Brown v. Stewart, 134 N.C. 357 (1904)

March 8, 1904 · Supreme Court of North Carolina

134 N.C. 357

BROWN v. STEWART.

(Filed March 8, 1904).

1. STATUTES — General Assembly — Journals—Const. W. O., Árt. II, seo. 1J¡.; Acts (Private) 190S, oh. 48.

The statute herein set out was passed in accordance with Art. II, see. 14, of the Constitution, requiring certain hills to be read three times in each house.

ActioN by George H. Brown and others against E>. T. Stewart, as Mayor of the town of Washington and others, heard by Judge W. A. Hoke, at February Term, 1904, of the Superior Court of BbauKOet County.

This is a controversy submitted to the Court without action, pursuant to section 561 of The Code. The facts upon which the parties desire the decision of the Court are set forth with care and clearness. The affidavit is in strict conformity with the statute.

The plaintiffs are creditors of the' defendant the city of Washington, and hold the bonds and other evidences of indebtedness referred to in the act of the General Assembly (chapter 48, Private Laws 1903). Siaid bonds, etc., were issued for money borrowed for necessary expenses incurred in repairing streets, public buildings, etc. It is admitted that said bonds, etc., constitute valid and binding obligations of said city. The General Assembly, at its session of 1903, enacted chapter 48 of the Private Laws of 1903, said act being ratified February 9th. The said act recites that the city is indebted in the sum of thirty-two thousand dollars, said debt being contracted for the purposes therein set forth and evidenced as aforesaid; and is entitled “An act to authorize the Board of Commissioners of the town of Washington, North Carolina, to issue bonds to pay its existing indebtedness.” The Board of Commissioners of said town are, by said act, authorized to issue bonds to the amount of thirty-two thousand dollars, bearing interest at the rate of five per cent, and payable semi-annually. The denomination of the1 bonds, the mode of authentication, and manner of sale, etc., are fully set forth therein. It is provided that the proceeds of the/said bonds shall be applied exclusively to the payment of the aforesaid indebtedness. Section 2 of the act provides that “The principal of all said bonds shall be due and payable on the first of May, 1933, but it shall be the duty of the Bbard of Commissioners of said town to pay two thousand dollars of the principal of said entire bond issue on the first of May, 1918, and two- thousand dollars on the first day of May of each year thereafter until the entire principal of each bond is paid.” Provision is made for selecting by lot the bonds to be paid at the end of each year. By section 4 it is provided that the Bbard of Commissioners shall levy an annual special tax sufficient to pay the interest on said bonds, and “shall also levy during the year 1917, and each year thereafter, a special tax to produce an annual sum sufficient to-pay and discharge two thousand dollars of the principal of said bond as each installment falls due under the provision of this act.” -Said act was passed in strict conformity to the provisions of Article II, section 14, of the Constitution. The General Assembly, at the same session, enacted chapter 170 of the Private Laws of 1903, being entitled “An act to incorporate the city of Washington.” Said act was introduced into the House of Representatives and. read on three several days, passing its several readings; upon each reading tbe yeas and nays were called and entered on tbe Journal in strict accordance with section 14, Article II, of tbe Constitution. Tbe bill, after having passed tbe House, was sent to tbe Senate, duly read and passed upon its first reading without amendment. On a subsequent day sections 84, 85 and 86 were offered as an amendment, adopted by tbe Senate, and made a part of tire bill. After being so amended, tbe bill passed upon its second and third readings, upon two several days, upon a ~ call of tbe yeas and nays and recorded on tbe Journal in accordance with tbe constitutional requirement. Section 85 of chapter 110, Private Laws of 1903, is as follows: “The several sections and provisions of an act of the General Assembly ratified February 9, 1903, entitled ‘An act to authorize tbe Board of Commissioners of tbe town of Washington, North Carolina, to issue bonds to pay its existing indebtedness,’ are hereby made a part of this act, with the following amendments, viz.: Where figures or words occur in section two of said act of February 9, 1903, they shall be changed to 1938, and where words or figures 1918' occur in said section of said act they shall be changed so as to read 1923, and where words or figures 1911 occur in the fourth section of said act of February 9, 1903, they shall be changed so as to read 1922. All the bonds issued in pursuance of this act or the act ratified February 9, 1903, shall be exempt from municipal taxation by said city, and all shall be payable in the gold coin of the United States, and all the coupons receivable in payment of taxes by said city and the interest upon all shall be payable semi-annually upon the first days of November and May of each year at such place as the Board of Aldermen may designate.” The said bill after being passed by the Senate, as aforesaid, was returned to the House. The Senate amendment was concurred in and tire bill as amended duly read and passed on two several days, tbe yeas and nays being taken and recorded in accordance with tbe Constitution, section 14, Article II. Both of said acts were duly enrolled, ratified and published by the Secretary of State, as provided by law.

