Jones v. Commissioners.

Walker, J.,

dissenting. When this case was before us at a former term, my conclusion, after a most careful investigation of the questions involved and a special consideration of the statute under which the plaintiff claims the right to a mandamus, was that the Legislature did not intend by that act to compel the commissioners to issue the bonds, but only to invest them with the power and authority to do so, if in *611 tbe exercise of their judgment and discretion they thought it best for the public interests. A further consideration of the case leads me to think that the conclusion then reached by me was correct. If it were not for the great respect entertained by me for the opinion of my brethren, I would say that the act admits of no other construction. Let it be conceded, for the sake of the argument, and it may be a perfectly correct proposition, that the Legislature has the undoubted power to compel the commissioners to issue bonds for the purposes mentioned in the statute, and let it be further granted that where power' is given to public officers in language directory, permissive or enabling, the courts will construe it to be in effect peremptory, whenever the public interest or individual rights call for the exercise of the power, and we are still far from proving that the act under consideration is mandatory in its terms. The first of the two propositions I will not discuss, as I do not deem it at all necessary for a decision of this case. When the act is correctly interpreted, we are able to decide the case before having reached that question in the proper order of discussion. It is only necessary to inquire whether the Legislature has the power to command, when we find that it has undertaken to exercise that power. As to the second proposition, it is a general rule that words in form permissive will be construed as mandatory when they are used to confer power or authority, the exercise of which is important for the protection of public or private rights, or for the advancement of justice. This is the general rule, but it does not mean that the words are to be so construed if a contrary intention appears, nor does it abrogate, or even impair, the force of the rule of construction that the entire statute must be considered in ascertaining the intent, and that the intent as thus expressed in the context must control in determining the meaning of the act. Justice Story says for the Court in *612 Minor v. Bank, 1 Peters (U. S.), 46-64: “Tbe argument of tbe defendants is that ‘may’ in tbis section means ‘must’; and reliance is placed upon a well known rule in tbe construction of public statutes, where tbe word ‘may’ is often construed as imperative. Without, question, such a construction is proper in all cases where tbe Legislature mean to impose a positive and absolute duty, and not merely to give a discretionary power. But no general rule can be laid down upon tbis subject, further than that that proposition ought to be adopted in tbis, as in other cases, which carries into effect the true intent and object of the Legislature in the enactment. The ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the provisions.” Here, is a clear declaration by a Court of the highest authority that the principle contended for has its limitations and has never become crys-talized into a hard and fast rule to be applied inexorably, notwithstanding it may defeat the real intention of the Legislature. In my former (concurring) opinion, I reviewed the provisions of the act for the purpose of showing that the Legislature, by the use of the words “are hereby authorized and empowered to issue coupon bonds,” intended that they should have their admitted primary and ordinary meaning, leaving the whole matter to the judgment and discretion of the commissioners, and there is good reason for this construction, as the Legislature did not wish to interfere with the administration of local affairs and as there is nothing in the case which tends to show that it was thought the commissioners would not exercise their judgment and discretion honestly and in accordance with their true convictions as to the best interests and requirements of their county, and that coercive measures were therefore necessary to compel them to act in a particular way. If the Legislature did not think so at the time, and as far as appears it had no reason so to think, the *613 mere fact that the county was burdened with a large indebtedness would be no more reason for compelling the commissioners to issue bonds than for authorizing them to exercise their discretion in doing so. To the county commissioners, says this Court in Brodnax v. Groom, 64 N. C., 244 , and Cromartie v. Commissioners, 87 N. C., 134 , is confided “the trust of regulating all county affairs.” It is not to be supposed that the Legislature, if it has a supervising and controlling power, will interfere with the local administration, unless there has been a wilful refusal to act on the part of the commissioners.. Such antagonism would be unnecessary and, as Chief Justice Pearson says in Brodnax v. Groom, such exercise of power would be well-nigh despotic. The commissioners having special knowledge .of the facts and being perfectly familiar with the condition of county affairs, are presumed to be more competent to judge correctly as to the expediency of issuing bonds than the Legislature, at least so apparently thought this Court in Brodnax v. Groom; and we should not infer that the Legislature intended gratuitously to force them to act. While it is manifestly right and .proper that the local authorities should have the power to refund the bonded indebtedness of the county, the usual method of satisfying such debts is by taxation, and this was known or should have been known, by the creditors when they bought the bonds. They are not therefore entitled as of right to have new bonds issued and exchanged for those now held by them no more than a creditor has the right to compel his debtor, who is an individual, to renew his note or other evidence of indebtedness. It is a mere matter of favor to be granted or not as the debtor may determine. In the case of a county it should not be compelled to do so, unless an extreme case is presented for the exercise of the paramount and controlling power of the Legislature, and we should not presume that the Legislature intended to exert its *614 power in suck a way unless that intention clearly appears. The issue of these bonds will virtually prevent the county from paying its indebtedness for many years, even though it may be abundantly able to do so long before their maturity. This, to be sure, will benefit the bondholders, but may prove very detrimental to the county, and surely her people should at least be consulted before any such action is taken.

