43 S.E. 3 | N.C. | 1902
Lead Opinion
after stating the ease. As this ease stands upon demurrer, all the allegations of fact contained in the complaint must be taken as true for the purposes of this appeal. However, we have not been satisfied with this legal presumption, but have personally examined the original Journal of the House of Representatives, and find that neither act was passed in accordance with the mandatory provisions of the Constitution. We will give the entry on one reading as an example. We find on one page of the Journal the following written entry:
“H. B. 948, a bill to incorporate the Murfreesboro Railroad Company, passes its third reading by the following vote, and is ordered to be sent to the Senate without engrossment.” On the following page is a printed blank, which, with the entries in ink, reads as follows:
“H. B. 948; S. B. Messrs. Speaker (here follows the printed names of all the members of the House, with a simple dash ( — ) opposite ninety-four names). Ayes 94; nays.; total.
The only written entries are the figures “948,” after the capital letters “H. B.,” the dashes opposite the names, and the figures “94” after the word “ayes'.” The dotted lines after the letters “H. B.” and “S. B.,” and after the words “ayes” and “nays” and “total,” are all printed. There is not the scratch of a pen after the words “nays” and “total.” From this it appears that ninety-four members whose names are marked, voted in the affirmative; while there is no statement as to those voting in the-negative. If there were any members' voting in the negative, their names should have been entered upon the Journal; while if there were none so voting, that fact should be affirmatively stated. To say that the mere failure to fill out a printed blank is’ an affirmative declaration that there were no nays; is a proposition that does not commend itself either to' our views of language or of
In Commissioners v. Call, 123 N. C., 308, this Court says: “An act of the Legislature passed in violation of the Constitution of the State, or in disregard of its' mandatory provisions, is, to the extent of such repugnance, absolutely void; and all bonds issued thereunder bear the brand - of illegality stamped upon their face by the hand of the law.”
In Norton v. Shelby County, 118 U. S., 425, the Supreme Court of the United States says: “An unconstitutional act is not a law; it confers no rights; it imposes no' duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Under these authorities, we are compelled to hold that the bonds in question, having been issued in clear violation of Constitutional prohibitions, are null and void, and have been so ab initio. The defendant contends that the people of the township issuing the- bonds are bound by the re-eitals therein to the effect that they were issued “in compli-
The defendant contends that “the plaintiff is estopped from denying the validity uf »aid bonds and coupons by the judgment in the controversy of W. T. Brown against the Board of County Commissioners of Hertford County.” That case was submitted upon an agreed state of facts in a controversy without action, and the validity of the act under section 14 of Article II of the Constitution was in no way involved. Not only was it not decided, but it was not even alluded to in any stage of the proceedings. Therefore, it can not operate as an estoppel under the uniform decisions of this Court. In Glenn v. Wray, 126 N. C., 730, this Court says: “The plaintiffs are not estopped by the decision in Claybrook v. Commissioners, 117 N. C., 456. That was an action to impeach the validity of the bonds now in question, but upon the ground of irregularity in the election and that alone. The decision therein is conclusive that the bonds are not invalid on that ground. The present action is to attack their validity upon the entirely different ground that the act authorizing an election was not passed in the mode required by the Constitution. This was not within the scope of the litigation in Claybrook v. Commissioners, and has not been passed upon. Hence, it is not res judicata. * * * Of course, the payment of interest by the Commissioners would be no estoppel. Commissioners v. Payne, 123 N. C., 432, and cases cited at page 489.” In Slocumb v. Fayetteville, 125 N. C., 362, Justice Furehes, speaking for the Court, says: “The other important question is this: It is not alleged or denied in either the complaint or answer, whether the acts, chapter 18 and chapter 118, were passed and ratified as required by Article II, section 14, of the Constitution of this State, or not. This must have been done, to make the bonds valid. And the determination of
The same caution is reiterated in Black v. Commissioners, 129 N. C., 121, on page 128.
