Brown v. Flake

Atkinson, J. 1. Where an act of the General Assembly created a board of county commissioners for a given county, and provided for the selection of such commissioners by the grand jury of the county, and subsequently the act creating such board was amended by providing that such commissioners should be elected by the qualified voters of the county, and subsequently to the passage of the amending act such commissioners were continuously elected by the grand jury, and no election by the qualified voters was called or held, and the commissioners so selected continued for several years to perform the duties imposed by law on the commissioners of such county, and their acts as commissioners were recognized and acquiesced in by the people of the county for a long period of time, the persons so selected by the grand jury and discharging the duties of county commissioners were de facto officers, and their acts as such, within the scope of the powers conferred on the board of county commissioners, were legal; and a tax authorized by law, levied by such commissioners for county purposes, was a valid and binding tax. 2. The action of such commissioners can not be enjoined or otherwise collaterally attacked on account of the manner of their selection. Judgment affirmed. All the Justices concurring. The defendants demurred generally, and took issue, by answer, upon the contentions set forth in the petition. They alleged, that they were elected by the grand juries, in pursuance of law, to the offices of commissioners of roads and revenues, at the times and for the terms prescribed by the acts of the legislature, and after having duly qualified for the performance of the duties of said offices they have collectively exercised the functions of such commissioners from the time of their respective elections to the 23d of December, 1896, when by act of the legislature approved on that date the act of December 8, 1886, was repealed, since which time they have neither exercised the duties of said office nor claimed any right thereto. The manner of electing commissioners as provided for in the amended acts of December 26, 1890, and October 16, 1891, was changed by an act approved October 19, 1891, by the terms of which the manner of electing commissioners was, upon the recommendation of two successive grand juries, changed from election by the qualified voters of the county to an election by the grand juries first sitting after the expiration of the terms of said commissioners respectively. By authority of this act the grand juries of the spring and fall terms of the superior court, sitting in February and August, 1892, recommended that thereafter the commissioners be elected by the grand juries. Defendants have been elected by the grand juries in the manner prescribed by the act of October 19, 1891, for the terms fixed by the act of December 8, 1886, and the amendatoiy acts of December 26, 1890, and October 16, 1891, have given bond and taken the oath of office, and have continuously exercised the functions of the board of commissioners from the time of their election to the repealing act of December 23, 1896. As such board of commissioners, in the order levying'taxes for gen■eral purposes in the county on October 5, 1896, they directed the levy of the tax mentioned in the petition, having authority both as de jure and de facto commissioners to levy the same. They are unable to answer as to the legality of the election for the removal of the county-site, but deny that the result of it, there not being a two-thirds vote of the qualified voters of the ■county in favor of the removal, can effect a change of the county-site; and insist that the facts as to this election furnish no grounds as to why a new court-house should not be built. The prayer for injunction was denied, and plaintiffs excepted. Harrison & Peeples, for plaintiffs. Candler & Thomson and W W. Braswell, for defendants.