Sedberry v. . Board of Commissioners, Chatham County , 66 N.C. 486 ( 1872 )

The case of State v. Jones, 1 Ire. 414, cited and approved. The plaintiff held a debt against the county of Chatham, due prior to, and at the date of the passage of the Act, March 7th, 1871, Acts 1870-'71, ch. 114, p. 176, and obtained a peremptory mandamus against the defendants, commanding them to levy and collect a tax sufficient to pay his debt.

The peremptory mandamus issued from Fall Term 1870, returnable to Spring Term 1871, and the defendants having at that time failed to perform its commands, a rule was granted against them to show cause why they should not be attached as for contempt.

At that term the defendants filed their answer to the rule, and relied upon the statute above-stated, which for the better understanding of the case is given in the foot note.^*

His Honor deeming the return insufficient, ordered an attachment to issue against the gentlemen composing the Board from which order the Board appealed to this Court.

^* " AN ACT AUTHORIZING THE COMMISSIONERS OF CHATHAM COUNTY TO ISSUE BONDS." According to the view of this case taken in the Court below and by the counsel of both parties in this Court, two very interesting questions were presented.

1. Has the General Assembly power to forbid the Board of Commissioners of a county from levying and collecting a tax, to pay an existing debt of the county, when the defendant is commanded to do so by the order of a Superior Court having jurisdiction of the matter?

2. Must the defendant take the responsibility of deciding this question, so that should the statute be held constitutional, the return is irresponsive and sufficient, otherwise the individuals composing the Board, subject themselves to fine and imprisonment for contempt?

It is settled State v. Jones, 1 Ired. 414. The general rule is no return can be made to a peremptory mandamus, except "that it has been obeyed," but should a statute be enacted, after such peremptory order, forbidding obedience or making obedience impossible, such new matter will, of necessity be a sufficient return, provided the statute is constitutional and within the power of the General Assembly.

It was assumed in the Court below and by the counsel on both sides in the argument before us, that the Act 7th of March, 1871, admitted only of the construction that the creditors of the county were put to the alternative of accepting coupon bonds on time, or be without remedy, because the Board of Commissioners are forbidden to levy or collect any tax except for the accruing current expenses of the county, thus raising the questions above set out, and making a direct conflict of power between the Judge of the Superior Court and the General Assembly.

If this be the proper construction of the statute, there is much force in the objection, that it impairs the obligation of contracts. But we are of opinion that this view of the statute is too narrow, and that the scope and effect of it, is to empower the Board of Commissioners of the county to raise the necessary amount, to discharge the liabilities of the county, outstanding at the time of the ratification of the Act, by issuing and selling in the market, coupon bonds, and in this way funding the debts of the county; according to this construction, the restriction that no other tax shall be levied except for accruing current expenses, is reasonable and proper; and the statute is relieved from the imputation of being unconstitutional and void.

This construction is not only warranted by the terms of the Act, but is called for by a well settled principle, that when a statute admits of two constructions, one of which is consistent with the Constitution, and the other is questionable, as violative of good faith, and tending to impair the obligation of contracts, the former should be adopted, in other words, if a thing may be done in a right way, or in a wrong way, it shall be presumed to have been done in the right way.

The peremptory mandamus required the Board of Commissioners "to levy the tax," on the coming in of the return, by which it was seen that the General Assembly had made provision for raising the money by a sale of bonds, and forbid the board from "levying the tax." His Honor fell into error by not modifying the order, so as to require the Board to raise the money in the mode provided, for according to the proper construction of the Act, it was constitutional, and protected the Board from the charge of contempt. Statev. Jones, supra.

This course would have met the exigency and taken away all excuse for not instantly raising the money and paying it to the plaintiff.

Of course no difficulty was to be anticipated in regard to making sale of the bonds at a fair price, as the terms were reasonable and the bonds would, as seems to have been contemplated by the General Assembly, have been a good investment all doubt in regard to the power of the Board to issue them, being out of the question, and the remedy against the county to enforce payment, being plain and direct.

For the error in not modifying the order, the ruling of His Honor is reversed.

This will be certified to the end that further proceedings may be taken in the Court below, according to the view we have expressed.

The defendants were the first to adopt the misconception as to the meaning of the Statute, this was the occasion of the omission to modify the order. Throughout the proceedings they have evinced but little anxiety to discharge their duty, and there has been a delay of justice. For this reason no costs are allowed. C. C. P., 278. The result the of ruling in this Court is in the nature of an order for a repleader, which is in effect a new trial."

PER CURIAM. Venire de novo.

SECTION 1. The General Assembly, c., do enact, The Commissioners of Chatham county are hereby authorized to issue coupon bonds, not exceeding in amount twelve thousand dollars, in denominations of not less than twenty dollars, and not more than five hundred dollars.

SEC. 2. That the said bonds shall not be issued to contract any new debts against the county, but to fund such liabilities of the county as are outstanding at the time of the ratification of this Act.

SEC. 3. These bonds shall bear interest at the rate of six per cent per year, payable annually, and that the coupons calling for such interest, shall be received by the sheriff in payment of county taxes.

SEC. 4. The principal of bonds so issued, shall be payable as follows: the first one-fourth of the principal of said bonds at the expiration of one year from the first day of September, one thousand eight hundred and seventy-one, and each succeeding like amount shall be payable in like manner at intervals of one year from the time of payment of the issue immediately preceding it.

SEC. 5. That for the payment of the principal and interest of said bonds, the Commissioners of Chatham County are authorized to levy the necessary taxes as occasion may require from time to time, but they are forbidden to levy or collect any other tax, except for the accruing current expenses of the county.

SEC. 6. This act shall be in force from and after its ratification.

Ratified the 7th day of March, A. D., 1871.