BOARD OF COM'RS OF STANLY COUNTY et al. v. COLER et al., 113 F. 705

MORRIS, District Judge. The opinion expressing the conclusions of this court on the first hearing of this case was filed August 1, 1899. 37 C. C. A. 484, 96 Fed. 284. Upon the appellees’ petition for a rehearing the whole case has been fully reargued in connection with the appeal in Wilkes Co. v. Coler, decided at this term, 113 Fed. 725, and in connection with the answers of the supreme court of the United States to the questions certified in that case. 180 U. S. 506, 21 Sup. Ct. 458, 45 L. Ed. 642. The bonds in question are as follows: “County of Stanly Six Per Cent.

Bond. “Stanly county, state of Nortli Carolina, is indebted to tbe bearer In tbe sum of five hundred dollars payable, * * *” etc. “This bond is one of a series of eighty of the denomination of one thousand dollars each, and forty of the denomination of five hundred, making a total of one hundred thousand dollars, issued by authority of

an act of the general assembly of North Carolina ratified the third day of March, A. D. 1887, entitled ‘An act to amend the charter of the Yadkin Railroad Company,’ and of sections 1996, 1997, 1998, and 1999 of the Code of North Carolina, and authorized by a majority of the qualified voters of Stanly county at an election regularly held for that purpose on the 15th day of August, A. D. 1889, duly ordered by the commissioners of Stanly county.

This series of bonds is issued to pay the subscription of one hundred thousand dollars made by Stanly county to the capital stock of the said railroad, known as the Yadkin Railroad Company. * * *” etc. “In testimony whereof, the chairman of the board of county commissioners of Stanly county hath hereunto subscribed his name for and. on behalf of said board, and the clerk of the superior court of Stanly county hath countersigned the same and affixed thereto the seal of said superior court this fourth day of July, A.

D. 1890.” The recitals of present interest are (1) that the bonds are issued by authority of the act of March 3, 1887; and (2) of sections 1996, 1997, 1998, and 1999 of the Code; and (3) are authorized by a majority of the votes of the county. The act of March 3, 1887, the supreme court of North Carolina has decided, never became a law of North Carolina, so far as it undertook to give authority to issue the county bonds, for the reason that it was not passed with the special formality required by

section 14 of

article 2 of the North Carolina constitution of 1868, which declares that no law shall pass, authorizing a county to raise money on its credit, or impose a tax, unless the bill be read three several times in each house of the general assembly, and pass three several readings on different days, and the yeas and nays on the second and third reading of the bill are entered on the journals.

The recital of the invalid enactment of March 3, 1887, however, does not invalidate the bonds, if there was in force at the time the bonds were issued other valid legislation which gave power to Stanly county to issue them; and it is urged upon us by counsel for the bondholders that the recited sections of the Code, reasonably construed, and applied as understood at the time the bonds were issued, gave sufficient power and authority. County Com’rs v. Beal, 113 U. S. 227, 5 Sup. Ct. 433, 28 L. Ed. 966; Commissioners v. January, 94 U. S. 202, 24 L. Ed. 110; City of Evansville v. Dennett, 161 U.

S. 434, 443, 444, 16 Sup. Ct. 613, 40 L. Ed. 760; Knox Co. v. Ninth Nat. Bank, 147 U. S. 91, 13 Sup. Ct. 267, 37 L. Ed. 93; Wilkes Co. v. Coler, 180 U. S. 506-524, 21 Sup. Ct. 458, 45 L. Ed. 642. These sections of the Code were originally enacted as

chapter 171 of the laws of North Carolina of 1868-69, and were reenacted as sections 1996, 1997, 1998, 1999, and 2000 of the Code of 1883, with all the formality required by

section 14 of

article 2 of the constitution with regard to a law allowing counties to pledge their credit and impose a tax for that purpose. Commissioners v. Snuggs, 121 N. C. 394-401, 28 S. E. 539, 39 L. R. A. 439. The following are sections 1996 and 1997:

Section 1996 of the Code of North Carolina: “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.”

Section X&87 of the Code of North Carolina: “The board of commissioners of any county proposing to take stock in any railroad company shall meet and agree upon the amount to be subscribed, and, If a majority of the board shall vote for the proposition, this shall be entered upon the record, which shall show the amount proposed to be subscribed, to what company, and whether in bonds, money or other property, and thereupon the board shall order an election, to be held on a notice of not, less than thirty days, for the purpose of voting for or against the proposition to subscribe the amount of stock agreed on by the hoard of county commissioners.

