Opinion
(September Term, 1897.)
Invalid Statute — Constitutionality of Statute Authorizing Creation of Debt and Levy of Taxes — Mandatory Requirements of Constitution as to Passage of Statutes — Journals as Evidence — Power of County to Issue Bonds Under the Code, sec. 1996, in Aid of Railroad Not Begun at Date of the Constitution — Purchasers of Municipal Bonds, Duty of.
1. Section 14, Article II of the Constitution, providing that no law shall be passed to raise money on the credit of the State, or to pledge the faith of the State, directly or indirectly, for the payment of any debt, or to impose any tax upon the people of the State, or to allow the counties, cities or towns to do so unless the bill for the purpose shall have been read three several times in each house of the General Assembly and passed three several readings, which readings shall have been on three different days, and agreed to by each house, respectively, and unless the ayes and nays on the second and third readings of the bill shall have been entered on the Journal, is mandatory.
2. In the trial of an action to declare invalid bonds of a county, issued in pursuance of the authority of an act of the General Assembly, it is competent to introduce in evidence the Journal of the House or Senate to show that such act was not passed in conformity with the requirements of the Constitution; and when such Journal shows affirmatively that the act authorizing the creation of the indebtedness, or the imposition of a tax, was not passed with the formalities required by section 14, Article II of the Constitution, such Journal is conclusive as against not only a printed statute published by authority of law, but also against a duly enrolled act, and such act is invalid, so far as it attempts to confer the power of creating a debt or levying a tax. ( Bank v. Comrs., 119 N.C. 214, followed, and Carr v. Coke, 116 N.C. 223, distinguished.)
3. A county has no power, under section 1996 et seq. of the Code, and an affirmative vote of the qualified voters of the county, to issue bonds and levy a tax for their payment in aid of a railroad not begun before the adoption of the Constitution of 1868.
4. It is incumbent upon the purchasers of State, county, and municipal bonds to ascertain whether the authority to issue them has been granted according to the requirements of the Constitution.
(395) ACTION commenced in STANLY to enjoin the payment of the interest on certain bonds issued by Stanly County in aid of the Yadkin Railroad Company, and heard on the return of the motion to show cause, etc., before Coble, J., at chambers.
From an order continuing the injunction to the hearing, the defendant appealed.
A. C. Avery, D. Schenck, Jr., and Shepherd Busbee for (396) plaintiffs.
Long Long and Battle Mordecai for defendant.
FAIRCLOTH, C. J., dissents, arguendo.
On 15 August, 1889, at an election held in Stanly County, a majority of the voters of the county cast their ballots in favor of subscription to the capital stock of the Yadkin Railroad Company to the amount of $100,000. Bonds of the county to that amount were issued in payment of the subscription and delivered to the president of the company. The annual interest has been paid regularly, except that accruing on 1 July, 1897, which has been collected and is now in the hands of the defendant, who is the treasurer of the county, and who is about to pay it to the holders of the coupons. The plaintiffs, taxpayers of the county, and the board of commissioners bring this action, alleging that Laws 1870-'71, ch. 236, and Laws 1887, ch. 183, under which the commissioners attempted to act, and under which the election was held, were void, for the reason that they were not passed as required by section 14, Article II of the Constitution, and that the bonds were therefore illegally issued, and they pray that the treasurer of the county, the defendant, be perpetually enjoined from paying the sum now in his hands, or any other sums which may hereafter come into his hands, to the holders of the coupons. The matter was heard before Coble, J., and the restraining order theretofore granted was continued and the defendant enjoined from paying out the money in his hands until the final hearing of the case.
The act of incorporation of the Yadkin Railroad Company (chapter 236, Laws 1870-'71), in its fourth section, made provision for subscription to be made to the capital stock of the company by any county along the line of the road, to such amount as a majority of the county commissioners might determine, subject to the approval of the qualified voters of the county; the commissioners, in order to pay the (397) subscriptions, being empowered to issue bonds for that purpose and to levy taxes to pay the bonds and interest upon them. Section 4 of the act of incorporation was amended by chapter 183, Laws 1887, the amendment extending the privilege of subscribing for stock of the company to the towns and cities and townships along the line of the road, and requiring the subscriptions to be approved by a majority of the qualified voters of such cities, towns and townships, and providing further that bonds should be issued in payment of said subscription and taxes levied to pay the same, principal and interest, according to the terms and conditions of said bonds, and that the board of commissioners of the county should issue the bonds and levy taxes to pay the township subscriptions. Section 14, Article II of the Constitution, ordains that "No law shall be passed to raise money on the credit of the State, or to pledge the faith of the State, directly or indirectly, for the payment of any debt, or to impose any tax upon the people of the State, or to allow the counties, cities, or towns to do so, unless the bill for the purpose shall have been read three several times in each house of the General Assembly and passed three several readings, which readings shall have been on three different days and agreed to by each house, respectively, and unless the ayes and nays, on the second and third readings of the bill, shall have been entered on the journal."
