Sedberry v. . Board of Commissioners, Chatham County

PeaesoN, C. J. According to the view of this case taken in the Court below and by the counsel of both parties in this Court, two very interesting questions were presented. 1. Has the General Assembly power to forbid the Board of Commissioners of a county from levying and collecting a tax, to pay an existing debt of the county, when the defendant is commanded to do so by the order of a Superior Court having jurisdiction of the matter? *492 2. Must the defendant take tbe responsibility of deciding •this question, so that should the statute be held constitutional, the return is irresponsive and sufficient, otherwise the individuals composing the Hoard, subject themselves to fine and imprisonment for contempt ? It is settled State v. Jones, 1 Ired. 414. The general rule is no return can be made to a peremptory mandamus, except “that it has been obeyed,” but should a statute be enacted, after such peremptory order, forbidding obedience or making obedience impossible, such new matter will, of necessity be a sufficient return, provided the statute is constitutional and within the power of the General Assembly. It was assumed in the Court below and by the counsel on both sides in the argument before us, that the Act 7th of March, 1871, admitted only of the construction that the cred- . itors of the county were put to the alternative of accepting coupon bonds on time, or be without remedy, because the Board •of Commissioners are forbidden to levy or collect any tax except for the accruing current expenses of the county, thus raising the questions above set out, and making a direct conflict of power between the Judge of the Superior Court and the Gen•eral Assembly. If this be the proper construction of the statute, there is much force in the objection, that it impairs the obligation of ■contracts. But we are of opinion that this view of the statute is too narrow, and that the scope and effect of it, is to empower the Board of Commissioners of the county to raise the necessary amount, to discharge the liabilities of the county, outstanding at the time of the ratification of the Act, by issuing and selling in the market, coupon bonds, and in this way funding the debts of the county ; according to this construction, the restriction that no other tax shall be levied except for accruing current expenses, is reasonable and proper; •and the statute is relieved from the imputation of being unconstitutional and void. *493 This construction is not only warranted by tbe terms ot the Act, but is called for by a well settled principle, that when a-statute admits of two constructions, one of which is consistent with the Constitution, and the other is questionable, as violative of good.faith, and tending to impair the obligation of contracts, the former should -be adopted, in other words, if a thing may be done in a right way, or in a wrong- way, it shall be presumed to have been done in the right way. The peremptory mandamus required the Board of Commissioners “to levy the tax,” on the coming in of the return, by which it was seen that the General Assembly had made provision for raising the money by a sale of bond's, and forbid the board from “levying the tax.” His Honor fell into error by not modifying the order, so as to require the Board to raise the money in the mode provided, for according to the proper construction of the Act, it was constitutional, and protected the Board from the charge of contempt. State v. Jones, supra. This course would have met the exigency and taken away all excuse for not instantly raising the money and paying it to the plaintiff. Of course no difficulty was to be anticipated in regard to making sale of the bonds at a fair price, as the terms were reasonable and the bonds would, as seems to have been contemplated by the General Assembly, have been a good investment all doubt in regard to the power of the Board to issue them-, being out of the question, and the remedy against the county to enforce payment, being plain and direct. Eor the error in not modifying the order, the ruling of His Honor is reversed. This will be certified to the end that further proceedings-may be taken in the Court below, according to the view we have expressed. The defendants were the first to adopt the misconception as to the meaning of the Statute, this was the occasion of the omission to modify the order. Throughout the proceed *494 ings they have evinced but little anxiety to discharge their duty, and there has been a delay of justice. For this reason no costs are allowed. C. C. P., 278. The result the of ruling in’this Court is in the nature of an order for a repleader, which is in effect a new trial.” Per CuRiAM. Venire de novo.