*1 218 IN THE SUPREME COURT.
Jones Commissioners. to ber sense of according but, under the right, pretext duty, was malice.” gratifying
There the was made to liability depend upon question whether the act have been threatened charged negligent lasting We can add to what so well said injury. nothing that wise and learned Judge.
There was error in the defendant’s third giving prayer for instruction which entitles the to another trial. We cannot consider this error as cured the other parts charge, themselves correct. Edwards though v. Rail road, 129 Haid, C.,N. S. C. 132 78; 101; N. Williams v. Railroad, 118 N. C., Tillett v. 662. 481; C.,N. The rule in this respect is well settled in those cases.
New Trial. J., concurs in result arguendo. Douglas,
JONES COMMISSIONERS. 3, 1904). (Filed. May n Summons—Waiver—Exceptions 1. VENUE—At Chambers—At Term— Objections. objection An the summons was made returnable at chambers
instead of at term is waived failure to move to transfer the proper ease docket.
2. Chambers. VENUE—Summons—At chambers, improperly
Where made returnable at summons dismissed, proper should not be but transferred docket. Bonds—Counties—County Commissioners. MANDAMUS— A proper remedy compel mandamus is the commissioners general assembly. to issue bonds ordered SPRING TERM C.] *2 1903, Bonds—Counties—County 4. Commissioners —Acts MANDAMUS — oh. 289. to issue county “authorizing empowering”
An act and commissioners mandatory. bonds is not JJ., Montgomery, dissenting. and ConnoR of Commissioners W. Jones W. by against ActiON Jones, Chambers,
Madison B. heard E. by County, Judge Asheville, 21, October 1903. 0., Bank,
The receiver of the Western Carolina plaintiff, as owner of Madisоn County, is the of bonds coupon eighteen issued of Madison county aggregating $21,000, Carolina, of virtue of act of the General North Madison “An of entitled to settle the indebtedness act Laws ratified March 7, 1881, 398, County,” chapter said of were issued to the necessary expenses pay They as stated bonds is The interest said county. upon payable and and due the year mature become therein, a cer- is the of addition to owner In said bonds plaintiff for county warrant issued said tain of indebtedness duly due of 'which interest sum $5,155.16, represents 1901, to and June including said bonds unpaid upon up credits, there certain this warrant of upon obligation in the judgment of embraced stated fact the findings due and owing Honor. interest of his There likewise attached to said bonds the coupons yet plaintiff upon findings in said judgment said as stated warrant, fact of the Court below. of “An 283, entitled,
Under Laws, 1903, chapter Public indebtedness outstanding settle the act to liquidate a series issue of authorize the Madison and to County debts bonds, floating off the of paying purpose county against and other claims now outstanding of said necessary expenses contracted Madison, IN THE SUPREME COURT. Commissionebs. comity,” is claimed that it became the 'by duty the Board of defendants, Commissioners of Madison to issue County, certain bonds not to exceed the amount $75,000, with or the which,' of which, to refund proceeds off and said pay bonds and certain discharge other indebtedness of Madison therein mentioned. plaintiff, those whom under he derived his title n to said bonds and other Madison at various times demanded of the of Com- Board missioners of Madison said bonds as they issue provided said of 1903 and ; Act at a board said meeting *3 held April 20, 1903, it was resolved the same that said bonds be issued an off to 'amount sufficient to said pay said to at $75,000; not exceed but county, a subsequent of said board held on or the first meeting about 1903, the said board revoked its order May, Monday April 20, 1903, refused, and then has refused and since still to refuses issue said bonds; the plaintiff whereupon again made demand said board that issue said bonds and in all with the said Act things comply provisions 1903. Said board refused to issue said for again the reasons stated in their the exceptions filed to judgment; whereupon was the plaintiff instituted proceeding the defendants for the them, compelling purpose mandamus, to issue said bonds and other com- respects ply of said Act of 1903. hear- provisions Upon of this case before his Honor the Judge Superior it was that the Court, was entitled adjudged demanded relief in his The defendants complaint. duly excepted said judgment appealed. Davidson, Parker,
Charles E. Jones and Bourne & plaintiff.
