dissenting. The two paramount questions arising upon the evidence may be stated as follows:
1. Did the defendants Silversteen, Shipman and Fisher, participate in procuring the issuance of tax anticipation notes, aggregating $100,000 ?
'2. Did they participate in procuring the issuance of said notes for the purpose of causing the proceeds thereof to be deposited in an insolvent bank of which Shipman and Silversteen were stockholders, directors and officers, thus defrauding -Transylvania County ?
*548The scene opens at a funeral and ends for some of the defendants at the penitentiary. On 26 August, 1930, Ves Ashworth was buried, and on the way from the funeral Shipman and Silversteen requested a witness for the State, named Allison, to go with them to the courthouse to see the defendant, McNeely, the county accountant and financial officer of said county. The words of the witness tell the story: “Shipman told McNeely that Transylvania County had a note that would be due in a short time and that it would work a hardship on the people of Transylvania County to pay this note in that short time, and asked him if he could not give an extension of time. That is all I remember. McNeely said he could not do anything himself but to take it up with the other commissioners. . . . There was nothing said about borrowing money.” Six days thereafter, to wit, 1 September, 1930, McNeely, the county accountant, filed with the board of commissioners a certificate in accordance with section 4 of the County Finance Act. This certificate shows that on 28 July, 1930, the board of commissioners had appropriated under three divisions the sum of $124,821.32 for schools and $15,148.88 for roads for the current fiscal year expiring 30 June, .1931. The certificate further declared: “It is necessary to borrow $100,000 for the purpose of paying appropriations made for the current fiscal year in anticipation of the collection of taxes,” etc.
There is no evidence that any of the other defendants knew of, approved, or procured the filing of this certificate.
On the same day, to wit, 1 September, 1930, the board of county commissioners duly adopted a resolution authorizing the borrowing of $100,000 in anticipation of the collection of taxes, said loan to be evidenced by ten promissory negotiable notes of the county in the sum of $10,000 each. It was further ordered that advertisement for bids be published in the Brevard News, the Asheville Times and the Daily Bond Buyer, published in New York City, notifying prospective purchasers that bids would be received by the board “until ten o’clock a.m. on 13 September, 1930.”
There was evidence that Shipman and Fisher were present when the resolution was adopted, but there is no evidence that they advised, counseled or even approved the resolution at that time. Silversteen was not present, and the trial judge expressly excluded as to him all evidence showing who was present at the meeting.
Immediately upon the passage of the resolution and the advertisement for bids, a political war began to flame and roar. The election was coming on in November. The editor of the local newspaper said: “The Democratic political leaders were making political capital of it over the county. . . . The battle was hot and fast and furious.”
*549Thereupon, three days after the resolution was adopted, to wit, on 3 September, 1930, the defendants, Shipman and Silversteen, wrote the letter appearing on page 65 of the record and set out in full in the opinion of the Court. The letter was addressed to the board of commissioners, and while the newspaper editor put a so-called “lead” at the top of the letter as published, this “lead” was no part thereof.
September 13, 1930, was the day set for receiving and opening the bids for the tax anticipation notes. The commissioners met, but no bids were there. An order was passed declaring: “It is desired to dispose of the said notes to meet the needs of appropriations made in anticipation of the collection of taxes,” etc. And it was ordered that the meeting adjourn until Wednesday, 17 September, 1930, at ten o’clock a.m., “at which time the board will entertain bids for $100,000 revenue anticipation notes.”
When the board met on 17 September, the Brevard Banking Company, through its president, Thomas II. Shipman, by a written proposal, dated 17 September, offered to purchase the notes at par, provided the “board will furnish the transcript of proceedings sufficient to evidence the legality of the notes to the full satisfaction of Olay, Dillon & Van-derwater, bond attorneys of New York City.” The board, finding that “the bid of the Brevard Banking Company to be the highest and best bid,” awarded the notes to said bank.
At this point, there is a break in the evidence. It does not appear what became of the notes. They were not in the bank. Whether the delay was due to inability to find a purchaser for them or that the bond attorneys in New York had not approved the issue is not disclosed. The liquidating agent, however, testified: “The bank did not get the money for those notes and the county did not get credit for them until 24 November.” Nevertheless, on said date the county received credit for every penny of the money plus interest, and the proceeds were distributed to the various county funds.
The bank was closed on 15 December, 1930.
The foregoing is the chronological development of the transactions from inception to the closing of the bank.