It is contended that the plaintiff is estopped by the judgments' in the United States Circuit Court. In m> event could these judgments operate as an estoppel in any degree beyond tire coupons then actually due and embraced in the judgments. Nesbitt v. Riverside District, 144 U. S., 60. As to such coupons, a majority of this Court think they are res judicata.
The Courts of this State will never sanction the repudiation of a lawful debt; but we are here to declare the law, and not. to make it. If any hardship results, we can only deplore what we are unable to remedy. The Constitution of this State is plenary notice to. the world of its organic law. There can be no bona fide holders of unconstitutional obligations, nor can ignorance of public statutes and legislative journals be deemed otherwise than wilful or negligent. The Journals are published for the information of the public, and are widely distributed and easily accessible, fully as much so as tíre public records of a county. Surely no one would be heard to say that he was the bona fide owner of a piece of land simply because he held a deed thereto; when an inspection of the records would show that his grantor had no power to convey.
We are frequently reminded of the hardships arising from declaring bonds invalid after they have been sold and paid
The decisions of this Court upon these matters have been uniform, and were foreshadowed by those upon kindred subjects.
In State v. Patterson, 98 N. C., 660, it was held, quoting the syllabus: “The provisions of the Constitution, in. respect to the forms and methods to. be observed by the General Assembly in the enactment of laws, are mandatory.”
In the opinion, the Court says, on pages 262 and 264: “The answer to these and like questions must be, that requirements of the Constitution shall prevail and be observed; and when it prescribes that a particular act or thing shall be done in a, way and manner specified, such direction must be treated as a command, and an observance of it essential to the effectiveness of the act or thing to. be done. Such act can not be complete — such thing is not effectual- — until done in the way and manner so prescribed. * * *
“The purpose of thus' prescribing an enacting clause— ‘the style of the acts’ — -is to establish the act — to give it permanence, uniformity and certainty — to identify the act of legislation as of the General Assembly, to afford evidence of its legislative, statutory nature, and to secure uniformity of identification, and thus prevent inadvertence, possible mistake and fraud. Such purpose is important of itself, and a3 it is of the Constitution, a due observance of it is essential. Tire manner of the enactment of a statute is of its substance. This is so in. the nature of the matter, as well as because the
The bonds now in question are dated September 19, 1881; but it appears from the record that they were not actually issued until after the determination of the Brown suit, in 1888. Therefore, they were issued after the decision in Patterson’s case, which was determined in 1881. The same principle was decided in practical effect in Galloway v. Chatham R. R. Co., 63 N. C., 141, determined by this Court at its January Term, 1869, less than one year after the adoption of the Constitution. There, an act directing the State Treasurer to issue certain bonds of the State to the Chatham Railroad Company was declared void on the ground that the General Assembly bad no power to pass it, without submitting the subject to a vote of the people. In the opinion of the Court, delivered by Pearson, C. J., among the constitutional provisions held to' be mandatory are expressly mentioned those of section 14, Article II, as far as they applied to the State, then- the party in interest. If the provisions' applying to the State are mandatory, those in the same section applying to counties and cities must be equally so. The following is an extract, beginning on page 152 of the opinion: “In the second clause, the two' exceptions have the effect to make it read, ‘Shall have no power to give or lend the credit of the State,
“ ‘To maintain the honor and good faith of the State untarnished, the public debt regularly contracted before and since the rebellion shall be regarded as inviolable, and never to be questioned.’ Art. I, Sec. 6. ‘No law shall be passed to raise money on the credit of the State, directly or indirectly, for the payment of any debt, etc., unless the bill is read three times on three different .days, and unless the yeas and nays on. the second and third readings, of the hill shall have been entered on the Journal’ Art. II, Sec. 14. (The italics are ours.) ‘The General Assembly shall,’ etc., Art. Y, Sec. 4. Here, we have a declaration of a purpose to maintain the honor of the State, and pay off the public debt — a "rebuke of hasty legislation in reference 1» raising money and pledging the faith of the State — and an announcement that, although the debt is so large that it can not be paid off for years, yet the interest must be paid promptly, and a sinking fund provided for the discharge of the principle. This purpose could not be effected without putting a stop to the increase of the public debt, by restricting the power of the Legislature.” In that case it was not allege that the yeas and nays were not entered upon the Journal, and hence that question was not directly at issue; but the inclusion of section 14, Article II, among* the mandatory provisions of the Constitution is a clear intimation of what the Court would have decided had the question been involved.
