Swasey v. North Carolina R. Co.

Citation71 N.C. 571, 23 F.Cas. 518, 1 Am. 359, 1 Hughes 17
Case DateJune 30, 1874
CourtUnited States State Supreme Court of North Carolina

1 Am. Law T. Rep. (N.S.) 359
1 Hughes 17
23 F.Cas.
518
71 N.C. 571

SWASEY
v.
NORTH CAROLINA R. CO. et al.

Circuit Court, E.D. North Carolina.

June, 1874.


At law.

*518 WAITE, Circuit Justice.

The North Carolina Railroad Company was incorporated by an act of the general assembly, passed January 27th, 1849, to construct a railroad to commence at the Wilmington & Raleigh Railroad, and proceed to Charlotte. To aid in building the road, the board of improvement was, by the act of incorporation, authorized to subscribe on behalf of the state $2,000,000 to the capital stock of the company. Sections 38 and 41 of the act are as follows:

‘Sec. 38. That in case it shall become necessary to borrow the money by this act authorized, the public treasurer shall issue the necessary certificates, signed by himself and countersigned by the comptroller, in sums not

[71 N.C. 572]

less than one thousand dollars each, pledging the state for the payment of the sum therein mentioned, with interest thereon at the rate of interest not exceeding six per cent. per annum, payable semi-annually, at such times and places as the treasurer may appoint; the principal of which certificates shall be redeemable at the end of thirty years from the time the same are issued, at any one time there may be sufficient to meet the instalment required to be paid at that time.’

‘Sec. 41. That as security for the redemption of said certificates of debt, the public faith of the state of North Carolina is hereby pledged to the holders thereof, and in addition thereto, all the stock held by the state of North Carolina Railroad Company, hereby created, shall be and the same is hereby pledged for that purpose, and any dividends [23 F.Cas. 519] of profit which may from time to time be declared on the stock held by the state as aforesaid, shall be applied to the payment of interest accruing on said certificates; but until such dividend of profit may be declared, it shall be the duty of the treasurer, and he is hereby authorized and directed, to pay all such interest as the same may accrue out of any moneys in the treasury not otherwise appropriated.’

The authorized subscription was made and certificates of debt issued to the amount of $1,858,000, on which the money was borrowed to meet the payments. By these certificates it was ‘certified that the state of North Carolina justly owes _____, or bearer, $1,000, redeemable in good and lawful money of the United States, at, etc., on the 1st day of July, 1884, with interest thereon at the rate of 6 per cent. per annum, payable half yearly at, etc., on, etc., until the principal be paid on surrendering the proper coupon hereto annexed.’ On the 14th of February, 1855, the general assembly passed another act, entitled ‘An act for the completion of the North Carolina Railroad,’ by the terms of which the public treasurer was

[71 N.C. 573]

authorized and instructed to subscribe $1,000,000 more to the capital stock of the company, and to make payment therefor by issuing and making sale of the bonds of the state, under the same provisions, regulations, and restrictions prescribed for the sale of the bonds theretofore issued and sold to pay the state's original subscription, and the same pledges and securities were thereby given for the faithful payment and redemption of the certificates of debt then authorized, as were given for those issued under the direction of the first act. This stock was by the terms of the act to be a preferred stock. The subscription was made, and certificates of debt, in the same general form as the first, issued to provide the means of payment. The plaintiff is the owner of five certificates of the first issue and two of the second. The interest on the first, payable January 1st, 1869, and after, and on the second, payable April 1st, of the same year, and after, was unpaid when this suit was commenced. This action is prosecuted for the benefit of all bondholders who may come in and make themselves parties. About $1,800,000 of the indebtedness is now represented. No certificate for the stock, upon either of the subscriptions, had been issued by the company at the time of the commencement of this action. Since that time, upon the order of the court, the proper...

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2 practice notes
  • Wall v. Stanly County Board of Education, No. C-140-S-65.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 16, 1966
    ...restraint of the judicial power of the United States applies only when the state is a party of record. Swasey v. North Carolina RR. Co., 1 Hughes 17, 1 Am.Law. T.Rep. (N.S.) 359, 71 N.C. 571, 23 Fed. Cas. 518 (#13,679) (C.C.E.D.N.C.1874), appeal dismissed 23 Wall. 405, 23 L.Ed. 136 (1875). ......
  • Chaffraix v. Board of Liquidation
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • March 1, 1882
    ...Cherokee Nation v. Georgia, 5 Pet. 1; U.S. v. Peters, 5 Cranch, 115; Davis v. Gray, 10 Wall. 203; Swasey v. N.C.R. Co. 1 Hughes, 1; S.C. 71 N.C. 571. See Buckner v. Striet, 7 Bank Reg. 266. [6] Georgia v. Madrazo, 1 Pet. 123. [7] Osborn v. Bank, 9 Wheat. 738; Murdock v. Woodson, 2 Dill. 204......
2 cases
  • Wall v. Stanly County Board of Education, No. C-140-S-65.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 16, 1966
    ...restraint of the judicial power of the United States applies only when the state is a party of record. Swasey v. North Carolina RR. Co., 1 Hughes 17, 1 Am.Law. T.Rep. (N.S.) 359, 71 N.C. 571, 23 Fed. Cas. 518 (#13,679) (C.C.E.D.N.C.1874), appeal dismissed 23 Wall. 405, 23 L.Ed. 136 (1875). ......
  • Chaffraix v. Board of Liquidation
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • March 1, 1882
    ...Cherokee Nation v. Georgia, 5 Pet. 1; U.S. v. Peters, 5 Cranch, 115; Davis v. Gray, 10 Wall. 203; Swasey v. N.C.R. Co. 1 Hughes, 1; S.C. 71 N.C. 571. See Buckner v. Striet, 7 Bank Reg. 266. [6] Georgia v. Madrazo, 1 Pet. 123. [7] Osborn v. Bank, 9 Wheat. 738; Murdock v. Woodson, 2 Dill. 204......

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