Galloway v. Jenkins

RodmaN, J.,

concurrente. The nature of this case has been so fully stated in the opinion of the Chief Justice, that I may • enter in medias res, without making any useless repetition. It was admitted by the counsel, who argued this case on both sides with unusual ability, that the plaintiff as a tax payer, was entitled to appear in Court and ask for the relief which he demanded, if he could make a case entitling him to it, and thus the case was properly in Court. I think these admissions were properly made, and shall enter into no discussion of that part of the case.

The material question is, whether that part of an act of the General Assembly, ratified on the 18th of December, 1868, which relates to the Chatham Rail Road Company, (§§ 4, 5, 6,) taken in connection with the act of which it is amendatory, violates § 5 of art. 5, of the Constitution of the State, and transcends the constitutional power of the General Assembly.

In any argument on this subject, it must be admitted that the power of the Legislature, over the subject, is supreme, ■unless restricted by the article of the Constitution cited. It *157must also be admitted, that the article of the Constitution, means something, that it was intended to operate as some restriction of the legislative power, and is not entirely a dead letter, and that it must have the full force which its. words fairly and reasonably import

Section 5 is divided, by its subject, into two independent clauses, and might well have been put into two sections. The-first clause, (omitting the exceptions, which in this are immaterial,) says, until the bonds of the State shall be at par, the-General Assembly shall have no power to contract any new debt or pecuniary obligation in behalf of the State,” unless it shall, in the same bill, levy a special tax to pay the interest, annually. The requisition to levy a tax has been complied with in the act under consideration, and no question can arise-upon this clause.

The second clause then begins. It is connected with the former clause by the conjunctive “ and,” but it imposes a new and independent additional restriction on the legislative-power. The effect of the word “ and ” is simply to say, as an additional restriction. The additional restriction is super-added in certain special cases to the former general one. In no case (omitting the exception) could the General Assembly contract a new debt without imposing a tax. But there is a class of cases in which the Legislature is forbidden to contract a new debt in behalf of the State, even if the State bonds are at par or a tax to pay the interest be imposed, without submitting to it a vote of the people. That class is provided for in the second clause of section 5 : “ And the General Assembly shall have no power to give or lend the credit of the State in aid of any person, association or corporation (except to aid in the-completion of such Rail Roads as may be unfinished at the time of the adoption of this Constitution, or in which the State has a direct pecuniary interest) unless the subject be submitted to a direct vote of the people of the State, and be approved by a majority of those who shall vote thereon.” For the purposes, of the present argument, the words in brackets may be omitted;, *158for it is true, or must be admitted, that the road provided for in the Act of 18th December, 1868, is neither an unfinished road nor one in which the State had, at the adoption of the Constitution, “ a direct pecuniary interest.”

The Chatham Rail Road, between the termini and the route established by previous legislation, was an unfinished Road, in the legislative meaning of the phrase; but the Road which was to start from one of the termini of the Chatham Road, er from some point on it, and run thence to Cheraw, was a Road which was unfinished, in the sense that it had never been begun, but not in the sense contemplated by the Constitution, which meant only to include those roads which had been begun, but were unfinished at its adoption. We are obliged to give this meaning to that phrase in the Constitution, as any other construction would render it totally ineffective, and defeat any policy which it may be supposed it was intended to enforce.

The question then is reduced to this, does the Act of Dec. 18th, 1868, “give or lend the credit of the State in aid ” of the Chatham Rail Road Company or any other person, association or corporation ? If it does, it is prohibited by the clause of the Constitution above cited, which this Court is bound to obey as the paramount law. The question being reduced to these brief dimensions, it seems to me, with all respect for my learned brothers who have come to a different conclusion, that the answer can scarcely be doubtful. Waiving all discussion as to the lexicographical or technical and legal meaning of the word give,” as to whether it includes a grant, both with and without valuable consideration, it seems to me to be clear, that the words “give or lend” were intended to include every mode in which the State could render its aid to a Rail Road Company by means of its credit. It would be scarcely respectful to the intelligence of the Convention of 1868, to suppose that they intended to forbid the Legislature from giving the credit of the State without consideration, and yet to allow them to do it on the consideration of a pepper corn, of a certain number of shares of stock of a purely *159nominal value. It is said that the Statute of uses, enacted with great care by the English Parliament, had no other effect than to add three words to a conveyance. That was because the Judges were determined to defeat the law. But we can «orne to the consideration of this question in no such spirit, and with no such purpose. Our duty is to give to the clause of the Constitution the effect which its words plainly import, and mot to filter them into a nullity by hypercritical refinement. The construction which I give to this clause makes it mean something; any other construction, in my opinion, makes it mean nothing. Indeed, I do not know how its meaning could have been more clearly expressed. Had it said as the Constitution of Ohio does, “ shall not in any manner give or lend its ■credit”, &c — would it have been more expressive or exhaustive of every mode than the present phraseology ?

