The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1903-05-01
Restraining the Building
of the Federal Point
Fence
1T WAS EXPECTED
order issued from Fayetteville by
Judge Cooke Against the County
COnmissiOners-It is Returnable
Before Judge PEBBLES at Clinton
Next Month.

The board of county commissioners
has been restrained from building the
much talked of fence in Federal Point
township. This action was expected and
consequently auses no surprise. The
restraining order was issued by Judge
Cooke at Fayetteville and was sent to
Colonel John D. Taylor, clerk of the
superior court of this county, yester-
day and was then placed in the hands
of the sheriff to be served on Commits
sioners d. McEachern, w. F. Robert
son. Gabriel Holmes, H. L. Vollers and
w. F. Alexander.
The order was obtained on the petit
ton of John W.. Harper and other land
owners of Federal Point township and
was presented to Judge Cooke by their
counsel, E. K. Bryan, Esq. The order
was made returnable before Judge R.
b. PEBBLES at Clinton, the 18th day of
next month.
The bids for building the fence had
already been called for and were to
have been opened Saturday at noon.
OF course, this restraining order will
make a change. The building of the
fence was to have been done under an
act of the last general assembly, Great
ed TO restore the fence law in Federal
Point township. This act directed the
commissioners of this county to have
the fence constructed and pay the cost
out { the general fund. This cost was
to lave been levied against the real
property situated in the territory where
the tence law is r~e-established and a
sufficient tax collected to replace the
amount drawn from the general fund;
and every year levey tax enough for the
maintenance of the fence.
The plaintiffs in their petition set
forth two causes of action and in both
declare that the law under which the
commissioners intend to act is uncon-
Stitutional- They allege that the act is
not only in viola ton of the cOnstitu-
ton of the State of North Carolina,
but is in violation Of the constitution
OF the United States. 1t is claimed the
act is in violation of the 5th and 18th
: amendments of the constitution of the
United States. As to the former, it is
alleged, it IS in violation in that it
takes property for public use without
just compensation, and in violation Of
the latter in somuch as the property
in FED raj Point township would be
taken without due process of law and
that the property would receive no
benefit.
Relative to the action being in viola
lion Of Article :. Section Z. of the con-
%stitutiOn of North Carolina, the reason
is given that the tax to be levied will
not be for necessary expense OF the
county and that there is no provision
for the act to be submitted to the peO-
pie.
Outside of the allegations as to thel
unconstitutiOnality of the act, the plain
tiffs claim that the commissioners
should first have proceeded under an
act ~amendatOry of the act in question:,
which amendment was passed by the
last general assembly and which pro-
Vided for the expense to be taxed on all
the county property: that they Cthe
plaintiffs) believe that this act was
submitted by the commissioners to
counsel. who advised that this amend
atory act was void as it had not re-
ceived three separate readings in both
houses of the general assembly on three
distinct days, but that they Cthe plain
tiffs) do not believe that such vas nee
eSSary in order to make it valid.
Further. they allege that the amount
of tax in Federal Point township Is
1920, and this is at the rate OF 80 2-5
cents on the 500 valuation. and if the
said fence is built and tax levied it
will amount to 10 per cent. of its value,
Again. they claim that there is a num-
Der of owners of real estate in the tel
ritOry where the fence is to be estab-
,Iished who have not sufficient timber
- 80 -: - 49,, I'D - I-ilI n, ;n,
possible for them to make a crop upon
them this year on account of being un-
able to build a fence around same, as
required by the law in question, and
If the commissioners build the fence as
required there will be a number who
will lose their land. as they will be un-
able to raise crops and pay their taxes.
The order signed by Judge Cooke is
as follows:
This cause coming on TO be heard
before the Hon. c. VI. Cooke. one of the
judges of the superior court. riding the
Seventh judicial district. at Fayette-
Vile on the 9th a of April. 1908. upon
the verified complaint of the plaintiffs,
which IS used as an affidavit. and it
appearing to the court from the ale
cations contained in the said complaint,
used as an affidavit. that the plaintiffs
are entitled to a restraining order re-
straining the defendants and each of
them and their agents and servants
from proceeding to build the fence, as
required by the acts of the general as
sembly of North Carolina, passed at its
session of 1908, referring to the build
ing of a fence so as 10 r~e-establish the
fence law in Federal Point township,
county of New Hanover. is ~unconstitu-
tionaI and void; and il further appear
ing to the court that the defendants
will build the said fence unless they
are restrained by this honorable court.
1t is now, therefore. on motion Of E.