This petition is filed by the University Rail Road Company, claiming to be a corporation, to compel the Governor and Public Treasurer to issue to it certain bonds of the State as required by an act of Assembly ratified 30th January, 1869, amended by an act ratified 1st April, 1869. *Page 420 The Judge below granted a peremptory mandamus, and the Respondents appealed.
The first question is, Who is the petitioner, and has it a legal capacity to demand relief of the nature prayed for?
Section 1 of the Act of 30th January, 1869, enacts: "That there shall be a body corporate and politic, known as the University Rail Road Company, with corporate powers and franchises to the same extent as are possessed by the North Carolina Rail Road Company."
Section 2 requires the Company to build a Railroad from some point on the North Carolina Railroad to Chapel Hill.
Section 3. "The affairs of said University Railroad Company shall be managed by a Board of five Directors, to be appointed by the Governor of the State, which board shall, out of their number, choose a President."c.
Section 4. "The Board of Directors shall appoint their officers and fix their compensation, and the salary of the President, subject to the approval of the Governor.
Section 5 provides for the issuing, by the Treasurer of the State, to the President of the Company, of bonds to the amount of $300,000, to be signed by the Governor and countersigned by the Treasurer.
Section 6 authorizes the Board to make certain contracts for building the road, and for the use of the rolling stock of the North Carolina Railroad Company.
Section 6 levies a tax of one-hundredth of one per cent on all the property in the State, to pay the interest on the bonds. The amendment of 1st April only changes the number of Directors to seven.
Without any minute criticism on this Act, it may be conceded to the petitioners, that its effect was to create an inchoate corporation, to consist of certain persons to be named by the Governor, to act as agents and for the exclusive benefit of the State in building the Rail Road, and that on the appointment of these persons, the corporation became perfect. This concession, however, is made subject to the consideration whether the persons thus to be appointed by the Governor *Page 421 were not public "officers," and if so, whether such appointment was invalid for want of confirmation by the Senate under Art. III, Sec. 10 of the State Constitution.
I concede also to the petitioners, for the sake of the argument, that public agents of this sort (if rightfully appointed,) may maintain mandamus against the Governor, to compel him to perform a mere ministerial act necessary to enable them to perform their public duties.
With these concessions there will remain but two questions preliminary to the consideration of the main questions in this case.
The main questions are:
1. As to the constitutionality of the act of Assembly in reference to Art. V, Sec. 5, of the Constitution.
2. Whether the Act is unconstitutional in reference to Art. V, Sec. 1, of the Constitution.
The preliminary questions are:
1. The Constitutionality of the appointment of the Directors by the Governor without confirmation by the Senate.
2. Whether the Act of which it is sought to enforce the performance, is a mere ministerial one, or one in which the Governor has a discretion; in which last case it is admitted mandamus will not lie.
As to the first preliminary question:
The Constitution, Art. III, Sec. 10, says, "The Governor shall nominate, and by the advice of a majority of the Senators elect, appoint all officers whose offices are established by this Constitution, or which shall becreated by law, and whose appointments are not otherwise provided for, and no such officer shall be appointed or elected by the General Assembly." Were the Directors "officers" in the sense of this section of the Constitution? If they were, it is clear they were created by law subsequent to the Constitution; and then the only question remaining for consideration under this head would be, whether the words "whose appointments are not otherwise provided for," mean, otherwise provided for by the Constitution, or, otherwise provided for by the law creating them. *Page 422
Were these Directors, "officers?" In 7 Bacon's Abridg. Title, Offices andOfficers, p. 280, it is said: "any man is a public officer who hath any duty concerning the public." In U.S. vs. Hartwell, 6 Wall, 385 it is said, "An office is a public station or employment conferred by the appointment of government. The term embraces the ideas of tenure, duration, emoluments and duties," and it was held, that the clerk of an assistant treasurer, was an officer within the meaning of a highly penal act. In State ex. rel.Worthy vs. Comm. of Moore county, ante, 199, this Court recently had occasion to consider who were officers of the State, under Amendment XIV of the Constitution of the United States.
