recognizing use of generally permissive terms in a statute “will be construed as mandatory, and the execution of the power may be insisted upon as a duty” where it “provides for the doing of some act which is required by justice or public duty, as where it invests a public body, municipality, or officer with power and authority to take some action which concerns the public interests or the rights of individuals” and referencing cases “in which the term ‘may’ and ‘authorized and empowered’ and ‘authorized’ are respectively held to be imperative”
How later courts described this case
- recognizing use of generally permissive terms in a statute “will be construed as mandatory, and the execution of the power may be insisted upon as a duty” where it “provides for the doing of some act which is required by justice or public duty, as where it invests a public body, municipality, or officer with power and authority to take some action which concerns the public interests or the rights of individuals” and referencing cases “in which the term ‘may’ and ‘authorized and empowered’ and ‘authorized’ are respectively held to be imperative”
- "In the exercise of ordinary governmental functions, [counties] are simply agencies of the state, constituted for the convenience of local administration in certain portions of the state’s territory; and, in the exercise of such functions, they are subject to almost unlimited legislative control, except where this power is restricted by constitutional provisions.”
Written by the judges who cited it.
The opinion
Brown, J.,
concurring. I desire to express a few words of approval of the forcible opinion written by Justice Hoke on behalf of a majority of the Court upon the rehearing of this case. My attention was first drawn to its importance by the exhaustive, and to my mind conclusive, dissenting opinion of Justice Connor in Bank v. Commissioners, involving the same questions, 135 N. C., 230 . After giving the case that careful thought which its importance demands, I fully concur in the reasoning and conclusions of the opinion of the Court.
I will briefly notice one matter not touched upon. By sections I and 8 of the Act of 1903, a special board of audit was created with power to adjudicate and report the amount and status of the indebtedness of the county to be discharged and funded in accordance with the financial scheme, set out in the act, with power to adjust the same on an equitable basis. The findings embodied in the report of the board were made conclusive on the county, and prima facie correct and competent in any court of justicé in the State. This board duly advertised for creditors as required by the act, and duly passed upon, audited and adjudicated the indebtedness of the county and reported the same to the board of *602 commissioners. The record discloses the fact that the board of commissioners met in session on April 20 and passed a resolution directing the issue of the bonds, in manner and form as provided in the act. Notice was fully advertised requiring all creditors to present their claim before the board of audit, which was evidently done. The board of commissioners adjourned and terminated their' meeting of April 20 and met no more, so far as the record discloses, until the regular meeting on the first Monday in May. At this May meeting the board of commissioners attempted to revoke the order of April 20, and directed that no bonds be issued under the act.
I am of opinion that, if the defendants had any discretionary power under the act, they exercised it once for all on April 20, when they directed the issuance of the bonds. If the statute was dependent upon the contingency of their approval, the commissioners of the county gave it force and vitality by their resolution of April 20, and that they could not at their subsequent meeting lawfully revoke it.
When the board adjourned their special session sine die on April 20, the rights of creditors at once attached under the act, and at their regular meeting in May the commissioners could not lawfully destroy those rights.
A very material enhancement in value was imparted to the bonds and script of the county by the action of the defendants on April 20. This indebtedness is doubtless of a negotiable character in form, and that its purchase and sale were thereby greatly accelerated, I do not doubt. It is possible, nay probable, some of it between April 20 and the May meeting found its way for value into the hands of innocent purchasers, who had a right to rely upon the stability of the solemn act of the commissioners. They cannot order a debt paid at one meeting, revoke it at the next meeting, re-order it paid at a succeeding meeting, and so on.
*603 Tbe board of commissioners, as tbe trustees and guardian of the county, cannot be permitted to play “fast and loose” with tbe rig'bts of creditors whose obligations are admitted to be just, as well as tbe true interests of tbe citizens and tax-payers, who naturally desire to see the credit of their county maintained untarnished.
Municipalities are no more justified in neglecting their honorable obligations Avhen the means are at hand provided by law for their .adjustmjent than are private individuals, who contract honest debts and have the property with which to pay them. The General Assembly evidently thinking so, has given the defendants ample means necessary to settle and adjust the indebtedness of their county. It has provided a wise and beneficent financial scheme whereby it can be done without great stress of taxation. It is the duty of the defendants to avail themselves of such means, and to carry out cheerfully and in good faith the will of the lawmaking power.
I am not at all alarmed at pessimistic predictions or filled with fearful forebodings as to the consequences which may flow from this decision. It is but a proper recognition of the legitimate power of the General Assembly to compel counties to live up to their legal contracts and to pay their honest and undisputed debts. It will have a very salutary effect upon the action of boards of commissioners and teach them to be economical and careful as to how they spend “other people’s money.” Besides, such legislation is carefully safeguarded by the Constitution of the State. Those wise provisions, which prevent hasty legislation upon such subjects and require a recorded vote, have been steadfastly upheld by this Court.
I am of opinion that the petition to rehear should be allowed and that the writ of mandamus should issue as prayed for.