And, if a majority of the qualified voters of the county shall vote in favor of the proposition, the board of county commissioners, through their chairman, shall have power to subscribe the amount of stock proposed by them and submitted to tbs people, subject to all the rules, regulations and restrictions of other stockholders in such company or companies.

Provided, that the counties, to the manner aforesaid, shall subscribe from time to time such amounts, either in bonds or money, as they may think proper.” The bonds were duly authorized by a majority of the qualified voters of Stanly county, and were dated July ———, 1890, and were issued from time to time as the railroad was built, and were placed on the market and sold; and for four years a tax was levied and collected by the county, and the interest coupons paid.

When the tax for the fifth year had been collected, the superior court of Stanly county, m 1897, at the instance of the commissioners of the county and certain taxpayers, held the bonds to be invalid, and enjoined the treasurer of the county from paying the interest; and on appeal the supreme court of North Carolina affirmed the ruling. Commissioners v. Snuggs (1897) 121 N. C. 394, 28 S. E. 539, 39 L. R. A. 439.

The supreme court of North Carolina (Chief Justice Fairdoth dissenting) held that Stanly county had no power or authority, under the above-recited sections of the Code, even with 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 state constitution of 1868.

When this case was first heard in this court the argument of the counsel for the bondholders was largely devoted to the effort to show that the decision of the supreme court of North Carolina against the validity of the act of March 3, 1887, amending the charter of the Yadkin Railroad Company, and authorizing Stanly comity to subscribe for its stock and issue these bonds, and declaring that act invalid because not passed as required by the state constitution, was a ruling which this court ought not to follow. That question has been settled in favor of the county by the supreme court of the United States.

Wilkes Co. v. Coler, 180 U. S. 506, 21 Sup. Ct. 458, 45 L. Ed. 642. The other question, — how far this court was bound to follow the rulings of the supreme court of North Carolina in its construction of the sections of the Code recited in the bonds, was not fully discussed, and this is the question we are urged to re-examine upon this rehearing. The articles of the Code, first enacted in 1868-69 (chapter 171), and re-enacted as part of the Code in 1883, before the Stanly county bonds were authorized or issued, does, in the broadest terms, by

section 1996, declare that “the boards of commissioners of the several counties shall have power to subscribe stock to any railroad company when necessary to aid in the completion of any railroad in which the citizens of the county may have an interest.” The supreme court of North Carolina declared in Commissioners v. Snuggs (1897) that this language was to be held to mean that the railroad must be an unfinished one, which had been begun before the subscription was made, and that it must also be a railroad in which the county had a direct pecuniary interest.

The question now to be re-examined is whether that construction is one to which, as a proposition of law, we can assent; and, if not, are we bound to follow the decision of the supreme court of North Carolina? The case of Commissioners v. Snuggs was not a case to which any bondholder was a party. The county commissioners and certain taxpayers of the county were the plaintiffs, and the defendant was the county treasurer, who was the appointee of the county commissioners, had no personal interest to resist the plaintiffs, and represented no bondholder.

The bonds had been sold as negotiable securities, and had been over four years on the market, and had been purchased by widely scattered investors. The railroad into Stanly county had been built and was in operation, and for over four years the authorities of the county had recognized the bonds as valid obligations of the county, and had paid the interest. The case was, in effect, a direct attack upon the property of bona fide holders of the bonds, in which they had no hearing.

It seems, therefore, to be a case in which it is our duty to examine the question independently, with, however, an earnest disposition to lean towards the conclusion arrived at by the supreme court of North Carolina. Folsom v. Township Ninety-Six, 159 U. S. 611, 627, 16 Sup. Ct. 174, 40 L. Ed. 278; Burgess v. Seligman, 107 U. S. 20, 33, 34, 2 Sup. Ct. 10, 27 L. Ed. 359; Loeb v. Columbia Tp., 179 U. S. 472-493, 21 Sup. Ct. 174, 45 L. Ed. 280. Was there anything in the constitution, laws, or decisions of North Carolina which should have given warning to purchasers of the bonds that the power given to counties by

section 1996 of the Code was not applicable to the Yadkin Railroad Company in Stanly county?

As to state aid, the constitution clearly said (article 5, § 4) that it should only be given, unless submitted to a direct vote of the people of the state, “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.” The language used by the framers of the constitution when dealing with the aid which might be given, not by the state, but, by counties, to railroads, is quite different, and it was to be presumed that the difference in language was significant of a corresponding difference in meaning, intention, and policy.

With regard to counties, the language of the constitution is simply (article 7, § 7) that no county shall loan its credit, nor shall any tax be levied, except for necessary expenses thereof, unless by a vote of the qualified voters therein. With regard to

section 1996 of the Code, there had not been, prior to the issuing of the bonds in suit, any decision of the supreme court of North Carolina construing its meaning. The import of its 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,” was to be understood by those whose rights might be affected by them in their natural, ordinary, generally received sense.

