Commissioners of Buncombe County v. Payne

Furches, J.,

dissenting : The purpose of this action is to have declared void certain coupon bonds issued by plaintiffs in 1895, 1896 and 1897 to the amount of $98,000.

In 1855 the legislature passed an Act chartering a railroad company by the name and title of the “Green-ville & French Broad Railroad Company. ” Acts 1854-5, Ch. 299. This Act was amended by the legislature of 1858- 9, in which amended act it is provided “That it shall be competent • for any county through which said road is intended to pass, to subscribe to the capital stock of said company any sum or sums that may be determined on by the' Court of Pleas and Quarter Sessions of such county.” Acts 1858-’9, Ch. 166.

The next Act of the legislature affecting the question *491under consideration is the Act of 1868-9, Ch. 171. This Act expressly authorizes the commissioners of any County to submit the question of subscription to a vote, and if a majority of the qualified voters of the County vote for the proposition, to make the subscription. This Act seems to have been literally complied with by the Commissioners of Buncombe in making this submission to the voters of the county.

The legislature of 1871-2 passed another Act, as amendatory of the Act of 1855, chartering the Greenville & French Broad Railroad Company, in which new directors are appointed, and this Act closes by saying that the original Act and all other act^ amendatory thereof are re enacted. Acts 1871-’2, Ch. 48. '

The Legislature of 1873-4, passed another amendment to the original act of 1855 chartering this road, appointing other incorporators, and giving further time to complete its organization. Acts 1873-’4, Oh.'38.

The legislature 1874-5 passed another act ratifying a consolidation of the Greenville & French Broad Railroad Company with the French Broad Railroad Company, under the name of the “Spartanburg & Asheville Railroad Company.” Acts 1874-’5, Ch. 27. And under this legislation and organization the Commissioners of Buncombe County, in 1875, submitted a proposition to the voters of said county to subscribe $100,000 to the capital stock of the “Spartanburg and Asheville Railroad Company,” and to issue coupon bonds therefor. A majority of the qualified voters of said county having voted in favor of the proposition, the subscription was made, and the bonds issued and put upon the market.

These bonds ran for 20 years, and not having been paid, the Legislature of 1893 passed an Act authorizing the issue of new bonds in the place, of the old bonds is*492sued in 1875, known as the Funding Act. Acts 1893, Chapter 172. It is admitted that this Act was passed according to the constitutional requirements. But there was no submission to the people, after the passage of this Act.

After the passage of the Act of 1893, the commissioners of Buncombe County issued the bonds they are how seeking to have declared unconstitional and void; sold them to Blair & Co. of New York at par value for cash, with which money they paid off and discharged the original bonds issued in 1875. It is these last bonds that the plaintiffs are now trying to avoid the payment of. . 0

This case .is very much like the case of The Commissioners of Wilkes v. Call, decided at this term, but different in some respects that the Court considered material in that case. In Commissioners v. Call, it appeared in the face of the bonds that they were issued under the Act of 1879, which was admitted not to have been passed according to the constitutional provisions so as to authorize their issue; and this was held by the Court to be an estoppel. But there is no such question as that in this case. The submission to the voters of Buncombe County was made: “In pursuance of the provisions of, and in accordance with the powers granted by an Act of the General Assembly of the State of North Carolina, passed at its session of 1858-’9 and ratified on the 16th day of February, 1859, entitled an Act to amend the charter of the Greenville and French Broad Railroad Company.” The submission was in September, 1873. But before the bonds were issued in 1875, the Act of 1874 had been passed, consolidating this company with another railroad company and called the “Spartanburg and Asheville Railroad Company.”

*493The bonds are payable to bearer, and it is stated in their face that they are issued to pay the subscription to the “Spartanburg and Asheville Railroad Company” —this being the new name of the consolidated company, made under the Act of 1874-’5.

It is admitted that, if the original bonds issued in 1875 were valid these bonds are valid. This is true, and the admission does the plaintiff no harm. And it may be that the present bonds are valid, even if the original bonds were not. But I do not propose to discuss that question now; I may do so further on.

I have discussed many of the questions presented in this case so fully in my dissenting opinion in Commissioners v. Call, at this term, that I shall not enter into so full a discussion in this case, as I otherwise might have done. But I refer to that opinion for arguments that might have been made here.

It seems to me that if the Acts I have cited are law, there can be no doubt but what these bonds are valid. And while I recognize the doctrine contained in Bank v. Oxford, 119 N. C., 214; Charlotte v. Sheppard, 122 N. C., 602, and Commissioners v. Snuggs, 121 N. C., 394, I propose to show that all these Acts are valid law for the purposes of issuing the bonds, of 1875, except the Act of 1871-2, and that that Act is not necessary to. the validity of these bonds; and that there is no conflict between their validity and the doctrine in Bank v. Oxford, Commissioners v. Snuggs and Charlotte v. Sheppard, supra.

