Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-07-30
OPINION OF JUSTICE READE.


OPINION OF JUSTICE READE.
/ ngroo with the Chief Justice, that no
corporation is created by the act, and,
therefore, the mandamu3 must DO dis
missed.
do not agree with him and my learned
brothers, Kodnnn and Dick, that the Leg
isature hos no power to contract a debt to
build new railroad without q vote of the
people but [ do agree that the Logisla-
tnro has no power to giDc or Tend it's aid to
others to build Il now railroad without IL
vote of tho people. In SO fur as the qnes-
tons discussed IN this case arc involved IN
the case of Galloway VS.. Jenkins, (63 n.
G. II. j feel myself bound by that dccis-
ion, although l did not concur III it. But
[ am wholly unable to comprehend how 1t
follows that because the State cannot Tend
its oil to others to build a railroad for their
beectit, that, therefore, it cannot build n
railroad out and ont for It's O,on benefit ? =
Ii the Constitution forbade the Legisla-
turo to lend the aid OF the State to New
York to bnild q State House or Penitenti-
airy for New York.. wouid it bh supposed
that, therefore, the Legislature could not
build IL State House or Ponitentiary, % ont
and out, for North Carolina ? Or would
hy the argument that tho greater includes
the less, and if it cannot build a road with
the all Of Others it cannot build ono with
| out arch aid 1t is said that tho object
was to prevent the Legislature from con
| tractng new debts. And yet il is admit
ted that it may contract now debts Tor
other purposes than railroads. Ii the OBJ
loct was to keep the State from going i'll
debt, why not keep it from going IN debt
for Other purposes? eft farmer have
field requiring a fence on three sides,
would it do any good to fence 1t on only
two sides ?" Bat will yon pnrauo the
matter further. And [ purposely refrain
from approving or disappearing tho inter
mi improvement policy, because it is not
u Judges province to do SO. l only seek
to expound what has been done by the
Constitution and by tho Legislature. If
the law makers have erred IN matters of
policy, the remedy is with the people.
My construction Of the taxing power Of
the Legislature under the Constitution is
as follows
l. The first object of the Convention III
the 9th Art Of tha Constitution was to
provide for the ordinary and current OK
ponacs OF tho government. That IS done
IN sections l, 2 ana 3 And for that pU
| pose the tax is limited to - on tho poll,
| and the same amount Oh $500 worth of
property, and equation must be observed.
| This was thought to be sufficient tor the
| ordinary and economical administration OF
|thG government.
2 We had o considerable public debt,
| and, after providing for current expenses,
| tho next consideration was, how il the
public debt to be met And the 4th sec
| ton provides that specific tax shall be
| laid for that.
| In regard to the construction OF tho first
| four sections / DO not understand that
| there is any difference of opinion among
| the Judges, except it may be rs to what
| constitutes "the public debt.
| 3. Taxation is not the subject Of the 9Th
section except incidontally Having pro
viied in sections l, 2 and 3 for ordinary
expenses, and in section for the public
debt, the next consideration was to pro
vide for extraordinary occasions And for
such occasions tho 9TH section provides,
not that taxes shall bc laid, but that bonds
| shall be issued and, Us incident to the
bonds, special taxes may be laid, not to
pay the bonds but only the interest, lcav-
| ing the bonds as part of the public debt,
! 70 be provided for under section 4. The
| power to issue those bonds is unrestricted.
From the very nature Of the case it must
be so. IF an extraordinary and I'M
foreseen occasion is to be met, how is it
possible to limit tho means unless you fore
know the occasion? If there be an insur-
rection, bonds must be issued to meet it.
/ but whether O large or small amount, must
depend upon whether it be large or
small instruction, and so with any other
occasion. It ought not to be supposed,
that Constitution would be framed with
such limitations upon the taxing power
~. ~ III,
in fair weather, to be wrecked i'll the first
to provide, that ordinarily there shall
be light taxes and economy in expen-
diturcs, but when any extraordinary ne
cessity arises tho whole power OF the State
must be Embossed to meet it. It is admit
ted that the counties, for special purposes
and with the approval Of the Legislature,
NAV, under section 7, levy tax without
limit and without @ vote of the people. II
was supposed that extraordinary necessities
may fall upon q county, and may not ex-
traprdinary necessities fall upon the State:
It need not be inferred that either county
; or State taxes will be excessive, because
the counties and Legislature have the
p0Cer in extraordinary cases to make them
o.. Until the new Constitution there was
5 no restriction whatever upon tho power OF
l y
were never burdensome. There was sup
posed to be a sufficient check in tho
, accountability of the representative to lii
constituents. The restriction in our new
, Constitution is deemed wise one-in
duced, probably, by tho new order O
things, and intended TO protect the non
property holder from an oppressive pol
tax, and the property holder from an une
quail property tax, for rhe ordinary pur
r poses OF the government
I admit that the Legislature cannot Civ,
or lend anything to railroads which belong
TO others, without vote of tho people
but if any extraordinary occasion or neces
sity arises tho Legislature may do any
thing for the State which tho occasion ma,
require-may issue bonds at par withou
limit, and without tax, and issue them be
:: low par with special tax. For any abus
} of this power the representative is respon
: siblo to the people. All that the court Cal
l say is, thus it is written i'm the Constitn
: ton,
OPINION OF JUSTICE DICK.