135 N.C. 230 | N.C. | 1904
Dissenting Opinion
dissenting. This is a controversy submitted without action under section 567 of The Code upon an agreed state of facts. The plaintiff is a corporation. The county of Madison is indebted to divers and sundry persons, including the plaintiff, in a sum aggregating $70,000 or thereabouts, as nearly as the parties can ascertain; said indebtedness consisting (1) of bonds of said county issued under and by virtue of chapter 398, Public Laws 1887, and not yet due, amounting to $25,000 or thereabouts; and (2) of the present floating debt of said county incurred for the necessary expenses thereof prior to January 1, 1903, all of which is past due and bears interest at the rate of six per cent, per annum, amounting to about $45,000 — this last-named item including an indebtedness to the plaintiff of $722.93, as nearly as the parties can ascertain, of which sum $500 is principal and bears interest from the date thereof until paid, at the rate
The Court upon the foregoing state of facts ordered and adjudged that the defendant Board of Commissioners and W. L. George, chairman of said board, and V. B. Davis, Register of Deeds, execute and issue the bonds of said county authorized by the said act, in accordance with the terms and provisions of said Act of 1903, and that said bonds be delivered to the Treasurer of Madison County to be held and disposed of, and the proceeds thereof applied by him in the manner and for the purposes declared, defined and specified in the said act, and that a peremptory writ of mandamus be issued to that end. From this judgment the defendants appealed.
The preamble of chapter 290, Laws 1903, is as follows: “The General Assembly of North Carolina do enact: Whereas by an act of the General Assembly of North Carolina, Public Laws of 1887, chapter 398, hereinafter referred to, the Commissioners of Madison County were authorized to issue the bonds of the county not to exceed the sum of $25,000 bearing interest at six per cent, payable semi-annually, and in conformity with the said act the Board of Commissioners of Madison County issued the bonds of the said county, amounting in all to $21,000, with coupons attached; and whereas the said bonds are now an outstanding indebtedness against said county, and the said county will not be able
Provision is then made for the form of said bonds, and authority given to levy a special tax to pay the interest and principal when the same become due. By section 1 of said act a special board of audit it created to scrutinize, examine and adjust and report to the said board all bonds, claims and debts contracted by the said county prior to January 1, 1903, which are still outstanding, unsettled and unliqui-dated. Said board is required to report to the County Board of Commissioners all such claims, bonds, etc., as shall be audited and allowed by them. The findings of the board of audit are made conclusive in regard to the purpose for which the said bonds were issued or debt contracted. Section 9 of said act provides that immediately after its ratification, the chairman of the Board of Commissioners shall advertise in some newspaper published in the county of Madison, and
After careful consideration and examination of this record and of the authorities cited by the counsel and my own investigation, I am constrained to differ from the majority of the Court in the conclusion reached by them. I would be content to express my dissent without saying more, but the reasoning upon which the judgment of the Court is based is so variant from my views, and, as I think, with all possible deference, from sound legal principles and authority, that it seems proper and becoming to set forth the result of my thoughts and investigation upon the very important questions involved. To my mind the principles underlying the decision of the case are of vital importance in the administration of our State and county government. My strong convictions upon the subject must be my excuse for encumbering the record with my dissent.
The questions presented by the record may be stated as follows :
1. Does chapter 289 of the Acts of 1903 impose upon the defendant Board of Commissioners the duty to issue the bonds and dispose of the proceeds, when sold, as directed by the terms of the statute?
2. If so, is it within the power of the Legislature to impose such duty and to make its performance mandatory?
3. Will the Court, by mandamus, compel the performance of such duty?
The plaintiff maintains that an affirmative answer should be given to each of these questions, and its claim for relief
1. The bonds issued pursuant to the Act of 1887, maturing in 1907.
2. The accrued and past-due interest on said bonds.
3. The present floating debt incurred for the necessary expenses of said county prior to January 1, 1903, and past due.
The plaintiff’s debt falls within the third class. It will be observed that by section 7 of the act a special board of audit is created, the members thereof named, and its duties prescribed. Neither the existence of this hoard nor its procedure is dependent upon any action of the defendant Board of Commissioners. On May 30, 1903, the special board, in strict compliance with the provisions of the statute, met and- the plaintiff’s claim, together with others, was “presented, proved and allowed.” It was also ascertained and declared by the said hoard that the plaintiff’s claim was “for the necessary expenses of the county incurred prior to January 1, 1903.” The action of the board was duly reported to the defendant Board of Commissioners as prescribed by the act. Demand has been made by the plaintiff that the bonds be issued and other proceedings had as provided by the statute. Thus, we have fixed by admission of the defendant a valid indebtedness incurred for the necessary expenses of the county, etc.