But I think that the statute, on its face, shows that the Legislature did not intend to act so inconsiderately in this matter and to force an issue of bonds regardless of the wishes of the people of the county or of the local authorities. It uses words implying permission to issue the bonds and not words of .command. The suggestion is made that after the commissioners are thus authorized to issue the bonds, all other duties necessary to be performed for the purpose of executing its order .are enjoined in peremptory words and this shows that the duty to issue the bonds was intended to be mandatory. To my mind, this is a most cogent reason for construing the words, of the act as merely conferring a discretionary power. If the board has a discretion and orders the bonds to be issued, all other duties to be performed, such as auditing, preparing the bonds, keeping .an account, paying interest, etc., would be ministerial and absolutely required-in the execution of the order of the boar<j, and therefore mandatory in their nature. When the Legislature intended to confer a discretionary power, it used language fit for that purpose, but when it directed the performance of duties which were necessarily mandatory, because the order of the board could not otherwise be made effectual, it changed the form of expression so as to adapt it to the nature of the duties thus required. It was careful to fit the language to the nature of the authority given or the duty enjoined, so that its intention might not be misunderstood. The act means no more than this, that if the board shall decide to issue the *615 bonds, then tbe other officers shall perform the duties specified. If those duties had been made discretionary instead of compulsory, the decision of the board could be nullified by a refusal to perform them. I think I am sustained in the views so far expressed by the case of Staples v. Bridgeport, 75 Conn., 509 , in which a question similar to the one in this case is discussed. That the authority to issue the bonds was merely permissive, is further conclusively shown by the use in section 19 of the words “if the bonds authorized by this act are issued.” This implies without doubt that the commissioners might not see fit, in the exercise of their discretion, to issue them. It seems to me that it can mean nothing else. It is suggested that these words refer to the inability of the commissioners to sell or exchange the bonds under the provisions of sections 10 and 11 of the act. But by force of the very words employed, the reference is to the authority to issue and not to the sale or exchange of the bonds. If the latter had been intended, how easy it would have been to have said so. The language in such a case would have been “if the bonds authorized cannot be sold or exchanged.” Again, the act provides (section 10) that the bonds, “ydien issued,” shall be placed in the hands of the treasurer of the county to be sold, so that by the terms of the .act, it cannot be determined whether the bonds will bring their par value or not until they are issued, and the same may be said in regard to the exchange of the bonds. It is clearly contemplated that the issue of the bonds shall precede any attempt to sell them, as they must be placed in the hands of the treasurer for the purpose of being sold. Until he has tried the market it cannot be known what the result will be. It .may be further said, in this connection, that the treasurer is not only directed to sell the bonds but the commissioners are required by the act (section 10) to apply the proceeds of sale to the payment, not only of the old bonds (if they cannot be exchanged for *616 new ones), but to tbe discharge of all debts contracted for necessary expenses prior to January, 1903, which is a very large part of the total indebtedness, so that the bonds would have to be issued for the latter purpose anyhow, and the reasoning of the Court so far as it applies to .a possible failure to exchange the bonds or to sell them, at par must lose its force. All this but shows the clear intention of the Legislature by the use of the words in section 19, “if the bonds authorized by this act are issued,” to imply that the commissioners for some reason satisfactory to themselves might decide not to issue the bonds.

It is argued that the commissioners having, at the meeting on April 20, ordered the bonds to be issued, could not revoke that order by the resolution passed in May. If this be a correct proposition, it is strange indeed that the decision is not rested upon that ground, as it would effectually dispose of the case without an elaborate discussion of the other and more serious questions. But it is not correct in law. In Staples v. Bridgeport, supra, the precise question was raised and decided contrary to the present contention. It was there held that although the local authorities had voted to issue bonds, it could rescind its action before substantially anything was done or any bonds issued under its vote. If it had appeared in this case, and it does not, that any one has acted to his prejudice upon the vote of the commissioners to issue the bonds, we could only hold that it was his folly so to act when the whole matter was in fieri and subject to be revoked. The whole argument presupposes that the order of the commissioners was revocable and, if it was, those who may have relied upon it, knowing of its revocable character, surely cannot complain if the commissioners afterwards exercised their undoubted right to rescind their resolution. They acted with their eyes open and if they have suffered any loss it is the result of their own folly.

*617 Believing that the terms of the act are not mandatory and were not intended to be, I must dissent from the conclusion of the Court.