In Scarborough v. Robinson, 81 N. C., 409, the Court, at
Tbe judgment of tbe Court below is modified and affirmed.
Modified and Affirmed.
Dissenting Opinion
dissenting. The purpose of this action is to perpetually enjoin the enforcement and collection of $25,000 in bonds, issued by the township of Murfreesboro, in aid of the construction of a railroad in said township. The action is not only to enjoin the payment of the outstanding bonds and coupons, not yet sued on, but also to enjoin the collection of two judgments recovered in the U. S. Circuit Court for the Eastern District of North Carolina on a part of said coupons, which judgments have not been paid. The judgment of the Court below sustained the prayer of the plaintiff, and granted the injunction, including the judgments of the U. S. Court, as well as the outstanding bonds and coupons. And the opinion of this Court affirms the judgment of the Court below. I dissent from that part of the opinion which enjoins the enforcement and collection of the two judgments mentioned.
This' opinion coming in during tbe last days of tbe Court, I have not the time to discuss tbe grounds of my objection, and will have to content myself with a simple statement of tbe same.
The action presents a rather strange state of facts. A man by tbe name of Brown, who sued for himself and all other taxpayers (as the. present plaintiff does), before tbe bonds were issued, in wbicb be insisted that tbe Commissioners had not tbe right to issue said bonds, and it was so held in the
I do not think the act, intended to authorize the issue of these bonds, was passed according to the constitutional requirement, for the reasons given and the authorities cited in the opinion of the Court; though I do not think the case of Bank v. Commissioners, 119 N. C., 214; 34 L. R. A., 487, cited in the opinion of the Court, is authority for that position. That case came to this Court by appeal, in which a new trial was given the plaintiff; and on the second trial the constitutional question was presented. There, had been no final judgment, and the same case was still pending in the same Court. But there are many other authorities cited in the opinion of the Court which do sustain that position. Neither do I think the action of Brown, in which it was decided that the Commissioners had the right to issue the bonds, is an estoppel upon the plaintiff in this action, for two reasons: The first is, that the constitutionality of the act of the Legislature, intended to authorize their issue, is not presented and passed upon in that action, and for that reason the plaintiff is not estopped — it is not res judicata. The authorities sustaining this position are collected and cited in the opinion of the Court. And he is not estopped for the further reason that the facts upon which the judgment of the Court was based, in the case of Brown v. Commissioners, were agreed facts, which could only bind the parties agreeing to them. Black v. Commissioners, 129 N. C., 121. But besides this general rule as to agreed
But as to the judgments of the Circuit Court of the United States (and I place no stress upon the fact that they are judgments of a Federal Court), I differ from the opinion of the Court. The repealing act of the Legislature of 1895, that plaintiff claims abolished the Murfreesboro Township, was pleaded in the Federal Court and expressly passed upon by the following issue and response of the jury: “Has Murfreesboro Township been abolished ? Ans.: The corporation has been, but the right to tax the territory exists.” And another issue submitted is as follows: “Were the bonds legally issued and delivered ? Ans.: Issued prematurely; but it does not affect plaintiff.” So it would seem that both these questions’ have been submitted and passed upon, though the opinion of the Court,seems to lay stress upon the fact that neither of these questions had been passed upon. And thereupon it bases an argument in which it is contended that there is no estoppel. The Court contends that because the Act of 1887, upon which the Commissioners undertook to issue these bonds, was unconstitutional for that purpose, it is void for all purposes. I thought it was. general learning that this was not so, and it was so expressly held by this Court in the case of Rodman v. Commissioners, 122 N. C., 39. There, the Legislature had created a public school district, in which it had provided for levying a special tax to support the school. But, like the act under consideration, the ayes and nays were
But if there was service on the defendants, the Court had jurisdiction both of the defendants and of the subject matter, and the judgments were regular and can not be attacked in this collateral way. Harrison v. Hargrove, 120 N. C., 96; 58 Am. St. Rep., 781. In that case, it was held that where the Court found as a fact that service had been made, the judgment could not be collaterally attacked. And in the first action upon which the judgment in the Federal Court was taken, the defendants appeared and put in an answer; and in the others, where the defendants did not appear, the Court found as a fact and adjudged that the defendants had been duly served with process. And, as I understand the Court, the only ground upon which it puts its opinion that the defendants had not been properly served, is, that the Act of 1895 abolished the township. But that question was raised by the answer, submitted to the jury by the Court, and found against the defendants, upon which finding judgment was given against the defendants, and they did not appeal; and it seems to me that should be the end of that matter.
