Jones v. Commissioners.

50 S.E. 291 | N.C. | 1905

Lead Opinion

Hoke, J.,

after stating tbe facts. Tbis case has heretofore been decided by tbe Court in favor of tbe defendant and an opinion to tbat effect has been reported in 135 N. C., 218. A like decision in a ease 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 Avords are used in statutes they are frequently imperative, and where the statute is concerning pub-lie interests, or promotive of justice, or to secure and maintain the individual rights of others, such words are well-nigh uniformly construed to be mandatory. This rule is stated by text-writers of approved excellence and is sanctioned by courts of the highest authority both in England and in the United States. Mr. Black, in his Interpretation of Laws, page 541, formulates the rule thus: “Where a statute provides for the doing of some act which is required by justice or public duty, as where it invests a public body, municipality or officer, with power and authority to take some action’ which concerns the public interests or the rights of individuals, though the language of the statute be merely permissive in form, yet it will be construed as mandatory, and the execution of the power may be insisted upon as a duty.” And in commenting on the rule the author says: “The most frequent illustrations of the application of this rule are found in statutes authorizing the settlement .of claims held by private persons against the State or its municipal corporations, and those making provision for the levy and collection of municipal taxes.” He then cites several cases in which the term “may” and “authorized and empowered” and “authorized” are respectively held to be imperative, and then proceeds: “Even where the act provides that certain public officers, if deemed advisable, or if they believe the public good and the best interests of the city require it, may levy a certain tax, though these words ,are purely permissive in form, yet the act will be held to be peremptory whenever the public interests' or individual rights call for the 'exercise of the power granted. And, in general, where the statute enacts that a public officer ‘may’ act in a certain way which is for the benefit of third persons, he must act in that way.”

To the same effect is Throop on Public Offices, secs. 541 and 548, and Endlich on Interpretation of Statutes, sec. 311, Sutherland on Statutory Construction, p. 547. Adjudicated cases of like effect can be found in Supervisors v. U. S., 4 Wall., 435; City of Galena v. Amy, 5 Wall., 705; Mayor of N. Y. v. Furze, 3 Hill, 612; People v. Flagg, 46 N. Y., 401; People v. Supervisors, 51 N. Y., 401; Brokaw v. Bloomington, 130 Ill., 482; State ex rel. v. King, 136 Mo., 309; Inhabitants of Veazy v. China, 50 Me., 518; Johnson v. Pate, 95 N. C., 68.

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 necessary expenses had begun to accumulate, and then amounted to $25,000. Issuing bonds to this amount under legislative sanction, the county officers have paid neither principal nor interest, with an exception so slight as not to be considered, and, in addition to this, debts of like character have been allowed to accumulate until there is $40,000 of indebtedness, additional to the bonds, accrued to January 1, 1903, the period named in the act. The authorities of the county had failed to fulfill the purposes of its creation and the Legislature enacted this statute to remedy the evil, as will be seen by a perusal of the entire act. It is a measure wisely conceived, carefully prepared, and presents the only feasible method by which this deplorable condition can be corrected and the financial affairs of the county placed on a sound basis. Such being its beneficent purpose, the Court should be slow to construe the terms of the act discretionary, unless such construction is clearly required. We do not understand that the general principle here declared is questioned, but some of our brethren are of opinion (and for their opinion we have the greatest consideration) that there are expressions in this act which forbid the application of the general rule and require that the statute in question should be construed as discretionary. The language chiefly relied upon is that expressed in section 19, that “if the bonds authorized by this act are issued.” * * * This expression, standing alone and unexplained, would not of itself be sufficient, we think, to prevent the application of the rule we are discussing. Many of the decisions upholding this rule were made on words much stronger than this expression would impart to the meaning of the act. But it is not unexplained. On the face of the act itself is found a full explanation of these words, entirely consistent with the decision of the Court on this question. It will be noted that the act provides in section 10 for tbe sale of the bonds, and in section 11 for tbeir exchange with creditors holding claims, and in both sections it is directed that the bonds shall not be issued except at par value. It might turn out that the bonds could not be sold at par under section 10. It might turn out that the creditor would not exchange them at par under section 11; and so the restriction in section 19 is explained by the restriction which the Legislature had itself put on the power to issue the bonds. This expression, no doubt, had reference to such restriction, and did not and was not intended to weaken the imperative force of the words used in former sections of the act.

