, proceeded to hold an election as provided in said chapter; and after said election, at which it was found and declared that a majority of the qualified voters of said town had voted for the issue of said bonds, the defendant proceeded to advertise and was offering said bonds for sale; and it alleges in its answer that it had agreed upon a sale of the same, and had levied a tax for the purpose of paying the accruing interest thereon; and the defendant, being of the opinion that chapter 497 of the Public Laws of 1901 had established a graded school within the corporate limits of the town of Greenville, had levied a tax of 10 cents on the $100 worth of property and 30 cents on the taxable polls for the support of said graded school. But the plaintiff, a citizen and taxpayer of the town of Greenville, believing that said act providing for the issue of bonds was void for irregularity in its submission to the voters for their approval, alleged that the act for the purpose of establishing the graded school was vold for the reason that it discriminated, in the distribution of the money collected by taxation, between the white and colored races; and he further contends that they are both invalid for the reason that they were not passed by recording the yeas and nays on the second and third readings, as the constitution requires such laws for raising money and taxing the people and their property should be, and are void on that account. This action is brought to restrain and perpetually enjoin the defendant from issuing and selling said bonds, and from levying any tax for the payment thereof or the interest thereon; and to enjoin the defendant from paying the $5,000 provided therein to the trustees of the graded school, and from levying and collecting any tax for the support and maintenance of said graded school. Upon a hearing before Winston, J., the injunction was refused, and the plaintiff appealed. There were many affidavits and orders offered on the hearing as to the alleged irregularities in the manner of the registration, and holding the election, and as to the manner in which the defendant performed its duty, and as to the best place to get a water supply. But we will not enter upon a discussion of these further than to say that, where the defendant has the power to act, the courts will not interfere unless fraud or bad faith is alleged and shown, but will leave these matters to be corrected by the people at the next election, if there is cause of complaint. But the next ground alleged is a matter of which we must take notice, to-wit, that the act establishing the graded school discriminates in its provisions against one race and in favor of the other. If this is so, it is in violation of article 9, § 2, of the constitution, which provides as follows: "And the children of the white race and the children of the colored race shall be taught in separate public schools; but there shall be no discrimination in favor of, or to the prejudice of either race." That is, one white child of the school age shall have the same amount of money per capita as a colored child, and no more; and the colored child shall have the same amount per capita as any white child, and no more; that both races shall have equal opportunities for an education, so far as the public money is concerned. If this bill discriminates against either race to the prejudice of the other race, it is unconstitutional (Riggsbee v. Town of Durham, 94 N. C. 800; Puitt v. Commissioners, Id. 709, 55 Am. Rep. 638); and the law will not allow that to be done by indirection that cannot be done directly. The act establishing this graded school (chapter 497, Pub. Laws 1901) has 50 calls, that is, 50 corners and 50 lines, in its boundary, which seem to us to be remarkable, and we were not able to understand what are the boundaries from the calls in the act. Therefore, for the purpose of explaining the calls in the act, we had a map of the town of Greenville, including the school district, furnished us for the purpose of enabling us to understand the along said right-of-way to a point where Eleventh street extended would cross said railroad, thence with the line of Eleventh street to a point where an air-line drawn from the eastern side of Liberty Warehouse would cross said street, thence a line made by extension of eastern side of Liberty Warehouse to Ninth street, thence Ninth street 200 feet in an easterly direction, thence a line parallel with the eastern side of Liberty Warehouse to Twelfth street, thence with Twelfth street to the road leading from Greenville to Greene's Mill Run, thence with said road in a northerly direction to Alfred Forbe's northeast corner of the lot on which he now lives, thence his line to the livery stable lot of G. M. Tucker and Rickey Moore, thence this eastern line to Fifth street, thence with Fifth street in an easterly direc tion to a point midway between Cotanch and Read streets, thence a line from this point parallel with Cotanch street to Second street, thence with Second street to Evans street, thence with Evans street to a point midway between First and Second streets, thence a line midway between First and Second streets to eastern line of Washington street. thence with Washington street to a point midway between