It is stated and admitted, as true, that the ayes and nays were not taken and recorded in the Journals upon the passage of the Act of 1858- 9 and the Act of 1871-2. But it is not alleged, admitted or shown that they were not taken and entered, according to. the require*494ments of the Constitution, upon the passage of the other Acts cited by me in this opinion.

When an Act is passed and ratified by the Legislature it is presumed that it was passed according to law. Gatlin v. Tarboro, 78 N. C., 119; McGuire v. Williams, at this term; and, if it is not, the burden is on the plaintiff (in this case) to show that they were not so passed. And it not being shown but what these Acts were passed according to the constitutional requirements, they must be taken to have been so passed. It must therefore be held that the ayes and nays were called on the passage of each one of these Acts, except the Act of 1858 — ’9 and the Act of 1871-2. It makes no difference that the ayes and nays were not taken and recorded on the passage of the Act of 1858- 9, as there was no provision in the Constitution at that time requiring that it should be done.

This act of .1858- 9 provided that counties through which the road was intended to pass might subscribe to the capital stock'of the company “if a majority of the lawfully qualified voters of such county voted for the subscription. ” But the second section of this Act provides that if a majority of the votes cast are for subscription, it shall'be declared to have been carried. It is true that this election was to be ordered and held under the direction and supervision of the county court; and the submission to the voters in this case, as in Commissioners v. Call, was by the commissioners of the county. The commissioners are the successors of the county court in all such matters. It is so held in Belo v. Commissioners, 76 N. C., 489. and is expressly so provided in Section 1997 of The Code.

It is contended in the opinion of the Court that the Act of 1858- 9 was repealed by the Constitution of *4951868. There is no provision of the Constitution of 1868 repealing this or any other law of the State. So if it is repealed, it must be by implication on.account of the repugnance of the Act (the charter) to the Constitution. I admit that any part of this Act repugnant to the Constitution of 1868 could not be enforced on account of the repugnance. But I deny that the Act was. repealed by the Constitution. If this were true no corporation could have been organized under its-provisions, and the “Spartanburg & Asheville Railroad Company” would be without any legal authority' — -would be a nullity. If this were true, no railroad company could be chartered, unless the Act chartering it passed according to Article II, Section 14 of the Constitution. This cannot be law. The passage of the Act according to Article II, Section 14 of the Constitution, is only necessary where it is used as a basis for raising money by means of a corporation subscription and tax. Suppose a railroad company is chartered by legislative enactment without complying with Article II, Section 14, and a company is organized thereunder (as I have no hesitation in saying it maybe) can it be contended that if the Legislature passes another Act, as required by Article II, Section 14, of the Constitution, authorizing a subscription to said road, a submission made to the voters, and an. issue of bonds under this Act, it would be unconstitutional and .the bonds void? That is the case. The railroad company was organized under the Act of 1858- 9, but the provision of this Act authorizing counties to subscribe, was repugnant to the Constitution of 1868 in that it provided that a subscription might be made and bonds issued, upon a majority of those voting, and not upon a majority of the whole qualified vote of the county. But the Act of 1868-9 (now Section 1991 of The Code) *496which was passed or presumed to have been passed according to Article II, Section 14 of the Constitution, supplied that defect in the Act of 1868-’59. This Act was not called to the attention of the learned Judge who tried the case. Had it been, he would, in my opinion, have decided it differently.

The Act of 1858-’9 and the amendments thereto (outside of the Act of 1871-’2) authorized the organization of the “Spartanburg & Asheville Railroad Company” and authorized Buncombe County' to subscribe to the capital stock of said company; and the Act of 1868-9 authorized a submission to the voters of said county as required by Article II, Section 14 of the Constitution, and in my opinion the bonds are valid.

There is another ground upon which it is claimed that their legality may be maintained; that of ratification.

There is no dispute but what the question of subscription was fairly submitted to the qualified voters of Buncombe County, and that a majority voted for the subscription. The Act of 1893, which is admitted to have been passed according to the requirements of Article II, Section 14 of the Constitution, expressly recognizes the old bonds as a valid indebtedness of Buncombe County, in the following terms: “That said indebtedness having been created in the year 1875, under proper authority, to pay for the subscription of the said county to the stock of the Spartanburg & Asheville Railroad Company.” This Act further provides in Section 3 as follows: “And when issued they shall be regarded and held as a continuation of the bonded indebtedness of said county, created for the purposes aforesaid, and they shall not be exchanged or sold for less than their par value.” ' It is contended that this isa *497ratification of the Acts under which the original bonds were issued. This is an interesting question, but, as I am of the opinion that the bonds are valid for the reasons given by me, outside of the doctrine of ratification, • I do not pursue the discussion further.

Faircloth, O. J., also dissents.