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 account”; in section 8 “the board of audit are authorized, empowered and directed to do their work”; section 15, “the treasurer of the county shall pay the interest.”

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 can-celling 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.

On tbe third question: Had the Legislature power to pass the act ? The authorities are equally pronounced in favor of the plaintiff. We do not understand that the former opinion holds that the act is not within the legislative power. There is an intimation to that effect, however, and as the present opinion will result in the enforcement of the statute, it is necessary to decide the question.

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, allc 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 with, approval in 1 Dillon on Municipal Corporations, sec. 23; Smith’s Law of Mun. Corp., Vol. 1, sec. 10, and are sustained by a line of authorities unbroken, so far as we have been able to discover. People v. Flagg, 46 N. Y., 401; City of Galveston v. Pomainski, 62 Tex., 118; Philadelphia v. Fox, 64 Pa., 160; Locomotive Co. v. Emigrant Co., 164 U. S., 559, 576. Nowhere has this doctrine been more consistently adhered to than by our own Supreme Court, Mills v. Williams, 33 N. C., 558; Wallace v. Trustees, 84 N. C., 164; White v. Commissioners, 90 N. C., 437; Tate v. Commissioners, 122 N. C., 812; Mial v. Ellington, 134 N. C., 131.

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 Article VII, sec. 7, of the Constitution, it is provided that no county, city, town or other municipal corporation shall contract any debt, pledge its faith, or loan its credit, nor shall any tax be levied or collected by any officer of the same, except for the necessary expenses thereof, unless by vote of a majority of tbe qualified voters therein. This section was no doubt put in our Constitution because of the undefined and well-nigh unlimited power of the Legislature which existed at the time of its adoption, and it has not been altered or repealed. It will be noted that debts for necessary expenses are expressly excepted from this article of the Constitution, and all the debts which are the subject-matter of the statute now in question are of this character. It is not sought here to force the county to create a debt of <my kind. These debts had already been created and were outstanding and drawing interest at six per cent, when this statute was passed. The current rate of taxation is not sufficient to pay them in full, and the statute, as heretofore stated, presents a comprehensive, carefully prepared, and feasible plan to fund the debt at a lower rate of interest and restore the county finances to a satisfactory condition. As here stated, this power of the Legislature over counties is fully sustained in Tate v. Commissioners, 122 N. C., 812, and is nowhere more forcibly and tersely expressed. This was an action to compel the Commissioners of Haywood County to put in force a legislative enactment requiring the county authorities to work their roads by taxation. And there was a judgment compelling the commissioners to put the law in operation. This authority is cited in the former opinion of the Court on the present case, and the distinction made between that and the case before us, in that, the making of roads was a governmental function; but we do not think the cases can be so distinguished. What are these debts to which this statute is • addressed ? They are all debts for necessary expenses. And what does this term import? They involve and include the support of the aged and infirm, the laying out and repair of public highways, the construction of bridges, the maintenance of the public peace and administration of public justice — expenses to enable the county to carry on tbe work for wbicb it was organized and given a portion of tbe State’s sovereignty. To say tbat tbe Legislature bas no control in sucb matters would enable tbe county authorities of tbeir own will to stay all governmental action in tbeir locality, and entirely defeat tbe purposes for wbicb tbey were created. This is one of tbe reasons, no doubt, wby necessary expenses were excepted from tbe article of tbe Constitution just quoted. Tbe exception was partly made because it would be impracticable to refer all of these current expenses to popular approval; but an equally important reason was tbat local authority should not be withdrawn from all legislative supervision and control.