Second and Third streets, thence this line parallel with Third street 165 feet, thence an air-line parallel with Washington street to Second street, thence with Second street to Washington street, thence with Washington street to a point midway between First and Second streets, thence an air-line parallel with Second street to Pitt street, thence with Pitt street to the beginning." calls in the act. Blue v. Ritter, 118 N. C. 580, 24 S. E. 356; Foster v. Hackett, 112 N. C. 546, 17 S. E. 426. The boundaries are as follows: "Section 1. That all the territory embraced within the following limits in the town of Greenville, Pitt county, to-wit, beginning on Tar River at the river bridge, foot of Pitt street, thence up said river to the first branch, commonly called Skinner's Ravine, thence with said ravine or branch to the eastern boundary line of the W. and W. Railroad where it crosses said branch, thence with said eastern boundary of right-of-way of said railroad to Tar River, thence up Tar River to the present corporate limits of said town, thence with said corporate limits of said town to the river road, at a point where Fifth street extended would cross said line, thence with said river road for Fifth street to J. L. Sugg's northwest corner on said street, thence his line so as to include his lot to the western line of the rightof-way of the W. and W. Railroad, thence across said railroad to John Flanagan's southwestern corner on said right-of-way, thence his back line and N. H. Bagwell's, Miss Martha O'Hagan's and Dr. C. O. H. Laughinghouse's back line to Pitt street, thence across Pitt street an air-line to S. T. Hooker's back line, thence his line, Miss McKenny Perkins' and J. A. Andrews' back lines to C. D. Rountree's corner on his back line, thence C. D. Rountree's line to Greene street, thence down Greene street to the Methodist parsonage's southern corner said street, thence with said parsonage line to R. N. King's line, thence his line to Frank Tyson's, thence with B. F. Tyson's back line, including said Tyson lot, to Dickeson avenue, The territory inside the red lines1 is the thence with northern side of Dickeson av- school district, and that part of the territory enue to R. A. Tyson's first corner on said outside the red boundary is excluded from the street, thence his back line, including said benefit of this school. There is another prolot, to Greene street, thence across Greene vision in the act that seems to be explanatory street to C. D. Rountree's northeast corner, of the gerrymandering of the territory of the thence his line so as to include his lot and town for the purposes of this school. The R. A. Tyson's line to Pitt street, thence up eighth section provides "that if there shall be said Pitt street to B. C. Shepperd's northeast so few of either race in the district that the corner, thence his line to a point one-half board of trustees shall deem it inadvisable distance between Pitt and Clark streets, to organize a school for that race, then they thence from this point a line parallel with shall have power to arrange for the children Pitt street an air-line to Zeno Moore's line, of the race which shall be represented to rethence his line to Clark street, thence with ceive their pro rata proportion of the fund so Clark street to Dickeson avenue, thence with raised by the special tax herein provided for, Dickeson avenue in a westerly direction to in some other manner, or they may give such the first ditch crossing said street, thence up pro rata proportion to the public schools for said ditch to the W. and W. Railroad tres- that race, adjoining the district herein detle over said ditch, thence an air-line from scribed." The constitution says both races said trestle to the northeast corner of old col- shall fare equally in matters of public schools, lege lot, thence with old college line in a though they shall be taught in separate westerly direction and southerly direction, in- schools. If there "shall be so few of either cluding said college lot, to old plank road, race the pro rata of that race may be given thence along and across in a southwesterly to an adjoining school district." Without asdirection old plank-road to E. A. Moye's north-cribing any reason the draftsman may have east corner, thence his line to a point 60 feet | had for using the term "either race," we will north of Broad street, thence a line parallel suppose it was the white race he thought with Broad street and 60 feet north of said would be so small that it would not be worth street to the western boundary of the rightof-way of the W. and W. Railroad, thence on The shaded lines in the plat, thus: tutional. But if it should be made to appear on the trial that this map is not correct, and the territory bounding the school district is not as therein represented, or that there are no negroes in said district to be discriminated against, or that there are no white children in said district to be discriminated against, and that neither race was so small but what a school should be organized and taught for the term free schools are to be kept open, then it may not be unconstitutional on account of its discriminations. This being an application for an injunction, this court has the right to review the findings of