T. S. Rollins and & for defendants. Qudger McElroy, TEEM, SEEING- O.] Clark, Avas C. J. is that the summоns The first exception returnable before the AAdienthe action chambers, Judge for a demand should haAre returnable before been being money the Court at term. if as held conceded, But that be yet, Turner, Ewbank v. is 134 N. AAdiether action or returnable before the at chambers or at term before Judge all same and if Clerk, Court, it is before the brought before the is the same as when wrong department' remedy action is There is no defect county. brought wrong an error as to Avenue and the jurisdiction but merely, remedy either ex mero motu or on to transfer Court, motion, the case to the not defendant, docket. proper having made such has waived his Here sum motion, objection.
mons is on a chambers, returnable at day during term of court. an action to be before Authorizing brought as a convenient at chambers is intended Judge simply in cases Avhere in order to expе no practice jury required of fact a decision. If it turns out that there are issues dite one there is be gained any requiring jury, nothing should be transferred the action. It simply by dismissing moreover, seem, the docket at term time for trial. It Avould *4 at chambers. action made returnable that this was properly is not to recover amount determined, sought The mandamus, not is a therefor. The relief asked judgment to tho money, compel the treasurer tо pay any Venable, Ducker v. Commissioners to issue bonds. County Jenkins, 68 N. 126 Railroad v. C., 447; 1903, Laivs act, is that the
A better founded exception recites The preamble is not mandatory. chapter $21,000 bonded the has outstanding cent, will be unable and the interest, six per bearing interest and that it is to the best the same at maturity, to pay ma- renewed shall be before that the bonds of the tax payers and also that floating of interest, a lower rate turity 222 IN THE SUPREME COURT. v. Cоmmissionebs.
indebtedness of the incurred for county, necessary expenses, should be funded a new series of bonds to cover by issuing the entire indebtedness of the and it is county, thereupou provided section 1 that Board by of Commissioners are “authorized and to issue not empowered” $15,000 exceeding cent, in bonds five interest. bearing Section “author- per izes the commissioners to an annual tax to special meet the lay interest and section the Commission- principal. County By ers are “authorized, directed” audit and empowered ascertain and of the adjiist amount and no debt, floating bonds to be issued of said debt unless two any part (of commissioners shall 'and allow three) pass upon same. Section 10 “authorizes” Commissioners to County retire the bonds so of the outstanding bonds by selling many issued under this act as Section 19 bemay necessary. pro- issued,” the bonds authorized vides, act “If Board of Commissioners shall tax County sufficient levy as interest, stated in sec- pay principal already tion 3.
It would be a and without singular proceeding, precedent, we in this if the should assume believe, State, know the wishes interests people any county than better Commissioners them County elected administer and should county business, com- peremptorily mand the commissioners to issue bonds to fund a floating advance of the of the bonded indebtedness, maturity debt should order it refunded new for a time and at a rate fixed Assembly. long-settled custom has been authorize and the local empower legisla- the Board of to take such ture, Commissioners, steps to fund or refund the debts, certain may necessary limitations rate interest duration the bonds *5 the issued. if can order a be Certainly, Legislature as fix the bonds, issue could interest at easily county TERM, SPRING 0.] Jones Commissioneks.
one another. If the had this power, as figure Legislature all casual could confiscate property majority practically named counties issue, any county by directing by of and at an respective of amounts bonds acts, large rate of of the wishes interest, excessively high regardless tax of such Unlike State bonds issued payers county. in the action could be courts legislative authority, brought on bonds thus to be issued required legislative of a coerced. The assumption authority payment power so so to the of local unprecedented, contrary spirit and so should self-government, abuse, carefully liable scrutinized the courts. We are relieved, however, case necessity passing upon to issue bonds compel its it will be seen from the extracts from the will, above statute intended no more than clearly Legislature to authorize and Commissioners to issue empower Oounty “not thousand dollars.” It is for the exceeding seventy-five not the to order the courts, General Assembly, payment whether or individuals. The courts cer- debts, counties could not the issuance of these unless bonds compel tainly has both county peremptorily ordered do. to issue the and had so'to authority Comrs., 122 N. C., 812, Court, In Tate v. speaking of the State are but counties, gov says: “They agencies ** * author ernment. are subject legislative They all as do as a such duties duty which can direct them to ity was there to do.” The Court empower speak can them functions, to their of counties governmental the State to which the counties merely agencies created or abolished, changed and can be government is a roads public will. making public the legislative and it was held that the Legislature function, governmental of these roads, or order empower making could either *6 224 IN THE SUPREME COURT.