It has been suggested that while tbe Legislature might compel tbe laying of taxes, its power does not extend to tbe issuing of bonds, but we do not think this position sound, or tbat any sucb distinction exists. This method of adjusting debts wbicb 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 tbat while tbe power to tbe extent claimed, may exist in other jurisdictions, it cannot obtain here where the officers and agents who carry on tbe county government are given a place in our Constitution and tbeir existence thereby secured. As we apprehend this position, it is argued tbat tbe very fact tbat these officers are so placed manifests a purpose to give them exclusive or much larger power in tbe management and control of local affairs. Some expressions to this effect have found tbeir 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 tbe Court was passing on the right of tbe courts to interfere with the action of the commissioners, and the question of legislative power was not at all before them, and any such effect from these intimations is expressly repudiated and condemned in Tate v. Commissioners, supra. Even under our Constitution, as it originally existed, we do not think the position here contended for could be maintained. True, these offices were there created, and as the instrument then stood they could not be changed or destroyed; but what such officers, as agents of the State, could or could not be compelled to do was not stated in matters to which this discussion is addressed. However this may have formerly been, the position cannot be for one moment sustained under the Constitution as it now stands.

In 1875 „the article in reference to counties was amended. Eor 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 demonstration tbat it is not amiss, and at times altogether desirable, to have a supervising representative authority with power and disposition to intervene when local officers have failed and refused to perform their official duties.

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.

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Concurrence Opinion

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 I 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 justicé 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 commissioners. The record discloses the fact that the board of commissioners met in session on April 20 and passed a resolution directing the issue of the bonds, in manner and form as provided in the act. Notice was fully advertised requiring all creditors to present their claim before the board of audit, which was evidently done. The board of commissioners adjourned and terminated their' meeting of April 20 and met no more, so far as the record discloses, until the regular meeting on the first Monday in May. At this May meeting the board of commissioners attempted to revoke the order of April 20, and directed that no bonds be issued under the act.

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.

Tbe board of commissioners, as tbe trustees and guardian of the county, cannot be permitted to play “fast and loose” with tbe rig'bts of creditors whose obligations are admitted to be just, as well as tbe true interests of tbe citizens and tax-payers, who naturally desire to see the credit of their county maintained untarnished.

Municipalities are no more justified in neglecting their honorable obligations Avhen the means are at hand provided by law for their .adjustmjent 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 lawmaking 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.

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Dissenting Opinion

Clark, C. J.,

dissenting. This case was decided in 135 N. C., 218, and it is not shown that any authority or fact has been overlooked. Clark’s Code (3 Ed.), p. 945, and numerous cases there cited. As this is the first instance in the books, in which it has ever been held that the courts can compel a county to issue bonds upon a statute which merely “authorizes” it to issue them, it is well to scrutinize an innovation which must inevitably lead to startling results in the future.

It is the province of the courts to direct payment of indebtedness either by issuing execution or by a mandamus to levy a tax ivhen 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 would be a vain thing. In section 1 the board of commissioners are “authorized and empowered” — not directed — to issue bonds. Section 8 “authorizes, empowers and directs” them to audit, ascertain and adjust the amount of the floating debt, thus showing that the General Assembly knew when it could add the word “direct” and when it could not. Section 19 places the legislative intention beyond the possibility of doubt by providing: “If the bonds hereby authorized by this act are issued.” What is the meaning of this expression if the act were a direct and imperative order that the county should issue the 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 of the State government, can be changed, or abolished by legislation, and cannot be sued except by legislative permission. McIlhenny v. Wilmington, 127 N. C., 149, and cases cited. But as regards indebtedness incurred, they are business corporations, not government, else they could not be sued. Hence the Legislature can neither release the indebtedness nor defer nor order payment — the latter being a judicial function. It belongs neither to the Legislature nor to the judiciary to order bonds to be issued, since neither could order any other debtor to issue bonds. As to indebtedness, the jurisdiction is the same as over other debtors, neither more nor less. The Legislature may “authorize and empower” municipalities to issue bonds and, as we have seen, that is all it has done in this case. It would be a sad and deplorable result if the General Assembly should attempt to order and command in matters affecting a local indebtedness which it cannot command the people of any locality to create. Not having such power, it cannot order the people of any locality to change the form of its indebtedness nor defer its payment to a future day by directing the issue of bonds. It may “empower” them to create an indebtedness, provided (in proper cases) there is a vote of the people to that end. It may authorize the issuing of bonds, it may restrict such permission by imperative provisions as to details and circumstances under which authorization may be used. The courts alone can direct payment. Even the courts cannot order issuance of bonds, for that would be to forbid payment for the duration of the bonds, and might fix a different rate of interest, both in violation of the contract between the parties. When the statute provides “the county commissioners ‘may’ issue license to sell liquor” the Court has always held that this was discretionary with the commissioners. Even if the word' “shall” is used there is a discretion which the courts null not control by mandamus. Barnes v. Commissioners, 135 N. C., 27. Yet that is a governmental matter as to which the Legislature could substitute “shall.” As to municipal indebtedness the Legislature can neither order payment (which is a judicial power) nor direct the issuance of bonds, which is a matter of agreement between every debtor and his creditor. The time when to be paid, the rate of interest and the like are parts of the contract and cannot be changed, against the will of either party, by legislative enactment.