A survey of the movement of events, as disclosed by the evidence, totally fails to connect the defendants, Silversteen, Shipman or Fisher with the issuance of the notes unless the letter of 3 September, 1930, is sufficient to identify them as conspirators if any conspiracy existed. The letter and the bare fact that Shipman and Silversteen were seen at the courthouse on one occasion on 26 August, and that Shipman and Fisher were present when the resolution was adopted, is the sum total of the evidence against them. All other evidence as to Silversteen was *550expressly excluded by the court except testimony showing how much stock he owned in the bank, the amount of his deposits and the aggregate of his indebtedness. The fact that he was a depositor and stockholder in the bank did not have even an imaginary bearing upon the conspiracy, and the evidence in behalf of the State was directly, explicitly and unequivocally to the effect that all his notes were “good and perfectly solvent.” Therefore, the only possible evidence competent against him and his codefendant Shipman was the letter- of 3 September, 1930. Consequently, it is desirable to analyze that document in the light of the circumstances, and, of course, with due regard for the reasonable inferences and implications arising therefrom. The undisputed facts surrounding the letter may be summarized as follows: (1) The letter was written to the board of commissioners and not to a newspaper. How and from whom the newspaper editor received it is not disclosed. Nor does it appear that it was published with the knowledge, consent or approval of either Fisher, Shipman or Silversteen. (2) It was written three days after the notes were actually authorized by resolution duly adopted, and after the board of commissioners had adjourned. Manifestly, if a conspiracy was on foot in the adoption of the resolution, such conspiracy was a completed fact before the letter was written. (3) The authorization of the notes by the board had created a political war, and the transaction had subjected the members thereof to bitter criticism and attack. (4) At the time it was written there was no suggestion that the bank should purchase the notes. Neither did it appear that the bank desired or contemplated the purchase thereof. How could Shipman or Silversteen know or even surmise, notwithstanding wide publication for bids, that .no bid would be received ten days thereafter ?
In short, the letter, viewed in its setting, was no more than an expression .of approval of the business judgment and discretion of a politically badgered governing authority.
But it is insisted that the letter was false to the knowledge of the writers. The falsity is based upon the fact that on 1 September, 1930, the county had in bank to the credit of various funds the sum of $627,296.13. Consequently, it is argued that there was no necessity for borrowing more money, particularly for schools and roads because the school fund had to its credit the sum of $72,230.71, and the road fund $13,410.23. Included in the total balance of $627,296.13 was $278,000 proceeds of a bond issue under chapter 436, Public-Local Laws of 1929, which specifically provided that the money should be deposited in the bank “and held as a separate fund to be used only for the purposes authorized by this act.” Hence this fund must not be counted in deter*551mining tbe amount of available money for general county purposes. In addition, there were two tax anticipation notes of $75,000 each, payable on 15 September, and 15 December. Consequently, this sum of $150,000 should be deducted from the total balance in determining the amount available for general county purposes for the fiscal year. Furthermore, interest charges on various bond issues shown in the budget for the fiscal year was $87,000. Certain sinking funds were also included in the total, which, of course, should be deducted in arriving at available revenues. The result is, from a perusal of the evidence, that when the notes and bond interest items were paid that the county would have had slightly more than $100,000 available for all purposes for the entire fiscal year except such as might be realized from the collection of taxes. The fiscal year began on 1 July, and, therefore, on 1 September, only two months of the fiscal'year had expired. The county accountant testified that in paying the $150,000 of notes the said sum would be drawn from the following funds in the bank: (a) general county, $2,000; (b) health and poor, $5,000; (c) road fund, $23,000; (d) debt service, $45,000; (e) school fund, $75,000. As the school fund on 1 September, had on deposit only $72,230.71, it is obvious that when the notes were paid in September and December that the entire school fund would be wiped out, leaving no funds available to operate the schools from 15 December to the end of the fiscal year, unless, of course, taxes could be collected or money borrowed.
Therefore, when Shipman and Silversteen stated in the letter to the county commissioners on 3 September, 1930, that it was “good business . . . to borrow against uncollected'taxes in order to keep the schools and roads going,”'said statement is established as true by the evidence offered by the State, and yet Silversteen and Shipman and their descendants are marked with the burning brand of felony merely because they wrote a letter which contained no false statement or representation.
