Town of Wilson v. Markley

• Decision Date: 15 December 1903
• Citation: Town of Wilson v. Markley, 45 S.E. 1023, 133 N.C. 616 (N.C. 1903)
• Parties: TOWN OF WILSON v. MARKLEY.
• Court: North Carolina Supreme Court

45 S.E. 1023

133 N.C. 616

TOWN OF WILSON v. MARKLEY.

Supreme Court of North Carolina

December 15, 1903

Appeal from Superior Court, Wilson County; Ferguson, Judge.

Action by the town of Wilson against C. Markley.From a judgment for plaintiff, defendant appeals.Affirmed.

F. A. & S. A. Woodard, for appellant.

S. G Mewborn, for appellee.

CONNOR J.

This is an action submitted to the court upon pleadings properly filed. and a special finding of facts by his honor, a jury trial having been waived, pursuant to the provisions of section 398 of the Code.

His honor found the following facts:

"(1) That on the 5th day of March, 1903, the General Assembly of North Carolina passed and ratified an 'act to amend the charter of and to authorize the town of Wilson to issue bonds,' same being published in the private laws of North Carolina (Sess. Laws 1903, p. 696, c. 291).

(2) That section 8 of said act provides 'that the town of Wilson is hereby authorized and empowered to create an additional debt for grading, macadamizing and paving the streets and sidewalks and for extending the sewerage and water works systems of said town to an amount not exceeding forty thousand dollars, exclusive of the amounts and sums heretofore authorized to be created by the charter of said town, and for that purpose may issue bonds in the name of the town of Wilson in such denomination and form and payable at such place and time, but running not less than twenty nor more than fifty years, and bearing interest at no greater rate than 5 per centum per annum and payable semi-annually as said board of commissioners may determine.'

(3) That section 9 of said act provides 'that none of said bonds shall be issued until approved by a majority of the qualified voters of said town at a public election to be held at such time and under such regulations as the board of commissioners may prescribe, at which election those favoring the issue of bonds shall vote "Issue," and those opposing shall vote "No issue."D'

(4) That after due notice an election was held in said town of Wilson on Tuesday, May 5, 1903, upon the question of the said town's issuing said bonds, at which election those favoring the issuing of said bonds voted for 'Issue,' while those who opposed the issue voted 'No issue.'

(5) That at said election there were 440 votes cast for 'Issue,' and 16 votes were cast for 'No issue'; that the total number of qualified voters of said town of Wilson for said election was 667; and that said election was held and conducted in all respects regularly, and in conformity to and with the laws of the state, according to the provisions and requirements of the charter of the town of Wilson.

(6) That thereafter the board of commissioners of the town of Wilson instructed and authorized the mayor, Doane Herring, to offer, by advertisement, said bonds for sale, pursuant to the provisions of said act.

(7) That the defendant, C. Markley, having made and submitted his bid for $5,000 of said bonds, the said board of commissioners for said town accepted the bid so made and submitted by the defendant for said amount of bonds so bid for by him, and the said town of Wilson, the plaintiff, has had prepared, in due form, said bonds, and has offered and tendered same to the defendant for his acceptance, and has demanded of him the payment therefore according to his said bid, but the defendant refuses to accept said bonds and to pay the plaintiff therefor.

(8) That the said bill authorizing the holding of said election and the issuing of said bonds was introduced in the Senate on February 26, 1903, and passed its several readings in accordance with article 2, § 14, of the Constitution, all of which fully and affirmatively appears by the inspection of the Senate journal.The original House journal of March 2, 1903, contains the following entry: 'S. B. 1063, H. B. 1716.A bill to be entitled an act to amend the charter of and to authorize the town of Wilson to issue bonds.Referred to the committee on corporations.'

(9) That two copies of said journal were made, one of which was to be filed in the office of Secretary of State, and one to be delivered to the public printer; that the copy furnished to the Secretary of State, now on file in his office, is as follows: 'Messages from the Senate, "S. B. 1016, H. B. 1716, a bill to be entitled an act to amend the charter and to authorize the town of Weldon to issue bonds" referred to committee on corporations.'That the copy furnished the public printer for publication is an exact copy of the original House journal.

(10) That the House journal of March 4, 1903, contains the following entry: "H. B. 1716, S. B. 1063, being a bill to amend the charter of and to authorize the town of Wilson to issue bonds, passes on its second reading by the following votes: Ayes [giving names of members voting] 91; those voting in the negative, none.'Under date of March 5, 1903, said journal contains the following entry: 'H. B. 1716, S. B. 1063, being a bill to amend the charter of and to authorize the town of Wilson to issue bonds, passes on its third reading by the following vote: Ayes [giving names of members voting] 96; those voting in the negative none.'

(11) That the indorsements on said bill while in the House of Representatives are as follows: 'Passed first reading and referred to committee on corporations March 2, 1903.''Reported to the House March 3, 1903, Fav.''Passed second reading, ayes and noes, March 4, 1903.Cal.''Passed third reading, ayes and noes, March 5, 1903, and ordered enrolled.'Said bill, on its face, is numbered, 'S. B. 1063, H. B. 1716.'Signed, 'F. D. Hackett, Principal Clerk."D'

Const art. 2, § 16, provides that "each house shall keep a journal of its proceedings which shall be printed and made public immediately after the adjournment of the General Assembly."Section 23: "All bills and resolutions of a legislative nature shall be read three times in each house before they pass into laws and shall be signed by the presiding officers of those houses."This court, in Scarborough v. Robinson,81 N.C. 409, held that the signatures of the presiding officers were essential to the validity of an act of the General Assembly, and that, although the journal showed that a bill had passed both houses, and had been enrolled and ratified, whereas, in truth, it had not received the signatures of the presiding officers, the court had no power to compel, by a writ of mandamus, the President of the Senate and Speaker of the House to sign the bill.In Carr v. Coke,116 N.C. 223, 22 S.E. 16, 28 L. R. A. 737, 47 Am. St. Rep. 801, it appeared from the complaint, and, for the purpose of the motion to dismiss the action, it was taken as true, that the bill in controversy was signed by the presiding officers of both houses, duly certified to and received by the Secretary of State, although it appeared from the journals that it had not passed its several readings.It was stamped by the clerk as having passed in accordance with the Constitution.This court held that it had no power to "go behind" the signatures of the presiding officers and examine the journals...