North Carolina - Legislative Acts Creating Precincts / Counties

An Act to Establish and Provide for the Organizion of the County of Avery From the Territory of Mitchell, Watauga and Caldwell Counties.

Chapter 33

Public Laws and Resolutions of the State of North Carolina Passed by the General Assembly in 1911 - Pages 62-69.

The General Assembly of North Carolina do enact:

SECTION 1. That a county by the name of Avery, in honor of Col. Waightstill Avery of Revolutionary fame, be and the same is hereby created and established out of and embracing the following described territory:

Beginning at the highest point of Grandfather Mountain, the corner of Watauga, Caldwell and Mitchell counties, and running a direct line to the Hanging Rock Mountain; then with the dividing ridge to the Turnpike Road in the gap of Bower's Mountain; then a direct course to the eastern prospect on the eastern end of Beech Mountain; then a direct course to the Buckeye Spring; then down and with the meanders of Buckeye Creek to Beech Creek; then with the meanders of Beech Creek to Watauga River; then with the meanders of Watauga River to the Tennessee line; then with the Tennessee line to the Grassy Ridge Bald; then a direct line to Spear Top; then with the main height of Yellow Mountain to the highest point on Little Yellow Mountain; then a direct line to Pine Knob; then to the mouth of Gouge's Creek on Toe River; then south forty degrees east to the Bald Ground on Humpback Mountain at the McDowell County line; then with the McDowell County line to the Burke County line; then with the Burke County line to the Caldwell County line; then with the Burke and Caldwell line to the highest point on Chestnut Mountain; then a direct course to Anthony Creek so as to include all of Carey's Flats; then to the beginning.

SEC. 2. That the said county of Avery shall be and is hereby invested with all the rights, powers, and privileges of the several counties of the State under the general laws regulating the same, and shall be subject to such laws as now exist, or may be hereafter enacted for the government of counties.

SEC. 3. That M. W. Clay and J. W. Burleson of the said county of Avery be and they are hereby appointed commissioners on the part of Avery County, and they, or either of them, shall meet a commissioner or commissioners of the counties of Mitchell, Caldwell, and Watauga, some time within the year one thousand nine
hundred and eleven (1911), and the said commissioners herein provided for shall proceed to select a competent surveyor and, being sworn, they shall survey and mark the lines between said comities of Avery, Mitchell, Caldwell, and Watauga as designated in this Act, and shall make a report under their hands and seals, or the hands and seals of any two of them, representing opposite sides of said dividing lines, to the board of commissioners of each of said
counties, which report shall be spread upon the records of each of said boards as a part of their record. The said commissioners shall furnish the said board of commissioners of each of said counties with a map of their said surveys. Said commissioners who survey said line shall have power to employ such persons as may be necessary for making such survey, and said commissioners and their helpers shall be allowed a reasonable compensation for
their services, to be allowed by the board of commissioners of the county of Avery: Provided, the commissioner or commissioners from the county of Mitchell and the county of Caldwell and the county of Watauga shall be paid by the board of commissioners of the respective counties, and that said survey between said counties, as aforesaid, shall be made in accordance with the Act creating said county.

SEC. 4. That the sheriffs and other county officers of the counties of Mitchell, Caldwell, and Watauga shall continue to exercise the functions of their respective offices, in the detached portions of their respective counties, until the officers of the county of Avery shall have qualified as provided for in this Act. All township officers of said portion herewith detached from Mitchell, Caldwell, and Watauga counties shall continue and be officers in the county of Avery as freely and fully and with like duties, powers, and requirements of the said officers as in other counties, and
for such terms as they may hold in and for the counties of Mitchell, Caldwell, and Watauga: Provided, that all such officers shall, within the month of April, A. D. one thousand nine hundred and eleven (1911), file with the Clerk of the Superior Court of Avery County, or the Board of Commissioners of Avery County, as originally required, a proper certificate that such officer has duly qualified in the county in which he had held office prior to the establishment of Avery County; and Provided further, that each of said officers shall qualify in the county of Avery and renew his bond, where required by law.