In the first place, there is nothing in the words or their context to indicate that when enacted in the Code, in 1883, they were not intended to be a guide for the future, and not for the past. The office of laws is to operate upon future actions..and the universal rule is that statutes are prospective in their operation, unless the statute itself declares it to be retrospective. It would seem, therefore, that while the Code remained unaltered whenever the case arose in which the citizens of a county might have an interest in a railroad, and county aid was necessary to its completion,

section 1996 gave power to the board of commissioners to subscribe to its stock. James v. City of Milwaukee, 16 Wall. 159, 21 L. Ed. 267. Then follows

section 1997, which prescribes how the board of commissioners shall by vote determine the amount, and whether the subscriptions shall be in bonds, money, or property, and how they shall, when they have so determined, submit the proposition to a vote of the people, and reiterates the provision that “the counties, in the manner aforesaid, shall subscribe fi'om time to time such amounts, either in bonds or money, as they may think proper.”

Section 1998 provides how the election shall be had.

Section 1999 declares tíiat in case the county shall subscribe the amount proposed, in bonds, the county commissioners shall have power to fix the rate of interest, and when and where it shall be payable, and to raise by taxation from year to year the amount necessary to meet the interest on said bonds.

Section 2000 provides that the taxes to be raised for the payment of interest and principal shall be collected in like manner as other state taxes, and paid into the hands of the county treasurer, to be used by the chairman of the board of county commissioners “as directed by this chapter.” It would seem that the fair import of this valid legislation would be to give to the county commissioners of Stanly county power to do the very thing they have done in issuing these bonds.

It is true that the supreme court of North Carolina has decided to the contrary, and has invalidated the bonds by its decision in 1897 in Commissioners v. Snuggs; but that was a case instituted five years after the bonds were ptxt on tlxe market, and in which the bondholders were not parties or represented. The supreme court of Noi-th Carolina was led to the conclusion that, when the act of 1868-69 was re-enacted in the Code,

section 1996 and the four succeeding sections, could have had reference to no case except where the county had a direct pecuniary interest in a railroad which had been begun and was unfinished at the time of the adoption of the constitution, in 1868, and could not apply to the Yadkin Railroad, which was begun in 1889. With this conclusion, after the most careful consideration, and having now heard the matter reargued, a majority of the judges composing this court are unable to agree.

The framers of the constitution of the state, when intending to express such restriction, used such entirely different language that it is difficult to suppose that the legislature in 1868-69 an<i in 1883, with that language in the state constitution, intended the same thing when they used the language now found in the Code.

The words “in which the citizens of the county may have an interest” would seem to be the appropriate words to express the gem eral interest which the whole body of the people of a county have in a railroad which they believe will benefit them, as distinguished from a direct pecuniary interest of the county as a corporation.

When the framers of the constitution intended to limit and restrict the state in lending its credit to railroads, they said, “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 by a direct vote of a majority of the people of the state who should vote thereon.” How natural and to be expected it would be that, if the legislature had intended to restrict county aid to the same class of railroads, they would have used somewhat similar language! Finding that

section 1996 gives power to the county to subscribe to stock in any railroad “when necessary to aid in the completion of any railroad in which the citizens of the county may have an interest,” is it not reasonable to read it as meaning to complete the raising of the money necessary to build the road ?

"When the route is surveyed and determined upon, and the charter for a private corporation obtained, and part of the stock subscribed, but not sufficient to complete the road, is it not most natural, with regard to such a projected road, that the authority to the county to subscribe stock should be spoken of as aiding in the completion of the road? To complete a projected railroad for which a charter has been obtained, and for constructing which part of the stock has been subscribed, the thing needed is more subscriptions of stock.

And when the subject in hand is aiding in the completion of the road by' subscription of stock, those aid in its completion who make the additional subscriptions to the stock. The language of Mr. Justice Brewer in Town of Andes v. Ely, 158 U. S. 312-321, 15 Sup. Ct. 954, 39 L.

Ed. 996, is pertinent: “While courts may properly see to it that proceedings for casting burdens upon a community comply with all the substantial requirements of a statute, in order that no burden may be recklessly or fraudulently imposed, yet such statutes are not of a criminal character, and proceedings are not to be so technically construed or limited as to make them a snare to those who are encouraged to invest in the securities of the municipality.” Cited, also, in Provident Life & Trust Co. v. Mercer Co., 170 U. S. 593-600, 18 Sup. Ct. 788, 42 L. Ed. 1156.

