JONES v. COMMISSIONERS.
N. C.
March 28, 1905
137 N.C. 579
SPRING TERM, 1905.
The question raised as to the mortgage and assignment of R. A. Watts, Sr., was decided in the case of Ex-parte Watts, and we see nothing in this case to vary its facts from those upon which that decision was based, nor do we think we should change the opinion there expressed that he had no interest in the property. Tiddy v. Graves, 126 N. C., 620; Hallyburton v. Slagle, 132 N. C., 947.
Our conclusion is, the Court was right in adjudging that the plaintiffs can convey by their deed a good and perfect title to the premises.
No Error.
JONES v. COMMISSIONERS.
(Filed March 28, 1905).
“Authorize and Empower” Construed—Power of Legislature—Mandamus.
- The terms “authorize and empower” used in an act conferring power upon a county, on the verge of bankruptcy, to issue bonds to fund its existing indebtedness incurred for necessary expenses and providing the only feasible method by which the financial affairs of the county can be placed on a sound basis, will be construed to be mandatory.
- The Legislature has power to pass an act, compelling a county to issue bonds to fund its existing indebtedness incurred for necessary expenses.
- Mandamus is the proper remedy against county commissioners who refuse to issue bonds, as required by an act of the Legislature.
CLARK, C. J., and WALKER, J., dissent.
For former opinion see 135 N. C., 218.
In 1887 the county of Madison having become indebted to various persons for necessary expenses, the Legislature passed an act to enable said county to settle such indebtedness by issuing coupon bonds, payable twenty years from date, bearing interest at 6 per cent. See
In addition to these bonds and the interest thereon, unpaid claims for necessary expenses have further accumulated against the county to the amount of $45,000 or more.
To enable the county to pay off these debts, or take up the same, the Legislature passed the act now under consideration, empowering the commissioners of said county to issue coupon bonds to the amount of $75,000, payable thirty years after date, and bearing interest at 5 per cent.
An examination of this entire act,
AN ACT TO LIQUIDATE AND SETTLE THE OUTSTANDING INDEBTEDNESS OF MADISON COUNTY, AND TO AUTHORIZE THE ISSUE OF A SERIES OF BONDS FOR THE PURPOSE OF PAYING OFF FLOATING DEBT, OLD BONDS, ETC., CONTRACTED FOR THE NECESSARY EXPENSES OF SAID COUNTY.
WHEREAS, by an act of the General Assembly of North Carolina,
AND WHEREAS, the said bonds are now an outstanding indebtedness against said county, and the said county will not be able to pay the principal of the same at maturity;
AND WHEREAS, it is to the best interest of the tax-payers of the said county that the said bonds should be renewed before their maturity by refunding the same at a lower rate of interest than six per cent., and also that the present floating debt of the said county, incurred for the necessary expenses thereof prior to the first day of January, 1903, together with all accrued interest due at the date of payment or refunding, be liquidated and funded by issuing a new series of bonds to cover the same and to embrace the entire debt of said county incurred for the necessary expenses, as it existed on January 1, 1903, with the interest thereafter accruing: now therefore,
The General Assembly of North Carolina do enact:
SECTION 1. That the Board of Commissioners of Madison County are hereby authorized and empowered to issue coupon bonds not to exceed in amount the sum of seventy-five thousand dollars ($75,000), to be issued in the denominations of one thousand and of five hundred dollars respectively, said bonds to be dated June 1, 1903, and to become due and payable on the first day of June, 1933, and to bear interest at the rate of five per centum per annum, payable semi-annually, on the first days of June and December in each and every year until said bonds shall be paid,
SEC. 2. That the coupons attached to the said bonds shall bear the number of the bond to which they shall be attached, and as they mature and thereafter, they shall be receivable in payment of all county taxes and debts due the said county. The purchaser or purchasers of said bonds, or any of them, shall not be required to see to the application of the purchase-money thereof.
SEC. 3. That in order to pay the interest on said bonds as it may accrue, and to pay the principal thereof, when it matures, the Board of Commissioners of Madison County is hereby authorized to annually levy a special tax to pay the said interest, and principal when the same becomes due. Said taxes shall be levied and collected as other county taxes are levied and collected and shall be imposed upon such property, polls and other subjects of taxation as are now or may hereafter be subject to taxation in this State, and it shall be collected by the officer or officers charged with the collection of other county taxes, and who shall in respect thereto be liable officially as well as personally for the collection of said taxes, and the said commissioners are hereby directed and required to levy a tax each year fully sufficient to pay one year‘s interest on said bonds.
