Opinion
(Filed 8 March, 1904.)
STATUTES — General Assembly — Journals — Const. N.C. Art II. Sec. 14; Laws (Private) 1903, Ch. 48.
The statute herein set out was passed in accordance with Art. II, sec. 14, of the Constitution, requiring certain bills 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 BEAUFORT.
S. B. Shepherd for the plaintiffs.
S. G. Bragaw for the defendants.
This is a controversy submitted to the court without action, pursuant to section 567 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). Said 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, Private Laws 1903, said act being ratified 9 February. The said act recites that the city is (358) indebted in the sum of $32,000, 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 $32,000, bearing interest at the rate of five per cent, and payable semiannually. The denomination of the 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 1 May, 1933, but it shall be the duty of the board of commissioners of said town to pay $2,000 of the principal of said entire bond issue on 1 May, 1918, and $2,000 on 1 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 board of commissioners shall levy an annual special tax sufficient to pay the interest on said bonds, and "shall also levy during 1917, and each year thereafter, a special tax to produce an annual sum sufficient to pay and discharge $2,000 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, Private Laws 1903, being entitled "An act to incorporate the city of Washington." Said act was introduced into the House of Representatives (359) and read on three several days, passing its several readings; upon each reading the yeas and nays were called and entered on the Journal in strict accordance with section 14, Article II of the Constitution. The bill, after having passed the House, was sent to the 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 the Senate and made a part of the bill. After being so amended, the bill passed upon its second and third readings, upon two several days, upon a call of the yeas and nays, and recorded on the Journal in accordance with the constitutional requirement. Section 85, chapter 170, Private Laws 1903, is as follows: "The several sections and provisions of an act of the General Assembly ratified 9 February, 1903, entitled `An act to authorize the board of commissioners of the 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 2 of said act of 9 February, 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 1917 occur in the fourth section of said act of 9 February, 1903, they shall be changed so as to read 1922. All the bonds issued in pursuance of this act or the act ratified 9 February, 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 semiannually upon 1 November and 1 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 the bill, as amended, duly read and (360) passed on two several days, the yeas and nays being taken and recorded in accordance with the Constitution, sec. 14, Art. II. Both of said acts were duly enrolled, ratified and published by the Secretary of State, as provided by law.
It is admitted that the indebtedness, for the payment of which said bonds were directed to be issued, is past due and unpaid.
The defendants duly advertised said bonds for sale, in accordance with chapter 48, Private Laws 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, Private Laws 1903, was duly and regularly enacted into law and ratified on 27 February, 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 170, was to amend chapter 48, Private Laws 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, chapter 170, and apply the proceeds as therein directed. From this judgment defendants appealed.
We do not entertain any doubt of the correctness (361) of the conclusion reached and the judgment rendered by his Honor. The board of commissioners of the town of Washington were empowered by chapter 48, Private Laws 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, 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 1 May, 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. Upon 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-known 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, chapter 170, was to amend chapter 48. Much could be said in support of the view (362) that chapter 48, as amended, was incorporated into and made a part of chapter 170. 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 Brodnax 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.
Cited: Comrs. v. Stafford, 138 N.C. 455; Bank v. Lacy, 151 N.C. (363)