Union Bank of Richmond v. Commissioners of Town of Oxford
| Decision Date | 17 November 1896 |
| Citation | 25 S.E. 966,119 N.C. 214 |
| Parties | UNION BANK OF RICHMOND v. COMMISSIONERS OF TOWN OF OXFORD. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Granville county; Starbuck, Judge.
Mandamus by the Union Bank of Richmond to compel the commissioners of the town of Oxford to levy a tax to pay certain railroad aid bonds. From a judgment for plaintiff, defendants appeal. Reversed.
Where the constitution requires, in the enactment of laws, that the yeas and nays be entered on the journals, the journals are conclusive as against not only a printed statute published by authority of law, but a duly-enrolled act.
M. V Lanier, R. O. Burton, W. A. Guthrie, and Edwards & Royster for appellants.
Shepherd, Manning & Foushee and J. Crawford Biggs, for appellee.
When this case was here before (116 N.C. 339, 21 S.E. 410) the court set aside the nonsuit taken below, and held that the plaintiff could maintain an action as the case was then presented. The court did so upon the ground that, there being apparently a valid liability of $40,000 against the town of Oxford, the compromise thereof for the sum of $20,000 was not necessarily void, and that the court below erred in nonsuiting the plaintiff. The case had been tried upon the view that the charter of the town of Oxford authorized the election under which the $40,000 indebtedness was contracted. The judge below held that this was not so, and hence that the compromise was not binding. This court sustained the view taken below that the town charter did not authorize the contraction of the indebtedness, but held that on its face the act chartering the railroad (Acts 1891, c. 315, § 10) authorized the election. The question as to the efficacy of that act had not been questioned below, as the plaintiff had rested its claim upon the authority of the town charter to sustain the election. The questions decided before need not be called in controversy. We must take it that our former opinion settles that the town had authority to compromise a valid liability for a smaller sum, and that Act 1891, c. 315, on its face authorized the election. When the second trial was had below, the point was taken for the first time that, conceding, as this court had held, that Act 1891, c. 315, by its terms, authorized the election, that act was invalid, because not passed as required for all acts empowering counties, cities, and towns to issue bonds. Const. art. 2, § 14. This section of the constitution is imperative, and not recommendatory, and must be observed; otherwise this wise and necessary precaution inserted in the organic law would be converted into a nullity by judicial construction. It was intended as a safeguard, and has been held mandatory in all other courts in which that question has been presented, as will be seen below. This point was not raised below in the former trial, nor in this court, as the plaintiff was then relying upon the charter of the town, which we held invalid for that purpose. On this second trial, when the plaintiff offered for the first time Act 1891, c. 315, as authority to show a valid election authorizing the indebtedness of $40,000 as a basis to authorize the compromise (for, except as a compromise, the judgment would be void on its face, being ultra vires), the defendant contended that Act 1891, c. 315, while valid as a railroad charter, was unconstitutional and void so far as authorizing the creation of an indebtedness by the town, because not enacted in the manner required by Const. art. 2, § 14. The journals were put in evidence, and showed affirmatively that the act was not read three several days in each house, and that the ayes and nays were not entered on the readings in the house, as required by the constitution for acts authorizing the creation of public indebtedness. The point, therefore, thus arises for the first time in this case, and was not presented, and could not be presented, in the former appeal, for the reasons above given. The point is one of transcending importance, and is simply whether the people in their organic law can safeguard the taxpayers against the creation of state, county, and town indebtedness by formalities not required for ordinary legislation, and must the courts and the legislature respect those provisions? This safeguard is section 14 of article 2 of the constitution. It provides: "No law shall be passed to raise money on the credit of the state or to pledge the faith of the state, directly or indirectly, for the payment of any debt, or impose any tax upon the people of the state, or to allow the counties, cities or towns to do so, unless the bill for the purpose shall have been read three several times in each house of the general assembly, and passed three several readings, which readings shall have been on three different days, and agreed to by each house respectively, and "unless the yeas and nays, on the second and third reading of the bill shall have been entered on the journal." The journals offered in evidence showed affirmatively that "the yeas and nays on the second and third reading of the bill" were not "entered on the journal"; and the constitution--the supreme law--says that, unless so entered, no law authorizing state, counties, cities, or towns to pledge the faith of the state, or to impose any tax upon the people, etc., shall be valid.