SEC. 4. That the said bonds shall be signed by the chairman of said board of commissioners and countersigned by the clerk of the same and they shall bear the seal of the said
SEC. 5. That the said Treasurer of Madison County shall keep a separate book of account in which shall be regularly, promptly and accurately entered all the moneys from time to time derived from the collection of the taxes herein authorized and all the coupons paid upon the said bonds, with a statement of how the same are paid and all disbursements of the said moneys made by him; and an annual statement of the sundry moneys as collected separately from the poll and property taxes herein provided, and said books shall be at all times open to the inspection of the public.
SEC. 6. That the Board of Commissioners of Madison County shall keep a separate book of account in which shall be entered every item of outstanding indebtedness incurred by said county for its necessary expenses prior to January 1, 1903, as reported to them by the board of audit, herein provided for, together with a complete and accurate record of all the bonds issued under this act, the names of the purchasers thereof and of their subsequent transfers as well as a record of all the coupons received by them in payment of taxes or other debts due the said county and all coupons taken up and cancelled, and such books shall at all times be open to public inspection.
SEC. 7. That for the purpose of ascertaining what part of the present floating and unliquidated debt of the said county was incurred for its necessary expenses prior to January 1, 1903, the chairman of the said board of commissioners and P. A. McElroy and Charles B. Mashburn, all of Madison County, are hereby constituted and appointed a special board of audit on behalf of the tax-payers of the said county until the first day of June, 1903, to scrutinize, examine and adjust and report to the said board of commissioners all bonds, claims and debts contracted by the said
SEC. 8. That they are hereby authorized, empowered and directed to adjust on such terms as may be equitable and just all of the said floating and unliquidated indebtedness of said county, and they shall report to the said board of commissioners all claims audited by them, with their finding thereon, recommending the respective amounts to be allowed the divers claimants and sundry creditors of said county whose debts shall be a part of the present floating debt of said county, unliquidated and submitted to them for settlement, and provided two of said board concur as to each separate claim, and no bonds shall be issued, exchanged or sold in settlement of any part of the unliquidated or floating debts of the said county which has not been by them passed upon and allowed.
SEC. 9. That immediately after the ratification of this act the chairman of the said board of commissioners shall advertise in some newspaper published in the county of Madison, and at the court-house door in said county, for thirty days, of the place and time when and where the said board of audit shall sit and require all persons holding debts against said county incurred prior to the first day of January, 1903, to present the same before the said board of
SEC. 10. That the said board of commissioners are hereby authorized to retire all of the outstanding bonds issued under
SEC. 11. That if any creditor of the said county, whose debts or claims come within the meaning of this act, or any holder of any bond or bonds of said county, shall desire to exchange his bond or bonds and coupons or other evidence or evidences of said indebtedness belonging to him, for one or more bonds hereby authorized, it shall be the duty of the said
SEC. 12. All of the bonds issued under this act shall be exempt from county and municipal taxation.
SEC. 13. That the special taxes provided for in this act shall be collected in the same manner and at the same time and subject to the same regulations and penalties as are the general taxes of said county and shall be turned over to the treasurer by the sheriff or tax collector of said county, and the said treasurer shall give an original and duplicate receipt therefor to the said officer, one receipt to be kept by the said sheriff or tax collector and the other shall be filed by him with the board of commissioners of the said county at their next regular meeting and shall be recorded and kept by them as the other records of their office; said receipt shall specify the amount collected from the property tax separately from that collected from the poll tax, and such receipt shall be received as prima facie evidence of the truthfulness of their recitals in any court of competent jurisdiction.
SEC. 14. That the said commissioners shall have the power and they are hereby authorized and directed to require the said Treasurer of Madison County, before the proceeds arising from the sale of any of the bonds issued under this act shall go into his hands, as treasurer to increase his bond in the additional sum of not less than ten thousand dollars, justified and executed as required by law with sufficient sureties, conditioned that he will faithfully execute the duties of his office, as is now required of him by law.