The three pages of the opinion seem to be devoted to a general discussion of the subject of repudiation. And the Court, before it commences this discussion, says it might close, but so much had been said about the decisions of this Court repudiating obligations, it proceeds to moralize upon the subject of repudiation. But it seems to me that these three pages were really intended as an illumination to enable the Court to escape from the darkness produced by the moral, if not legal, repudiation of an honest debt.
Tbis was written as a dissenting opinion to tbe opinion of tbe Court as it was originally written.
Dissenting Opinion
dissenting in part. Chapter 365, Laws 1887, authorized Murfreesboro Township» to subscribe $25,000 to the. Murfreesboro Railroad Company, and provided for. an election to be held in said township: for submitting the question of subscription to' the voters therein. The election was regularly held and the subscription being adjudged carried, the bonds were issued. A tax having been levied to pay interest on said bonds, this action is brought by a taxpayer of said township» to» restrain the collection thereof on the ground that the act of the Legislature was not passed in the mode required by Article II, Sec. 14, of the Constitution. The plaintiff in bis brief admits that the bill was properly passed in the Senate, but contends that there is a defect in the second and third reading in the House, in that the nays were not entered, and it does not apipear that there were no nays. That this must affirmatively appear is true, for the constitutional requirement, is mandatory. Smathers v. Commissioners, 125 N. C., at page 486; Commissioners v. DeRossett, 129 N. C., 279.
There being some doubt as to tbe accuracy of tbe printed journals, a certified transcript of tbe passage of this act from tbe manuscript journals, has been made a part of tbe record, fro'in which it appears as follows:
“House Journal, 41st day.
“H. B. 948. Passes its second reading, ayes 70” (names being entered) ; “noes, none.”
“House Journal, 46th day.
*690 “H. B. 948. Passed third reading by following vote: Ayes, 94” (giving names) “nays, ...”
The expression,' “Passes by the following vole, ayes 94” (giving names); “nays, ....,” is as express and intelligent a declaration that there were no- negative votes, as if the word “none” had been used.
“Nays, ....,” after the words, “passes by following vote,” and giving those voting aye, can convey no other meaning. Is it not hypercritical to say that “nays, . . . . ” did not mean that there were no names in the negative.
The Constitution requires that the “ayes and “noes” shall be entered on the journal, and it can not be seen that this requirement has been complied with when it does not affirmatively appear that there were no “noes,” but, that fact does sufficiently and clearly appear from above transcript of the journal of the House. It is but just to the plaintiff to say that when he brought this action and filed his complaint, he had only before him the printed journals, which omit the words (on the third reading in the House) “nays, ....,” which do appear' in the manuscript journal.