Jones in which the of the State have an people interest, generally and direct that the shall a tax to county lay pay con struction of road. far But so as the are counties business agencies of a whether or people locality, county munici pality, the State cannot interfere tó malee them a create or debt or extend it or contract, (as the terms here), change contract or authorize its violation. This distinction in the double function and of counties municipalities gov ernmental on the hand, one which agencies they cannot be sued and as to which subject they legisla on tive hand control, other their as busi liability ness of the agencies as to hence people locality, can be sued has no to con they power nor trol to create or relieve from has been drawn liability, cases. See many McIlhenny 127 N. Wilmington, 50 L. 146, R. A., 470, and cases there cited. The Constitu tion, Article section V, uses the words “with the 6, special approval the General and not Assembly,” com “by special mand of the General Assembly.” relies section expression if Laws 1903, that creditor shall desire chapter any or his bonds other evidence of “for exchange authorized," or more one of the bonds shall herеby be the make commissioners to such exchange duty par. context, But construed with the no means more than expression in section 19 of the “If act, author ized this act are issued” the Board of Commissioners shall etc. tax, levy
If the General has to order power issue those bonds, legislation acquainted practical “senatorial know that this will courtesy” important in effect in the hands who for the those placed solely moment represent Assembly, will small at a time when have consult opportunity TERM, SPRING O.] JONES COMMISSIONERS. V.
the wishes and on constituents, interests of their when, the other who desire hand, the those agents attorneys *7 to receive the bonds will not in but only present person their very and advice. It is true the ready, arguments Williams, Legislature can abolish counties at will (Mills 33 N. C., 558), so far as repeal municipal charters, counties and municipalities governmental agencies, so far as are business of the of the they agencies people to create locality indebtedness the cannot Legislature impair obligation the contract. Can the then Legislature compel creation of a contract aby county by ordering the issue of bonds for when the thirty thereof years, people a may shorter or prefer term, may be able to longer secure a lower rate of interest. Whether the has the constitutional take such a from departure precedent and can itself order the of bonds, issuance instead of author izing empowering County Commissioners to do so (subject if an restraining power Court exces sive amount or an excessive interest contemplated, restraint which would not attach to an issue made by legis lative command), matter not before happily us, for the in this statute has Assembly explicitly clearly, and in the usual form, authorized and merely empowered the Board of County Commissioners to issue “not exceeding $75,000” to fund the floating (the amount thereof to be ascertained the' and to commissioners) refund bonded indebtedness which will mature in 1907.
The General has not attempted force the hands of the defendant Board of County Commissioners. It is true that the at a called County Commissioners, session of April advised 20, being by counsel that the act was mandatory and that had no did they discretion, resolve to issue said bonds, but no action was taken thereon which conferred the creditors vested any at the rights, first regular
135-15 THE COURT. IN SUPREME in first May, on the Monday thereafter
meeting immediately act “author board then of that the merely being opinion the order was bonds, ized and them issue empowered” have deemed go.od revoked for reasons which must was are unknown to The mandamus but which us. sufficient, improvidently granted.
Reversed. of the Court J. I the conclusion concur
Walker, in Bank v. reasons stated opinion this case my Comrs., 135 C.,N.
Connor, only respect J., dissenting. *8 Comrs., v. in I have expressed from Bank which case differs certain claim consists of plaintiff’s views, is my accrued past-due with the bonds, coupons representing defendants to the issued thereon, pursuant interest is 8 7 and 1907. It Act of 18 maturing of the provisions in 1903, Act of admitted in to the 1’ecited the preamble for an were issued indebtedness that these bonds record, оf the county The liability incurred for necessary expenses. is of the settled Madison for because consideration them Comrs., It 125 N. Smathers v. in this Court far as it 1903 is invalid so that the Act of contended thirty years, carry of new bonds run directs the issuance unmatured bonds. cent., to redeem interest at five per to the reached respect in the conclusion If I am correct to direct the payment power I can for necessary expenses, incurred the best interest of the in its why,-if judgment not perceive set off for thereof govern to that portion State, will be promoted by County, as Madison mental purposes and for maturity, debt, approaching its rapidly funding aat lower has been made other provision evident no it is which In direct. the establishment not so it may interest, rate'of ' SPRING TERM, 0.] Jones *. Commissioners. Pearson, J., out in Mills county, pointed C.
Williams, 33 N. C., there is no contract —“no pаrty of the second I do care to part.” not what I have repeat said in Bank v. Comrs. The distinction between contracts of private or persons corporations public agencies Nebraska, pointed out Railroad clearly Co. 175 U.
