The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1898-11-10
TWO JUSTICES DISSENT
ACT AUTHORIZING THEIR ISSUE
NOT CONSTITUTIONAL.
CASE OF BANK VS. OXFORD RE-AFF .RMED
Cher Opinions Handed Down by the Court.
Seventh District Cases Argued.
Eighth District Next
Tuesday.

Commissioners of Wilkes county VS..
Clarence Call ct al, has decided that the
bonds issued by Wilkes county in pay
ment of its subscription to the stock of
the Northwestern North Carolina Rail-
road Company are invalid and the county
is not compelled to pay them. Judge
Douglass writes the decision of the
court and Judges Faircloth and Furches
dissent.
The suit was brought by the Commits
sioners of the county of Wilkes against
the county treasurer. The bonds are
dated October /, 1898, and on their
face appears the statement that they
are ISSUED by authority of an Act Of
the General Assembly of North Carolina,
ratified the Goth day Of February, A. ID.
1879"
1t is admitted and clearly shown by
the evidence that this act was not pass
ed i'll accordance with the mandatory
provisions of the Constitution of the
State, in that there was no call of tho
ayes and noes on the second passage of
the bill in the House
After citing several other cases in
volving the same question Bank VS.. Ok
ford, Commissioners VS.. Snuggs, Char
lotte VS.. Sheppard, and Rcdman US
Washington, Judge Douglas says:
Under the authority of these decisions
we are compelled to hold that the en-
tire issue of these bonds is null and void
for want of legislative authority. An
Act of the legislature passed in viola
ton of the Constitution of the State, or
in disregard of it's mandatory provisions.
is to the extent of such repugnance. alb
solutely void: and all bonds issued there
under bear the brand of illegality stamp
ed upon their face by the hand of the
law
'The Act under which these bonds pro-
fess to have been issued was never
legally passed and never became law
Further on in the decision, discussing
the moral question involved il the case,
Judge Douglas says:
I'VE have given this case the most
thorough investigation and careful con-
sideration on account of the important
principles and the large amount invoIv-
ed. We deeply deplore the fact that
many parties may suffer, who are in
morals, if not in law, innocent holders
of the bonds, but their loss corcs from
whom they received the bonds. and the
negligence of the corporation to which
the power was professedly given and the
bonds were issued. The only authority
for their issue is found in a railway
charter, and we cannot undertake tn
validate defective or unconstitutional
legislation by judicial construction. The
suggestion of Reputation. so strongly
al .,~i,
with u.s. The so-called reputation of
an unconstitutional obligation is a con-
tradiction in terms, and its assertion
amounts simply to a moral and legal
absurdity.
1T is just as wrong to wiring from
an unwilling and perhaps a suffering
debtor an unjust debt as it is to de-
prive a creditor of a just debt We will
try to do neither, but will hew to the
line. The strictly moral aspect of the
case is not before us, but it is possible
that the plaintiffs, representing an hon
est industrious and intelligent people
may have reasons for their action as
strong in morals as in law"
Opinions were handed down yester-
day as follows:
Commissioners VS.. Call, from Wilkes,
affirmed.
Best VS.. Hardy. from Greene, reversed.
Granger VS.. Lindsay, from Greene,
reversed.
Meares, receiver, VS.. Duncan, from
Carteret, error.
Hill VS.. Jones, from Lenoir, affirmed
State VS.. Bland, from Pender, no
error.
Strother vs. Railroad, from Guilford,
error.
Baird vs. Winstead, from Person, no
error.
Perkins vs. Thompson, from Orange,
new trial.
Watkins VS.. Williams, from Chatham. |
affirmed.
State VS.. Whitley, appeal by Williams,
prosecutor no error.
Ellis VS.. Hampton, from Durham,
new trial.
Pully VS.. Pass, from Person, new
trial.
Hobbs VS. Hobbs, from Sampson, mo- |
ton to docket and dismiss defendants
appeal allowed
Mallard VS.. Carr from Duplin. motion
to docket and dismiss defendants APP |
peal allowed.
Mallard VS.. Carr, from Duplin mo-
ton to docket and dismiss defendants |
appeal allowed.
Walker VS.. Mercer, from New Han
over, affirmed by per curtain order.
Jordan VS.. Furnace CO., from Gull |
ford, affirmed by per curtain order.
Cases from the Seventh district ar |
gued on yesterday were as follows:
Smith VS.. Smith, by Buxton and Sin
clair for plaintiff. Ray for defendant
Kelley VS.. Maness, by Douglass for
defendant.
Slocumb VS.. Ray, by Cook for plain
tiff, Ray for defendant.
Pearre VS.. Folb, by Robinson Buxton, |
MacRae and Day, Bryan and s. III. Mac
Rae for plaintiff: Rose, Cook and Broad |
foot for defendant.
Bear VS.. Commissioners, by Bellamy