117 N.C. 34 | N.C. | 1895
The main object of this action is to restrain the defendant, Meekins, who is the Treasurer of Tyrrell county, from paying into the general County Treasury a special tax fund which the plaintiff alleges was collected for the benefit of himself; he also alleges that if this fund is so disposed of he will be without remedy because of the large indebtedness of the County, and because of the constitutional limitation which prevents a sufficient levy of taxes to pay its necessary current expenses. The answer does not fully deny this allegation, nor did the defendant file before his Honor affidavits for any purpose on the motion for the order of restraint. So it seems that if the order should be vacated, the action would to all intents and purposes be dismissed. It is unnecessary to cite the numerous decisions of this Court sustaining the proposition in Parker v. Grammer, Phillip’s Eq., 28, that “Where there is reason to apprehend that the subject of a controversy in equity will be destroyed or removed, or otherwise disposed of by the defendant pending the
In this case however, whether or not there was error in the granting of the order by his Honor depends upon the power of the Board of Commissioners to issue bonds in -substitution of county orders given for the necessary expenses of the county, without the sanction of a majority of the qualified voters, and also upon the constitutionality of two Acts of the General Assembly, one, Chapter 257 of the Acts 1889, and the other Chapter 278, of the Acts 1895.
Before we discuss the force of these acts, we will notice another question raised by the defendants as to the sufficiency of the complaint in matter of substance: the defendant contends that as the complaint does not show that the county orders, for which bonds were issued, were given for the necessary expenses of the County or by the sanction of a majority vote oi the qualified voters of the .County, they (the orders) are therefore void. The complaint alleges that the orders were valid and overdue, and this would seem to be sufficient pleading, because any County order issued by the Commissioners, without a popular vote, for any debt or obligation of the County, except for necessary expenses, would be invalid. But if not, we think that the objection is not well taken. There is nothing in the pleadings tending to show that the orders were not issued for the necessary expenses of the County, except an averment in the answer to that effect based expressly on the failure of the plaintiff to so allege, and not as a substantive fact. The presumption is that the Commissioners acted in good faith and within the scope of the authority conferred upon them under the Constitution and laws. Of course if it should appear on the trial of this action that the orders were issued by the Commissioners for any other
The answer does not clearly make the averment that the Act of 1889, in authorizing the levy and collection of a special tax to pay the indebtedness of the County without a popular vote being provided for violates Art. YII., Sec. 7, of the Constitution. But as the question is of interest to the entire County and the plaintiff relies upon the Act itself and the conformity thereto of the magistrates and the Board .of Commissioners in levying the tax to have this fund subjected to his debt, we will take up this phase and pass upon it. Article 7, Sec. 7, of the Constitution does not require that an Act of the General Assembly which
The Act provides, among other things: “Section 1. That for the purpose of settling and paying the lawful indebtedness of Tyrrell County outstanding_it shall be lawful for the Board of Commissioners of said County to fund the same by issuing the bonds of the County to the amount often thousand dollars,_the said bonds to run from one to ten years_Section 2. That in order to pay the said bonds and interest, the board of commissioners in joint session with the justices of the peace of the County shall levy annually a special tax sufficient to pay the same_” We have already said that the commissioners would have no right to issue bonds without a popular vote unless for necessary expenses. Neither would the legislature have the power to authorize them to do so. It seems from the perusal of the Act that power was intended to be given to the commissioners to issue bonds for any and all indebtedness of the County, whether incurred for necessary expenses or not. This power will not be conferred by the legislative power, for such an attempt would be directly in conflict with article YII, Section 7, of the Constitution. But we see no reason why the commissioners should not be allowed, under the Act, to fund the County debt and issue bonds for that part of the same which was contracted for necessary expenses, without a popular vote, even if they had not the power given to them expressly under the Constitution and other laws than the Act of 1889. An act of the legislature can be constitutional in part, and in part unconstitutional. McCubbins v. Barringer, Phillips, 551; Johnson v. Winslow, 63 N. C., 552. The presumption then being as we have already seen that the bonds of the plaintiff are valid and based on County orders wl. A . ore
No Error.