In the resolution adopted by the board of county commissioners in June, 1889, ordering an election to be held in Stanly county to ascertain whether a majority of the voters favored the subscription, it was stated, “It appearing that the citizens of said county have an interest in said railroad,” and it was provided: “If the proposition to vote said subscription shall be ratified by a majority of the qualified voters of said county at said election, then said bonds shall be delivered to said Yadkin Kailroad Company as follows: Twenty-five thousand dollars when ten miles of said road is constructed and in operation from Kowan county lino into said county' of Stanly, twenty-five thousand when, said road is constructed and in operation from the town of Salisbury to the town of Albemarle, and the remaining fifty thousand dollars when said road is constructed and in operation from the town of Salisbury to the village of Norwood, in Stanly county: provided, that the said railroad company shall be required to begin the construction of said road at Salisbury within ninety days from and after the first day of October, 1889, and to complete the same to Norwood within 18 months thereafter, and, if not s© begun and completed, then said bonds shall not be delivered to said company: provided, however, that the board of commissioners of Stanly county shall have full power and discretion to extend' the time for the performance of the conditions and limitations hereinbefore mentioned.” Thus it would seem that the board of commissioners and the voters of the county, a majority of whom voted in favor of this proposition, understood very intelligently what was meant by aiding in the completion of a railroad in which the citizens of the county might have an interest.

The meaning given to the language of the Code after the rights of the holders of the bonds had vested is too strained, unnatural, and unwarranted to be accepted, to the destruction 01 property rights acquired in good faith, based upon the ordinary meaning of the language. Reluctant as we have been, in deference to the opinion announced in Commissioners v. Snuggs, to come to this conclusion, we think there is no escape from it.

Moreover, is not the legal effect of the recital in the bonds stating that they were issued by authority of sections 1996, 1997, 1998, and 1999 of the Code of North Carolina equivalent to a statement that the facts existed which authorized their issue under those sections, viz., that they were issued to aid in the completion of a railroad in which the citizens of the county had an interest, and is not the county now estopped from denying that recital ? It seems to us that many eases have so held. Chaffee Co. v. Potter, 142 U. S. 355, 364, 12 Sup. Ct. 216, 35 L. Ed. 1040; City of Evansville v. Dennett, 161 U.

S. 434-442, 16 Sup. Ct. 613, 40 L. Ed. 760; Board of Com’rs v. National Life Ins. Co., 32 C. C. A. 591, 90 Fed. 230, 231; Hughes Co. v. Livingston, 43 C. C. A. 541, 104 Fed. 306-316; School Dist. v. Rew (C. C. A.) 111 Fed. 1, 7, 8; Belo v. Commissioners, 76 N. C. 489, 493, 494, 495. It is urged in behalf of the county that legislation substantially the same, in terms, as sections 1996 to 2000 of the Code, had been held to be unconstitutional in 1885 by the supreme court of North Carolina in Barksdale v. Commissioners (1885) 93 N. C. 472.

In that case the question was as to the legality of the tax assessed by the county for the support of schools under a general law giving power to all counties. The objection made was that the tax was in excess of the limit prescribed by the constitution, and that the act allowing the commissioners to exceed the limit was unconstitutional, because in disregard of

article 5, § 1. The tax in that case was levied without being submitted to a vote of the people of the county, and was therefore- inhibited by

section 7,

article 7, of the constitution. The further objection also prevailed that the tax about to be levied exceeded the limit restriction of

section 6 of

article 5, viz: “The taxes levied by commissioners of the several counties shall be levied in like manner with the state taxes, and shall never exceed the double of the state tax, except for a special purpose and with the special approval of the general assembly.” There is no allegation or evidence in this case that the payment of interest on these bonds requires a tax exceeding that limit, or that the tax collected and in the hands of the county treasure^ levied for the purpose of paying the coupons due at the institution of this suit, had exceeded that limit. The case of Galloway v. Jenkins (1869) 63 N.

C. 147, cited by counsel for the county, deals exclusively with the constitutional provision restricting the state from aiding railroads without a vote of the people, and has no relevancy to cases of county subscriptions. We find nothing in the decisions of the supreme court of North Carolina prior to the issue of these Stanly county bonds that pointed to any defect of power to issue them under the Code sections recited in the bonds. On the contrary, the opinion of that court in Belo v. Commissioners (1877) 76 N.

C. 494, 495, is to the effect that as to bona fide holders the records of the proceedings of the commissioners affirming the existence of particular facts are conclusive, as well as the recitals in the bonds that they have been issued in pursuance of the' law which authorized their issue. The majority of the judges constituting the court on this rehearing are of opinion that the decree of the circuit court should be affirmed.