Smith-Courtney Co. v. Board of Road Commissioners

CLARK, C.J., by opinion, concurring in result. This action was brought to compel the defendants, by a writ of mandamus, to levy the necessary tax to pay a debt to plaintiff of four hundred dollars, contracted and due by the former board of road supervisors of Murfreesboro Township for machinery, tools and equipment to be used, and which were used, by the board in the construction and improvement of the public roads of the said township, the board of road supervisors being authorized by statute (Public Laws of 1913, ch. 562) to contract the debt so due to the plaintiff. It is alleged in the case, and appears therefrom to be the fact, that there are claims of other parties due to them and contracted for the same purpose as was the claim of the plaintiff, the total of all the claims amounting to $11,000 or about that amount. It is further alleged that at the time of contracting the said debts the statute permitted a levy of taxes at the rate of fifty cents on $100 worth of property, and $1.50 on the poll, the original rate being thirty cents on the $100 worth of property and ninety cents on the poll, which by the Laws of 1919 was increased to fifty cents on the $100 worth of property and $1.50 on the poll, so that at the time the debt of plaintiff and those debts of the other creditors similarly situated were contracted, the limitation to the levy of taxes for the payment of the same was as above set forth, that is, fifty cents on the $100 worth of property and $1.50 on the poll. By an act passed 3 March, 1921, the Legislature abolished the township system for constructing and improving the roads of the county, and substituted the county system, thereby forming one entire unit of the county, and placing the control and supervision of the public roads in a county road commission, and fixed the tax limit for road purposes (construction and maintenance) at twenty-five cents on the $100 worth of property and seventy-five cents on the poll; and by section 26 of said act the Legislature authorized a special and additional tax not exceeding ten cents on the $100 worth of property and thirty cents on the poll in Murfreesboro Township to discharge the existing indebtedness. The plaintiff contends that this reduction of the rate of taxation, from fifty cents on the $100 worth of property (151) and $1.50 on the poll, to twenty-five cents on the $100 worth of property and seventy-five cents on the poll, and of the special tax to ten cents on the $100 worth of property and thirty cents on the poll, impairs the obligation of the contract made with the township prior to the date of the reduction, and is, therefore, in violation of the Constitution of the United States forbidding the passage of a law by any of the States impairing the obligation of a contract (U.S. Const., Art. I, sec. 10, cl. 1); that as the later *Page 160 statutes withdraw the means of fully enforcing the payment of the debt due to the plaintiff, it follows that the obligation to pay all of the debt, or to fully perform the contract in that respect, is impaired, at least, to that extent. While we will not enter upon a full or elaborate discussion of the constitutional question raised here, but leave it for the hearing on the merits if the case comes back to us, we may refer, at this time, to a few of the many cases decided by the Federal Supreme Court, which is the one of last resort upon this phase of the matter in controversy. It has been held by that Court that a legislature may, at any time, restrict or revoke at its pleasure any of the powers of a municipal corporation, including, among others, that of taxation, provided its action in that respect shall not operate directly upon the contracts of the corporation, so as to impair their obligation by abrogating or lessening the means of their enforcement. Legislation producing this latter result directly by operating upon those means, is prohibited by the Constitution, and must be disregarded. The prohibition of the Constitution against the passage of laws impairing the obligation of contracts applies to the contracts of the State, and to those of its agent acting under its authority, as well as to contracts between individuals. The courts, treating as void the legislation abrogating or restricting the power of taxation delegated to a municipality, upon the faith of which contracts were made with it, and upon the continuance of which alone they can be enforced, can proceed and by mandamus compel, at the instance of parties interested, the exercise of that power, as if no such legislation had ever been attempted. The Louisiana Act of March 6, 1876, was held to be invalid so far as it limited the power which the city of New Orleans possessed, when the bonds were issued upon which the judgment in that action was recovered, to levy a tax for their payment. In re Wolff v. Mayor, etc., of New Orleans, 13 Otto (103 U.S.), 358 (26 L.Ed. 395). Where a municipal corporation is dissolved and a new corporation is created, composed of substantially the same community, including substantially the same taxable property, within reduced territorial limits organized for the same general purposes and holding, by transfer, without consideration, the public property of the former, it is the successor of the old (152) corporation and is liable for its debts. The obligations of municipal corporations, upon bonds duly issued by them, are secured by all the guarantees which protect the engagements of private individuals. Any legislative enactment which withdraws or limits the remedies for the enforcement of obligations assumed by a municipal corporation, where no substantial equivalent is provided, is forbidden by the Constitution of the United States. Port of *Page 161 Mobile v. Watson, S.C. Rep. Ed. (116 U.S.), 289 (29 L.Ed. 620). Disincorporation of a municipality by legal proceedings does not void its legally subsisting contracts, but on the reincorporation of the same inhabitants, and of a territory including street improvements for which bonds were given, the obligation to pay them devolves upon the new corporation. A statute making a vote of taxpaying voters necessary to the assumption of a new municipality of a debt of its predecessor, which has been abolished, is an unconstitutional attempt to impair the obligation of the contract, if liability existed without such vote before the statute. Shapleigh v. San Angelo,167 U.S. 646 (42 L.Ed. 310). Mandamus to compel the county authorities through whom taxes are assessed and collected to levy a tax to pay a judgment on township bonds cannot be denied on the theory that, because the Legislature of the State