S., 57. On 72 Mr. Justice Page Shiras says: “Usually where a contract not has been contrary public policy entered into between parties contract, competent is not within the eithеr to withdraw from its party terms without the consent of the other; and the obligation such a contract is from constitutionally hostile protected legislation. When, however, are not parties respective private persons matters dealing with which things concern, has no public but are or corporations persons whose were rights created for powers public purposes and when the by legislative acts, subject-matter of the con tract is one which affects the and welfare of the safety pub lic, other Contracts of the principles apply. latter descrip tion are held to be within and control -supervising power when exercised to safety, protect public health and morals. That clause the Federal Constitution from protects contracts action cannot in legislative *9 case be invoked.” See every аlso, Williams v. successfully Co., 170 U. In Orleans v. Eggleston, S., New Water 142 U. said S., it is that a created for corporation pur of be to law government is to the poses according governed and its constitution land, controlled, be altered may and amended manner the such as the by government public interests “Such interference cannot require. may legislative said to the the be contract which was impair corporation becausе there is but one reality it, the formed, party the or of corporation trustees governors being merely for cesiuis of trust the founda public, trustees que COURT. IN TI-IE SUPREME Commissioneks. v. “These
tion.” tbis says: Mr. Tucker, discussing question, but people, contract with the charters are based no upon for its convenience created the political authority between the of The relation public for motives policy. is contractual, not and the muniсipality sovereignty to an Tucker Com. of agent.” one delegation principal this subject, 833. For a able discussion on Const., very St., 169. Sharswood, 64 Pa. Fox, see Philadelphia Madison State established When therefore the cer the inhabitants territorial conferred limit, upon its duties, tain and imposed corresponding governmental powers, the Legislature in no manner with its through parted rights dominion that constitutional to exercise governmеntal out of its which is to the general control essential carrying or ever in abeyance It could not put policy. abrogate extent without to that parting or the exercise it, power, indo This State never can with its sovereignty. are always subject of its political TÍiey agencies. any control. Ellington, Mial legislative correct, the State If the contention of defendant is contended towards the occupies the status it would be difficult to for, justify appropriation the aid and from counties for public treasury money at the schools, charge support public sending for State of convicts into counties opening high people If each county may other internal improvements. ways the burdens assuming assert its own will in respect it as an integral part costs providing imposed mak for instance, the State the General Assembly —as times, at the thе courts appointed provision holding or a home for or jail, maintaining or providing having on our would to carry poor' impossible govern —it which has been vindicated by the wisdom of system, mental J., in Merrimon, White v. As is said by experience. long *10 TERM, SPRING O.] Jones
Comrs., 90 N. Am. C., 437, 47 534: “The Rep., leading and principal them to purpose is effectuate establishing political organization civil administration of State in to its respect general purposes policy local requires direction, such as mat supervision control, ters of local finance, education, provision poor, establishment and maintenance of and, highways bridges, in a measure, administration of large con justice. They stitute a feature our free distinguishing system govern ment.” have been termed “an civil divis They involuntary ion of the State created aid in statute to the administra tion of the government.”
An and instructive discussion be found interesting may Smith Modern Law of section Municipal Corporations,
The the condition of Madison Legislature finding its indebtedness such that some was provision to enable it to meet necessary its interest and the past-due approaching maturity its float- together principal, debt, enacted the statute 1903. No is done injustice cent, the tax payers The interest at six county. per on the bonds overdue and The credit compounding. must sоon impaired. course seriously all
pursued that which business men, corporations prudent The debt is funded at a lower rate governments adopt. of interest a issue usual bond through extending period for bonds. An such examination of our statutes for the past ten will show that the rate of interest and time years fixed are the same as that of maturity large majority bond issues authorized. The acts ses- passed sion issues for other bond counties providing of the same character in these two and include sev- respects, eral of the wealthiest in' State. The counties creditors cent, of course cannot be a six surrender compelled per cent, bond in 1907 for five bond maturing per running *11 COURT. IN THE SUPREME BANK Commissioners. to see how difficult to do so it is elect thirty years, It will be observed is done the tax injustice payers. auy at less than the bonds to sell the treasurer is not permitted to take creditor and while the election given par, if I see why, old cannot for the ones, new bonds in exchange if he can complain than be sold at more par, the bonds can I think that judgment him in cash. bond be his paid should affirmed. below in the record presented
I not discussed question have met commissioners, adopted having and briefs that the have no issued, power the bonds to be a resolution directing of a trust in the nature that the action, to rescind this advanced as This view is not was extinct. once exercised I of the case view which take from the While estoppel. there is my to decide question, is not necessary 'it much force it. opinion J.,
MONTGOMERY, in the dissenting opinion. concurs BANK v. COMMISSIONERS. (Filed 1904). May 3, 0., ease, Commissioners, 135 N. For see headnotes to this Park Bank the Board Battery Action of Madison and others, Commissioners heard Jones, E. B. November Judge chambers, Asheville, 1903. Erom a for the the defend- judgment ants appealed. Chedester, Carter and H. C. for the plaintiff.
Frank & T. S. Rollins defendants. Gudger McElroy,