The opinion
Ftjkches, J.,
dissenting: On the 9th of March, 1868, the Constitutional Convention of North Carolina passed an ordinance, chartering and authorizing the formation of a corporation, to be known as the “North-Western *328 North Carolina Railroad Company.” Under this charter said company was formed and organized, and on the 25th of March, 1868, the county of Forsyth subscribed $100,000 to said corporation, which subscription was held to be valid in Hill v. Commissioners, 67 N. C., 367 . In payment of this subscription the County of Forsyth issued coupon bonds to the amount of $100,000 and they were held to be valid against the county in Belo v. Commissioners, 76 N. C., 489 , and the-work of constructing said road between Greensboro in the county of Guilford and Winston in rhe county of Forsyth, was commenced; ' This part of the road was completed and put into operation within the next few years and has continued to be run and operated ever since.
This charter made Winston a point to which the road should run, west of its starting point on the North Carolina Railroad. From this point (Winston) it was authoi’ized to build branch roads, but none were built until 1887, when the company proposed to build a branch of its road from Winston to or near Wilkesboro in Wilkes County, provided Wilkes County would make a subscription of $100,000 to the capital stock of said company.
This proposition to subscribe $100,000 to the capital stock was submitted to the qualified voters of said county, by the commissioners thereof, the vote taken, a majority of the whole qualified voters of said county voted for the subscription. The subscription was made and the road built to Wilkesboro in compliance with the agreement of the.railroad company and the bonds now asked to be declared invalid were issued by the county, delivered to the railroad company and the interest thereon regularly paid until the commencement of this action. All these facts are shown’ by the record *329 and are admitted to be true. But there having been a change in the personnel of the board of commissioners since said bonds were issued and since said road- was built, this new board is seeking in this action to repudiate the action of the. former board.
I understand the Court to rest its opinion on two grounds — the want of power in .the commissioners to. submit the proposition, to the voters and to issue the bonds; and the doctrine of estoppel. If there is error in these positions, I shall contend that the conclusion to which the Court has arrived is erroneous and should be reversed.
I admit that if the commissioners had no legislative authority to submit the proposition of subscription to the voters of Wilkes, that these bonds are void and the judgment of the court is correct. But I propose to show that they had this authority and that the bonds are valid.
The charter (the ordinance of the convention) in ex•press terms makes the charter' of the Atlantic & North Carolina Railroad Company a part of the charter of the North Western North Carolina Railroad Company, so far as it relates to the subscription of- counties to the capital stock of the company. This being so the charter of the Atlantic and North Carolina Railroad Company is-to be read and considered as a part of the charter of the Northwestern North Carolina Railroad Company. Range Co. v. Carver, 118 N. C., 328 ; Commissioners v. Higginsbothern, 17 Kansas, 62. It is like an instrument referring to another instrument, Flaum v. Wallace, 103 N. C., 296 , or where the complaint in one action refers to the complaint in another action for data, Alexander v. Norwood, 118 N. C., 381 , they are to be read and considered together as one instrument.
*330 I have shown that the subscription made to this company (the North-Western North Carolina Railroad Company) by the County of Forsyth, under the charter as originally passed, has’ been sustained, and held to be valid by this court in Hill v. Commissioners, supra.
This decision established the' power — the authority- — - to submit the proposition of subscription to the voters of the county and to issue bonds. But the validity of the bonds issued on this subscription of Folsyth was again put directly in issue in the case of Belo v. Commissioners of Forsyth, in a mandamus proceeding, ’ to compel their payment and their legality was again sustained by this Court. Belo v. Commissioners, 76 N. C., 489 . This case, also, as I contend, established the authority to submit the question to the voters, and to issue these bonds.
It is true that the submission’ of this question in For-syth was made by the Justices of the Peace, acting as a county coui t. And it is true that the charter provides that the question should be submitted by them. But this charter was passed and this submission was made and bonds issued, before the adoption of the Constitution of 1868, which did not go into effect until the 22nd of April of that year. By this Constitution and subsequent legislation, the county court was abolished and the county commissioners succeeded.to their powers in this matter and in all such cases. It is so held by this Court in Belo v. Commissioners, supra, and it is expressly so provided by the Legislature. Section 1997 of The Code.
Therefore, while the submission of the question in Wilkes was by the commissioners, they were the successors of the Justices and the county court, fully and *331 clearly authorized to make the submission and the subscription and to issue the bonds.
But it is contended by the Court that if the charter authorized this subscription and the issue of the bonds now sought to be repudiated, that it was passed before the Constitution of 1868 went into effect and that it was thereby repealed. To support this position Aspinwall v. Commissioners of Davies County, 22 Howard, 364 and Lewis v. Pina County, 155 U. S., 54 , are cited by the Court. Neither of these cases, in my opinion, sustain the position for which they are cited. The first case cited (22 Howard) is intended to raise the question of violating a contract under the Constitution of the United States, and nothing more. The submission in that case was made, and the vote thereon was had in 1849, but the subscription to the capital stock was not made, and the bonds were not issued until 1852. In the meantime the Constitution of the State (Indiana) had been amended so as to prohibit any county in the State from issuing such bonds. But Davies County proceeded to issue the bonds under said submission and vote and to put them on the market, but afterwards refused to pay them; and the plaintiff, being the holder of a part of these bonds,- undertook to enforce their payment. There was no question made in that case but what the Constitution had inhibited their issue. But the plaintiff claimed that the submission and the vote thereon, which were before the amended Constitution, amounted to a contract; and that the new Constitution, which prohibited the county from issuing the bonds, was an impairment of the obligation of this contract and therefore in violation of the Constitution of the United States. No such question as this arises in this case. There is no pretense that these bonds are *332 protected by any provision of the Constitution of the United States.