In that case the Court, without professing an exhaustive enumeration, included under that definition such persons as standard keepers, stray valuers, entry takers, inspectors of flour, county surveyors, county trustees, c. But that decision proceeded greatly upon those persons being required by law (Rev. Code. ch. 66) to take an oath to support the Constitution of the United States, a ground which would not be applicable here. There are, however, two sections in the State Constitution from which it may be gathered what kind of State agents that instrument intended to class as "officers." Art. XIV, Sec. 5 says: "In the absence of any contrary provision, all officers in this State, whether heretofore elected, or appointed by the Governor, shall hold their positions only until other appointments are made by the Governor," c. All other officers having been elsewhere provided for by the Constitution, there was nothing for this section to operate on, except the class of State agents to which these directors belong, viz: such as the directors of the several Asylums (Rev. Code, ch. 6) and the State directors in the various banks and rail road companies in which the State had stock; and we know, that in fact, it was applied to these without any question of its propriety. Art. XIV, Sec. 7 says: "No person shall hold more than one lucrative office under the State at the same time; Provided, that Officers in the militia, Justices of the Peace, Commissioners of public charities, and Commissioners *Page 423 appointed for special purposes, shall not be considered officers, withinthe meaning of this section," thereby implying that commissioners for special purposes were "officers," within the meaning of the Constitution elsewhere, and that special words of exclusion were necessary in the particular case.
Then what is the meaning of the words, "unless otherwise provided for," in section 10? It seems clear that they mean "unless otherwise provided for in the Constitution." For nearly every officer the Constitution expressly provides the manner of appointment, but its framers seem to have apprehended that some might have been omitted, and, therefore, put in this general clause to cover all others. To read the words as applying to the Act of Assembly creating the office, would make them useless, for, in the absence of all constitutional provision on the subject, such would be law; for in such absence the General Assembly, in creating an office, surely might prescribe how it should be filled. Moreover this meaning would seem to be absolutely excluded by the words; "and no such officer shall be appointed or elected by the General Assembly," where "appointed" must refer to an appointment by the Governor alone.
Second preliminary question: Is the act which is required to be done a merely ministerial one? It is conceded that if the respondents, may exercise a discretion in respect to it, its performance cannot be compelled by mandamus. The act is merely ministerial in its nature; but it seems to me that the time for its performance is left discretionary. It will be observed that the language of section 5 of the act of the 30th January, 1869, is not imperative. It says: "To secure the completion of said road, coupon bonds of the State are hereby authorized to be issued," c. If we give to this word its proper weight, it can hardly be supposed that the Legislature intended to make it imperative on the Governor and Treasurer to issue in one mass bonds to the amount of $300,000 immediately on the passage of the act, and without any regard to the price at which they could be sold. It could never have been intended that the State should be thus made the victim of the *Page 424 brokers of Wall Street without help from any quarter. The language was, therefore, purposely, permissive only, and the intention was that the Governor should put these bonds on the market, only as funds might be needed for the work on the Road, and only when his opinion the price offered was a reasonable one. That discretion he has exercised by refusing to deliver them at this time.
I conclude from these considerations, 1st. That the Directors of the University Rail Road Company were such public officers as required confirmation by the Senate; that the appointments, having been made by the Governor alone, were invalid, and that consequently the inchoate corporation contemplated by the Act has not yet been perfected, and that there being no person in esse entitled to receive the bonds spoken of in the Act, the Respondents could not lawfully issue them: 2nd. That the act to be performed was purposely left discretionary as to the time of its performance, and hence cannot be commanded by this Court.