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 Constitution, Art. VII, sec. 7, provides that “no county, city, town or other municipal corporation shall contract any debt, pledge its faith or loan its credit, nor shall any tax be levied, or collected by any officers of the same, except for the necessary expenses thereof, unless by a vote of the majority of the qualified voters therein.” It is true that here there is a debt already contracted, but it is not yet due, and there is certainly no contract that the county shall pay interest thereon for thirty years, a sum largely more than the principal, at a rate not agreed to by the debtor who is debarred by the issue of bonds from paying the principal at an earlier date. Is it possible that the courts can force any debtor to make a new contract, issuing bonds for a debt not yet due or for script not reduced to judgment, without a vote of the people authorizing such contract? The issue of bonds is a solemn contract. The time and rate of interest are both matters to be agreed upon. The State cannot make a contract for the county, and the expression “authorize and empower” should not be held to effect such end.

Nowhere in the Constitution appears any authority to require or order a county or city to issue bonds. But Article V, sec. 6, restricts taxation levied by county commissioners so that it shall not exceed double the State tax “unless with the special approval of the General Assembly.” Here is the source and authority of the numerous acts passed by each Legislature since “authorizing and empowering”— never in any instance directing or requiring — the issue of bonds by counties and the levy of taxes to pay them. The measure must come from the will of the county, the General Assembly giving its approval. Thus speaks the Constitution, recognizing the right of the people of each locality to speak for themselves. So far as the past contract is concerned, the debt already created by the county, with such approval, the courts can enforce its collection. But neither the General Assembly nor the Court can invade the principle of. self-government by ordering the county to create a new debt by issuing bonds, to which the county has not given its assent.

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 empowered” was construed by this Court to be permissive and not mandatory (Jones v. Commissioners, 135 N. C., 218) the General Assembly of 1905 has met. If it had been the intention of that body to make the statute mandatory, it would have amended the statute by adding appropriate words to express such intent. On the contrary, the General Assembly (1905, chap. 132) passed another act upon the same subject entitled “An act to authorize the Board of Commissioners of Madison County to issue bonds, etc.,” and in section 1 thereof it is again provided that said board are hereby “authorized and empowered” — not required nor directed — to issue said bonds. The General Assembly knowing the Court had construed those words to be permissive and not mandatory, and as conferring only the “special approval of the General Assembly” (Constitution, Art. V, sec. 6), thus expressed its will that the statute should be permissive only. It thus also added the weight of its legislative construction to that of the Court as to the meaning of the Act of 1903. It is' fair to conclude from the omission to add mandatory words, that if they were inserted by the draftsman, they were stricken out, or at least that the bill could not have been enacted in a mandatory form. That the General Assembly acted intelligently and with full knowledge that the statute was not mandatory, is shown by the fact the same Legislature (1905) passed two other statutes in regard to Madison County which it saw fit to make mandatory, and used appropriate words to express such intent. In chapter 240 it provided for levying a tax to build an iron bridge in Madison County. In section 1 of said act the board of county commissioners are “authorized, empowered and directed” to build such bridge and “shall levy a tax,” etc. Again by chapter 262 it is provided that said county of Madison “shall levy a special road tax * * * to be specially applied on the public roads of the county in the purchase of blasting and bridge material.” These two acts, requiring the building of public bridges and roads and the levy of taxes for that purpose, were governmental and have been held to be therefore matters within the scope of the legislative authority to command to be done. Tate v. Commissioners, 122 N. C., 812, cited in Jones v. Commissioners, 135 N. C., at pp. 223, 224, where the distinction is drawn.