Has the Legislature commanded the payment of this debt by the means prescribed by the statute, or has it left to the discretion of the commissioners the payment of the said debt in the manner directed? The defendant says that the Ian-
The principle by which the courts have been guided in construing statutes containing the terms used by the Legislature or other terms of similar import, was first announced in Rex v. Barlow, 2 Salk., 609, which the case states was an “indictment on 14 Car. 2, chapter 12, against church wardens and • overseers for not making a rate to reimburse the constables. Exception was taken that the statute only puts it in their power to do so by the word may, but does not require the doing of it as a duty, for the omission of which they are punishable. Sed non allocatur, for where a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall; thus 23 Hen. VI. says the sheriff may take bail; this is construed he shall ” This case has been cited as authority and the principle announced uniformly approved.
In King v. Inhabitants of Derby (Skinner, 370) the report of the case is as follows: “Moved to quash the indictment against divers inhabitants in Derby for refusing to meet and make a rate upon the several parishes in Derby to pay the contables tax; first because they are not com-pellable, but the statute only says that they may, so they have their election, and no coercion shall be; non allocatur, for may in the case of a public officer is tantamount to shall; and if he does not do it he shall be punished upon an information; and though he may be commanded by a writ, this is but in aggravation of his contempt.”
In Regina v. Tithe Commissioners, 14 Q. B., 459, Mr. Justice Coleridge, construing an act conferring power on
“Permissive words in respect of courts or officers are imperative in those cases in which the public or individuals have a right that the power so conferred be exercised. Such words, when used in a statute, will be construed as mandatory for the purpose of sustaining and enforcing rights, but not for the purpose of creating a right or determining its character; they are peremptory when used to clothe a public officer with power to do an act which ought to be done for the sake of justice, or which concerns the public interest or the rights of third personsSoutherland on Statutory Construction, 5 91.
The principle is thus stated in Endlich on Int. of Stats., section 311: “There is therefore abundant authority for the proposition that such powers as are here under consideration are invariably imperative; and that it is the duty of those to whom they are entrusted to exercise them whenever the occasion contemplated by the Legislature arises. And having regard to this implied duty, the enabling or facultative terms in which the power may be couched, much as fit shall be lawful,’ are to be regarded merely as the usual mode of giving a direction; as importing that it shall not be lawful to do otherwise than as directed.”
McCrary, Circuit Judge, in Ralston v. Crittenden, 13 Fed. Rep., 508, thus states the rule of construction: “Even if the terms of a statute are permissive only, and mean no more than the words generally employed in statutes importing a grant of authority or power to a public officer to do a certain act, still it is well settled that all such acts are construed as
In Supervisors v. U. S., 17 Wall., 435, the language of the act was: “May, if deemed advisable, levy a special lax, etc." Swayne, J., says: “The counsel for the respondent insists with zeal and ability that the authority thus given involves no duty; that it depends for its exercise wholly upon the judgment of the supervisors, and that judicial action cannot control the discretion with which the statute has clothed them. We cannot concur in this view of the subject/’ The Judge cites the English cases and concludes: “These are the earliest and the leading cases upon the subject. They have been followed in numerous English and American adjudications. The rule they lay down is the settled law of both countries. * * * The conclusion to be adduced from the authorities is that where power is given to public officers, in the language of the act before us or in equivalent language — whenever the public interests or individual rights call for its exercise — the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demand of right and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid and who would otherwise be remediless. In all such cases it is held that the intent of a Legislature, which is the test, was not to devolve a mere discretion, but to impose ‘a positive and absolute duty.’ ”
In Galena v. Amy, 72 U. S., 705, the charter provided that the city council “may, if the said city council believe that the public good and best interest of the city require, annually collect a tax, etc., for the payment of the funded debt of the city, etc.,” and the Court said that “this power has not been exercised by the city authorities, and they have made no
In People v. Supervisors, 51 N. Y., 401, the board of supervisors were “authorized and empowered” to hear and determine certain claims against the county and to provide for their payment. Earle, J., says that “The first question to be determined is whether this act was merely permissive or mandatory to the board of supervisors. * * * This relief would be quite illusory if it were left to the absolute discretion of the board of supervisors of any county to refund the taxes or not, as they might see fit. * * * The purpose of the act, as well as the simplest justice, requires that we should hold that it is mandatory upon the respective boards of supervisors, unless there is something in the plain language used that forbids such a construction. The words ‘authorized and empowered’ are usually words of permission merely, and generally have that sense when used in contracts and private affairs; but when used in statutes they are frequently mandatory and imperative.” After examining the cases, he says: “These authorities are abundant to show that the language used in the act under .consideration must be construed to be imperative.”