“Thou shall not kill!” Would this prohibition be made more forcible by adding “ in anyway ?” Assuming the meaning •of the word “ give ” to be what is here contended for, does the State give its credit in aid of the Chatham Rail Road Company, by giving its bonds for stock tobe sold by the Company to raise funds to build the road? The bonds were the •credit of the State, and for what' purpose could they have been given, except to aid the Company to build the road •described in the act ?

These considerations compel me to the opinion that the act •of the Legislature is in violation of the Constitutional restriction cited, and can, therefore, have no force, until submitted to and sanctioned by a vote of the people.

In the view which I have taken of § 5, Art. 5 of the Constitution, it is quite immaterial in reference to the act under •consideration, whether the bonds of the State are at par or not. The Legislature cannot (even if the bonds are at par) give or lend the credit of the State, in aid, &c., without submitting the question to the people.

This view renders it unnecessary to consider a question, discussed at the bar, as to the validity of a debt contracted by the legislature', within the first clause of §5 and not within the *160exceptions, without laying a special tax to pay the interest.. If, for example, the Legislature" should contract with some, person to build a State House for $100,000, or any other sum, and should issue bonds to him for that sum in payment, without, levying a special tax to meet the interest, and if the contractor should in his contract, agree to receive the bonds at par, and it should be so set out and and provided in the act, would such an act be unconstitutional ? Would the fact that the bonds-were declared in this particular case to be, and to be received at par, be a substantial fulfilment of the constitutional condition precedent ?

A short discussion of this point in reference to the case in question will not be without value. What does the Constitution mean, when it says, until the bonds of the State shall be at par ? at par with what ? It can only mean at par with gold and silver, or with the legal tender notes of the United States. It cannot mean at par with the work of the contractor, or at par with any piece of land or other property which the State, might think proper to buy, because the value of these things is uncertain, and rests only in opinion and agreement. Such a construction would deprive the words “ at par ” of all definite meaning. Gold and silver (or their legal equivalent) are necessarily the only standards by which the value of the State bonds must be measured. If then in the case supposed, the State should undertake to pay the contractor in State bonds, it would render it impossible to ascertain whether or not the bonds would be at par. In such a case the bonds would not be at par, in the sense of the Constitution, and no legislative declaration, and no agreement in the contract, could make them so, so long as it appeared that they were parted with for a thing of uncertain and unascertainable value. It is a matter of no consequence in the construction of this section of the Constitution, what the bonds of the State ordinarily sell for in the money markets of the world; no Court can ever be called on to say whether at the ratification of a certain Act of Assembly, they were worth 99 or 100. The test in every case must be whether on the particular bonds, issued *161under the circumstances supposed, the State actually received in legal money the sum which it became liable to pay. In no other way than by the conversion of the bonds into money,, can it be ascertained that they are at par, and in no other way can the policy of the Constitution-be effected

These considerations are responsive to some portions of the argument which has been addressed to the Court, but in the view that I take of it they are not necessary to this case

I have not considered, at all, the policy of the Act of December, 18th 1868. "With that question I have nothing to do. I feel bound to obey the Constitution which the people of North Carolina have adopted as their supreme law, according to my understanding of it, and to give them the benefit of those restrictions on the legislative power, which, by inserting,, they have shown that they considered valuable. I admit,, fully, the weight of the observation which has been made, that a Court should not refuse to give effect to an Act of the-Legislature as unconstitutional, unless it is clearly so. But,, in this case, I have not been able to bring myself to entertain a doubt as to the meaning of the Constitution. I think its words are plain and that we are obliged to give them the effect which I have assigned to them, or to deprive them of all practical effect, and of all sensible meaning whatever, and,, so thinking, my course of duty is plain and unavoidable.

I concur, in opinion, with the Chief Justice, and Dick, J.