Wilson v. Jenkins

• Decision Date: 31 January 1875
• Citation: 72 N.C. 5
• Parties: H. P. C WILSON, Trustee. ., v. D A JENKINS, Public Treasurer and JOHN REILLY, Auditor, .
• Court: North Carolina Supreme Court

72 N.C. 5

H. P. C WILSON, Trustee. .,

v.D A JENKINS, Public Treasurer and JOHN REILLY, Auditor, .

Supreme Court of North Carolina.

January Term, 1875.

The General Assembly has absolute control over the finances of the State _______ the Public Treasurer and Auditor being mere ministerial officers, bound to obey the orders of the General Assembly:

Hence,the Courts have now not power to compel, by Mandamus, the Public Treasurer to pay a debt, which the General Assembly has directed him not to pay, nor the Auditor to give a warrant upon the Treasurer, which the General Assembly has directed him not to give, unless the act of the General Assembly be void, as violating the Constitution of the United States, or of this State.

The act of the 23rd November,^a1 1874, repealing the act of the 19th day of August, 1868, providing for the payment of the public debt, does not impair the obligation of contracts; and under its provisions, the Public Treasurer was justified in refusing to pay the coupons of bonds issued before the war, although payment thereof had been demanded and action brought, which was pending when the said act passed.

( Dixon v. Pace,63 N. C. Rep. 603, cited and approved.)

This was a CIVIL ACTION, for a Mandamus to compel the Auditor of the State to audit, and the Public Treasurer to pay certain coupons, heard before Henry, J., at the Fall Term, 1874, of WAKE Superior Court.

The material facts of this case are stated in the opinion of the Chief Justice.

On the trial below, his Honor gave judgment for the defendant.From this judgment the plaintiff appealed.

J. W. Graham, for appellant .

Attorney General Hargrove and Smith & Strong, contra .

PEARSON, C. J.

Our labor in deciding this case is much lightened by the discussion of Shaffer v. Jenkins, and the opinion delivered in that case at this term.

The General Assembly has absolute control over the finances of the State.The Public Treasurer and Auditor are mere ministerial officers, bound to obey the orders of the General Assembly.

It follows that the Courts have no power to compel, by Mandamus, the Public Treasurer to pay a debt which the General Assembly has directed him not to pay, or the Auditor to give a warrant upon the Treasurer which the General Assembly has directed him not to give, unless the act of the General Assembly be void as violating the Constitution of the United States or of this State.

Our case presents these facts, briefly set out.The Constitution of 1868 orders the General Assembly to provide for the prompt payment of the interest on the public debt.Carrying out this order, the General Assembly in 1868, directed the Public Treasurer to pay the interest on the lawful debt of the State out of any money not otherwise appropriated.The amendment to the Constitution in 1874 repeals this provision of the Constitution.Carrying out this amendment, the General Assembly, in November, 1874, repeals the act of 1868, and enacts that the Public Treasurer shall not pay the interest of the bonded debt of the State except as may be hereafter provided for, and that the Auditor shall not audit or recognize any claim for interest on the debt of the State; thus following the notions of the people in adopting the Constitution of 1868 and the amendment in 1874.In March, 1874, the plaintiff held a large amount of the coupons on bonds of the State, and demanded payment of the Public Treasurer, who refused to pay on the ground that he had no funds not otherwise appropriated; on the further ground that should such funds be in hand he would not be at liberty to pay all of the funds to the plaintiff and leave the other creditors wholly unpaid, but would divide the fund pro rata; and on the further ground that the claims of the plaintiff had not been passed on by the Auditor.

The plaintiff then demanded of the Auditor that he should pass upon his debts and give him a warrant upon the Public Treasurer.To this demand the Auditor replied he had no right to interfere, whereupon the plaintiff again demanded payment of the Public Treasurer, stating that he was advised that as his debt was liquidated and was evidenced by a plain obligation to pay a specific sum, there was no occasion for a warrant of the Auditor.The Public Treasurer again failed to pay, and this action was commenced.To avoid confusion we will, for the present, put the fact that the plaintiff's action was pending at the date of the passage of the act, November, 1874, aside, and consider the legal effect of the act of 1868, directing the Public Treasurer to pay the interest, and the act of 1874, directing the Public Treasurer not to pay such interest and the Auditor not to give his warrant for the payment of the same.

It was said on the argument, the act of 1874 impairs the obligation of the contract.What contract?The original contract, evidenced by the State bonds and coupons, remains intact, and is not at all impaired; the terms are not changed and the remedy existing at the execution of the bonds and coupons are now precisely the same.The act of 1868, directing the Treasurer to apply any moneys remaining in hand, not otherwise appropriated, to discharge interest upon the lawful debt of the State, makes no new contract, nor does it add to the original contract--it is, in no sense of the word, a contract; it is an ex parte action of the General Assembly, for which the public creditors paid no consideration and in which they took no part.It is simply an order of the General Assembly, given to its ministerial officer, which it had a right to countermand at any time before it was executed.Dixon v....