It is admitted that tbe indebtedness, for tbe payment of which said bonds were directed to be issued, is past due and unpaid.

Tbe defendants duly advertised said bonds for sale in accordance with chapter 48 of tbe Private Laws of 1903, as amended by section 85, chapter 170. They were bid off by one Stafford, who declined to take and pay for them, assigning as reason therefor that section 85 of chapter 170 was not read three times in the Senate. The plaintiffs insist that it is the duty of the defendants to again offer said bonds for sale, as required by said acts of the General Assembly. His Honor, upon the foregoing agreed state of facts, was of the opinion that chapter 170 of the Private Laws of 1903, was duly and regularly enacted into law and ratified on February 27, 1903, in accordance with Article II, section 14, of the Constitution. That the amendment thereto, adopted on.and before the second reading of the bill, and the bill so amended having passed its several readings in accordance with the Constitution, said amendments constituted a part of said act as passed and ratified. That the effect of the enactment of section 85, chapter 1701, was to amend chapter 48 of the Private Laws of 1903. It was thereupon adjudged that the defendants proceed to again offer the bonds for sale and issue same in manner and form as set out in chapter 48 as amended by section 85 of chapter 170 and apply the proceeds as therein directed.

From this judgment defendants appealed.

8. B. Shepherd, for the plaintiffs.

8. O. Bragcm, for the defendants.

CoNNOR, J.

We do not entertain any doubt of the correctness of the conclusion reached and the judgment rendered by his Honor. The Board of Oommissioners of the town of Washington were empowered by chapter 48, Acts (Private) 1903, to issue the bonds for the purpose of paying a valid, outstanding and past-due indebtedness of said town as therein stated. This act is full and complete in its provisions. Having been enacted in strict conformity to the constitutional requirement, as uniformly construed by this Court, there can be no possible doubt of its validity. We are unable to perceive how by any rule of construction the provisions of section 85 of chapter 170 can be said to “pledge the faith” of the town, or “impose any tax.” It will be observed that by chapter 48, section 2, the bonds were to mature May 1, 1933. This date is changed to 1988. Two thousand dollars of the bonds were to be paid in 1918, the date is changed to 1923. The first annual tax to pay the first installment is directed to be levied in 1917, the date is changed to 1922. The effect of the amendment is to postpone the date of maturity five years, and the other dates are so changed that the harmony of the original scheme is preserved. Hpon the principle announced in Glenn v. Wray, 126 N. C., 730, we can see no reason why the bill as amended Was not passed in the Senate in conformity with the Constitution and the well-lrnown rules of procedure in both Houses of the General Assembly of this State. We can see no reason why the amendment, imposing no tax, creating no debt nor increasing the amount of the bonds or the rate of interest thereon, could not be adopted by the Senate and incorporated into the original bill on, and before, its second reading. Certainly this ruling in no manner conflicts with what is said in Glenn v. Wray, supra. His Honor was of the opinion that the effect of section 85 of chapter 170- was to amend chapter 48. Much could be said in support of the view that chapter 48 as amended was incorporated into and made a part of chapter 110. It is not very material which view we take, as the result will be the same. The judgment of his Honor is affirmed. To prevent any possible misconception, we think it proper to say that we have decided this case upon “an agreed state of facts” in a controversy without action. We do not pass upon the admissibility of the Journals, or other evidence, for the purpose of invalidating or affecting the integrity of the certificates of the presiding officers that said act was “In the General Assembly read three times.” It does not appear that there was any objection made to the evidence in Glenn v. Wray, supra. The Court has held in Bank v. Commissioners, 119 N. C., 214, and several recent cases that the Journal is competent evidence to show whether the provisions of section 14, Article II, of the Constitution have been complied with. The writer of this opinion thinks it is not improper to say, speaking for himself, that, unless compelled by overwhelming and controlling authority, he would hold that the principle announced in Broadnax v. Groom, 64 N. C., 244, is to be rigidly adhered to, save in the clearly defined exception made in Bank v. Commissioners, supra.

The judgment of his Honor is

Affirmed.