The weekly standard., 1870-07-13
Opinion of Chief Justice Pearson, at
Chambers in the Injunction Case.

STATE OF NORTH CAROLINA,
1T Chambers, July 2, 1870.
Rufus Y. McAden, on behalf of himself
and the other property-holders and tax
payers of the State VS.. David A. Jenkins,
Treasurer Of the State, and the Wilmington,
Charlotte and Rutherford Railroad Com
pany.
Upon the facts set out in the complaint
treating it as an an affidavit, and the argu-
ment of counsel, Ideclare my opinion to be: !:
that the plaintiff, as one of the property
holders and tax payers in the State, is enti-
tied 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 le-
gal effect of which is, that the plaintiff will
not be at liberty to dismiss the action with
out an order of the Court first had and OBJ
tanned.
further declare my opinion to be: that
by the true construction of the Acts of 10Th
of March, 1870, IN connection with the Acts
of 9TH of February, 1870, and of the Sth of
March, 1870, the Public Treasurer 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
and puryiew of the Act of Sth March, 1870.
The act of 18th of March does not specify
the kind of State bonds the Public Treas
urer is to receive; but it cannot with con-
sistency be made to include any of the
bonds issued under the authority of acts
which are repealed by the act of Sth Of
March, 1870. This conclusion follows with
out reference to the question of the consti-
tutionallty of the act of the Sth of March :.
for it must be taken that the General As
sembly supposed this act to be constitu-
tional, and did not intend by the act of the
18th of March to recognize any of the State
bonds, coming 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
lst day of June, 1870, the act of the 18th of
N MHrOs'' ieen. does not authorize the Public
treasurer to receive from the UUmpuuy 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.
tits therefore considered by me that the
facts set out in the complaint, are sufficient to
entitle the plaintiff, in behalf of himself
and OF the other property holders and tax
payers in this State, to 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 execution of the act of
18th ol March, 1870, any State bonds which
are embraced by t: act of the Sth of March,
Inn mr. on of I,a tot
der the act of the 18th of January, 1869,
which are still in the hands of the Whining
ton. Charlotte Il Rutherford Railroad Com
pany, and restraining the defendant, the
Wilmington, Charlotte & Rutherford Rail
road Company, from handing over to the
Public Treasurer, in execution of the act of
the 18th of March, 1870, any of the bonds
above referred to--the plaintiff first giving
an undertaking, in writing, with two or
more sufficient suretics, to be justified before
me, that he will pay all damages not exceed
ing the sum of twenty-five thousand dollars
(S25.O00) which the defendants may sustain
by reason of the injunction, if the Court
shall finally decide that the plaintiff was
not entitled to recover.
The plaintiff will be allowed five days
from this instant to procure suretics, upon
giving an undertaking in writing, to pay all
damages which the defendants may sustain
by reason of the delay, not to exceed the
sum of one thousand dollars Isl ,0O0) in the
event that he fails within that time to for
telt his undertaking for the order of injunc
ton.
A notice of this order upon the defendants
VIII be forthwith issued, and will have the
effect oi restraining order
u NJ