SEC. 5. That on or before the fifteenth day of May, one thousand nine hundred and eleven, the Governor of the State shall appoint the following officers of the county of Avery, viz.: A board of county commissioners, consisting of three members; a clerk of the Superior Court, a sheriff, a register of deeds, a treasurer, a coroner and county surveyor, who shall, until their successors are elected and qualified, exercise the powers and duties incident to their respective offices as completely and fully as if they had been regularly elected thereto; which said officers shall qualify and enter into the discharge of their said offices on the first Monday in April, one thousand nine hundred and eleven.

SEC. 6. That the several courts of the State shall have jurisdiction over and in the said county of Avery, as such county, on and after the first Monday in April, A. D. one thousand nine hundred and eleven, to the same extent and in the same manner as the said courts have in and over the several counties in the State, and that on and after the first Monday in April, A. D. one thousand nine hundred and eleven, the said courts shall have jurisdiction of all matters in the county of Avery as the said courts would have over the same matters and things, without the formation of said Avery County. And it shall be no defense by pleading or otherwise, as to the jurisdiction of said court over causes of action arising or that may have arisen within the territory embraced in said Avery County boundary line, brought into the court of said county of Avery, that the said cause of action arose before the formation of the said county of Avery: Provided, that this shall in no way affect the statute of limitations governing said causes generally.

SEC. 7. That the Superior Courts of the county of Avery shall sit at such places as shall be provided by the board of commissioners of said county, and the several officers shall be required to keep their offices at such places as shall be provided and designated by the board of commissioners until the court house can be erected for said county.

SEC. 8. That all civil and criminal cases pending in the Superior Courts of Mitchell, Caldwell, and Watauga counties which would have been properly triable in the county of Avery, if the said county of Avery had existed at the time said cause was instituted or the right of action therein accrued, or where the criminal offense charged was committed in the territory of the said county of Avery, shall, upon motion of any defendant in any criminal case pending or upon motion of any party to civil causes, be transferred to the Superior or other proper court of Avery County. Such motion for removal shall be made at the first term of the court wherein the cause shall be pending, which shall sit or be holden after the first Monday in April, A. D. one thousand nine hundred and eleven, and such transfer shall in no way work any preference or prejudice. It shall be the duty of the clerks of the Superior Courts of Mitchell, Caldwell, and Watauga counties to transmit the original papers in all such cases removed, together with a proper record of all such causes removed, to the Clerk of the Superior Court of Avery County. All actions, causes or proceedings, matters and things pending before the clerk of the Superior Court of the county of Mitchell or the clerk of the Superior Court of Caldwell or the clerk of the Superior Court of the county of Watauga which would have been within the jurisdiction of the Clerk of the Superior Court of Avery County, had the county of Avery existed at the time said cause, proceeding or matter was begun or the right therein accrued, shall upon motion of any party thereto or interested therein be transferred to the county of Avery and to the jurisdiction of the clerk of the Superior Court of said county, to be heard, determined, or proceeded with before him, in all respects as if the said cause, matter, or proceeding had been begun in said county of Avery. Upon such removal, it shall be the duty of the clerk of the Superior Court of the county from which the removal is made to transmit to the clerk of the Superior Court of the county of Avery the original papers in such cause, matter, or proceeding, together with a proper record thereof.

SEC. 9. That if this session of the General Assembly shall make no provision for the holding of Superior Courts in said county of Avery, it shall be the duty of the board of commissioners of said county to apply to the Governor of the State for a term to be holden as often as once each spring and once each fall, and it shall be the duty of the Governor to order such term to be held at such times as he shall be able to assign a judge to hold the same, preferably when the judge riding the district embracing said county shall be able to hold the same. And it shall be the duty of the judge assigned to hold said court, as fully as if said court were regularly provided for as one of the regular courts of the district; but if said judge be unable for any cause to hold said court, whenever it may be ordered, then it shall be the duty of the Governor to assign some other judge to hold the same, who shall receive the usual compensation for the holding of extra terms of court. And it shall be the duty of the board of county commissioners of the county of Avery to advertise the time of holding the said court, for thirty days beforehand, in some newspaper published in said county or in some newspaper having circulation in said county. All processes, both civil and criminal, shall be made returnable to said courts, and when it shall be necessary to issue summons or other process, or take any recognizance or bond for the appearance of any person at any of the said courts, and if
the time of holding same be not known by the person or officer issuing same, it shall be sufficient to make the same returnable to the next term of said court, without specifying a day certain: Provided, that if the time for holding said court be otherwise regulated by statute this section shall be void.

