Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1870-07-15
From tbs Raleigh Standard.
oE'iaIon o. CnIef Justice Pearson. at
Chambers, in She Injunction Case
STATE OF NORTH CAROLINA,
Vt Chambers July 9 1870


STATE OF NORTH CAROLINA, !
1t Chambers, July 2. 1870.
Rufus Y. McAden, on behalf of himseI
and the other propcrty-ho holders aud tax
payers Of the State v9./David 4. Jenkins
Treasurer of the State, and tho Whining
ton, Charlotte enY Rutherford Railroad
Upon the factg eot out IN Tie complain
treating it as an affidavit, and the areu
ncnt of counsel, | declare my opinion &c
| be that the plaintiff, as one of the prop
| erty holders and tax payers in the State, is
entitled to institute the action in his own
name and the names Of all of the other
property holders and tax payers in the
| State, the legal effect Of which is. that the
! plaintiff Will lot be at liberty to dismiss
the action without an order OF the Court
first had and obtained.
L further declare my opinion to be that
| by the true construction of the Acts of
18th Of March, 1870, in connection with
the Acts Of 9th Of February, 1870, and Of
the 6th Of March, 1870, the Public Tren-
surer IS not authorized by the former Act
to receive OF the Company any of the
bonds OF the State which are embraced
within the meaning aad puryiew of the
Act Of 9Th March, 1870. The act of 18TH
OF March docs not specify the kind Of
State bonds the Public Treasurer is to re-
celve bat it cannot with consistency be
made to include any of the bonds issued
under the authority Of acts which are re-
pealed by the act of 8th of March, 1870.
This conclusion follows without reference
TO the question Of the constitutionality of
the act Of the 9Th OF March for it must
be taken that the General Assembly sup
posed this act to be constitutional, and did
not intend by the act of the 18th Of March
to recognize any of the State bonds, COM
ing within its provisions, to be valid and
of legal effect.
further declare my opinion TO be that
by reason Of the act referred to and the al
legged action Of the Wilmington, Charlotte
and rutherford Railroad Company, on
the 1st day OF June, 1870, the act of the
18th Of March, 1870, does not authorize
the Public Treasurer to receive from the
Company any part OF the bonds alleged to
be remaining in the hands of the Company,
and issued under the act Of the Goth of
January, 1870.
It is therefore considered by nc that
the facts set out in the complaint are suf-
ficlent 30 entitle the plaintiff, in behalf of
himself and Of the other property holders
and tax payers in this State, 70 demand
the Injunction as claimed. 1t is ordered
that the Clerk of the Superior Court of
Wake county issue writ restraining the !
defendant Jenkins from receiving, IN exc
cution Of the act of 10Th of March, 1870, |
any State bonds which are embraced by !
5he act Of the 8th of March, 1870, or any |
Of the State bonds issued under the act Of |
the 10Th Of January, 1869, which nre still |
n the hands Of the Wilmington, Charlotte |
md Rutherford Railroad Company, and |
the defendant, tho Whining |
ton, Charlotte and Rutherford Railroad |
Company, from handing over to the Pub
&c Treasurer, in execution of the act of |
5he 18th of March, 1870 any of the bonds
above referred to-the plaintiff first giving
IN undertaking, in writing, with two or
more sufficient sureties. to be justified be-
fo1e me, that he will pay all damages not
exceeding the sum of twenty-five thousand |
dollars ($25, ,000) which the defendants
nay sustain by reason of the injunction, if
he Court shall finally decide that the |
plaintiff was not entitled to recover.
The plaintiff will be allowed five days
rom this instant to procure sureties, upon
giving an undertaking in writing, to pay
I'll damages which tho defendants may
sustain by reason Of the delay, not to ex-
,eed the sum of ono thousand dollars
81 ,000) in the event that he fails within
hat time to forfeit his undertaking for the
,rder of injunction.
& notice of this order upon the defend
nts will be forthwith issued and will have
he effect Of q restraining order.
II. NJ. PEARSON.
Chief Justice Supreme Court