Debnam v. Chitty

• Decision Date: 20 December 1902
• Parties: DEBNAM v. CHITTY, Tax Collector.
• Court: North Carolina Supreme Court

43 S.E. 3

131 N.C. 657

DEBNAM v. CHITTY, Tax Collector.

Supreme Court of North Carolina

December 20, 1902

Appeal from superior court, Hertford county; Geo. A. Jones, Judge.

Action by Thomas H. Debnam against John C. Chitty as tax collector. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Furches C.J., dissenting, and Clark, J., dissenting in part.

This is an action to declare invalid certain bonds issued by Murfreesboro township, in Hertford county, and to enjoin the payment thereof. It stands upon demurrer to the complaint which is as follows:

"The plaintiff, complaining, alleges:

(1) That he is an actual bona fide resident and taxpayer in the said township.

(2) That the defendant is the duly appointed and qualified tax collector in said township, charged with the duties of collecting all public and special taxes levied in said township.

(3) That on the 7th day of March, 1887, the general assembly of North Carolina passed and ratified an act to incorporate the Murfreesboro Railroad Company, and published in Pub. Laws 1887, c. 365.

(4) That said chapter provided, among other things, that the township of Murfreesboro, in said county, might subscribe to the capital stock of said railroad to an amount not exceeding $25,000, and also provided for an election to be held in said township upon the question of such subscription; and an election was held, and the board of county commissioners of said Hertford county did, on the 19th day of September, 1887 under the provisions of said act, and after finding as a fact that a majority of the qualified voters of said township had voted for said subscription, execute twenty-five negotiable coupon bonds, each for the sum of $1,000, numbered one to twenty-five (1 to 25), consecutively, the first thereof payable ten years after February 1, 1888, and each succeeding bond payable each successive year thereafter until all are paid.

(5) That said bonds were issued with coupons for $60, each attached thereto, for the interest thereon at 6 per cent. per annum until the maturity of said bonds, as aforesaid. All of said coupons being of like tenor and effect, and one thereof on each bond being payable to bearer on the 1st day of February of each year. A copy of one of said bonds and a copy of some of said coupons are attached to the record of a suit in the United States court at Raleigh, N. C., hereinafter made an exhibit and part of this complaint, and marked 'Exhibit B.'

(6) That on the said 7th day of March, 1887, said general assembly passed another act, entitled 'An act to permit Murfreesboro township and the town of Murfreesboro, in Hertford county, to vote bonds for the building of a railroad,' it being chapter 286, Pub. Laws 1887.

(7) That said act provided, among other things, for said township to subscribe to the capital stock of the Roanoke & Tar River Railroad Company.

(8) That no election was ever held under said last-named act, and no bonds were ever issued thereunder.

(9) That said general assembly, in said chapter 365, Pub. Laws 1887, § 30, attempted to incorporate said Murfreesboro township, and further attempted to make the county commissioners of said county the corporate agents of said township; which chapter is hereby referred to as a part of this complaint.

(10) That said general assembly, in said chapter 286, Pub. Laws 1887, § 16, also attempted to incorporate said township, and to make said county commissioners its corporate agents; which said chapter is hereby referred to as a part of this complaint.

(11) That the plaintiff is informed and believes and advised that said chapter 365, so far as it attempted to authorize said township to subscribe to the capital stock of the Murfreesboro Railroad Company, and to vote bonds for that purpose, as provided for in said chapter, and the issuing bonds for said township, the holding of an election thereunder, and the incorporation of said township and the making of said county board of commissioners its corporate agents, as attempted in said chapter, and all other sections and provisions of said chapter looking to the creation of a debt against said township, are absolutely void and unconstitutional, in that said chapter or act was not passed by the general assembly of North Carolina as required by article 2, § 14, of the constitution of North Carolina.

(12) That the said act to incorporate the said Murfreesboro Railroad Company, being said chapter 365, as appears from the senate and house journals of said session of said general assembly, was passed, as shown by said journals, as follows:

Senate journal: 'Forty-seventh day. Senate Chamber, February 28, 1887. Page 486. H. B. 948, S. B. 897. Bill to incorporate the Murfreesboro Railroad Company. Referred to the committee on corporations.' On same day committee on corporations reported as follows: 'By Mr. Green: H. B. 948, S. B. 897. Bill to incorporate the Murfreesboro Railroad Company, recommending it do pass.' (Page 501.) On the forty-ninth day--March 2d--said bill was put upon its second reading, and the following record appears on the journal: 'H. B. 948, S. B. 897. Bill to incorporate the Murfreesboro Railroad Company, on its second reading. The bill passed its second reading. Ayes 31, noes none, as follows: Those voting in the affirmative were: Messrs Adams, Alexander, Bailey, Colley, Crouse, Crowder, Elias, Epps, Fields, Fox, Greene, Griffin, Harrison, Jenkins, Kerr, Lillington, Mason of Chatham, Murrow, Pemberton, Pou, Sanders, Shaw, Stephenson, Terrell, Turner, Warren, Webb, Williams of Davidson, Wilson, and Winston,--31. (Pages 562 and 563.)' 'Fifty-first day. Senate Chamber, March 4, 1887. (Page 644.) H. B. 948, S. B. 897. Bill to incorporate the Murfreesboro Railroad Company passed its third reading. Ayes 28, noes none, as follows: Those voting in the affirmative were: Messrs. Colley, Cook, Crouse, Crowder, Elias Epps, Fields, Fox, Greene, Griffith, Jenkins, Kerr, Lockey, McCormick, McIver, Pemberton, Pou, Persell, Saunders, Shaw, Simpson, Spruill, Stephenson, Sutton, Tull, Williams of Davidson, Williamson and Winston,--28. The bill was ordered enrolled.'

The record of the passage of said bill as appears as follows from the house journal: 'Thirty-ninth day House of Representatives, Friday, February 18, 1887. Introduction of bills and resolutions. By Mr. Stancill: H. B. 948. A bill to incorporate the Murfreesboro Railroad Company. Referred to the committee on railroads, postroads, and turnpikes.' (See p. 399.) 'Fortieth day. House of Representatives, Saturday, February 19, 1887. Report of committees. From the committee on railroads, postroads, and turnpikes. By Mr. Sutton: H. B. 948, a bill to incorporate the Murfreesboro Railroad Company, recommending that it do pass.' (Page 412.) 'Forty-first day. House of Representatives, Monday, February 21, 1887. Calendar. H. B. 948, a bill to incorporate the Murfreesboro Railroad Company, passes its second reading by the following vote, and takes its place on the calendar. Those voting in the affirmative are: Messrs. Allman, Ashcraft, Beason, Bennett, Bingham, Blevins, Blount, Brogden, Candler, Chappell, Cherry, Crisp, Doughton, Davis, Deaver, Ellis, Franklin, Felton, Fries, Hampton, Hayes, Hinton, Holman, Holt, Hoover, Howe, Hussey, Kell, King, Leaser, Lindsay, Macon, Manning, Martin, Meares, McClure, McKinnon, Newsome, Parham, Pascall, Patton, Person, Pritchard, Rawles, Redding, Reagan, Sanders, Shaw, Snell, Snipes, Sorrel, Southerland, Spellar, Stancill, Stephens, Stewart, Sutton, Surrat, Swain, Thomas, Ward, Watson of Hyde, Watson of Vance, Watts, Webster of Caswell, Wells, White of Halifax, Woodey, Worth, and York,--70.' (See pages 460 and 461.) 'Forty-sixth day. House of Representatives, Monday, February 28, 1887. Calendar, pages 560 and 561. H. B. 948, a bill to incorporate the Murfreesboro Railroad Company, passes its third reading by the following vote, and is ordered sent to the senate without engrossment. Those voting in the affirmative are: Messrs. Abell, Allman, Ashcraft, Beason, Bell, Bennett, Bingham, Blevins, Blount, Brogden, Candler, Chappell, Cheek, Cherry, Coffey, Copeland, Crawford of Haywood, Crawford of McDowell, Cranshaw, Crisp, Croom, Doughton, Deaver, Dawsett, Ellis, Evans, Franklin, Fries, Gatling, Gray, Greene, Halstead, Hampton, Harrington, Hayes, Hinton, Holloway, Holman, Hull, Hussey, Jordan, Kell, King, Lindsay, Lyon, Macon, Mangum, Manning, Meares, Moore, Morgan, McKinnon, McMillan, Newsome, Oakley, Osborne, Parham, Pascall, Patton, Pinnix, Pritchett, Redding, Reagan, Sanders, Sharp, Shaw, Shenk, Snell, Snipes, Sorrell, Southerland, Spellar, Stancill, Stewart, Sutton, Surrat, Thomas, Tilley, Turner, Ward, Watson of Hyde, Watson of Vance, Watters, Watts, Wells, White of Halifax, White of Perquimans, Williams, Williamson, Wilson, Woodey, Worth, and York,--94.'

(13) That in the passage of said bill in the house of representatives on its second and third readings no record was made in the journal of said house of the names of those representatives voting in the negative, nor does said journal show that there were no votes in the negative on the second and third readings of said bill.

(14) That the plaintiff is advised and believes, and so alleges, that the passage of said bill, as above set out, was absolutely void, under article 2, § 14, of the constitution of North Carolina, and conferred no powers, rights, or duties on said township to create any indebtedness against said township, or to issue any obligation of said township.

(15) That plaintiff is informed and believes, and so avers, that said act, being void, conferred no powers, rights, or duties on said board of county commissioners to act as agent for said township, and the bonds issued by...