SEC. 15. That the treasurer of said county shall pay the interest on the bonds authorized by this act semi-annually as the coupons become due, out of the moneys derived from the special taxes provided for and collected under this act,
SEC. 16. That should any surplus remain in the hands of the Treasurer of Madison County after paying the interest due upon the said bonds for the then current year, that the same shall be applied to the payment and redemption of the principal of the bonds herein provided for: Provided, the holders of said bonds or any one or more of them shall be willing to surrender the same; and should they be willing to surrender one or more of the same for payment before they become due, then the commissioners of said county are hereby authorized to apply the same on the payment of the interest falling due upon said bonds for the next succeeding year or years and to a diminution of the next following tax levy.
SEC. 17. That if any officer of Madison County or employee thereof shall apply the proceeds of any bond issued under this act, or exchange any such in any manner or for any other purpose, or shall issue or have issued any more of the bonds provided for in this act than may be necessary for the specific purposes of this act, or shall knowingly or unlawfully misapply any of the moneys derived from the tax levies herein authorized, or shall fail and refuse to perform the duties imposed upon him by the provisions of this act, shall be guilty of a felony and upon conviction shall be fined not less than one thousand dollars and imprisoned not less than twelve months, in the discretion of the Court.
SEC. 18. That the taxes that have been collected, and that are to be collected upon the levies heretofore made under the said laws of 1901, shall be applied by the treasurer of said county as therein directed and for no other purpose.
SEC. 19. That if the bonds authorized by this act are issued, the board of commissioners of said county shall not levy the tax of twenty-five cents on property and sixty cents
SEC. 20. That this act shall be in force and effect from and after its ratification.
Under and by virtue of this act the county commissioners, acting under advice that the statute was mandatory, on the 20th April, 1903, made an order to put the act into effect, directing that bonds to the amount of $75,000 be issued to pay off the debt of the county contracted for necessary expenses of the county prior to the first of January, 1903. The order further directed that the auditing board constituted by the act should give due notice and meet and proceed to comply with the duties imposed upon them. On the first Monday in May, 1903, the commissioners having been differently advised, to-wit, that the act was discretionary, revoked so much of said order as directed the bonds to issue. The auditing board as provided by the act and order of the commissioners met and audited and allowed the claims due by the county for necessary expenses, including the debt herein sued for.
The plaintiff holding this claim, being bonds and coupons issued under the first-named statute to the amount of $21,000, demanded of the commissioners that they proceed to comply with the terms of this last act, and exchange the bonds authorized by said act for indebtedness held by him at their par value as provided in section 11. The commissioners of the county refused to comply with such demand and have failed and refused to take any action under the statute in reference to the issue, sale or exchange of the bonds. The plaintiff then instituted this suit and issued a summons against the county commissioners, returnable be-
The above statement is taken from the record and the findings of fact made by the Judge. Judgment was rendered commanding the commissioners to proceed under the statute and make exchange of the bonds with the plaintiff at the par value of the new bonds. The defendant excepted to this order and appealed, claiming first, that the Court had no jurisdiction, for that this was a money demand and that the summons should have been returnable to the Court in term time; second, that the act confers discretionary power and is not mandatory; and third, if it is mandatory, it is unconstitutional and not a statute which the Legislature has the power to pass.
The appeal was heard by the Supreme Court at Spring Term, 1904, and was then decided against the plaintiff, the Court holding that the act conferred only discretionary authority upon the commissioners, and that the Court could not interfere. There were dissenting opinions by two members of the Court as then constituted, and on this petition to rehear, filed in apt time, one of the Justices who concurred in the former opinion entered an order formally allowing the rehearing, and the case is now before us under that order.
Charles E. Jones, Davidson, Bourne & Parker and Shepherd & Shepherd, for the petitioner.
Gudger & McElroy and T. S. Rollins, in opposition.
HOKE, J., after stating the facts. This case has heretofore been decided by the Court in favor of the defendant and an opinion to that effect has been reported in 135 N. C., 218. A like decision in a case substantially similar was made in Bank v. Commissioners, 135 N. C., 230—Justices Connor and Montgomery dissenting in each case.
After full and careful consideration, the majority of the Court are now of opinion that the former decision was erroneous, and the law governing the case on the main questions presented is in accord with the dissenting opinions of Mr. Justice Connor filed in the two cases mentioned. The view of the Court which now prevails is so fully and clearly expressed in these dissenting opinions that we would be well content to adopt them as the opinion of the Court, but as the more extended dissenting opinion is filed in Bank v. Commissioners, and our present decision is of momentous concern to the parties litigant, involving, as it does too, a reversal of the former ruling of the Court, we have deemed it proper that we should make some further statement of the reasons which have led us to our present conclusion.