The plaintiffs were allowed to produce copies of the House Journal, certified to by the Secretary of State, to show that the above mentioned acts were not passed by the General Assembly in accordance with the requirements of the Constitution. That journal showed that the bill which became chapter 236, Laws 1870-'71, was introduced on 31 March, 1871, and referred to the committee on internal improvements; that it was reported favorably on the next day, and that on 3 April, two days after its introduction, it passed its second and third readings, and (398) that there was no entry of ayes and nays on either of its readings. From that journal it appears that the bill which was enacted into chapter 183, Laws 1887, passed its second reading on 26 February and that the ayes and nays were called on that reading and entered on the journal; that the bill passed its third reading on 28 February, but the ayes and nays were not entered on the journal on that reading.
We are of the opinion that it was competent to introduce the House Journal as proof that the acts referred to were not passed according to the requirements of the Constitution, and they established that fact. That provision of the Constitution (section 14, Article II) is mandatory, as we have decided in Bank v. Comrs., 119 N.C. 214. It is the protection which the people, in convention, have thrown around themselves for the benefit of the minority as well as of the majority. The object of the provision was to prevent hasty and ill-advised legislation, by means of which the people might be deprived of their property, not for the ordinary expenses of government, but, by special taxation, for enterprises ostensibly in the name of the public good, but which might prove sources of individual injustice and injury. When indebtedness of the kind mentioned in the provision is sought to be incurred, the people have said in that provision that their legislative body, whenever considering the propriety of authorizing it, shall be not only careful, but deliberate; that the bill shall be read three several times and pass three several readings, and that no two readings of the bill shall be had on the same day, and that the names of the legislators who vote on the question shall be known to the people in the enrollment of their names on the journal. It is a reasonable requirement, too, and especially serviceable to those who are property holders and taxpayers, and the information is easy to be had by all who may be interested, for section 16 of the same article of the Constitution ordains that each house shall keep a journal of its proceeding, which shall be printed and made public immediately (399) after the adjournment of the General Assembly.
Therefore, it is clear that in legislation in reference to raising money on the credit of the State, or pledging its faith to the payment of debt, or imposing any tax on the people of the State, or allowing the counties, cities, or towns to do so, the Constitution itself ordains that such legislation is void, unless the bills have passed three separate readings, on three different days, and unless the ayes and nays on the second and third readings shall have been entered on the journal. The bill may, in point of fact, have been read three several times and on three different days, and the ayes and nays may have been actually called on the second and third readings, and the presiding officers may have certified thereto; and yet, if the entry of the ayes and nays is not actually made on the journal, the Constitution, speaking with absolute clearness, says that the failure of such entry is absolutely fatal to the validity of the act. The entry, showing who voted on the bill and how they voted, must be made before the bill can ever become a law. The Constitution does not allow the certificate of the presiding officers or any other power to cure such an omission. The certificate of these officers will be taken as conclusive of the several readings in ordinary legislation, even if it could be made to appear that the journals were silent in reference thereto, because, in ordinary legislation, the directions of the Constitution are not a condition precedent to the validity of the act. But, in that class of legislation, the purpose of which is to legislate under section 14, Article II of the Constitution, a literal compliance with the language of that section is a condition precedent and one which must be performed in its entirety before the bill can ever become a law. This point, however, has been so recently and so thoroughly discussed in the case of Bank v. Comrs., supra, that it will be unprofitable to enter into another protracted discussion of it here. The authorities there cited are (400) numerous, and most of them directly in point.
This case is clearly to be distinguished from that of Carr v. Coke, 116 N.C. 223, and the difference cannot be pointed out more clearly than was done by Clark, J., who delivered the opinion in Bank v. Comrs., supra, in the following language: "This case has no analogy to Carr v. Coke, 116 N.C. 223. That merely holds that when an act is certified to by the speakers as having been ratified it is conclusive of the fact that it was read three several times in each house and ratified. Const., Art. II, sec. 23. And so it is here; the certificate of the speakers is conclusive that this act passed three several readings in each house and was ratified. The certificate goes no further. It does not certify that this act was read on three several days in each house and that the ayes and nays were entered on the journals. The journals were in evidence and showed affirmatively the contrary. The people had the power to protect themselves by requiring in the organic law something further as to acts authorizing the creation of bonded indebtedness by the State and its counties, cities, and towns than the fact certified to by the speakers of three readings in each house, and ratification. This organic provision plainly requires for the validity of this class of legislation, in addition to the certificates of the speakers, which is sufficient for ordinary legislation, the entry of the ayes and nays on the journals on the second and third readings in each house. It is provided that such laws are "no laws" — i. e., are void unless the bill for the purpose shall have been read three several times in each house of the General Assembly and passed three several readings, which readings shall have been on three different days and agreed to by each house, respectively, and unless the ayes and nays on the second and third readings of the bill shall have been entered on the journal."
