Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-03-05
From the Raleigh Standard
CHATHAM RAILROAD.

CHATHAM RAILROAD.
Dissenting opinion Of Justice Reade in the
! I'm the Supreme Court.
| propose to consider:
1. Whether the Court ought to entertain the
suit.
2. Whether the act is constitutional
!. The Constitution declares that the three De-
partments o. the Government-the Legislative
Executive aud Judicial shall be kept separate and
distinct. Division and strife would be inevita-
bic between the Departments as between individ-
uals but for the observance of this important fun
damental principle. This principle has hitherto
|, been observed by the Court. Even at this term
the Court was requested, with all the fornality
and courtesy of a resolution by the General AS
sembly, tc give an opinion upon the Homestead,
Yet the Court declined to do so.
But it is argued that here we have a case be-
tween parties. This, however, must be SO in the
spirit well in the letter, and the Court must
not allow itself to be used under cover. II we re-
fused to give an opinion to the Legis allure, how
shall We be justified if we permit the end to be
accomplished indirectly through an individual?
The Legislature is under the same oath to OBJ
serve the Constitution is the Court. And IN
Iees an act is plainly unconstitutional, the Court
is bound to sustain 1t.
How stands this case? On the 18th December
last, the Legislature passed act directing the
Public Treasurer subscribe for So 000 600 stock
in the Chatham Railroad, and to pay for the
stock in bonds Of the State, payable thirty years
hence, and providing for special tax to meet
the annual interest. And on the 26th December
ten days thereafter, before onetenth Of the citi-
zens OF the State knew-as we may suppose
| that such an act was passed, the plaintiff files
bill in the name of himself and other tax payers
in the State, to enjoin not the collection of the
tax, but the issuing of the bonds.
vert the question of jurisdiction but conceded it.
urging the ground of public policy. II the Court
may Interfere now. at what stage of legislation
may it not be called upon to interfere? Why al
low an unconstitutional bill to be printed? This
involves an expense aud burden upon the tax
payers.
One of class may suo for him- elf and others of
the same class. But one cannot have redress for
himself and class unless, under the same cir
cumstances, he could have redress for himself
alone.
When are special iujunctions granted? When
the injury sought to be eni oned is certain ana IT..
repard6le. 1t is not certain that the plaintiff will
be in existence thirty years hence when the
bonds fall due. 1t is not oertdj4 that he will be
possessed Of taxable property when the tax is col
ected. But even if certain, the injury is not
parable. If the tax should fall on him, he might
enjon it then or pay 1t under protest and recover
it back,
1t is to be noted that the injunci IN asked fer,
is not against levying taxes, but against issuing
plaintiff. Indeed, we have the opinion Of the
Legislature, competent to pass upon the fact, it
will greatly benefit him.
II. Is THE ACT UNCONSTITUTIONAL
The settled rule Is that unless an act is plainly
unconstitutional il must stand. Let us then con-
slider, not whether tn act Is unconstitutional,
but it is plainly II the act is plainly Hnconsti
tutional, why the learned and able arguments at
the bar Why does this COURT stand as nearly
equally divided as 1t is possible for it to be
1t is not supposed that the occasion OF the is
suing of thebOnds comes within any of the exCep-
tons named in the 5th section of the 5th article
of the Constitution. Omittng the exec ptions the
first clause viii read as follows:
Until the bonds of the State shall be at par,
the General Assembly shall have no power to
contract any new debt or pecania-y obligation in
behalf of the State unless it shall in the same
bill levy special tax to pay the interest annu-
ally
propose to consider 1st: The power OF tn
Legislature under that clause. I'd. neither the
| act considering comes under it.
| The Convention provided that new debt
should be created until the bonds of the state
at par. SO it seems to be clear that the Ouly res
friction upon the Legislature in contracting debts
is that par value shall be obtained for tie bonds;
for to say that debt shall not be contract d, if
par value is not obtained, is the same to say
that it may be contracted if par value as obtained
By this par value is not meant the price in the
market, but that par valne must be obtained for
| the bonds at the time they issued.
If this be the proper construction, then if par
value is received for the bonds, they may issue
the Court the special tax was levied, which makes
them valid it below par. Again, the bonds were
issued at par because it was the crestiOn of deDt
to the amount of So 900 900 of bonds at par, by
taking so much stock l. he road 1t is not res
pectful just to say of tAe Legislature that this
was under cooer. Whether the stock he worth
par or not is not question of law or of construc-
ton. 1t is question Of fact and it is within the
province of the Leg slature to prescribe how that
fact shall be ascertsined, to ascertain it itself
Has not the Legislature plainly decar ed the fact
by directing that the stocks shall be bought
preferred stock and that the bonds shall be taken
at par? But even il they are issued below par it
makes no difference, because special tax is pro-
vided for in the same bill.
| I conclude, therefore /. That under the first
clause of the 9Th ,tion of the 9Th article of the
Constitution, the Legislature has unlimited power
| to contract new debts, provided par value is OBJ
tanned for them without levying any tax. 2. That
it has unlimited power to contract new debts even
if it's bonds below par, provided it lay tax in
the same bill to pay the interest.
2. But it is said thai this case does not come
under the first clause which we have been con-
| sidering, but falls under the second clause; that
| it is not creating new debt, but loaning the
credit of the State. 1t it be true hat the act of
Assembly, which considering, gives or
lepds the credit of the State to the Chatham road
| then admit the act is void. But the act must
speak for itself. hnd if it does not state that the
credit of the State was loaned or given, cannot
infer it, for unless it is plain, We must hold in
! favor OF it's validity. careful eXaminatlc~a 0f
the act shows that no such declarations askany-
where made, there is rot even an intimation or
inference of such thing, 1t is plain transac
ton of taking stock in the road and paying for it
at par The Legislature had before passed an
act lending the credit OF the state to the Chatham
road without leyying special tax. To avoid this
| worry erEOT the IN december, repeated
this act and passed another to remedy this very
error. Instead of loaning the credit of the State
to the Chatham road, they bought stock in the
road. as individual may do, and levied a
special tax required by the Constitution The
act expressly calls the transaction purchase of
| stock.
| II the case fails under the first clause of the
5th section of article of the Constitution or the
act of December 18th, 1868, the question is at an
| end
am OF the opinion that the act is valid
kEADE,J j.
am Of the same opinion.
SETTLE, J.