But for the sake of the argument, let it be assumed that Silversteen and Shipman and all the other defendants participated in procuring the issuance of the tax anticipation notes. The issuance of the notes worked no hurt to the county if the proceeds were deposited in the bank to the credit of the county, unless, of course, the bank was insolvent. Was the bank insolvent? The sole and only evidence of insolvency was the testimony of the liquidating agent. He testified that in his opinion the bank was insolvent, but continuing his testimony, he said: “I stated that in my opinion the Brevard.Banking Company was insolvent on 17 September. By the use of that term I mean if the bank had' closed that day, it would not have been able to pay off all of its creditors.” In other words, every man is insolvent, who, upon leaving *552bis office at night, if all of bis creditors met biro, at tbe door, could not pay them in full at that instant; or a bank would be insolvent if at tbe close of business on any particular day, all of its creditors should appear at the cashier’s window, and it was unable to band out in cash tbe full amount due every creditor. This conception of tbe solvency of a bank or of an individual is so weird that I do not pause to debate it. Obviously, tbe opinion evidence of insolvency was based upon a false and erroneous assumption, and such opinion is therefore no evidence at all, and upon objection, it was tbe duty of tbe judge to strike it from tbe record.
Tbe evidence, in its entirety, produces certain clear cut, and indisputable conclusions:
(1) Tbe board of county commissioners of Transylvania County, in strict accordance with law, and in tbe exercise of a judgment and discretion delegated by statute, authorized tbe issuance of ten negotiable, tax anticipation notes, aggregating one hundred thousand dollars.
Consequently tbe issuance of said notes was a lawful act.
(2) Tbe sale of tbe notes to tbe Brevard Banking Company, was duly made to tbe only bidder, complying with tbe terms thereof and with tbe statute.
(3) Tbe proceeds of tbe sale were duly received and deposited to tbe credit of various funds of tbe county, in a depository duly and regularly appointed and designated in accordance with law. Moreover, there is no evidence that said depository bad not complied with chapter 146, section .19, of' tbe Public Laws of 1927, and in pursuance thereof furnished bonds “in an amount sufficient to protect such deposits.” Indeed, it affirmatively appears that at tbe time of tbe deposit tbe county held surety bonds and collateral in excess of three hundred and seventy thousand dollars to protect public funds.
(4) At tbe time tbe notes were issued tbe appropriation for schools for tbe fiscal year was $124,821.32, and there was available for general school purposes on band tbe sum of $72,230.71. Tax anticipation notes aggregating $150,000 were falling due on 15 September and 15 December. In paying these notes it would have.been necessary to withdraw seventy-five thousand dollars from tbe general school fund, theretofore allocated, and hence on 15 December tbe general school fund, unless supplemented by tax collections or borrowed money, would have been overdrawn.
(5) There is no evidence that any defendant received an atom or electron of benefit from tbe transaction, or that tbe county has lost or will lose a penny because of tbe issuance of notes.
*553(6) There is no competent evidence of the insolvency of the bank on the date of the passage of the note resolution, or if insolvent that any defendant knew of it.
The State attempts to show insolvency by certain declarations of Skip-man to the effect that if the bank should be compelled to pay out seventy-five thousand dollars, it would work a hardship on the people of the county, because the bank would necessarily raise the fund by collecting from its debtors. Shipman described the situation in rather homely English when he said that enforced collections by the bank would “take the breeches off of some of the best people in town.” This however, should not’ be imputed to him for conspiracy, for under economic conditions then and now prevailing, some of the best people in every community in the country have not only lost their breeches but their underclothing also, under the compulsion of paying debts to banks and other creditors.
In general terms a conspiracy is an agreement to do an unlawful act, or to do a lawful act in an unlawful way.
In the case at bar, the evidence conclusively established the fact that the issuance of the notes was a lawful act. Now, what unlawful means were employed?
The State contends that the unlawful purpose consisted in depositing the money in an insolvent bank. Rut the State failed to offer any competent evidence of insolvency, or that the county had suffered the loss of a penny. Where is the crime ? Where is the proof of any crime ?
The evidence for the State says that a bank in Transylvania County failed on 15 December, 1930, and that at the time the county had $561,145.80 on deposit therein. It says further, that the county commissioners on 17 September, had lawfully sold one hundred thousand dollars of tax anticipation notes, and that in accordance with law the proceeds thereof had been duly deposited in a lawful depository, which had given the bonds or security as required by statute for the protection of public funds. For this several of the defendants go to the penitentiary.
After a thorough study and analysis of the evidence, I cannot reach the conclusion held by the majority of my brethren. I can see no crime and no competent proof of any crime described in the bill of indictment.