The plaintiff further contends, however, that the bill was not legally passed, in that the third reading in the House and the first reading in the Senate were on the same day. The journals show that the third reading in the House was on the 46th day in that House, and that the first reading in the Senate was on the 41 th day of the session of that body, but the plaintiff contends that these were in fact the same day, 28th February, 1881. This would seem a contradiction in the record, but taking the plaintiff’s contention to be true, this does not invalidate the passage of the bill. The Constitution, Art. II, Sec. 14, provides- that such acts are invalid “unless the bill for the purpose shall have been read three several times in each House of the General Assembly, and passed three several readings, which readings shall have been
These requirements seem to' have been complied with in every particular. There is no requirement that the bill shall be read on six different days. The requirement is “passed three several readings, -which readings shall have been on three different days,” in each House. There is this requirement for care and deliberation in each House, but there is no prohibition that the first reading in the- second House .may not be on the same day as the third reading in the House in which it first passed. ‘Such expedition is unusual, but the bill, being a new' matter in- the second House, an interval after its passage on its last reading in the other House before its introduction and first reading, in the second House, can not add to the deliberation and thought to- be given its passage in the latter body. The Courts can not dispense with any requirement of the Constitution, but neither can they add any requirement not therein imposed. There were other points presented on the appeal, but in the view which I take of the validity of the passage of the act they are altogether immaterial and need not be considered.
Lead Opinion
FURCHES, C. J., dissenting; CLARK, J., dissenting in part. This is an action to declare invalid certain bonds issued by Murfreesboro Township, in Hertford County, and to enjoin the payment thereof. From a judgment for the plaintiff the defendant appealed. As this case stands upon demurrer, all (676) the allegations of fact contained in the complaint must be taken as true for the purposes of this appeal. However, we have not been satisfied with this legal presumption, but have personally examined the original Journal of the House of Representatives, and find that neither act was passed in accordance *468 with the mandatory provisions of the Constitution. We will give the entry on one reading as an example. We find on one page of the Journal the following written entry:
"H. B. 948, a bill to incorporate the Murfreesboro Railroad Company, passes its third reading by the following vote, and is ordered to be sent to the Senate without engrossment." On the following page is a printed blank which, with the entries in ink, reads as follows:
"H. B. 948; S. B. _____ Messrs. Speaker (here follows the printed names of all the members of the House, with a simple dash( — ) opposite ninety-four names). Ayes, 94; nays, ____; total, ____."
The only written entries are the figures "948" after the capital letters "H. B.," the dashes opposite the names, and the figures "94" after the word "ayes." The dotted lines after the letters "H. B." and "S. B." and after the words "ayes" and "nays" and "total," are all printed. There is not the scratch of a pen after the words "nays" and "total." From this it appears that ninety-four members, whose names are marked, voted in the affirmative; while there is no statement as to those voting in the negative. If there were any members voting in the negative their names should have been entered upon the Journal, while if there were none so voting that fact should be affirmatively
stated. To say that the mere failure to fill out a printed blank is an affirmative declaration that there were no nays is a proposition that does not commend itself either to our views of language or of law. If it were affirmatively stated that (677) there were no nays, or that only 94 members voted, the case would be different. Again, if the Journal gave the names of 120 members voting in the affirmative, we would take judicial cognizance of the fact that there were only 120 members of the House, and that therefore there could be no nays; but there are 26 members on the third reading and 50 members on the second reading who are not accounted for. We may know as a matter of fact that members are frequently absent, but there is no such presumption. If there were any presumption at all it would seem to be that the members of the Legislature were present during its sessions in the performance of the responsible duties for which they were elected. Aside from this we can only repeat what this Court has so often said, that where the names of the members voting in the negative are not given it must affirmatively appear on the Journal that there were none so voting. Smathers v. Commissioners,
In Commissioners v. Call,
In Norton v. Shelby County,
The defendant contends that "the plaintiff is estopped from denying the validity of said bonds and coupons by the judgment in the controversy of W. T. Brown against the Board of County Commissioners of Hertford County." That case was submitted upon an agreed state of facts in a controversy without action, and the validity of the act under section 14 of Article II of the *471
Constitution was in no way involved. Not only was it not decided, but it was not even alluded to in any stage of the proceedings. Therefore it cannot operate as an estoppel under the uniform decisions of this Court. In Glenn v. Wray,
The same caution is reiterated in Black v. Commissioners,
It is contended that the plaintiff is estopped by the judgments in the United States Circuit Court. In no event could these judgments operate as an estoppel in any degree beyond the coupons then actually due and embraced in the judgments. Nesbitt v. Riverside District,
The courts of this State will never sanction the repudiation of a lawful debt; but we are here to declare the law and not to make it. If any hardship results we can only deplore what we are unable to remedy. The Constitution of this State is plenary notice to the world of its organic law. There can be no bona *472 fide holders of unconstitutional obligations, nor can ignorance of public statutes and legislative journals be deemed otherwise than willful or negligent. The Journals are published for the information of the public, and are widely distributed and easily accessible, fully as much so as the public records of a county. Surely no one would be heard to say that he was the bona fide owner of a piece of land simply because he held a deed thereto, when an inspection of the records would show that his grantor had no power to convey.
