Commissioners of Hendersonville v. Prudden & Co.

Hoee, J. The case agreed states, and a perusal of the law will show, that the original finance act applicable to the question, Consolidated Statutes, secs. 2956 and 2920, provided for the publication of the notices of this kind in a “newspaper published in the municipality, or if no newspaper is published therein, then in a newspaper published in the county, and circulating in the municipality, or if there is no such news *498 paper, tbe notice shall be jtnblished at the door of the building in which the governing body usually holds its meetings, and at three other public places in the municipality. And in ch. 3, sec. 4, Public Laws, Special Session 1920, ratified August, 1920, on matter specially pertinent to this inquiry, the general act was amended as follows: “Sec. 2956, Consolidated Statutes, constituting sec. 30, Municipal Finance Act, is hereby amended by inserting at the end of said section the following words: The notice required by this section shall be published not only in the manner prescribed by sec. 2920, but also in a financial paper or trade journal, published within the State of North Carolina, which regularly publishes notices of the sale of municipal bonds.” It will be noted that the amendment in question does not require the publishing of the notice in a paper devoted exclusively to finance and trade, the -design and purpose being to provide for a publication that will likely afford notice to buyers of this class of securities, and we think the requirements of the statute are fully satisfied, and its terms and purpose complied with by publishing the additional notice in a paper having a general circulation in the State, and which candes advertisements relating to these matters as a customary and substantial feature of its issue. We are confirmed in this view by a consideration of the rule of statutory construction very generally recognized, that “a statute is never to be understood as requiring an impossibility if such result can be avoided by any fair and reasonable construction.” Black on Interpretation of Laws (2 ed.), p. 119, a position approved and applied by the Court in Garrison v. R. R., 150 N. C., 575, and other cases. Assuming, as the case agreed clearly contemplates, that the notice provided for must appear in a paper exclusively dealing in financial and trade matters, would be to put the Legislature in the attitude of having provided in an elaborate law for the issue of bonds for governmental purposes and annexing a condition that would render its entire action of no avail. See, also, on question of notice, Kornegay v. Goldsboro, at the present term. The construction of the statute we have indicated being the true one, we must hold that these bonds have not been properly advertised, it appearing so far as the case discloses that the notice of sale has only been given in a newspaper having local circulation, and has not appeared in a financial or trade journal of any kind published in the State. And the matter being in fieri, it is open to the original parties to the transaction to present and insist on the objection. Bennett v. Comrs., 173 N. C., 625-630. f We are not inadvertent to the statement and admission in the case \ agreed that there is no such financial paper or trade journal published iin the State, as the statute requires. What effect such an admission *499 might have on the rights of the parties, if the Court was concluded by it, we are not called on to determine, for we are not bound by it. On the question thus presented in Board of Health v. Comrs., 173 N. C., 250-253, i't is held in effect that the Court is not concluded by the admission of parties to a controversy, as to conclusions or inferences of law, nor by admissions of fact when contrary to those of which the Court is required to take judicial notice, citing, among other authorities, Prichard v. Comrs., 126 N. C., 908-913; Hopper v. Covington, 118 U. S., 148-151; Equitable Insurance Company v. Brown, 213 U. S., 25; Graef v. Eq. Ins. Co., 160 N. Y., 6 Pl. & Pr., pp. 336-338, etc. That was a case where the admission was made by a demurrer, but the reason and principle extends also to an admission presented as in this case for obtaining the decision of the Court on the rights of the parties. And on the question of judicial notice, it is recognized here and elsewhere that the Court will take judicial notice of a rule or custom in the general business of the country when the same is of sufficient notoriety to make it safe and proper to do so. Furniture Co. v. Express Co., 144 N. C., 639, citing, among other authorities, McKelvey on Evidence, pp. 33-34; "Wlgmore on Evidence, see. 2580. In McKelvey the general principle is stated as follows: “There is a class of facts of which a court may take judicial notice in its sound legal discretion and supporting them is the single principle of common notoriety, the vital question being whether sufficient notoriety attaches to any particular fact to make it safe and proper to assume its existence without proof.” • Applying the principle it is undoubtedly safe to assume, and we judicially know that there are several newspapers in this State having an extensive and general circulation in which advertisements for sales of bonds of this character are customarily made, and to which buyers of this class of securities habitually refer for information, publications that fully meet in this respect the requirements of the statute, and in which, or one of them, proper advertisement must be made and shown before a valid sale of municipal bonds can be had. For the reasons given, we must hold, as stated, that the proposed bond issue and sale to these parties is invalid, and on the relevant facts appearing in the case agreed, there must be judgment entered for defendant. Eeversed.