This case has no analogy to Carr v. Coke, 116 N.C. 223 22 S.E. 16. That merely holds that when an act is certified to by the speakers as having been ratified, it is conclusive of the fact that it was read three several times in each house, and ratified. Const. art. 2, § 23. And so it is here; the certificate of the speakers is conclusive that this act passed three several readings in each house, and was ratified. The certificate goes no further. It does not certify that this act was read three several days in each house, and that the yeas and nays were entered on the journals. The journals were in evidence, and showed affirmatively the contrary. The people had the power to protect themselves by requiring in the organic law something further as to acts authorizing the creation of bonded indebtedness by the state and its counties, cities, and towns than the fact certified to by the speakers of three readings in each house, and ratification. This organic provision plainly requires, for the validity of this class of legislation, in addition to the certificates of the speakers, which is sufficient for ordinary legislation, the entry of the yeas and nays on the journals on the second and third reading in each house. It is provided that such laws are "no laws"--i. e. are void--unless the bill for the purpose shall have been read three several times in each house of the general assembly, and passed three several readings, which readings shall have been on three different days, and agreed to by each house, respectively, and unless the yeas and nays on the second and third reading of the bill shall have been entered on the journals. This is a clear declaration of the nullity of such legislation unless this is done, and every holder of a state or municipal bond is conclusively fixed with notice of this requirement as an essential to the validity of his bond. If he buys without ascertaining that constitutional authority to issue the bond has thus been given, he has only himself to blame. 1 Dill. Mun. Corp. 545, and cases cited. It is certainly in the power of the sovereign people, in framing their constitution, to require as a prerequisite for the validity of this class of legislation these precautions, and the additional evidence of the journals that they have been complied with, over and above the mere certificate of the speakers, which is sufficient for other legislation. That the organic law does require the additional forms and the added evidence of the journals is plain beyond power of controversy. Accordingly, the law is well settled by nearly 100 adjudicated cases in the courts of last resort in 30 states, and also by the supreme court of the United States, that where a state constitution prescribes such formalities in the enactment of laws as require a record of the yeas and nays on the legislative journals, those journals are conclusive as against not only a printed statute, published by authority of law, but also against a duly-enrolled act. The following is a list of the authorities, in number 93, sustaining this view either directly or by very close analogy. It is believed that no federal or state authority can be found in conflict with them. Decisions can be found, as, for instance, Carr v. Coke, supra, to the effect that, where the constitution contains no provision requiring entries on the journal of particular matter,--such, for example, as calls of the yeas and nays on a measure in question,--the enrolled act cannot, in such case, be impeached by the journals. That, however, is a very different proposition from the one involved here, and the distinction is adverted to in Field v. Clark, 143 U.S., on page 671, 12 S.Ct. 497. The authorities are as follows: Alabama: Moody v. State, 48 Ala. 115; State v. Buckley, 54 Ala. 599; Perry Co. v. Selma, etc., R. Co., 58 Ala. 546; Walker v. Griffith, 60 Ala. 361; Moog v. Randolph, 77 Ala. 597; Hall v. Steele, 82 Ala. 562, 2 So. 650. Arkansas: Burr v. Ross, 19 Ark. 250; Vissant v. Knox, 27 Ark. 266; Worthen v. Badgett, 32 Ark. 496; Smithee v. Garth, 33 Ark. 17; Chicot Co. v. Davies, 40 Ark. 200; Glidewell v. Martin, 51 Ark. 559, 11 S.W. 882. California: Railroad Tax Cases, 8 Sawy. 238, 13 F. 722; Weill v. Kenfield, 54 Cal. 111; Paving Co. v. Hilton, 69 Cal. 479, 11 P. 3. Colorado: In re Roberts, 5 Colo. 525; Hughes v. Felton, 11 Colo. 489, 19 P. 444; Robertson v. People, 20 Colo. 279, 38...
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