We are frequently reminded of the hardships arising from declaring bonds invalid after they have been sold and paid for. We see no way of deciding upon their validity before the (682) question is presented to us, and this question can be, and frequently has been, presented and decided before the issuing of the bonds. Charlotte v. Shepard,
The decisions of this Court upon these matters have been uniform, and were foreshadowed by those upon kindred subjects.
In S. v. Patterson,
In the opinion the Court says, on pages 262 and 264: "The answer to these and like questions must be, that requirements of the Constitution shall prevail and be observed; and when it prescribes that a particular act or thing shall be done in a way and manner specified, such direction must be treated as a command, and an observance of it essential to the effectiveness of the act or thing to be done. Such act cannot be complete — such thing is not effectual — until done in the way and manner so prescribed.
"The purpose of thus prescribing an enacting clause — `the style of the acts' — is to establish the act — to give it permanence, uniformity and certainty — to identify the act of legislation as of the General Assembly, to afford evidence of its legislative, statutory nature, and to secure uniformity of identification, and thus prevent inadvertence, possible mistake and fraud. Such purpose is important of itself, and as it is of the Constitution, a due observance of it is essential. The manner of the enactment of a statute is of its substance. This is so in the nature of the matter as well as because the Constitution makes (683) it so." In Commissioners v. Coler,
The bonds now in question are dated 19 September, 1887; but it appears from the record that they were not actually issued until after the determination of the Brown suit in 1888. Therefore they were issued after the decision in Patterson's case, which was determined in 1887. The same principle was decided in practical effect in Galloway v. R. R.,
"'To maintain the honor and good faith of the State untarnished the public debt regularly contracted before and since the rebellion shall be regarded as inviolable, and never to be questioned.' Article I, section 6. `No law shall be passed to raise money on the credit of the State, directly or indirectly, for the payment of any debt, etc., unless the bill is read three times on three different days, and unless the yeas and nays on the *474 second and third readings of the bill shall have been entered on theJournal.' Article II, section 14. (The italics are ours.) `The General Assembly shall,' etc., Article V, section 4. Here we have a declaration of a purpose to maintain the honor of the State and pay off the public debt — a rebuke of hasty legislation in reference to raising money and pledging the faith of the State — and an announcement that although the debt is so large that it cannot be paid off for years, yet the interest must be paid promptly and a sinking fund provided for the discharge of the principal. This purpose could not be effected without putting a stop to the increase of the public debt by restricting the power of the Legislature." In that case it was not alleged that the yeas and nays were not entered upon the Journal, and hence that question was not directly at issue; but the inclusion of section 14, Article II, among the mandatory provisions of the Constitution is a clear intimation of what the Court would have decided had the question been involved.
In Scarborough v. Robinson,
The judgment of the court below is
Modified and affirmed.