The first objection made by the defendant was to the jurisdiction of the Court because, as contended by them, this is a money demand and the summons should have been returned to the Court in term time. This exception was determined against the defendant in the former opinion, and for the reasons therein stated this ruling should not be disturbed. Indeed, this question is really not before us on this petition, and is only referred to in order to show that the same has not been overlooked. The cause then is here for review on the second and third exceptions above stated:
Second. Is the act mandatory? Third. Had the Legislature the power to pass it?
The terms of the first section of the act conferring power to issue bonds are “authorize and empower” and in ordinary acceptation and in private transactions are usually permissive; but when these words are used in statutes they are frequently imperative, and where the statute is concerning pub-
To the same effect is Throop on Public Offices, secs. 547 and 548, and Endlich on Interpretation of Statutes, sec.
We are not contending here that the Legislature cannot, in terms, confer discretionary power, nor that permissive terms, when used in statutes, are always mandatory regardless of their placing and the general purpose of the statutes in which they appear, nor are we assailing the principle that where such power is expressly conferred it is usually not permissible for courts to interfere and undertake to direct how such discretion should be exercised. We are seeking to arrive at the true meaning of the Legislature as expressed in this statute, by established and accepted canons of construction.
These very terms “authorize and empower” are so frequently used in legislation of this character that they may be said to have attained a technical or statutory signification, and where a long course of judicial decision has put a certain interpretation on such words, it is a fair inference and a true rule of construction that the Legislature, in using these words, intended them to have their established meaning.
Again, as said in one of the authorities cited, 51 N. Y., 401: “To determine this question (whether the terms ‘authorize and empower’ are permissive or mandatory), not only the language of the act, but the circumstances surrounding its passage and the object had in view, must be considered.” Here was a county on the verge of bankruptcy. As far back as 1887, and prior to that time, these debts for nec-
Again, it is contended that where the statute refers to the issuing of bonds, it uses the words “authorize and empower,” but where it provides for a board of audit, as it does in sections 7, 8 and 9, it uses the terms “authorize, empower and direct.” This difference, so far from supporting the construction contended for by the defendant, to our minds tends rather to confirm the decision on this point.
The act contains a complete and comprehensive plan for restoring order to the financial affairs of the county, and the issuing of bonds and the establishment of this board of audit are equal and dependent parts of the whole; one is as necessary to its successful operation as the other. The very fact that “authorize and empower” are used in one place, and “authorize, empower and direct” at another, tends to the conclusion that, in the minds of the draughtsman and legislators, the words had the same meaning and the same operative force and effect.
On the contrary, note how many of the requirements of the statute are couched in imperative terms: Section 4, in providing a form, says that the bonds “shall be signed by the chairman,” and section 5, “the treasurer shall keep a * * * separate account” and section 6, “the Board of Commissioners of Madison County shall keep a separate
It is true that these words are usually in connection with the terms “bonds hereby authorized,” but they serve to throw some light on the legislative intent, and to sustain the position that “authorize and empower” in the first three sections of the act should receive their usual statutory acceptation. But this matter, we think, is conclusively set at rest by the language of section 11, and it is under this section that the plaintiff is now seeking to enforce his right. This section is as follows: “That if any creditor of the said county, whose debts or claims come within the meaning of this act, or any holder of any bond or bonds of said county, shall desire to exchange his bond or bonds and coupons or other evidence or evidences of said indebtedness belonging to him for one or more bonds hereby authorized, it shall be the duty of the said commissioners to pay off said creditor or creditors and liquidate the said indebtedness in the bonds authorized by this act, exchanging said bonds at their par value and cancelling the evidences of indebtedness taken in lieu thereof.”
The very reason of the rule of construction here adopted, given in many of the decisions, is that where power is given in legislation of this character, a corresponding duty is imposed on the authorities to give the statute effect. The section here quoted, in express terms, imposes the duty which the creditor seeks to enforce. “Where the creditor desires to exchange his bonds or debt for bonds hereby authorized, and is willing to make the exchange at par, it shall be the duty of the commissioners to make the exchange.”
On authority, and in consideration of the general purpose of the statute and in view of its several provisions, we do not hesitate to declare that the act is mandatory in its force and effect, and was so intended by the Legislature.
