Commissioners of Bladen County v. Boring

CiARK, O. J.,

concurring in part and dissenting in part: The bonds-being issued by the township for necessary purposes, under a vote of the-people, and under the authority of' an act of the Legislature, there can be no doubt as to their validity.

The act, however, is also equally explicit (section 5) in authorizing the-board of commissioners on “behalf of the county to endorse and guarantee the payment of such bonds and the interest thereon,” after investigation by the commissioners and a finding by them that the bonds have-been legally issued and are a binding obligation against the taxable-assets of such township, with a proviso that “the county of Bladen shall not be in any way liable for the payment of any amount whatsoever on account thereof until all the taxable assets of the township issuing such bonds shall have been fully exhausted.” With this proviso, the county could not incur any liability, as a matter of fact, and the endorsement is merely to give the bonds a higher market value, thus benefitting the township without risk to the county.

A perusal of the State Constitution with a microscope of the- highest possible power will fail to discover a single line or word or intimation *113tbat prohibits the Legislature from authorizing a county to endorse the bonds of one of its townships issued for necessary purposes. If there'is, the language should be pointed out. It would be passing strange if there could be such prohibition upon the Legislature since the Legislature has repeatedly bound not only the county in which the local improvement has been made, but all the counties of the State therefor. The Quaker Bridge Road in Jones and Onslow and the public road in Jones County from Core Creek to Trenton were built at State expense; Jones County bearing its part, though the road is no part of a State system. The same is true as to a public road built at State expense in Pender County and the Hickory Nut Gap Road and many similar enterprises. All the numerous State appropriations for railroads have been made by the sale of bonds issued by the whole State for the benefit, in each instance, of a few counties through which these roads run.'

Even now the State is giving aid for the construction of a short railroad from Elkin to Sparta and to the reconstruction of the Hickory Nut Gap Public Road. The Dismal Swamp Canal and Harlowe’s Creek Canal were built largely at State expense, though of local value mostly and of no benefit to the State at large. If Cherokee and other western counties can be taxed to pay bonds issued for public roads and canals in the East and if California and Oregon can be taxed for building-waterways or highways in North Carolina, the Legislature can certainly, as in this case, authorize a county to give the aid of its credit to one of its townships by endorsing bonds issued for necessary expenses, this being-done without any risk to the county and when there is nothing in the Constitution restricting the Legislature in such exercise of its power to direct the public policy of the State.

Our State has also pursued the policy of exchanging bonds with a railroad corporation, giving its own bonds for the railroad bonds, as among other instances, to aid in building the short line of railroad from Taylorsville to Statesville, better known as the “Junebug Railroad,” and in the construction of the Chatham Railroad, with which it not only exchanged State bonds for railroad bonds, but it also exchanged State bonds with the city of Raleigh, which had subscribed for the construction of that railroad, and in other cases. The instances have been numerous.

In passing upon the constitutionality of the statute, the question is not whether this Court or a previous Court has held such act invalid or valid, but whether the Constitution itself shows any prohibition on the Legislature to pass the act. Such prohibition must be clear and explicit, “beyond a reasonable doubt.” It was so held by Chief Justice Marshall, who invented, or first asserted, the claim of the supremacy of the courts over the Executive and Legislative Departments, in Maihury v. Madison, 1 Cranch, 137, and this restriction on what would otherwise be an unlim*114ited and arbitrary power in tbe courts — tbe autocracy of an irreviewable veto — bas been affirmed several hundred times since by State and Federal Courts. Ogden v. Sanders, 12 Wheat., 213; 6 R. C. L., p. 82, and cases cited in notes, secs. 81-86, and 98-116.

Unless tbe Legislature is expressly prohibited by tbe Constitution from passing an act, then tbe matter rests in tbe discretion of tbe law-making power, and tbe Court bas no power to interfere with tbe legislative exercise of its right to direct tbe public policy of tbe State, without itself violating tbe Constitution, which provides that tbe three departments of tbe government — Legislative, Executive, and Supreme Judicial — ■ shall be “forever separate and distinct from each other.” Constitution, Art. I, sec. 8. Neither of tbe three departments is given control over the other two beyond the power given tbe legislative, which is nearest to tbe people and with shorter terms of office, to impeach and remove any official. In other respects, all three are left subject to control by tbe people only, who will pass upon their conduct in tbe election of their successors as public agents. So jealous bas North Carolina always been of tbe free and untrammeled expression of its will by its Legislature, subject only to review by tbe people themselves, that this State bas never given tbe Governor tbe veto power to this day. It certainly did not intend to give an irreviewable veto to tbe courts, especially in cases where tbe Constitution does not expressly forbid tbe General Assembly to act.