In People v. Supervisors, 68 N. Y., 114, the language of the statute was “that the said board may in their discretion cause the tax to be levied.” The same learned Justice, speaking of the right of the creditor, says: “He has rendered a service for the public for which he expects to be paid, and for
Smith, C. J., in Johnston v. Pate, 95 N. C., 68, says: “The term 'may' is often construed as mandatory when the statute is intended to give relief," citing Rex v. Barlow, supra; Mason v. Fearson, 9 How., U. S., 248, in which Mr. Justice Woodbury said: “Without going into more details, these cases fully sustain the doctrine that what a public corporation or officer is empowered to do for others, and it is beneficial to them to have done, the law holds he ought to do."
Upon the foregoing unbroken line of authorities which, if necessary, might be extended to almost every jurisdiction in the Union, it is clear that the language of this statute should be construed as mandatory. In the preamble of the act the conditions existing in respect to the indebtedness of Madison County are recited, which are admitted in this record to be true. We have a debt contracted for the necessary expenses of the county, which it was the duty of the defendant commissioners to pay. The payment of this debt was demanded by every possible consideration — public justice, the interests of the people of the county and the rights of the creditor
It must be conceded that the second question presented by the appeal is more difficult of solution. I cannot think that it' should be answered by the suggestion that the power is not vested in the Legislature, for that “if the Legislature had this power a casual majority could practically confiscate all property in any county by directing the issue by counties named in the respective acts of large amounts of bonds and at an excessively high rate of interest, regardless of the wishes of the tax payers of such county.” It is not necessary to cite authority to show that the Legislature has no power to compel or authorize a county to issue a single bond “regardless of the wishes of the tax payers,” except for necessary expenses. Smathers v. Comrs. 125 N. C., 480. What constitutes “necessary expenses” has been very clearly defined by this Court. It is not easy to perceive how, in the light of the constitutional restrictions as construed by this Court, the recognition of the power asserted in this act can bring about such disaster to the people. I most respectfully but firmly dissent from a canon of construction of the Constitution based upon the apprehension that the chosen representatives of the people of this State may not be trusted to discharge the duty imposed upon them by the Constitution, or be loyal to the trust reposed in them. We must look to the Constitution alone to find what powers are granted by the people to their agents. If the asserted power is granted, we may not, without doing violence to that instrument, prevent its exercise by indulging in' grave apprehensions that it may be abused. The Courts may declare what power they have-.granted, but they will hold their agents responsible for the manner in which it is exercised.
Mr. Justice Iredell, to whose wise foresight and clear conception of the principles of constitutional law and limitations we owe a debt of gratitude, said: “If a State Legislature shall pass a law within the general scope of their constitutional power, the Court cannot pronounce it to be void merely because it is in their judgment contrary to the principles of natural justice.” In Calder v. Bull, 3 Dall., 386, Judge Baldwin said: “We may think the power conferred by the
Nash, C. J., in Taylor v. Comrs., 55 N. C., 144, said: “Whether the Legislature acted wisely or not is a question with which we have nothing to do. The power being admitted, its abuse cannot affect it; that must be for the legislative consideration. It is sufficient that the judiciary claim to sit in judgment upon the constitutional power of the Legislature to act in a given case; it would be rank usurpation for us to inquire into the wisdom or propriety of the act.” Brodnax v. Groom, 64 N. C., 244; Harris v. Wright, 121 N. C., 172.
In Norwich v. Comrs., 15 Pick., 60, Shaw, C. J., says: “It will not throw much light on a question like this to put extreme cases of the abuse of the power to test the existence of the power itself.” Pearson, C. J., in Brodnax v. Groom, supra.
Certainly neither of these great Judges can be suspected of entertaining views dangerous to the reserved rights of the people or sustaining the assertion of doubtful powers by either department of the government. While we should guard with jealous care the right of .local self-government, and find no power to impose burdens by way of taxation or otherwise upon the people except when they have conferred it, we should at the same time be slow, save when our vision is clear, to set aside acts of the General Assembly. Again invoking the words of Judge Black: ‘We can declare an act of Assembly void only when it violates the Constitution
If I were permitted to speak my mind regarding the policy, wisdom and justice of the act under consideration, T would find no difficulty in declaring that, upon the admitted facts in this record, the statute is wise, just and promotive of the best and highest interest of the people of Madison County.