These counties are not, strictly speaking, municipal corporations at all in the ordinary acceptation of the term. They have many of the features of such corporations, but they are usually termed quasi public corporations. In the exercise of ordinary governmental functions, they are simply agencies of the State, constituted for the convenience of local administration in certain portions of the State‘s territory, and in the exercise of such functions they are subject to almost unlimited legislative control, except where this power is restricted by constitutional provision. In Hamilton v. Mighels, 7 Ohio St., 109, it is said: “Counties are at most but local organizations, which for purposes of civil administration are invested with a few functions characteristic of corporate existence. They are local subdivisions of the State, created by the sovereign power of the State of its own sovereign will, without particular solicitation, consent or concurrent action of the people who inhabit them.” Again it is said: “A county organization is created almost exclusively with a view to the policy of the State at large, for purposes of political organization and civil administration in matters of finance, of education, of provision for the poor, of military organizations, of the means of travel and transfer, and especially for the general administration of justice.” “With scarcely an exception, all the powers and functions of the county organizations 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.” These statements are quoted
It will be borne in mind that we are speaking of the power of the Legislature in matters governmental. We are not asserting the right of the Legislature to compel a county to create a debt in aid of a private enterprise, nor for purposes of strictly local benefit and advantage. In Park Commissioners v. Detroit, 28 Mich., 222, it was held that the Legislature could not compel the city authorities to contract a large debt in purchasing a park, and in People v. Batchelor, 53 N. Y., 128, it was held that the Legislature had no power to compel a town to subscribe to a railroad owned and controlled by private stockholders and operated for their own advantage. These decisions were in relation to towns in regard to which the power of the Legislature is usually more restricted, but as to counties also, they can, we think, be sustained by reason and authority.
This limitation of legislative power is not a debatable question in this State. It has been written into our organic law. In
It has been suggested that while the Legislature might compel the laying of taxes, its power does not extend to the issuing of bonds, but we do not think this position sound, or that any such distinction exists. This method of adjusting debts which counties have lawfully created is not at all unusual. It was commended in Johnson v. Commissioners, 67 N. C., 101, and expressly sanctioned in Jefferson County v. People, 5 Neb., 136; Commissioners v. City, 45 Ala., 399; Cooley on Taxation (3 Ed.), Vol. 2, pp. 1300, 1301.
Again, it is contended that while the power to the extent claimed, may exist in other jurisdictions, it cannot obtain here where the officers and agents who carry on the county government are given a place in our Constitution and their existence thereby secured. As we apprehend this position, it is argued that the very fact that these officers are so placed manifests a purpose to give them exclusive or much larger power in the management and control of local affairs. Some expressions to this effect have found their way into a few of our decisions, notably, Brodnax v. Groom, 64 N. C., 244, and Cromartie v. Commissioners, 87 N. C., 134. It will be noted that in these cases the Court was passing on the right
In 1875 the article in reference to counties was amended. For grave and weighty reasons, the people then added to their Constitution section 14 of Article VII, and it was there provided as follows:
“Section 14. The General Assembly shall have power by statute to modify, change or abrogate any and all of the provisions of this article, and substitute others in their place, except sections 7, 9, 13.”
Section 7 is the one already quoted, and from its effect debts for necessary expenses are expressly excluded. Section 9 stipulates in general terms that taxation shall be uniform and ad valorem. Section 13 prohibits the payment of debts contracted in aid of the Confederate government. Neither of these exceptions in any way affects the question now before us, and, by the provisions of this amendment, the power of the Legislature to supervise and control the action of county officers in government matters is fully restored, even if it had ever been withdrawn.
While the Court has every disposition to uphold the principle of local self-government, the history of this transaction, as shown in the record, is in itself almost a demonstra
We declare our opinion to be that the Court below had jurisdiction; second, that the act in question is mandatory; third, that the Legislature had power to pass the act; and fourth, that the remedy sought is the proper remedy.
Let this opinion be certified, to the end that the judgment of the Superior Court be affirmed and that process issue to enforce its provisions.
Petition Allowed.
BROWN, J., concurring. I desire to express a few words of approval of the forcible opinion written by Justice Hoke on behalf of a majority of the Court upon the rehearing of this case. My attention was first drawn to its importance by the exhaustive, and to my mind conclusive, dissenting opinion of Justice Connor in Bank v. Commissioners, involving the same questions, 135 N. C., 230. After giving the case that careful thought which its importance demands, I fully concur in the reasoning and conclusions of the opinion of the Court.