SEC. 10. That it shall be the duty of the registers of deeds or clerks to the boards of commissioners of the counties of Mitchell, Caldwell, and Watauga, to transmit to the register of deeds or clerk of the board of county commissioners of the county of Avery, on or before the first Monday in June, A. D. one thousand nine hundred and eleven, a certified list of all persons liable to jury duty residing within the detached portion of their respective county, and within the county of Avery, and which shall constitute the jury list for the county of Avery, subject to the changes and revision thereof required by law. The board of commissioners of the county of Avery shall revise the jury list at its meeting on the first Monday in June, A. D. one thousand nine hundred and eleven, in the manner prescribed by law for the revision of jury list at other times, and shall have power to adjourn from time to time to complete said revision, or to postpone the said revision until the next regular meeting, when the said revision shall be
made.

SEC. 11. That the following named persons be and the same are hereby appointed a special committee to select two or more locations for a county seat for the said county of Avery, upon which a court house and jail shall be erected, viz.: Brown Hughes, Robert Houston, T. A. Love, J. L. Banner, M. W. Clay, W. H. Ollis, T. B. Vance, Ralph Young, T. J, Ray, Harrison Baird, J. H. Walsh, J. M. Cameron, T. L. Lowe, and C. B. Voncannon. The said committee will meet together at a time and place agreed upon by a majority thereof, and at said meeting tbey shall elect one of their number as chairman and a secretary, and after a majority of said committee shall have agreed upon the said sites, they shall make their report in writing to the board of commissioners of the county of Avery on the first Monday in May, A. D. one thousand nine hundred and eleven, unless the time for making such report shall
be extended by the said board of commissioners; and upon receipt of such report it shall be the duty of the said Board of Commissioners of Avery County to order an election to be held in said county of Avery, submitting to the qualified electors of said county the question of the location of the said county seat, and to advertise said election by notices posted in five public places in each township of said county, naming the purpose of such election and the time and places of holding the same, and to make all other necessary arrangements for the holding of said election as required by law. And in case the committee hereinbefore provided for shall select more than two sites or locations to be voted upon in said election, the location or site receiving the majority of the votes cast at said election shall be declared the county seat: Provided, that in case neither of such locations voted upon shall receive
a majority of all the votes cast, then and in that case the said board of commissioners of the county of Avery shall immediately order another election, advertising the same as in the first instance provided for, at which election the two locations receiving the greater number of votes at the first election shall be voted on and the site or location receiving the majority of votes at such second election shall be declared the county seat of Avery County and shall bear the name "Newland."

SEC. 12. That for the purpose of erecting a court house and jail for and in the county of Avery, the board of county commissioners herein provided for shall have the power to issue county bonds in the sum of not exceeding thirty thousand dollars, bearing interest at a rate not greater than five per centum per annum; none of said bonds shall mature in less than ten years and none shall run for a longer period than twenty years; and for the purpose of paying off and discharging said bonds, together with the interest thereon accrued, the said board of couuty commissioners
is hereby authorized, empowered, and directed to levy a special tax annually to pay the interest on said bonds and to pay a portion of said bonds after the expiration of ten years; or if, instead of issuing said bonds, the board of county commissioners shall deem it expedient, they shall have authority to purchase or receive by donation a suitable tract of land, and after first selecting suitable sites for a court house and jail upon said tract, they shall lay off
the remainder of said tract so purchased or donated into lots and sell the same at either public or private sale, and apply the proceeds arising from the sale of said lots to the erection and construction of said court house and jail; and if there should be a surplus, after paying for the erection of said court house and jail, the same shall be held by the county treasurer for general county purposes; but in the event that the fund arising from the sale of said lots as herein provided for shall not be sufficient for the erection of said court house and jail, the said board of commissioners shall issue bonds as hereinbefore provided for to meet the amount required to complete the same.

SEC. 13. That the county of Avery shall bear its proportionate part of the debt of Mitchell County, Caldwell County, and of Watauga County, both bonded and floating, outstanding on the first Monday of April, A. D. one thousand nine hundred and eleven, and the proper levying officers shall proceed, according to law, to levy taxes to pay the same as it becomes due, and the tax collector of said county of Avery shall collect the taxes so levied.