Mr. Justice Montgomery, in Smathers v. Comrs., supra, says: “The county of Madison was indebted to various persons, the consideration being the necessary expenses of the county already incurred, and being unable to pay the same and at the same time to conduct the ordinary business affairs of the county with its resources, obtainable through the taxes up to the full constitutional limitation, etc.” This was said upon a record coming to this Court in 1899 in regard to a part of the indebtedness referred to in the Act of 1903. The history of the struggle with the indebtedness by the people of the county, as appears from the records of this Court and the acts of the Legislature, shows that, unless in the way provided in this act they may care for their indebtedness and have time within which to pay it, the county will soon be bankrupt and unable to discharge its duties, powers and functions as a part of the government of the State. There is no suggestion that these debts may be paid from any other resources than taxation. That they must be paid is beyond controversy. But the answer to the question presented for our decision must be found in the Constitution of the State, and not by considerations of this character.
This Court by its Chief Justice said, in Ewart v. Jones, 116 N. C., 570: “Under our form of government the sovereign power resides with the people and is exercised by their representatives in the General Assembly. The only limitation upon this power is found in the organic law as declared by the delegates of the people in convention assembled from
This Court has always held that counties are not liable to an action for damages for injuries sustained by a defective bridge or other parts of a highway; whereas a city or town is liable to such action. The reason upon which this distinction is based is manifest. In White v. Comrs., 90 N. C., 437, Merrimon, J., discusses at length the relation which the counties bear to the State, and says: “They are subdivisions of its territory, embracing the people who inhabit the same, created by the sovereign authority and organized for political and civil purposes. They are created by the sovereign without any special regard for, or the solicitation, consent or desire of, the people who reside in them, etc.” They are not liable to be sued unless the Legislature by statute gives a right of action. In Manuel v. Comrs., 98 N. C., 9, it was held that in the absence of any statutory provision they were not liable to be sued for negligence of their servants or agents, as for damages sustained by one confined in the county jail. It is said that “counties are of and constitute a part of the State government. * * * They are in their general nature governmental- — mere instrumentalities of government — and possess corporate powers adapted to their purposes.” The distinction between the status and liability of towns and counties is illustrated in Lewis v. Raleigh, 77 N. C., 229.
In Tate v. Comrs., 122 N. C., 812, this Court, discussing the authority and power of the General Assembly to command the commissioners of a county in respect to discharging the duties imposed as a part of the State government, said: “The defendants contend that the act is unconstitutional, (1) Because, while the Legislature may authorize and empower
The question is exhaustively and ably discussed by Brinkerhoff, J., in Comrs. v. Mighels, 7 Ohio St., 109. He says: “A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the State at large for the purposes of political organization and civil administration in matters of finance, of education, or provision for the poor, and especially for the administration of justice. With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the State, and are in fact but a branch of the general administration of that policy.”
It is undoubtedly competent for the Legislature to make the people of a county liable for the official delinquencies of the County Commissioners, and, if they think it wise and just, without any power in the people.to control the acts of the commissioners or to exact indemnity from them.” In Dennis v. Maynard, 15 Ill., 477, it is said that “The State does not allow itself to be sued, but it may hear, investigate and determine its own indebtedness and assume the debts to and from others, so it may direct the county authorities to ascertain and allow just claims upon the public treasury, or may ascertain and fix that amount and direct a raising of means by taxation for its payment. The public county and township funds are under legislative control. * * * These local municipal corporations are created for convenience
In Locomotive Co. v. Emigrant Co., 164 U. S., 559, 576, Mr. Justice Harlan says: “The county of.is a mere political division of the State, created for the State’s convenience and to aid in carrying out within a limited territory the policy of the State. Its local government can have no will contrary to the will of the State, and it is subject to the paramount authority of the State in respect as well of its acts as of its property and revenue held for public purposes. The State made it, and could in its discretion unmake it and administer such property through other instrumentalities.” Taney, C. J., in Maryland v. Railroad Co., 44 U. S., 534, says: “The several counties are nothing more than certain portions of territory into which the State is divided for the more convenient exercise of the powers of government. They form together one political body in which the sovereignty resides.”
“The revenues of the county are not the property of the county in the sense in which the revenues of a private corporation are, and the power of the Legislature to direct their application is plenary. The county being a public corporation, which exists only for public purposes connected with the administration of the State’s government, it folloAvs that such a corporation, and of course its revenues, are subject to the control of the Legislature.” New Orleans v. Water Co.,
“And speaking generally, it may be affirmed that in any case in which compulsory taxation is found necessary in order to compel a municipal corporation or political division of the State to perform properly and justly any of its duties as an agency in State government, or to fulfill any obligations legally or equitably resting upon it in consequence of any corporate action, the State has ample power to direct and levy such compulsory taxation, and the people to be taxed have no absolute right to a voice in determining whether it shall be levied throiigh their representatives in the Legislature of the State.” Cooley on Taxation (3 Ed.), 1303.