I will briefly notice one matter not touched upon. By sections 7 and 8 of the Act of 1903, a special board of audit was created with power to adjudicate and report the amount and status of the indebtedness of the county to be discharged and funded in accordance with the financial scheme, set out in the act, with power to adjust the same on an equitable basis. The findings embodied in the report of the board were made conclusive on the county, and prima facie correct and competent in any court of justice in the State. This board duly advertised for creditors as required by the act, and duly passed upon, audited and adjudicated the indebtedness of the county and reported the same to the board of
I am of opinion that, if the defendants had any discretionary power under the act, they exercised it once for all on April 20, when they directed the issuance of the bonds. If the statute was dependent upon the contingency of their approval, the commissioners of the county gave it force and vitality by their resolution of April 20, and that they could not at their subsequent meeting lawfully revoke it.
When the board adjourned their special session sine die on April 20, the rights of creditors at once attached under the act, and at their regular meeting in May the commissioners could not lawfully destroy those rights.
A very material enhancement in value was imparted to the bonds and script of the county by the action of the defendants on April 20. This indebtedness is doubtless of a negotiable character in form, and that its purchase and sale were thereby greatly accelerated, I do not doubt. It is possible, nay probable, some of it between April 20 and the May meeting found its way for value into the hands of innocent purchasers, who had a right to rely upon the stability of the solemn act of the commissioners. They cannot order a debt paid at one meeting, revoke it at the next meeting, re-order it paid at a succeeding meeting, and so on.
Municipalities are no more justified in neglecting their honorable obligations when the means are at hand provided by law for their adjustment than are private individuals, who contract honest debts and have the property with which to pay them. The General Assembly evidently thinking so, has given the defendants ample means necessary to settle and adjust the indebtedness of their county. It has provided a wise and beneficent financial scheme whereby it can be done without great stress of taxation. It is the duty of the defendants to avail themselves of such means, and to carry out cheerfully and in good faith the will of the law-making power.
I am not at all alarmed at pessimistic predictions or filled with fearful forebodings as to the consequences which may flow from this decision. It is but a proper recognition of the legitimate power of the General Assembly to compel counties to live up to their legal contracts and to pay their honest and undisputed debts. It will have a very salutary effect upon the action of boards of commissioners and teach them to be economical and careful as to how they spend “other people’s money.” Besides, such legislation is carefully safeguarded by the Constitution of the State. Those wise provisions, which prevent hasty legislation upon such subjects and require a recorded vote, have been steadfastly upheld by this Court.
I am of opinion that the petition to rehear should be allowed and that the writ of mandamus should issue as prayed for.
It is the province of the courts to direct payment of indebtedness either by issuing execution or by a mandamus to levy a tax when the Legislature has authorized a tax, or the indebtedness, which the municipality has created. But no Court has issued an order that the debt of a county shall be funded. When the statute authorizes a debt, the expression “may levy a tax” has been construed “shall” because the enforcement of payment is a judicial function and the courts will order the debtor to do what he may do to effect payment. This is the purport without exception of every case cited by the Court in which “may” has been construed “shall.” But issuing bonds is not payment. It is an act which can only be made effectual by mutual agreement between the creditor and the debtor and is in fact an agreement not to pay for a specified time. The Court can no more order bonds to be issued than it can compel the creditor to accept them. Neither is it in the scope of judicial power in the absence of an agreement between the parties. Nor is it a legislative function to order a municipality to issue bonds, thereby deferring payment, any more than it is to command immediate payment.
A brief consideration will show that the Legislature in this act has done no more than “empower and authorize” the county to issue bonds—that is, if the county and the creditors should so agree, otherwise the issuing bonds
That the General Assembly knew and intended a difference between the permissive authority to issue bonds and the imperative “shall” is shown by the use of the latter word, in sections 10 and 11 in providing that the bonds “shall not be issued except at par value”—thus restricting the permission which is given in section 1 to issue bonds. Also in section 4 in providing a form it says the bonds “shall be signed by the chairman”; section 5, “the treasurer shall keep a separate account”; section 6, the “commissioners shall keep an account”; section 15, “the treasurer shall pay the interest”—all these, coupled with the words “bonds hereby authorized,” thus meaning clearly what is expressly said in section 19, “if the bonds hereby authorized are issued.”
The General Assembly thus knew the difference between “authorizes and empowers” and the words “shall” and “direct” and used each in its appropriate place. It could only “authorize” the debtor to issue the bonds, and did so. It could restrict that authority by imperative requirements as to the methods of doing so and other details and as to those matters used the words “shall” and “direct.”