As these views dispose of the present case, we might decline to go farther into the consideration of the main questions which have been argued. But aware, as we are, that the principal object of this suit was to obtain the opinion of this Court on the constitutionality of that part of the Act of 30th January, 1869, which authorizes the issue of State bonds to build the University Rail Road, and on the constitutional limit of State taxation; and aware, also, of the profound interest with which both of tbese [these] questions are regarded by the people of the State and of the important consequences which will result from our decision, the Court is not willing, when it has formed a decided opinion, to avoid its expression, and permit the case to go off on matters in which it may be possibly amended hereafter.
The first of the two main questions mentioned above, arises under Art. V, Sec. 5, of the Constitution. It is conceded that the power of the General Assembly to borrow money to build a Rail Road, is not prohibited by the first clause of that section, provided a tax be levied in the same bill, and, provided, the constitutional limitation, if there be one applicable, is not *Page 425 exceeded. But the second clause forbids the General Assembly "to give or lend the credit of the State in aid of any person, association or corporation, except to aid the completion of such Rail Roads as may be unfinished at the time of the adoption of this Constitution," unless it be submitted to a vote of the people. It will probably be conceded that the clause intended in general to prohibit the credit of the State from being given "in aid" of any new Rail Road. But it is contended that here the State does not act "in aid of" any one. It proposes to build the road through its own agents, entirely with its own means, and for its own exclusive benefit. I admit that the act here contemplated to be done, is not literally prohibited but, in my opinion, it is prohibited by a natural and reasonable, and, therefore, necessary construction of the terms used. That cannot be done indirectly, which cannot be done directly. A prohibition to go one mile in a certain direction, is a prohibition to go two; a prohibition to spend one dollar for a certain purpose, is also a prohibition to spend more than one dollar; and a prohibition to render any aid to another in doing a certain act, must by all reasonable rules be construed as a prohibition against doing the act at all. In Dwarris onStatutes, 737, citing Bacon's Maxims, it is said: If the Statute, 1 Ed. 6, had been, that he that should steal one horse, should be ousted of his clergy, then there had been no question at all if a man had stolen more horses than one, but that he had been within the statute, for omne majuscontinet in se minus. To hold that when the General Assembly is solemnly prohibited from using the credit of the State in giving the slightest aid to any one else in the building of a Rail Road, it may, nevertheless, use that credit to build the whole road; that when it is forbidden to impose any part of the burden on the people, it may impose the whole, would seem to be the exercise of an uncommendable astuteness to explain away to nothing, solemn language intended to be the bulwark of the people's rights.
The rules for the construction of statutes (and the Constitution is a statute of the highest class) are clear and settled. If an adherence to the letter will lead to an absurdity, or will *Page 426 defeat the plain intention, the literal construction must be departed from. To cite the well known instance: A statute enacted that any person who drew blood in a public street should be punished capitally; a person walking in the street was taken with a fit, and fell; a surgeon near by bled him on the spot, and restored him to health; did the surgeon violate the spirit of the statute? To illustrate still farther the danger of a too literal construction: Suppose the word "person" had been left out of the second clause of Section 5, could the Legislature, in that case, have given the credit of the State to a single person in aid of a Rail Road? Or, suppose the word "person" had been retained, and the word "association" had been omitted, could it have given it to a partnership of several persons? It will scarcely be contended that the omission of either of these words would make any difference in the spirit and meaning of the section, yet by a strictly literal construction, the difference would be very great. It is to be observed, too, that this is not a penal statute, and, therefore, to be strictly construed, but one reserving rights to the people; and Sec. 27 of the Declaration of Rights, prefixed to the Constitution, says: "All powers not herein delegated remain with the people;" it must, therefore, receive a liberal construction to advance the remedy and suppress the mischief. In the construction af [of] a new statute we must look at the old law, the mischief, and the remedy intended to be applied.
The old law here was that the Legislature could contract an unlimited State debt, and by the abuse of this power for works of internal improvement, threatened the bankruptcy and dishonor of the State, and the ruin of the people; the remedy intended was, to restrict the power of the Legislature to incur debts, and as the building of rail roads had been the most fertile source of the abuse, to restrict it especially in reference to that, by requiring the previous sanction of the people.