fact by the court below, as well as the law. Jones v. Boyd, 80 N. C. 258. But upon examining the supplemental statement of case on appeal, certified by the secretary of state, we find that neither of these acts was passed as they were required to be passed by the constitution to authorize the defendant to create any debt by issuing bonds, or to raise money by taxation. They both seem to have been properly passed in the senate,-the yeas and nays having been called and recorded on the second and third readings and on different days; but this was not done in the house, and of course, this being so, if it is so, and it appears to us that the yeas and nays were not recorded in the house on either the second or third reading, and, this appearing to us to be so, both acts are unconstitutional for the purposes for which they were intended, and a perpetual injunction should be issued. Commissioners v. De Rosset, 129 N. C. 275, 40 S. E. 43; Black v. Board, 129 N. C. 121, 39 S. E. 818. There was error in refusing the injunction. Error. (130 N. C. 451) JONES. FRANKLIN COUNTY COM'RS. (Supreme Court of North Carolina. June 19, 1902.) COUNTIES - LIABILITY FOR TORT - EMINENT DOMAIN-COMPENSATION FOR PROPERTY TAKEN-REMEDIES OF OWNER-TIME. 1. A complaint against county commissioners, alleging that they negligently, wrongfully, and tortiously cut, blasted, and carried away a strip of land without condemnation proceedings, states a cause of action in tort, and a demurrer thereto was properly sustained; county not being liable for damages in the absence of statutory provisions giving a right of action against it. a 2. Where county commissioners took land for the use of the county, and removed a quantity of building granite, under Acts 1899, c. 581, without having a jury assess the value of the land taken, as therein required, nor pay for the granite taken, and no appeal as provided for was taken from the actions of the commissioners, an action against them for the value of the property would not lie; the statutory remedy superseding the common law. 3. A reasonable time within which to make application for compensation for the taking of property by eminent domain, after the prop erty is taken, would be allowed where it would be impossible for the claimant to make the 1. See Counties, vol. 13, Cent. Dig. §§ 209, 210, 212. application at a regular meeting of the county commissioners, within 30 days after the taking, as required by Acts 1899, c. 581. Cook and Douglas, JJ., dissenting. Appeal from superior court, Franklin county; Justice, Judge. Action by J. F. Jones against the commissioners of Franklin county. From a judgment in favor of defendants, plaintiff appeals. Affirmed. F. S. Spruill, for appellant. W. H. Yarborough, Jr., for appellees. MONTGOMERY, J. The plaintiff, for his first cause of action, complains that the defendants, the board of commissioners of Franklin county, through the superintendent of public roads of the county, under the provisions of chapter 581 of the Acts of 1899, against the protest of the plaintiff, and without condemnation proceedings, negligently, wrongfully, and tortiously cut and blasted away a strip of his land 12 or 15 feet in width, by which the plaintiff's pathway around the end of his house was destroyed, to his great injury, and his warehouse endangered, and also that the defendants, through their agent, carried away and removed large quantities of the stone and granite thus blasted, to his further injury. That cause of action is clearly laid in tort, and his honor properly sustained the defendants' demurrer thereto. This court has repeatedly held that counties are instrumentalities of government, and are given corporate powers to execute their purposes, and are not liable for damages in the absence of statutory provisions giving a right of action against them. White v. Commissioners, 90 N. C. 439, 47 Am. Rep. 534; Manuel v. Commissioners, 98 N. C. 9, 3 S. E. 829; Prichard v. Commissioners, 126 N. C. 908, 36 S. E. 353, 78 Am. St. Rep. 672; Moody v. State's Prison, 128 N. C. 12, 38 S. E. 131. In the last-mentioned case it was further decided that, even if such authority was given, it could cover only actions ordinarily incidental to its operations, and would not extend to causes of action in tort. The same doctrine had been announced in Prichard v. Commissioners, supra, and in other cases also. In Gibbons v. U. S., 75 U. S. 269, 19 L. Ed. 453, the court said: "No government has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers or agents." And in Story, Ag. § 319, it is said: "The government does not undertake to guaranty to any person the fidelity of any of its officers or agents whom it employs, since that would involve it, in all its operations, in endless embarrassment and difficulties and losses, which would be subversive of the public interests." For his second cause of action, the plaintiff complains that the defendants, through the same agent, without the plaintiff's consent, and without condemnation proceedings, took for the use of the county, and for the convenience of the traveling public, a strip of land 10 or 12 feet in width, off one end, of his land of great value, and, in addition, cut and blasted away and removed a large quantity of building granite off the