For certain purposes counties and other municipal corporations are governmental, and in those respects being a branch
The only two cases in the books in which any Court has issued a mandamus to a municipality to issue bonds are Commissioners v. People, 5 Neb., 127, in which the statute provides that said “commissioners are hereby authorized and required” to issue said bonds, and President v. Board, 45 Ala., 399, in which also the statute “hereby requires” that the municipality shall issue the bonds. Neither is authority for such action by the Court when the statute, as in this case, neither “requires” nor “directs” but merely “authorizes and empowers” the county commissioners to issue bonds, and the last-named case is severely criticised by Judge Cooley in his work on Taxation, Vol. 2, p. 1312 (3 Ed.), citing many apposite cases (p. 1307, note) that the State cannot make a contract for a municipality.
The
Nowhere in the Constitution appears any authority to require or order a county or city to issue bonds. But
Nothing is better settled than that when the courts have construed the meaning of certain words or a phrase, then if the Legislature shall thereafter use those words, it is conclusively presumed that the intention of the Legislature must be taken to be in the import of the words, previously judicially construed—otherwise it would have used other words, of course. Since the phrase “authorized and em
It is different, however, as to issuing thirty-year bonds, whatever the previous consideration, for that is not imposing a governmental duty and directing the levy of taxes to discharge it, but it would be a legislative requirement that the county make a contract, without its consent, and which yet would be subject to enforcement in the courts.
The General Assembly of 1903 (chapter 289) understood clearly this fundamental distinction between imposing a governmental duty and requiring the county, as a financial agency of its people, to make a contract, and therefore said chapter 289, Laws 1903, merely “authorizes and empowers” the county commissioners to issue new bonds for the former bonds which will not be due till 1907. And the General Assembly of 1905, knowing that this Court had held those words to be permissive and not mandatory, enacted a new statute upon the same subject, using the same words, and presumably only because it had the guarantee of a decision of this Court that the words could not be construed except as permissive authority.
WALKER, J., dissenting. When this case was before us at a former term, my conclusion, after a most careful investigation of the questions involved and a special consideration of the statute under which the plaintiff claims the right to a mandamus, was that the Legislature did not intend by that act to compel the commissioners to issue the bonds, but only to invest them with the power and authority to do so, if in
But I think that the statute, on its face, shows that the Legislature did not intend to act so inconsiderately in this matter and to force an issue of bonds regardless of the wishes of the people of the county or of the local authorities. It uses words implying permission to issue the bonds and not words of command. The suggestion is made that after the commissioners are thus authorized to issue the bonds, all other duties necessary to be performed for the purpose of executing its order are enjoined in peremptory words and this shows that the duty to issue the bonds was intended to be mandatory. To my mind, this is a most cogent reason for construing the words of the act as merely conferring a discretionary power. If the board has a discretion and orders the bonds to be issued, all other duties to be performed, such as auditing, preparing the bonds, keeping an account, paying interest, etc., would be ministerial and absolutely required in the execution of the order of the board, and therefore mandatory in their nature. When the Legislature intended to confer a discretionary power, it used language fit for that purpose, but when it directed the performance of duties which were necessarily mandatory, because the order of the board could not otherwise be made effectual, it changed the form of expression so as to adapt it to the nature of the duties thus required. It was careful to fit the language to the nature of the authority given or the duty enjoined, so that its intention might not be misunderstood. The act means no more than this, that if the board shall decide to issue the
It is argued that the commissioners having, at the meeting on April 20, ordered the bonds to be issued, could not revoke that order by the resolution passed in May. If this be a correct proposition, it is strange indeed that the decision is not rested upon that ground, as it would effectually dispose of the case without an elaborate discussion of the other and more serious questions. But it is not correct in law. In Staples v. Bridgeport, supra, the precise question was raised and decided contrary to the present contention. It was there held that although the local authorities had voted to issue bonds, it could rescind its action before substantially anything was done or any bonds issued under its vote. If it had appeared in this case, and it does not, that any one has acted to his prejudice upon the vote of the commissioners to issue the bonds, we could only hold that it was his folly so to act when the whole matter was in fieri and subject to be revoked. The whole argument presupposes that the order of the commissioners was revocable and, if it was, those who may have relied upon it, knowing of its revocable character, surely cannot complain if the commissioners afterwards exercised their undoubted right to rescind their resolution. They acted with their eyes open and if they have suffered any loss it is the result of their own folly.