French v. . Commissioners of New Hanover

Byktum, J. The judgment of the court below, vacating the restraining order, must be affirmed. It admits of no dispute now, that taxation for State and county purposes combined, cannot exceed the constitutional limitation, for their necessary expenses and new debts. It is equally well settled, that there is no limitation of the powrer of taxation, upon either State or county, for the payment of their lawful debts, created prior to the adoption of the Constitution. If what are often miscalled the “necessary expenses” of a county exceed the limitation prescribed by law, the necessity cannot justify the vio *697 lation of tlie Constitution. In sncli cases two remedies are open to the county. One is to apply to the Legislature, if the tax is required for a special purpose. The Constitution, Art. Y, sec. 7, empowers the Legislature in such cases to give a special approval for an increased levy. The other and better way, however, is to rechice the expenditures. The old proverb, “cut the garment according to the cloth,” has in it much practical wisdom. It is illustrated every day in private life, and is the foundation of individual integrity, contentment and success, In every relation of wholesome life, men adapt their wants and expenditures to their income. No good reason can exist why the same obligation does not rest upon corporations, and is not equally as practicable. Instead of which, as things now go, those who are entrusted with other people’s money and property, whether States or counties, instead of practising prudence and economy in the discharge of their trust, seem emulous of each other in extravagance. The end of such a course is easily seen, and must be one of disaster and disgrace. This is one of many cases now before the court, where the tax-payer is claiming the protection of the law against the onerous, growing and oppressive weight of taxation. In regard to the payment of the old debt, this court lias no power to interfere with the discretion of the Board of Commissioners as to the time of payment, or other details in the levy and collection of taxes, where they are not more than sufficient to discharge the whole debt. The power of the Board is express and plenary. “To provide by taxation or otherwise, for the prompt and regular payment, with interest, of any existing debt due by bond or otherwise, from any county, except a debt, or the interest on any debt, contracted directly or indirectly in aid or support of the rebellion.” Bat. Rev., chap. 27, sec. 8. It is not disputed that the county of New Hanover owes an old bonded debt of §35,000, bearing interest, and we are satisfied, also, that the debt of ten thousand dollars, due to the bank of New Hanover, being the sum borrowed to *698 pay an old debt, is itself an old debt, in the sense of the Constitution. It is the duty of the commissioners to levy and collect a tax sufficient to pay this and every other old debt now due. It is also their duty to pay the accrued interest upon the bonded debt of $85,000. It is, however, not their duty to pay any part of the principal of this latter debt until 1879, when it becomes payable. Yet this bonded debt is now due, and became so when it was contracted, though the time of payment is deferred. Unquestionably, the county, just like an individual debtor, may anticipate the day of payment, and pay the debt before compellable by suit to pay it. It is always lawful, and often the highest wisdom, to do so, especially where the debts are large, and their entire payment at one time would be more burdensome than payment in instal-ments, at convenient intervals. This is a matter for the consideration of the Board of Commissioners. They are invested by law with the power and the discretion. When the power is not illegally exercised, the courts cannot interfere. It is alleged in the complaint, that the tax of thirty-seven cents will raise money more than sufficient to pay the interest upon the bonds and the remainder of the old debt — stated by the defendants to be, in the aggregate, $16,500. Admit that to be so. It will not pay all the bonded debt of $35.000. If there is a surplus, after discharging the claim of $16,500, the Board cannot appropriate it to their own, or to other uses than the payment of the bonded debt. The courts will enforce the application of the tax, first, to the payment of so much of the old debt and interest as is now due, and next, the residue to the extinguishment of the principal of the bonded debt. The complaint and affidavits do not charge a fraudulent purpose in tire commissioners, either in the assessment of the tax or in the intended application of it. The answer negatives any such purpose. We are to assume, then, that the Board of Commissioners are acting honestly, and in the supposed discharge of their duties. The question, therefore, is simply *699 one of power. That they have the'power to assess and levy taxes sufficient to pay the old debt, there can be no doubt. That they are illegally abusing their powers, nowhere appears. It follows that there is nothing in the case to invoke the in-junctive relief of the court. Whether the commissioners are acting prudently in this tax assessment, is a question about which minds will differ. A sinking fund may not be the best way of paying the debt. The financial history of the country is adverse to that policy, and we do not decide that the law has conferred upon the County Commissioners the authority to create a sinking fund. But they undoubtedly have the power to buy up their bonds before payable, and retire so much of the debt, and it will be a healthy sign if they can do so. We hold that the State tax of 88 cents and the county tax of 28f cents on the hundred dollars of valuation exhausts the constitutional limitation of taxation for current expenses, and that the tax of 37 cents on the hundred dollars of valuation for the payment of the old debt is legal, and that the sum to be realized thereby must be set apart and applied solely to the payment of so much of the debt and interest as may be now due, and the surplus, if any, must be applied in extinguishment of the bonded debt. As the Board of Commissioners gave rise to this action by the illegal assessment, (which was reduced after action begun to the constitutional limit,) and as they have not, in their answer, made a clear and satisfactory exhibit of the county debt, and their own proceedings in relation thereto, they must be taxed with the costs. There is no error. Per Curiam. •Judgment affirmed.