McCless v. . Meekins , 117 N.C. 35 ( 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, 62 N.C. 28: "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 suit, so that the complainant may lose the fruits of his recovery or be hindered and delayed in obtaining it, the (37) court will, in aid of the equity, secure the fund," etc.

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, chapter 257, Laws 1889, and chapter 278, Laws 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 defendants contend 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 of 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 (38) issued by the commissioners for any other consideration except necessary expenses, the orders would be void, and the plaintiff would not be entitled to the relief he seeks. The presumption, then, being in favor of the validity of the orders and that they were issued for necessary county expenses, we come to the question, "Did the commissioners have the right to issue bonds in the place of the county orders unless they were authorized to do so by a vote of the majority of the qualified voters?" The answer is "Yes." In Tucker v. Raleigh, 75 N.C. 267, this Court had under consideration Article VII, sec. 7, of the Constitution, and decided not only that the city had the power, without the sanction of a popular vote, to contract a debt for its necessary expenses, but that it also had the right to acknowledge the debt by the issue of an order on the treasurer of the city for its payment, and also to substitute a bond of the city for the orders which it had previously issued for the same debt. It was also held in that case that "the general rule is that where a body is authorized to contract a debt, it is implied that the usual evidence or security may be given." In addition, it may be said that if legislative authority had been necessary for the issue of the bonds to pay necessary expenses, it was had by the Act of 1889, ch. 257.

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. VII, sec. 7, of the Constitution. But as the question is of interest to the entire county and the plaintiffs rely 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 their debt, we will take up this phase and pass upon it. Article VII, sec. 7, of the Constitution does not require that an act of the General Assembly which authorizes a special tax to pay debts of the county contracted (39) for its necessary expenses shall require the matter to be submitted to a vote of the people.

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 of ten 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 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 VII, 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 poular [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,61 N.C. 554; Johnson v. Winslow, 63 N.C. 552. The presumption, then, being as we have already seen, that the bonds of the plaintiff are issued by the commissioners for any other consideration except county expenses, and the plaintiffs having alleged that the bonds (40) were delivered to them in accordance with the provisions of the Act of 1889, and that the special tax fund, now the subject of controversy, was the fruit of a levy and collection in accordance with the act, we conclude that the plaintiffs are entitled to have this fund kept intact until the final trial of this action, unless, as the defendants contend, the act is repealed by the subsequent Act of 1895, ch. 278. We are of the opinion that the Act of 1895 is without effect, because it is against the provisions of Article V, section 7, of the Constitution, which is in these words: "Every act of the General Assembly levying a tax shall state the special object to which it is to be applied, and it shall be applied to no other purpose." Besides, if the plaintiffs' complaint be true, the Act of 1889 entered into and became a part of the contract as much so as the expressed agreement of the parties, and the Act of 1895 seeks to impair the obligation of the contract. This cannot be done. Art. I, sec. 10, Const. U.S. In Vann Hoffman v. Quincy, 4 Ill. 555, the Supreme Court, in discussing this principle, said: "It is equally clear that where a State has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied. The State and the corporation in such cases are equally bound. The power given becomes a trust which the donor cannot annul, and which the donee is bound to execute, and neither the State nor the corporation can any more impair the obligation of the contract in this way than any other. Laws requiring taxes to the requisite amount to be collected to pay municipal bonds which were in force when the bonds were issued cannot be annulled by subsequent legislation." There is no error in the granting of the restraining (41) order.

No error.

Cited: Coal Co. v. Ice Co., 118 N.C. 236; Hutchins v. Durham, ib., 468; Williams v. Comrs., 119 N.C. 525; McDonald v. Morrow, ib., 677;Caldwell v. Wilson, 121 N.C. 469; Greene v. Owens, 125 N.C. 222;Bennett v. Comrs., ib., 469; Smathers v. Comrs., ib., 485, 488; Hornthall v. Comrs., 126 N.C. 30; Broadfoot v. Fayetteville, 128 N.C. 531; Blackv. Comrs., 129 N.C. 126, 128; Whitfield v. Garris, 131 N.C. 150; Mfg.Co. v. Summers, 143 N.C. 106; Charlotte v. Trust Co., 159 N.C. 391;Drainage District v. Parks, 170 N.C. 438; Cottrell v. Lenoir, 173 N.C. 145;Bennett v. Comrs., ib., 628; Parvin v. Comrs., 177 N.C. 509.