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.

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Dissenting Opinion

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 tbe exercise of their judgment and discretion they thought it best for the public interests. A further consideration of the case leads me to think that the conclusion then reached by me was correct. If it were not for the great respect entertained by me for the opinion of my brethren, I would say that the act admits of no other construction. Let it be conceded, for the sake of the argument, and it may be a perfectly correct proposition, that the Legislature has the undoubted power to compel the commissioners to issue bonds for the purposes mentioned in the statute, and let it be further granted that where power' is given to public officers in language directory, permissive or enabling, the courts will construe it to be in effect peremptory, whenever the public interest or individual rights call for the exercise of the power, and we are still far from proving that the act under consideration is mandatory in its terms. The first of the two propositions I will not discuss, as I do not deem it at all necessary for a decision of this case. When the act is correctly interpreted, we are able to decide the case before having reached that question in the proper order of discussion. It is only necessary to inquire whether the Legislature has the power to command, when we find that it has undertaken to exercise that power. As to the second proposition, it is a general rule that words in form permissive will be construed as mandatory when they are used to confer power or authority, the exercise of which is important for the protection of public or private rights, or for the advancement of justice. This is the general rule, but it does not mean that the words are to be so construed if a contrary intention appears, nor does it abrogate, or even impair, the force of the rule of construction that the entire statute must be considered in ascertaining the intent, and that the intent as thus expressed in the context must control in determining the meaning of the act. Justice Story says for the Court in Minor v. Bank, 1 Peters (U. S.), 46-64: “Tbe argument of tbe defendants is that ‘may’ in tbis section means ‘must’; and reliance is placed upon a well known rule in tbe construction of public statutes, where tbe word ‘may’ is often construed as imperative. Without, question, such a construction is proper in all cases where tbe Legislature mean to impose a positive and absolute duty, and not merely to give a discretionary power. But no general rule can be laid down upon tbis subject, further than that that proposition ought to be adopted in tbis, as in other cases, which carries into effect the true intent and object of the Legislature in the enactment. The ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the provisions.” Here, is a clear declaration by a Court of the highest authority that the principle contended for has its limitations and has never become crys-talized into a hard and fast rule to be applied inexorably, notwithstanding it may defeat the real intention of the Legislature. In my former (concurring) opinion, I reviewed the provisions of the act for the purpose of showing that the Legislature, by the use of the words “are hereby authorized and empowered to issue coupon bonds,” intended that they should have their admitted primary and ordinary meaning, leaving the whole matter to the judgment and discretion of the commissioners, and there is good reason for this construction, as the Legislature did not wish to interfere with the administration of local affairs and as there is nothing in the case which tends to show that it was thought the commissioners would not exercise their judgment and discretion honestly and in accordance with their true convictions as to the best interests and requirements of their county, and that coercive measures were therefore necessary to compel them to act in a particular way. If the Legislature did not think so at the time, and as far as appears it had no reason so to think, the mere fact that the county was burdened with a large indebtedness would be no more reason for compelling the commissioners to issue bonds than for authorizing them to exercise their discretion in doing so. To the county commissioners, says this Court in Brodnax v. Groom, 64 N. C., 244, and Cromartie v. Commissioners, 87 N. C., 134, is confided “the trust of regulating all county affairs.” It is not to be supposed that the Legislature, if it has a supervising and controlling power, will interfere with the local administration, unless there has been a wilful refusal to act on the part of the commissioners.. Such antagonism would be unnecessary and, as Chief Justice Pearson says in Brodnax v. Groom, such exercise of power would be well-nigh despotic. The commissioners having special knowledge .of the facts and being perfectly familiar with the condition of county affairs, are presumed to be more competent to judge correctly as to the expediency of issuing bonds than the Legislature, at least so apparently thought this Court in Brodnax v. Groom; and we should not infer that the Legislature intended gratuitously to force them to act. While it is manifestly right and .proper that the local authorities should have the power to refund the bonded indebtedness of the county, the usual method of satisfying such debts is by taxation, and this was known or should have been known, by the creditors when they bought the bonds. They are not therefore entitled as of right to have new bonds issued and exchanged for those now held by them no more than a creditor has the right to compel his debtor, who is an individual, to renew his note or other evidence of indebtedness. It is a mere matter of favor to be granted or not as the debtor may determine. In the case of a county it should not be compelled to do so, unless an extreme case is presented for the exercise of the paramount and controlling power of the Legislature, and we should not presume that the Legislature intended to exert its power in suck a way unless that intention clearly appears. The issue of these bonds will virtually prevent the county from paying its indebtedness for many years, even though it may be abundantly able to do so long before their maturity. This, to be sure, will benefit the bondholders, but may prove very detrimental to the county, and surely her people should at least be consulted before any such action is taken.

