The opinion
Furches, C. J.,
dissenting. The purpose of this action is to perpetually enjoin the enforcement and collection of $25,000 in bonds, issued by the township of Murfreesboro, in aid of the construction of a railroad in said township. The action is not only to enjoin the payment of the outstanding bonds and coupons, not yet sued on, but also to enjoin the collection of two judgments recovered in the U. S. Circuit Court for the Eastern District of North Carolina on a part of said coupons, which judgments have not been paid. The judgment of the Court below sustained the prayer of the plaintiff, and granted the injunction, including the judgments of the U. S. Court, as well as the outstanding bonds and coupons. And the opinion of this Court affirms the judgment of the Court below. I dissent from that part of the opinion which enjoins the enforcement and collection of the two judgments mentioned.
This' opinion coming in during tbe last days of tbe Court, I have not the time to discuss tbe grounds of my objection, and will have to content myself with a simple statement of tbe same.
The action presents a rather strange state of facts. A man by tbe name of Brown, who sued for himself and all other taxpayers (as the. present plaintiff does), before tbe bonds were issued, in wbicb be insisted that tbe Commissioners had not tbe right to issue said bonds, and it was so held in the *686 Court below. But the Commissioners appealed to this Court (Brown v. Commissioners, 100 N. C., 92 ), and this Court reversed the judgment of the Court below, holding that the Commissioners had the right to issue the bonds, and they were issued. After they were issued and sold, and the defendants' got the money for them, the plaintiff, another taxpayer, brings this action to enjoin their collection, and the defendants demurred to the plaintiff’s complaint, and made no defence in this Court by brief or argument.
I do not think the act, intended to authorize the issue of these bonds, was passed according to the constitutional requirement, for the reasons given and the authorities cited in the opinion of the Court; though I do not think the case of Bank v. Commissioners, 119 N. C., 214 ; 34 L. R. A., 487, cited in the opinion of the Court, is authority for that position. That case came to this Court by appeal, in which a new trial was given the plaintiff; and on the second trial the constitutional question was presented. There, had been no final judgment, and the same case was still pending in the same Court. But there are many other authorities cited in the opinion of the Court which do sustain that position. Neither do I think the action of Brown, in which it was decided that the Commissioners had the right to issue the bonds, is an estoppel upon the plaintiff in this action, for two reasons: The first is, that the constitutionality of the act of the Legislature, intended to authorize their issue, is not presented and passed upon in that action, and for that reason the plaintiff is not estopped — it is not res judicata. The authorities sustaining this position are collected and cited in the opinion of the Court. And he is not estopped for the further reason that the facts upon which the judgment of the Court was based, in the case of Brown v. Commissioners, were agreed facts, which could only bind the parties agreeing to them. Black v. Commissioners, 129 N. C., 121 . But besides this general rule as to agreed *687 facts, it was expressly agreed in tbat case they should not be binding on any one, as follows: “None of the admissions herein contained are in anywise to affect either party, or to be regarded as made, except for the pnrpos'e of the submission of this controversy.” Taking this special agreement in connection with the general rule that agreed facts shall not constitute an estoppel, I can not do-ubt the correctness of the view taken in the opinion of the Court, that the suit of Brown is not an estoppel.
But as to the judgments of the Circuit Court of the United States (and I place no stress upon the fact that they are judgments of a Federal Court), I differ from the opinion of the Court. The repealing act of the Legislature of 1895, that plaintiff claims abolished the Murfreesboro Township, was pleaded in the Federal Court and expressly passed upon by the following issue and response of the jury: “Has Murfreesboro Township been abolished ? Ans.: The corporation has been, but the right to tax the territory exists.” And another issue submitted is as follows: “Were the bonds legally issued and delivered ? Ans.: Issued prematurely; but it does not affect plaintiff.” So it would seem that both these questions’ have been submitted and passed upon, though the opinion of the Court,seems to lay stress upon the fact that neither of these questions had been passed upon. And thereupon it bases an argument in which it is contended that there is no estoppel. The Court contends that because the Act of 1887, upon which the Commissioners undertook to issue these bonds, was unconstitutional for that purpose, it is void for all purposes. I thought it was. general learning that this was not so, and it was so expressly held by this Court in the case of Rodman v. Commissioners, 122 N. C., 39 . There, the Legislature had created a public school district, in which it had provided for levying a special tax to support the school. But, like the act under consideration, the ayes and nays were *688 not recorded as the Constitution requires they should be, to authorize the levy of the special tax. And this Court held the act was constitutional as to the establishment of the school district, but unconstitutional so far as it undertook to authorize the levy of a special tax to support the school.
But if there was service on the defendants, the Court had jurisdiction both of the defendants and of the subject matter, and the judgments were regular and can not be attacked in this collateral way. Harrison v. Hargrove, 120 N. C., 96 ; 58 Am. St. Rep., 781 . In that case, it was held that where the Court found as a fact that service had been made, the judgment could not be collaterally attacked. And in the first action upon which the judgment in the Federal Court was taken, the defendants appeared and put in an answer; and in the others, where the defendants did not appear, the Court found as a fact and adjudged that the defendants had been duly served with process. And, as I understand the Court, the only ground upon which it puts its opinion that the defendants had not been properly served, is, that the Act of 1895 abolished the township. But that question was raised by the answer, submitted to the jury by the Court, and found against the defendants, upon which finding judgment was given against the defendants, and they did not appeal; and it seems to me that should be the end of that matter.
The three pages of the opinion seem to be devoted to a general discussion of the subject of repudiation. And the Court, before it commences this discussion, says it might close, but so much had been said about the decisions of this Court repudiating obligations, it proceeds to moralize upon the subject of repudiation. But it seems to me that these three pages were really intended as an illumination to enable the Court to escape from the darkness produced by the moral, if not legal, repudiation of an honest debt.
*689 I do not concur in tbe opinion of tbe Court as to enjoining tbe judgments mentioned above.
Tbis was written as a dissenting opinion to tbe opinion of tbe Court as it was originally written.