Wittkowsky v. Board of Commissioners

Connor, J. Plaintiff concedes that as the acts of 1889 and 1891 were not passed in accordance with the requirements of Article II, section 14, of the Constitution, the action of the commissioners in ordering the election and issuing the bonds was without authority, unless, as he insists, townships are not included in the article and section. It is too firmly settled by repeated decisions of this Court to be regarded as open to debate that the constitutional requirements in regard to the manner in which such acts are passed are mandatory and essential to their validity. The learned counsel, however, calls attention to the fact that townships are not named in the Constitution, and insists that, as counties, cities and towns are specifically named, townships are excluded, expressio unius exclusio alterius. The question thus presented has not before been called to our attention or decided. We are therefore without authority to aid us in its solution. The language of Article II, section 14, of the Constitution, is: “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 impose a tax upon the people of the State, or allow the counties, cities or towns to do so, unless,” etc. It is manifest, therefore, that townships are not named as among the political divisions of the State, within the provisions of the act and section. Are they included by necessary implication? The answer to this ques *94 tion presents an interesting line of investigation. Prior to 1868, strictly speaking, tbe only political divisions of tbe State were counties. Towns existed by virtue of charters. Militia districts, voting precincts, etc., were established by tbe county courts. They were for tbe more convenient administration of tbe affairs and government of tbe county, having no corporate powers whatsoever. Tbe county was governed in its internal affairs by tbe justices of tbe peace, sitting in quarterly sessions. Tbe town and township system which prevailed in tbe New England and some other States were unknown to our Constitution and laws. Tbe counties were only political divisions of tbe State and were not municipal corporations. White v. Commissioners, 90 N. C., and cases cited. When tbe Convention of 1868 framed tbe new Constitution there was a manifest purpose to introduce tbe township into our system; and while none then existed, or were created by tbe Constitution, provision was made for dividing tbe counties into “convenient districts,” which should “have corporate powers for tbe necessary purposes of local government and be called townships.” Article VII, sections 3-4. Pursuant to this constitutional provision, tbe boards of commissioners divided tbe counties into townships and made report to tbe General Assembly. An elaborate system of township government was thereupon established, with a board of trustees having charge of tbe public highways and other local matters of administration. This was unsuited to our people and their habits, and was later abolished by the General Assembly, and the township was made to serve practically the same purpose in the county governmental system as the district or precinct prior to 1868. In 1875, by an amendment to the Constitution, the Legislature was empowered to abrogate the article relating to county government and formulate such plan or system as it saw fit. Pursuant to this power, the General Assembly established practically the system now prevailing. Townships are not now corporate bodies nor have they “any corporate powers whatsoever, unless authorized by an act of the General Assembly.” Revisal, section 1318, subdiv. 30; Wallace v. Trustees, 84 N. C., 164. This Court has held in several cases, and it is not now an open *95 question, that townships may, by observing the constitutional requirements, issue bonds to aid in the construction of railroads. Wood v. Oxford, 97 N. C., 227; Brown v. Commissioners, 100 N. C., 92; Jones v. Commissioners, 107 N. C., 248. We have also held that the Legislature may establish fence districts and school districts and confer upon them power to contract debts and issue bonds to raise money for the purpose of erecting fences, schoolhouses, etc., levying, through the county commissioners, taxes to pay the interest, provide a sinking fund and, at maturity, pay the principal of the bonds. As said by Merrimon, C. J., in Jones v. Commissioners, supra, “The townships are constituent parts of the county organization.” While townships and other taxing districts are sometimes referred to as quasi municipal corporations, they are but territorial sections of counties, upon which, for appropriate purposes, power is conferred to perform functions of government of local application and interest. Townships are not named in the Constitution, Art. II, sec. 14; neither are school districts or fence districts. We think that the term “county,” used therein, includes all political or legislative subdivisions of the county, as townships, etc. The term “city or town” is appropriately used, because they are in a sense different from counties, municipal corporations having powers, functions, duties and liabilities conferred by charter. It is true that they are, in a certain but restricted sense, governmental agencies. All of this has been so often discussed that it is unnecessary to cite authorities. When the term “State” or “county” is used in Article II, section 14, it must by necessary implication include townships and impose upon the Legislature the same limitations in respect to one as to the other in passing laws authorizing the contraction of debts and the imposition of taxes. Any other conclusion would lend to the strange result that the county could lend its credit, pledge its faith, contract a debt and impose taxes only when a bill for that purpose had been passed after three readings on three several days, upon a roll call and entry on the journal, whereas the power could be conferred upon a township or other taxing district by the usual legislative methods. The danger of this class of legislation being hastily enacted is illustrated by this record. *96 It appears that, in a private bill to incorporate a mining and improvement company and another to amend the charter, power is conferred upon counties and townships to contract debts and issue bonds. There is nothing in the title of the bill to indicate that it contained any such provision. No railroad is named; no limit is feed, either to the amount of the bonds or the time which they are. to run. Townships, in the most general terms, ar.e declared “bodies corporate.” Certainly such loose methods of legislation, conferring such extensive powers, was never contemplated by the framers of the Constitution. To giv'e the construction to the protective provision of that instrument contended for would be to do violence to its manifest purpose and meaning. Article VII, section 7, uses the terms “county, city, town or other municipal corporation.” This does not throw much, if any, light upon the proper interpretation of Article II, section 14. The plaintiff further insists that the bonds may be held valid under section 1996 of The Code of 1883. Ve had occasion to discuss the same contention in Graves v. Commissioners, 135 N. C., 49. These bonds do not come within any of the provisions of section 1996. That section makes no reference to township bonds; but if the word “county” be construed as including township the plaintiff is confronted by the difficulty that the bonds are not issued in the exercise of any such power, but expressly refer to the acts of 1889 and 1891 for their authority. No railroad was begun or in process of construction when the election was held; hence they could not have been issued for the purpose of completing a railroad, and in any aspect this is an essential requisite to the validity of bonds issued pursuant to section 1996. Conceding that the county commissioners have, by virtue of that section, power to subscribe to the completion of a railroad in which the people of the county have an interest, this power could not be exercised to fix a debt on one or more townships of the county. The fact that the road ran through only one township would make no difference. With every inclination to hold political divisions of the State whose voters have at election approved the issue of bonds liable to honest purchasers, we find ourselves unable to do so in this *97 case. "We bave no right to disregard the plain mandate of the Constitution. The bonds gave notice on their face that the commissioners were issuing them pursuant to acts of the General Assembly, and an examination of its journals would have shown that the acts were not passed as the Constitution commanded. This, as uniformly held, put the purchaser upon notice of the defect in them. It would seem a wise rule, for the safety of such legislation, that an act authorizing a bond issue should by its title give notice of its purpose. This would insure its reference to the proper committee and its due consideration. If passed, the clerk would have notice that it came within Article II, section 14. Private charters are usually passed hastily and without that examination required in passing bills empowering the issuing of bonds and imposition of taxes. The judgment of his Honor must be Affirmed.