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 boar<j, 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 bonds, then tbe other officers shall perform the duties specified. If those duties had been made discretionary instead of compulsory, the decision of the board could be nullified by a refusal to perform them. I think I am sustained in the views so far expressed by the case of Staples v. Bridgeport, 75 Conn., 509, in which a question similar to the one in this case is discussed. That the authority to issue the bonds was merely permissive, is further conclusively shown by the use in section 19 of the words “if the bonds authorized by this act are issued.” This implies without doubt that the commissioners might not see fit, in the exercise of their discretion, to issue them. It seems to me that it can mean nothing else. It is suggested that these words refer to the inability of the commissioners to sell or exchange the bonds under the provisions of sections 10 and 11 of the act. But by force of the very words employed, the reference is to the authority to issue and not to the sale or exchange of the bonds. If the latter had been intended, how easy it would have been to have said so. The language in such a case would have been “if the bonds authorized cannot be sold or exchanged.” Again, the act provides (section 10) that the bonds, “ydien issued,” shall be placed in the hands of the treasurer of the county to be sold, so that by the terms of the .act, it cannot be determined whether the bonds will bring their par value or not until they are issued, and the same may be said in regard to the exchange of the bonds. It is clearly contemplated that the issue of the bonds shall precede any attempt to sell them, as they must be placed in the hands of the treasurer for the purpose of being sold. Until he has tried the market it cannot be known what the result will be. It .may be further said, in this connection, that the treasurer is not only directed to sell the bonds but the commissioners are required by the act (section 10) to apply the proceeds of sale to the payment, not only of the old bonds (if they cannot be exchanged for new ones), but to tbe discharge of all debts contracted for necessary expenses prior to January, 1903, which is a very large part of the total indebtedness, so that the bonds would have to be issued for the latter purpose anyhow, and the reasoning of the Court so far as it applies to .a possible failure to exchange the bonds or to sell them, at par must lose its force. All this but shows the clear intention of the Legislature by the use of the words in section 19, “if the bonds authorized by this act are issued,” to imply that the commissioners for some reason satisfactory to themselves might decide not to issue the bonds.

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.

Believing that the terms of the act are not mandatory and were not intended to be, I must dissent from the conclusion of the Court.

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Lead Opinion

CLARK, C.J., and WALKER, J., dissent. 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 (590) made inBank v. Comrs., 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. Comrs., 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 below stated:

Second. Is chapter 289, Laws 1903, mandatory? Third. Had the Legislature the power to pass it?