But the defendant, for his protection, presents the view that, even if it be conceded that the acts above referred to were not passed according to the requirements of the Constitution, and for that reason (401) might be held void by this Court, yet the commissioners of the county had the right to submit the question of subscription, embracing the question of issue of bonds and the levy of taxes to pay the same, principal and interest, to the voters of the county, and, upon approval by a majority of the qualified voters, to issue the bonds, under sections 1996, 1997, 1998, 1999 and 2000 of the Code. All the sections of the code were enacted by having been read three several times in each house of the General Assembly, having passed three several readings on three different days in either house, the ayes and nays on the second and third readings having been entered on the journals of the Senate and House of Representatives, respectively.
But did the section above mentioned give additional and complete authority to order the election, issue the bonds and levy the taxes to pay them, principal and interest? Section 1996 is in these words: "The boards of commissioners of the several counties shall have power to subscribe stock to any railroad company or companies when necessary to aid in the completion of any railroad in which the citizens of the county may have an interest." It will be necessary, in order that that section may be construed to give authority to the commissioners to issue the bonds, that the language should include a railroad not begun to be built before the subscription was made; that the word "completion" should be construed "building" or "construction," extending even to the building of a new road; for in the case before us it appears that the road had not begun to be built. We cannot see why the word "completion" should be thought to have been used by the legislators in any other sense than the one most usual and natural. Ordinarily, the words, "to complete," are understood to mean to finish, to fulfill, and the word "completion" to mean the finishing or accomplishing in full of something which has already been commenced, as, for instance, it is most frequent (402) to hear the word "completion" used in connection with the finishing years and months of the education of the young. It is said of the young man or the young woman that he or she has gone for this year or this session to a certain university for the completion of his or her education; the training or educational process having been going on for years.
If there is uncertainty as to the meaning of the word "completion," as used in section 1996 of the Code, we might invoke the aid of section 4 (formerly 5), Article V of the Constitution, in its analogy to the Code section, to clear it up. The part of that section of the Constitution pertinent to this matter reads as follows: "And the General Assembly shall have no power to give or lend the power of the State in aid of any person, association or corporation, except to aid in the completion of such railroads as may be unfinished at the time of the adoption of this Constitution, or in which the State has a direct pecuniary interest, unless the subject be submitted to a direct vote of the people of the State, and be approved by a majority of those who shall vote thereon."
Thus it appears that all gifts or loans by the State in aid of the completion of such railroads as had been begun, but which were unfinished, at the time of the adoption of the Constitution, or in which the State has a direct pecuniary interest, could be made valid by simple act of legislation. Laws 1868-09, chapter 171 (now sections 1996, 1997, 1998, 1999 and 2000 of the Code) were enacted a few days more than a year after the ratification of the Constitution of 1868. It is most reasonable to conclude that the policy and purpose of both the Constitutional provision and the statute were the same, the only difference being that in case of State aid no approval by a vote of the people was required, while a majority vote of the people was required in cases of county aid. The object of the statute must have been to provide by a general act means by which the counties, without special legislation for each (403) county by separate bills, might be enabled to complete unfinished railroads in which the counties had a pecuniary interest. At the time of the enactment of the statute of 1868-'69, and always since that time, any county of the State duly observing the limitations of section 7, Article VII of the Constitution, and under an act passed according to the requirements of section 14, Article II of the Constitution, could and can subscribe to the capital stock of the railroad company, whether unfinished or to be begun. The act of 1868-'69, however, considering the condition of affairs then existing — that is, that there were counties which had a pecuniary interest in railroads that had begun, but were unfinished — enabled such counties to make subscriptions of bonds to complete such unfinished roads at the earliest moment and with the least cost by a general law passed according to section 14, Article II of the Constitution. This reasoning leads us to the still further conclusion that, at the time when the act of 1868-'69 was brought forward in the Code, sec. 1996, and the four succeeding sections, it could have had reference to no cases except those where the counties had a pecuniary interest in unfinished railroads at the adoption of the Constitution of 1868, and that therefore the Code sections could not apply to the present case, because the Yadkin Railroad was not begun to be constructed until about 1889.
We have given to the matters embraced in this case a patient and thorough consideration. We are aware of the hardships and losses that may follow from our decision, and we are also aware of the probable complaints likely to be made by persons interested. But the constitutional requirement which we have discussed is clear in its meaning and in its language, and it is also mandatory. We must obey it in our interpretation of its meaning. Investors in such securities who may meet with losses have no one to blame but themselves, for the journals (404) of the General Assembly are open to public inspection, and the Constitution of the State is a part of the public literature. The purchaser of real estate, with us, must look to the depository of his title for the security of his purchase, and so must the investors in our State and county municipal bonds look to the Constitution and the laws for the safety of their investments.
We find no error in the ruling of the court below.
No error.