property, of considerable value. The defendants demurred, also, to that cause of action; the first specification being that the court has no jurisdiction of the subject-matter of the action. As to that part of the plaintiff's demand for the value of the strip of land alleged to have been taken by the defendants for the public use, the defendants were compelled to order a jury to assess the value of the same, under section 12 of the act of 1899. Upon their declining to do this upon demand made upon them for that purpose an appeal lay to the superior court on the part of the plaintiff. In reference to the plaintiff's demand in his second cause of action for the value of the rock or granite blasted and carried away by the defendants, the defendants were not required to order a jury to assess the value. They could have made the assessment and allowance themselves. Upon their refusal to make any allowance for the value of the granite taken, an appeal lay from their ruling to the superior court; the appeal "to be governed by the law regulating appeals from the courts of justices of the peace." The county commissioners, by the act of 1899, were given original jurisdiction of the matter embraced in the plaintiff's complaint, and the superior court could exercise only appellate jurisdiction. It has been often held by this court that in cases involving the right of eminent domain the common-law remedy is superseded by the statutory remedy, and that aggrieved parties must therefore seek redress under the statutory remedy. McIntire v. Kailroad Co., 67 N. C. 278; Gilliam v. Canaday, 33 N. C. 106; Gillet v. Jones, 18 N. C. 339; Dargan v. Railroad Co., 41 S. E. 979. In McIntyre v. Railroad Co. the action was in trespass for the recovery of damages for an injury sustained by the building of defendant's railroad on plaintiff's land. The court affirmed the judgment below,-that the plaintiff could not bring the action as at common law, but should have proceeded under the provisions of the charter of the company, which contained a method and manner of the assessment of damages. The court said in part: "But the decisions [Gillet v. Jones, 18 N. C. 339; Gilliam v. Canaday, 33 N. C. 106] do not go so much on the words of the act as upon its evident policy. If the owner of land overflowed by a milldam could bring his action on the case for damages every day, no public mill could be established. In like manner, if the owner of land taken by a for trespass every day, no railroad could be built. In such case the law considers the 42 S.E.-10 property, though taken for an individual or for a private corporation, for the public use. Railroad Co. v. Davis, 19 N. C. 451. It is not forbidden by the constitution if compensation be made, and compensation is provid ed for. The mode of obtaining it may not be so easy or satisfactory to the owner, but it is not illusory. A substantial and just compensation may be obtained. There can be no doubt but that the legislature had the right to take away the common-law remedy. The only question possible is as to their intention." We can see no difference between the points discussed and involved in those cases and the point involved in the present case, in so far as the remedy of the plaintiff is concerned. The county of Franklin appropriated for the public use the property of the plaintiff, under chapter 581 of the Acts of 1899, and the manner of compensation was fixed in precise terms by the act. The common-law remedy was superseded by that of the statute. It appears in this case that the plaintiff made his demand for compensation before the proper tribunal, and, upon his application having been refused, he should have appealed under the provisions of the act. If it had been that the plaintiff had not, at the time prescribed in the act, presented his claim, because of the impossibility of his hav ing received notice of the taking of the property before the time when demand had to be made under the statute, we would have no hesitancy, while upholding the main features of the statute, in deciding that a rea sonable time within which to make the ap plication for compensation, after the property was taken, should have been allowed. because. under the terms of the act. it is apparent that there might be a taking of property by the county authorities for public purposes under the act at a time which would not admit of an interval of 30 days intervening between the taking and the next regular meeting of the board. Darby v. City of Wilmington, 76 N. C. 133; Broadfoot v. City of Fayetteville, 128 N. C. 529, 39 S. E. 20. The language of the statute (section 11) is as follows: "If the owner of any land, or the agent or the agents of such owner having in charge land from which timber, stone, gravel, sand or clay was taken as aforesaid, shall present an account of the same, through the county road superintendent, at any regular meeting of the county commissioners, within thirty days after the taking and carrying away of such timber, stone," etc., "it shall be the duty of the said commissioners to pay for the same a fair price." No error. COOK, J. (dissenting). I think there was error in sustaining the demurrer as to the second cause of action. The sacred regard which the law has for the rights of private |