The terms of the first section of that act conferring power to issue bonds are "authorized and empowered," 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 public interests, or promotive of justice, or to secure (591) and maintain the individual rights of others, such words are well-nigh uniformly construed to be mandatory. This rule is stated by text-writers of approved excellence and is sanctioned by courts of the highest authority both in England and in the United States. Mr. Black, in his Interpretation of Laws, p. 541, formulates the rule thus: "Where a statute provides for the doing of some act which is required by justice or public duty, as where it invests a public body, municipality, or officer with power and authority to take some action which concerns the public interests or the rights of individuals, though the language of the statute be merely permissive in form, yet it will be construed as mandatory, and the execution of the power may be insisted upon as a duty." And in commenting on the rule the author says: "The most frequent illustrations of the application of this rule are found in statutes authorizing the settlement of claims held by private persons against the State or its municipal corporations, and those making provision for the levy and collection of municipal taxes." He then cites several cases in which the term "may" and "authorized and empowered" and "authorized" are respectively held to be imperative, and then proceeds: "Even where the act provides that certain public officers, if deemed advisable, or if they believe the public good and the best interests of the city required it, may levy a certain tax, though these words are purely permissive in form, yet the act will be held to be peremptory whenever the public interests or individual rights call for the exercise of the power granted. And, in general, where the statute enacts that a public officer `may' act in a certain way which is for the benefit of third persons, he must act in that way."

To the same effect is Throop on Public Officers, secs. 547 and 548, and Endlich on Interpretation of Statutes, sec. 311; Sutherland on Statutory Construction, p. 547. Adjudicated cases of like effect (592) can be found in Supervisors v. U.S., 4 Wall., 435; Galena v. Amy. 5 Wall., 705; Mayor of N.Y. v. Furze, 3 Hill, 612; People v. Flagg,46 N.Y., 401; People v. Supervisors, 51 N.Y. 401; Brokaw v. Bloomington,130 Ill. 482; S. Ex rel. v. King, 136 Mo., 309; Inhabitantsof Veazy v. China, 50 Me. 518; Johnson v. Pate,95 N.C. 68.

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 `authorized' 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 necessary (593) expenses had begun to accumulate, and then amounted to $25,000. Issuing bonds to this amount under legislative sanction, the county officers have paid neither principal nor interest, with an exception so slight as not to be considered, and, in addition to this, debts of like character have been allowed to accumulate until there is $40,000 of indebtedness, additional to the bonds, accrued to 1 January, 1903, the period named in the act. The authorities of the county had failed to fulfill the purposes of its creation, and the Legislature enacted this statute to remedy the evil, as will be seen by a perusal of the entire act. It is a measure wisely conceived, carefully prepared, and presents the only feasible method by which this deplorable condition can be corrected, and the financial affairs of the county placed on a sound basis. Such being its beneficent purpose, the Court should be slow to construe the terms of the act discretionary, unless such construction is clearly required.

We do not understand that the general principle here declared is questioned, but some of our brethren are of opinion (and for their opinion we have the greatest consideration) that there are expressions in this act which forbid the application of the general rule, and require that the statute in question should be construed as discretionary. The language chiefly relied upon is that expressed in section 19, that "if the bonds authorized by this act are issued." . . . This expression, standing alone and unexplained, would not, of itself, be sufficient, we think, to prevent the application of the rule we are discussing. Many of the decisions upholding this rule were made on words much stronger than this expression would impart to the meaning of the act. But it is not unexplained. On the face of the act itself is found a full explanation of these words, entirely consistent with the decision of the Court on this question. It will be noted that the act provides in section 10 for (594) the sale of the bonds, and in section 11 for their exchange with creditors holding claims, and in both sections it is directed that the bonds shall not be issued except at par value. It might turn out that the bonds could not be sold at par under section 10. It might turn out that the creditor would not exchange them at par under section 11; and so the restriction in section 19 is explained by the restriction which the Legislature had itself put on the power to issue the bonds. This expression, no doubt, had reference to such restriction, and did not, and was not intended to weaken the imperative force of the words used in former sections of the act.

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 draftsman 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 account"; in section 8 "the board of audit are authorized, empowered, and directed to do their work"; section 15, "the treasurer of the (595) county shall pay the interest."

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 canceling 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.

(596) On the third question: Had the Legislature power to pass the act? The authorities are equally pronounced in favor of the plaintiff. We do not understand that the former opinion holds that the act is not within the legislative power. There is an intimation to that effect, however, and, as the present opinion will result in the enforcement of the statute, it is necessary to decide the question.

