Tolman v. Board of Com'rs of Onslow County

• Citation: 140 F. 89
• Parties: TOLMAN v. BOARD OF COM'RS OF ONSLOW COUNTY et al.
• Decision Date: 15 July 1905
• Court: U.S. Court of Appeals — Fourth Circuit

140 F. 89

TOLMAN v. BOARD OF COM'RS OF ONSLOW COUNTY et al.

United States Circuit Court, E.D. North Carolina.

July 15, 1905

Rountree & Carr, for complainant.

E. K Bryan and W. D. McIver, for defendants.

PURNELL District Judge.

This cause coming on to be heard at Wilmington on this, the 1st day of July, 1905, on the bill and answer and evidence taken before the special master, duly appointed by consent, and being fully argued by counsel, the court finds the following facts to wit: Complainant is the owner of the coupons set out in the bill. The same were issued after the decision of the Supreme Court of North Carolina reported in 116 N.C. 563, 21 S.E. 205 (Wilmington, Onslow & Eastern Carolina Railroad Company v. Commissioners of Onslow county), in which it is held: (1) In submitting to the vote of the electors of a county the question of subscription of county bonds in aid of a railroad a substantial compliance by the county commissioners with chapter 233, p. 439, Acts 1885, as amended by chapter 89, p. 172, Acts 1887, is sufficient, if there be no fraud. (2) Where, at such election, a majority of the qualified voters of the county vote for the subscription, it is the duty of the county commissioners to issue the bonds. Afterwards the parties 'compromised and settled all issues between them,' and $40,000 in bonds were issued pursuant to such compromise, which compromise was sanctioned by the superior court of Lenoir county, where the suit was pending, as appears by consent judgments entered at spring term, 1896, signed by Hon. Henry R. Starbuck, judge presiding. That the acts authorizing the issue of said bonds were duly passed, it appearing from the journals a majority of each house of the General Assembly as constituted under the Constitution of the state voted aye, and are so recorded on the several readings of the bill, and the nay vote, if any, was not recorded, but, if all the members not recorded had voted nay, the majority would have been for the bill. It cannot be presumed all members not voting would have voted in the negative, but, if they had so voted, the bill would have passed its several readings. Under these circumstances it would be doubtful law, inequitable, and bad arithmetic to defeat legislation by holding otherwise than that the bill passed its several readings in accordance with article 2 Sec. 14, of the Constitution of North Carolina. Taxes have been levied and collected to pay the coupons, representing the interest on the bonds issued under the compromise aforesaid since said bonds were issued, and at the time of the...