The same reasons which made it proper for us to consider the constitutionality of the Act of 30th January, 1869, in reference to the section of the Constitution just discussed, *Page 427 induce us to consider it also as affected by Section 1 of the same Article. Section 1 says: "The General Assembly shall levy a capitation tax on every male inhabitant of the State" between certain ages, "which shall be equal on each to the tax on property valued at $300 in cash," and the State and County capitation tax combined, shall never exceed two dollars on the head." It is too plain to admit of an argument, that the intent of this section was to establish an invariable proportion between the poll tax and the property tax, and that as the former is limited to two dollars on the poll, so is the latter to two dollars on the three hundred dollars valuation of property. The motives for such a limitation may be inferred from the provisions of the Constitution itself, without looking at the debates in the Convention, to which we were referred. The Constitution admitted to the suffrage a class of persons who had never been entitled to it before, equal in numbers to about one half of the former voting population, and this class was at that time almost universally destitute of property. It was foreseen as at least possible in the somewhat unnatural condition of things then existing, that whichever of these two powers should obtain a majority in the Legislature, might attempt to put on the other an undue portion of the public burdens through taxation; to prevent the confiscation of property by numbers, a proportion was established; to prevent the oppression of numbers by property, the poll tax was limited. This proportion and this limit apply equally to all State taxes whatever, but not with equal force. As to some, it is absolutely imperative, and a tax laid contrary to its provisions would be void. As to others, from the nature of the objects of the tax, and from the provisions of the Constitution, it seems to me to be merely directory; that is to say, addressed to the discretion of the Legislature, and to be regarded, if possible, consistently with the attainment of the great objects of the Constitution, but if these cannot be attained within the limits and proportions prescribed, then to be disregarded. And of this possibility the Legislature must necessarily be the exclusive judge. The important question is, what are the exceptions from the general rule: *Page 428
1. It seems to me that the interest and principal of the public debt which existed at the adoption of the Constitution, and which was not repudiated as having been incurred in support of the rebellion, is clearly an exception. The Constitution, in respect to the debt of the State, shows a manifest intention that what was then owing should be secured and finally paid, and that it should not be increased for any but the most necessary purposes, (or such as were supposed to be so,) and then only under such guards and restrictions as would, it was believed, suffice to insure economy and moderation. Section 6 of the Declaration of Rights renews the pledge of the faith of the State to the payment of the existing debt; and Sec. 4, of Art. V, provides for the prompt payment of the interest, and the eventual payment of the principal, by a tax on the property of the State. When we consider the uncertainty which must necessarily have existed as to whether taxation within the limits prescribed by Sec. 1 would suffice for these cherished purposes, and that the tax to effect them is to be laid on property alone, thereby entirely disregarding the proportion established by Section 1 between property and polls, we are forced to the conclusion that Sec. 4 was intended to be in all respects independent of Sec. 1, if it should be found necessary to render it so, in order to give it due effect. If due effect can be given to it consistently with the general mode of taxation by ad valorem prescribed in Sec. 3, and with the limit, prescribed in Sec. 3, and in Sec. 1, then those general provisions were to be observed; but if that could not be done, then, on the principle that a special provision overrides, in the particular case provided for, all merely general rules, the general rule must be disregarded. I cannot concur, therefore, with Mr. Haywood in his view of the meaning of the word "specific" in Sec. 4. He considers it as contradistinguished from advalorem. That may be its technical and usual meaning in Acts of Congress relating to duties on imported goods, but in this place it means merely a tax devoted to the specified purpose. The accomplishment of the purpose proposed in Sec. 4 does not require any deviation *Page 429 from the general rule of uniform ad valorem taxation, and, therefore, none can be admitted.