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 with approval in 1 Dillon on Mun. Corp., sec. 23; Smith's Law on Mun. Corp., Vol. (597) I, sec. 10, and are sustained by a line of authorities unbroken, so far as we have been able to discover. People v. Flagg, 46 N.Y. 401;Galveston v. Pomainski, 62 Tex. 118; Philadelphia v. Fox, 64 Pa., 160;Locomotive Co. v. Emigrant Co., 164 U.S. 559, 576. Nowhere has this doctrine been more consistently adhered to than by our own Supreme Court,Mills v. Williams, 33 N.C. 558; Wallace v. Trustees, 84 N.C. 164; Whitev. Comrs. 90 N.C. 437; Tate v. Comrs., 122 N.C. 812; Mial v. Ellington,134 N.C. 131.

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. InPark Comrs. 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 Art. VII, sec. 7, of the Constitution, it is provided that no county, city, town, or other municipal corporation shall contract any debt, pledge its faith, or loan its credit, nor shall any tax be levied or collected by any officer of the same, except for the necessary expenses thereof, unless by vote of a majority of the qualified voters therein. This section was (598) no doubt put in our Constitution because of the undefined and well-nigh unlimited power of the Legislature, which existed at the time of its adoption, and it has been altered or repealed. It will be noted that debts for necessary expenses are expressly excepted from this article of the Constitution, and all the debts which are the subject-matter of the statute now in question are of this character. It is not sought here to force the county to create a debt of any kind. These debts had already been created, and were outstanding and drawing interest at 6 per cent when this statute was passed. The current rate of taxation is not sufficient to pay them in full, and the statute, as heretofore stated, presents a comprehensive, carefully prepared, and feasible plan to fund the debt at a lower rate of interest, and restore the county finances to a satisfactory condition. As here stated, this power of the Legislature over counties is fully sustained in Tate v. Comrs., 122 N.C. 812, and is nowhere more forcibly and tersely expressed. This was an action to compel the commissioners of Haywood County to put in force a legislative enactment requiring the county authorities to work their roads by taxation. And there was a judgment compelling the commissioners to put the law in operation. This authority is cited in the former opinion of the Court on the present case, and the distinction made between that and the case before us is that the making of roads was a governmental function; but we do not think the cases can be so distinguished. What are these debts to which this statute is addressed? They are all debts for necessary expenses. And what does this term import? They involve and include the support of the aged and infirm, the laying out and repair of public highways, the construction of bridges, the maintenance of the public peace, and administration of public justice — expenses to enable (599) the county to carry on the work for which it was organized and given a portion of the State's sovereignty. To say that the Legislature has no control in such matters would enable the county authorities, of their own will, to stay all governmental action in their locality, and entirely defeat the purposes for which they were created. This is one of the reasons, no doubt, why necessary expenses were excepted from the article of the Constitution just quoted. The exception was partly made because it would be impracticable to refer all of these current expenses to popular approval; but an equally important reason was that local authority should not be withdrawn from all legislative supervision and control.

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. Comrs., 67 N.C. 101, and expressly sanctioned in Jefferson County v. People, 5 Neb. 136; Comrs. v.City, 45 Ala. 399; Cooley on Taxation (3 Ed.), Vol. II, 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. Comrs., 87 N.C. 134. It will be noted that in these cases the Court was passing on the rights of the courts to interfere with the action of the commissioners, and (600) the question of legislative power was not at all before them, and any such effect from these intimations is expressly repudiated and condemned in Tate v. Comrs., supra. Even under our Constitution, as it originally existed, we do not think the position here contended for could be maintained. True, these offices were there created, and as the instrument then stood they could not be changed or destroyed; but what such officers, as agents of the State, could or could not be compelled to do was not stated in matters to which this discussion is addressed. However this may have formerly been, the position cannot be for one moment sustained under the Constitution as it now stands.

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 and 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 governmental 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 demonstration that it is not amiss, and at times altogether desirable, to have a supervising representative authority with power and disposition to intervene when local officers (601) have failed and refused to perform their official duties.

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.

Case Details

Case Name: Jones v. Commissioners.

Court Name: Supreme Court of North Carolina

Date Published: Mar 28, 1905

Citation: 50 S.E. 291

Court Abbreviation: N.C.