Blanton v. McDowell County Com'rs

• Citation: 8 S.E. 162,101 N.C. 532
• Parties: BLANTON v. BOARD OF COUNTY COMMISSIONERS.
• Decision Date: 03 December 1888
• Court: United States State Supreme Court of North Carolina

8 S.E. 162

101 N.C. 532

BLANTON v. BOARD OF COUNTY COMMISSIONERS.

Supreme Court of North Carolina

December 3, 1888

Appeal from superior court, McDowell county; CLARK, Judge.

This is an appeal from a judgment awarding a writ of mandamus requiring the county commissioners of McDowell county to levy assessments to meet maturing railroad aid bonds.

Where county bonds were issued in aid of a railroad, before the constitution of North Carolina of 1868, and, in 1887 new bonds were issued in place of those that had matured, the act authorizing the issue of the new bonds declaring them to be a continuation of the former liability, such reissue was not the creation of a new debt, and the county commissioners, in levying assessments to pay the same, were not restricted to the limits of taxation fixed by the constitution of 1868.

Battle & Mordecai, for appellants.

SMITH C.J.

Under and by virtue of section 47 of chapter 228 of the act incorporating the Western North Carolina Railroad Company passed at the session of the general assembly held in 1854-55, the county of McDowell, with the approval of a majority of the voters, subscribed for $50,000 of its capital stock, and in payment therefor issued its coupon bonds in that amount, running 20 years, and bearing 6 per cent. per annum interest, payable semi-annually. The bonds were issued in 1867, and, at the session held in 1883, an act was passed "to empower the board of county commissioners of McDowell county to compromise, commute, and settle the debt of McDowell county." (chapter 204,) by which the commissioners were authorized to issue other coupon bonds not exceeding in amount the said sum of $50,000; and in section 3 it is declared that "the bonds so issued therefor may have expressed upon their face that they are issued in the place and stead of such contract or liability created and existing as aforesaid, (prior to the year 1868,) and are not liable to the limitation of taxation provided for in section 6 of article 5 of the constitution." At the session held in 1887, an amendatory act was passed entitled "An act to empower the board of county commissioners of McDowell county to settle the bonded debt of McDowell county," by the first section of which authority was given them "to issue coupon bonds of the denominations of not less than one hundred nor more than one thousand, to be made payable at any period not more than thirty years from the date of said bonds, and bearing such interest as may be agreed upon by said board of county commissioners of McDowell county, and the holders or owners of the bonds issued by said county of McDowell in aid of the Western North Carolina Railroad Company, not exceeding six per centum per annum, to be paid semi-annually; and said bonds shall be signed by the chairman of said board of county commissioners of McDowell county, and counter-signed by the clerk of said board." The second section repeals the section of the same number in the previous enactment, and substitutes therefor the following: "The bonds so issued under this act may be exchanged with the holders and owners of said bonds heretofore issued in aid of said Western North Carolina Railroad Company, under the act of the general assembly of North Carolina, passed at its session of 1856 and 1857 chapter 68, and when so issued shall be deemed and held to be a continuation of the liability created by said county under the provisions of said act." Under the power thus conferred, the plaintiff has surrendered bonds of the original issue held by him, and accepted others issued in exchange, the coupons due on which the commissioners refuse to provide for by levying a tax in excess of the constitutional limitation of 66 2/3 cents on the $100 valuation of taxable property, all of which is required to meet the expenses and liabilities of the county. So no funds are raised to meet the accrued interest on the bonds, the commissioners, in answer to the plaintiff's demand for such additional levy, alleging a want of power to do so. This is the question raised by the demurrer, which, upon the hearing, was overruled, and, the commissioners declining to answer over, judgment was rendered awarding...