2. Sec. 5 permits the Legislature to contract new debts in behalf of the State: 1st. To supply a casual deficit, or to suppress insurrection or invasion, whether the bonds of the State are at par or not, without levying a special tax to pay the interest. 2nd. For the ordinary and legitimate purposes of State government; if the bonds are at par, without levying such a tax. 3rd. To aid in the completion of such Rail Roads as were begun and unfinished at the adoption of the Constitution. For all other purposes they are forbidden to contract any new debt without submitting the question to a vote of the people. These objects of permitted taxation are distinguished from each other by the character of the conditions imposed on them respectively, and by the greater facility with which debts may be incurred for one of the purposes than for another. To suppress invasion, c., the Legislature may contract a debt without levying a tax to meet the interest: for other legitimate but not equally pressing uses of the State (including the aid to unfinished Rail Roads) it cannot. But all these objects are embraced in the same section, and as respects their liability to come within the operation of the limitation in Sec. 1, they all stand on the same footing. No distinction in this respect is made; if the State cannot exceed the limitation for one of the objects, it cannot for another. We can scarcely suppose that the Constitution intended to cripple the power of the Legislature in borrowing money to suppress invasion. The limit of taxation might have been already reached; and in that case it would be impossible for the State to borrow, as it could not tax to pay either the interest or the principal, and there is no provision in such a case for leaving the question to the people. This consideration of itself will suffice to prove that as to the taxation permitted by this Section, the limitation in Sec. 1, is not applicable. It must be noted however that in this Section, (5) there is no such command, as there is in Sec. 4, that the tax raised for the objects embraced shall be levied on property *Page 430 alone. On the contrary, the Legislature is left at liberty to levy the tax as it may think best, either on property, or polls or on purchases,c., or on all combined, subject only to the qualification, which there is no power to dispense with, that the tax on property shall be uniform and ad valorem. I am therefore of the opinion that the limitation of taxation prescribed by Sec. 1, is not imperative as respects taxes laid for the purposes contemplated in Sec. 5: that it must of necessity be construed as only directory or monitory to the Legislature, and that its observance cannot be enforced by the Courts.
The view which I take of the constitutional powers of the Legislature may possibly be unsatisfactory to two classes of persons; to those who are interested in the construction of new rail roads, and those who imagined that the Constitution had imposed and absolute limit to taxation for all purposes. By both it should be remembered that it is not the duty, or within the power of the Judges of this Court to make the law, but simply to declare it as they may conscientiously find it to have been made by the legislative representatives of the people. To the first class it may be further suggested, that if the roads in question are so necessary to the welfare of the State as to make their construction at this time, and under the present circumstances, wise and judicious, it is not probable that the people will refuse that sanction which they have retained the right to give or refuse, and which, if given, avoids all further question. To the second class it may be suggested, that the attempt to limit the legislative power of taxation in the manner of this Constitution is altogether novel, and if a short experience has shown it to be wise, it is entitled to the credit of being original; that no constitutional restrictions, however skilfully drawn, can ever form an effectual barrier to the effects of legislative folly or venality; that if legislators necessarily are entrusted with great powers over the estates of their constituents, the possession of such power should lead to an increased care in selecting them; and finally that by the construction which I have endeavored to maintain, the two chief objects of the Constitution in reference to this subject will *Page 431 have been attained, — the security of the existing State debt, and (except under the most extraordinary circumstances) and absolute and certain limit to its future increase.
I have purposely refrained from discussing any of the questions which in the arguments of counsel were suggested as possible, arising out of the possible priority of passage of tax bills for purposes not of primary importance, over those which were, and also of questions which might arise in case the Legislature should wantonly absorb the full limit of taxation for State purposes, leaving no margin to the counties for their necessary objects. These do not naturally arise out of this case. With the wise and patriotic legislation which we may hope for, and with that due obedience to the monitory, as well as to the imperative parts of the Constitution, which the people have a right to expect, it is scarcely possible that such questions can ever arise. It would be unwise and not in conformity with the practice of this Court, to undertake to decide them in advance.
In my opinion the judgment of the learned Judge below should be reversed and the complaint dismissed.