SEC. 14. That the boards of commissioners of the counties of Mitchell, Caldwell, and Watauga, at their April meetings of the year one thousand nine hundred and eleven, shall each appoint two freeholders of their respective counties as arbitrators, and the board of commissioners of the county of Avery shall appoint two freeholders as arbitrators, to settle with the county of Mitchell, and two such freeholders to settle with the county of Caldwell, and
two such freeholders to settle with the county of Watauga, and the arbitrators herein provided for shall meet in the towns of Bakersville, Lenoir, and Boone, respectively, on Monday next after their appointment, and from time to time thereafter until their work has been completed; and after being duly sworn, shall ascertain the outstanding indebtedness of the respective counties on the said first Monday in April, A. D. one thousand nine hundred and eleven, and upon the basis of the tax valuation of the respective counties of Mitchell, Caldwell, and Watauga, embraced within the boundaries of the county of Avery, shall determine the amount proportional to each county of said indebtedness, based upon the tax valuation at the time such indebtedness was contracted, which indebtedness
shall be paid in accordance with such finding. And the said arbitrators shall determine the proportionate part of the funds on hand the first Monday in April, A. D. one thousand nine hundred and eleven, or the funds due the said counties of Mitchell, Caldwell, and Watauga at that time, which shall be awarded to each of said counties, and shall determine what taxes shall be due and collectible by each of the said counties, and shall certify their findings to the board of commissioners of their respective counties, and their findings shall be binding upon said counties. Said arbitrators shall be empowered to select an umpire who, after being duly sworn, shall serve with them, said umpire to be selected from some county in North Carolina not affected by this Act, and the said arbitrators and umpire shall be empowered to send for parties and papers, administer oaths, and punish for contempt as provided for
boards of county commissioners.

SEC. 15. Provided, however, that the territory included in the boundaries of Watauga County shall not be annexed to or become a part of the county of Avery until the question of annexation to the county of Avery shall have been submitted to a vote of the qualified voters living within that portion of Watauga County proposed to be annexed to the county of Avery, at an election to be held under the rules and regulations required by law for the election of members of the General Assembly of North Carolina on the first Tuesday in May, one thousand nine hundred and eleven; and that it shall be the duty of the board of elections of the county of Watauga to appoint registrars and judges for Shawneehaw and Beech Mountain townships, which registrars shall proceed to open the registration books for their respective townships as required by law for the election of members of the General Assembly of North Carolina, and said election shall be advertised for not less than twenty days in at least four public places in the townships of Shawneehaw and Beech Mountain respectively, and those voting for annexation to the county of Avery shall vote a ballot, either written or printed, the words, "For Annexation to the County of Avery," and those
opposed to the said annexation shall vote a ballot, either written or printed, the words, "Against Annexation to the County of Avery." It shall be the duty of the said registrars and judges of said election to make due return of the result of said election on the second day after the election by one of their number to the Board of Elections of Watauga County, who, together with said board of elections, shall canvass the returns of said election, and under their hands and seals certify the result thereof; and if a majority of the qualified voters voting in said election shall have voted for annexation to the county ot Avery, then the said territory shall be and become a part of the county of Avery; but if a majority of the qualified voters voting in said election shall vote against annexation to the county of Avery, then the same shall be and remain a part of the county of Watauga: Provided further, that it shall be the duty of the registrars for the townships of Shawneehaw and Beech Mountain respectively to make a list of the qualified voters living in the territory proposed to be ceded by this Act to the county of Avery by the county of Watauga, and that no person living outside of said boundary shall be a qualified voter in said election: Provided further, that the county of Avery shall constitute a part of the Ninth Congressional District and a part of the Thirty-sixth Senatorial District.

SEC. 16. This Act shall be in force from and after its ratification.

Ratified this the 23d day of February, A. D. 1911.

WILLIAM C. DOWD, S.H.R.
WILLIAM C. NEWLAND, P.S.

State of North Carolina:
Office of Secretary of State
Raleigh, March 30, 1911.
I, J. Bryan Grimes, Secretary of State of the State of North Carolina, hereby certify that the foregoing (manuscript) are true copies of the original acts and resolutions on file in this office.
J. BRYAN GRIMES,
Secretary of State. 



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