might, under its constitution, have vested in the township authorities the power to assess and collect taxes for corporate purposes, it could not vest such power in county officers. The exercise by a State of its right to alter or destroy its municipal corporations is ineffectual to impair the obligation of municipal contracts. County auditors and treasurers, who are the instruments employed by the State Legislature to assess and collect taxes, may be compelled by mandamus to levy a tax to pay a judgment on township bonds, although the corporate existence of the township has been abolished by the State Constitution, and its corporate agents removed. Mandamus to compel both county auditors and county treasurers to levy a tax to pay a judgment on township bonds is not a suit against the State, within the inhibition of the Federal Constitution, because such officers have been forbidden by the State Legislature to exercise any such power. Graham v.Folsom, 220 U.S. 248 (50 L.Ed. 464). The levy and collection of taxes by the city of New Orleans to satisfy outstanding indebtedness of the metropolitan police board, contracted on the faith of the exercise of the taxing power for its payment, do not exhaust the city's power in the premises, where the city has applied the taxes to other purposes, and has failed to turn them over, upon demand, to the board of its representative. The receiver of the metropolitan police board in the State of Louisiana, as representative of the interested creditors, is unconstitutionally deprived of the right of taxation by the city of New Orleans for the payment of their claims, which right existed before the enactment of Louisiana (153) Acts 1870, No. 5, by the provisions of that act under which the payment of the judgment recovered by such receiver against the city upon outstanding indebtedness of the board, contracted on the faith of the exercise of the city's power to levy taxes for its payment, may be indefinitely postponed until such time as *Page 162 the city is ready and willing to make such payment. State of Louisiana v.Mayor, 215 U.S. 170 (54 L.Ed. 144). The cases above cited will show the varying phases in which this question as to the impairment of the obligation of contracts has been presented, and will be of service in the further consideration of this case. The merger of an existing municipal corporation, owing debts, in another, or the abolishment of a municipal corporation owing debts and the legal effect upon its existing contracts, was presented and decided inBroadfoot v. Fayetteville, 124 N.C. 478; U.S. v. Memphis, 97 U.S. 284;Mt. Pleasant v. Buckwith, 100 U.S. 514. The debts of a municipal corporation are not extinguished by a repeal of its charter as is demonstrated by Broadfoot's case, supra, and the several cases cited therein, among which we especially refer to Merriweather v. Garrett,102 U.S. 472; O'Connor v. Memphis, 6 Lea 730; Wolf v. New Orleans, supra;Mobile v. Watson, supra; Amy v. Selma, 77 Ala. 103. It was said in Port ofMobile v. Watson, supra, that "the remedies for the enforcement of such obligations assumed by a municipal corporation, which existed when the contract was made, must be left unimpaired by the Legislature, or if they are changed a substantial equivalent must be provided. Where the resource for the payment of the bonds of a municipal corporation is the power of taxation existing when the bonds were issued, any law which withdraws or limits the taxing power and leaves no adequate means for the payment of the bonds is forbidden by the Constitution of the United States, and is null and void." Von Hoffman v. Quincy, 4 Wallace (71 U.S.) 535; Edwards v.Kearzey, 96 U.S. 595; Ralls County Court v. U.S., and Louisiana v.Pilsbury, 105 U.S. 733, 278 (26 L.Ed. 1220, 1090); Louisiana v. Mayor,109 U.S. 285 (28 L.Ed. 936); Comrs. v. Rather, 48 Ala. 433; Edwards v.Williamson, 70 Ala. 145, and Slaughter v. Mobile County, 73 Ala. 134. The proposition we have somewhat discussed received strong support and striking illustration in Edwards v. Kearzey, supra, which went to the United States Supreme Court from this Court, and in which our homestead exemptions were held to be of no avail against the full recovery of preexisting debts, because they substantially withdrew from a creditor his right, and remedy, to have his contract with the debtor enforced, or placed an obstacle in the way of its proper enforcement, thereby impairing its obligation. It (154) would seem, therefore, that the later statutes reducing the limit of taxation as it existed when this contract was made impaired its obligation, and, so far as they did so, were invalid, but *Page 163 we will not finally and conclusively decide this question until all interested parties are before us. We hold that this controversy cannot be finally and fully decided and settled without the presence of the other creditors for several reasons, and among them one is, that the sole plaintiff here is claiming that he is entitled to the full amount of his claim and not merely to a pro rata part of the tax to be levied, as provided by one of the statutes cited above, for the payment of all similar debts of Murfreesboro Township. It was stated in the argument here that it would take five or six years to pay the existing debts if levies could only be made under the provisions of the last two statutes, which would amount to a stay law, and would impair the obligation of the contract. Jacobs v. Smallwood, 63 N.C. 113. We would be deciding the case by piecemeal should we dispose of it without hearing from the other creditors, or taking such action and proceedings beforehand as would make the judgment binding upon them. We, therefore, remand the case to the end that the other creditors similarly concerned may come in voluntarily, or be brought in so that they may plead and be concluded by whatever judgment is finally rendered, and it will be so certified. The judge may order an amendment of the pleadings, or a repleader, as he may deem necessary, in order to protect the rights of all parties, and to afford all parties ample opportunity to be heard upon the issues involved. We will not now consider the question concerning the poll tax and its application to special purposes, as it does not necessarily arise in this appeal. The property tax, it is conceded, has been substantially reduced from what it was when the debts due the plaintiff and others were contracted, and this is sufficient to show that the obligation in each of those contracts was impaired, as the means of enforcing them have been denied, or rather diminished, sufficiently to seriously prejudice the rights of those creditors. Remanded with instructions.