Without further extending this opinion, I have reached the following conclusions: The State government having-assumed the discharge of certain well-defined administrative duties in regard to opening and keeping in repair public highways and bridges, providing for the indigent, the insane, and other objects of her care, the administration of public justice through the courts, the punishment of crime, etc., involving the erection of court-houses, jails and reformatories, has established, among other agencies for the better discharge of these duties and purposes of government, counties, and in a restricted sense chartered towns and cities and committed to them in the territory marked off the duty of administering for the State these and such other necessary ditties as may be assigned to them.
Eor the purpose of enabling the State to discharge these governmental functions, the people in their Constitution have granted to the legislative department power to make all necessary laws, including the power to contract debts, levy taxes, etc., within, and controlled by, certain well-defined constitutional restrictions' and limitations; that this power may be exercised, either through agents selected by the people of the entire State, or through agents selected by the
If I am correct in my conclusions upon tbe question, tbe answer to tbe third must be conceded. When a duty not involving tbe exercise of a discretion is imposed upon a public officer, tbe power and duty of tbe courts to compel tbe performance of such duty by mandamus is clear. Tbe Legislature prescribes tbe remedy; tbe courts enforce it. Tbe power of tbe Legislature to establish boards of audit and other appropriate agencies to ascertain tbe amount of tbe debt and tbe consideration upon wbicb it is based is not questioned. To what extent tbe commissioners are bound by its conclusions and excluded from litigating in tbe courts is not presented in this case, and I express no opinion in regard to it. I expressly refrain from expressing any opinion as to tbo power of tbe Legislature to compel by a bond issue tbe payment of a county debt contracted for any other purpose than necessary expenses.
There are other questions presented upon an appeal before us in the case of Jones v. Comrs., in regard to wbicb I express no opinion here. My dissent is based upon tbe agreed facts in this record.
Concurrence Opinion
concurring. Tbe conclusion reached by tbe Court in this case appears to me to be right. Whether under our system of government and tbe special provisions of tbe
A careful reading of the act in question and a consideration of it, not in detached portions but in its entirety, convinces me that the Legislature intended to confer upon the commissioners merely a discretionary power, or, in other words, authority to issue the bonds if in the exercise of their judgment they found it best for the interests of the people to do so. Why construe the act as a command to the com
I do not think the cases relied on to show the plaintiff’s right to a mandamus will be found to conflict with tbe conclusion we have reached, if they are considered with reference to their special facts and tbe particular relief demanded. The words quoted from tbe case of People v. Supervisors, 68 N. Y., 114, namely, “that tbe said board may in their discretion cause tbe tax to be levied,” when read with what precedes them will be found to refer not to a discretion to levy tbe tax, but to a discretion given to tbe supervisors of tbe county to decide whether tbe tax should be paid by tbe county or by tbe two towns specially benefited by tbe construction of tbe bridge, and they decided that it should be paid by tbe two towns. There was nothing in the way of paying the assessment upon tbe towns by taxation, and it was held that they should be compelled by mandamus to levy tbe necessary-tax, and, so far as tbe ultimate question decided is concerned, tbe other cases cited are like that one. The principle of those cases is familiar, but it does not seem to me to have any bearing on our case and should not affect tbe result. The reasons I have given are to my mind sufficient to support tbe conclusion of tbe Court, and it is not therefore deemed necessary to discuss the other questions argued before us.
It is fortunate that we have been able to reach a conclusion upon a consideration and construction of tbe act itself which saves to tbe people of tbe county the privilege of local self-government. It may be that tbe Legislature has the power to control directly tbe action of the county authorities, and I have no disposition at present to controvert tbe proposition, but tbe right of tbe people of the county to manage
Lead Opinion
The facts in this case are substantially the same as in Jones v. Comrs., 135 N. C., 218, the only difference being that the plaintiff here alleges that he holds $722 of the scrip issued by the county for necessary expenses and for which he wishes county bonds, and in Jones v. Oomrs. the plaintiff held bonds which are not yet due but which he wished refunded in new bonds. Whatever distinction this may make in the rights of the plaintiff, if any, our decision in Jones v. Comrs. is not based upon such difference, but upon the fact that chapter 289, Laws 1903, is not mandatory, and places the issuance of bonds in the discretion of the Board of County Commissioners, who are merely “authorized and empowered” to make such issue.
For the reasons given in that case the judgment herein, which peremptorily orders bonds issued to the plaintiff, is likewise
Reversed.