But it is denied by the defendants that the Constitution of 1868 repealed the charter of this road, or that it ' prohibited Wilkes county from making this subscription or issuing these bonds, as I expect to show.
The case of Lewis v. Pina County arose out of the legislation of Arizona Territory. The Legislature of this territory passed an act authorizing Pina County to* issue bonds for the construction of a railroad. This being a territorial government, it had no legislative powers except those granted by Congress. And it was held in that case, that Congress had not only failed to grant such legislative power, but had in express terms prohibited its exercise, and the bonds were held to be void. I fail to see the argument to be drawn from this case against the validity of the bonds under consideration. As has been stated, the charter of the NorthWestern North Carolina Railroad was passed before the adoption of the Constitution of 1868, which'took effect on the 22nd of April of that year. But the Legislature passed an act, ratified on the 11th of August, 1868, as follows:
“Section 1. The General Assembly of North Carolina do enact: That an ordinance entitled 'An ordinance to incorporate the North-Western North Carolina Railroad Company’, ratified the 9th day of March, A. D. 1868, be and the same is hereby, re-enacted, ratified and confirmed.”
If there had been a repeal of this charter by. the Constitution, which I contend there had not been, it seems to have been re-enacted in August, 1868.
It has not escaped my attention that there is in the printed record an agreement as to what Acts are to be *333 considered by the Court in deciding this case, and the Act of 1868 is not one of those named. This agreement is signed by the counsel for plaintiffs and by counsel for Mr. Turner, and Mr. Welborne, but it is not signed by any one for the defendant Call. But if it had been signed by Call, I would have to disregard it. Parties may agree upon facts that I would feel bound by; but I cannot feel bound by an agreement as to what is the law. I refer to this Act of 1868 for the purpose of meeting an argument in the opinion of the Court, and not for the reason that I consider it necessary to sustain the position I have taken, as to the authority of the Commissioners of Wilkes County to submit this question to the voters, and to subscribe the stock, and to issue the bonds.
The charter provides for submitting the question to a vote of the people in almost, if not the language of the Constitution of 1868, with the single exception, that it shall be sufficient if a majority of the qualified voters “voting thereon shall be in favor of the subscription.” To this extent, and no further, did the Constitution of 1868 conflict with the provisions of this charter; and this was cured by Section 1997 of The Code, which was admitted to have been passed as the Constitution requires, and which provides that it shall take a majority of the qualified voters of the county to authorize the subscription, as was done in this case. Suppose that Section 1997 of The Code had been passed by the Legislature, as an amendment to this charter, with all the formalities -and requirements of the Constitution: would it be contended that the submission was without legislative authority and that these bonds were void ? And if not, why is it that a general law, applying to all cases of submission, has not the same effect ?
*334 The next ground upon which the court rests its opinion is that of estoppel. This ground of alleged invalidity to the bonds arises in this way : the Legislature at its February session (1879) attempted to pass, and did pass an Act providing for the extension of the NorthWestern North Carolina Railroad from Winston to Wilkesboro, for the subscription of counties to its capital stock, and the issue of bonds. But it is claimed by the plaintiff, and such appears to be the fact, that this Act did not receive the three several readings, on three several days, with a call of the yeas and noes, as provided by the Constitution; and for that reason, that the said Act is void under Bank v. Commissioners, 119 N. C., 214 , and Commissioners v. Snuggs, 121 N. C., 400. But the Commissioners, when' they issued these bonds, did not know that this Act was unconstitutional and void, and they recited in the bonds that they were issued under the Act of 1879. This Act does not purport to be an original Act, but it is stated in the Act itself that it is an amendment to the ordinance of the Convention chartering said road. So that any one seeing these bonds would be led by the statements therein to know that they depended upon authority derived from the original charter, that is, the ordinance of the Conven- ' tion of 1868. And it is claimed in the opinion of the court, that this recital in the bonds, put there by the plaintiffs, estops the holders and those representing them from showing any other authority in the commissioners, except the Act of the 20th of February, 1879, and that Act being void for the reasons heretofore stated, the Commissioners had no power to issue the bonds. I admit that this Act is a nullity and cannot benefit the bondholders; and as it is void and can do them no good, it can do them no harm.
*335 The court therefore upon this recital in the bonds, that they were issued under the Act of February 20, 1879, again rests its judgment upon the doctrine of estoppel, and holds that the bondholders and the defendants in this action are estopped to show that the commissioners had any other authority except the said Act of 1879.
With the greatest respect and deference to the opinion of the court, it seems to me that the doctrine of estoppel is not only misapplied, but that its use and purpose are misconceived in this application by the court. Estop-pels are as to facts, and not of law. In such transactions as this, they are made to apply to a party stating the facts, and not to the party to whom they are stated. This seems to me to be elementary learning. But see Bigelow on Estoppel, pages 4, 5, 6 and 7, and 356 and note 1. “It is not the deed of the defendant but of Isham (the grantor) only, by whom alone it is executed ; and not being the deed of the defendant, it cannot as a deed estop him from denying that the grantor had title.” And the same principle is held in the case of Northern Bank v. Porter Township, 110 U. S., 608 , near the end of the -opinion (cited by the court). In that case the bondholder was trying to estop the maker, by holding him to the statements in the bond. And the court says that the maker is estopped by the recital of such facts as it was supposed to have special knowledge of — such as that there had been a submission to a vote, and that a majority of the qualified voters voted for the bonds. But it was held that the defendant (the maker) was not estopped to show the law — to show that the township had no legal authority to make the subscription and to issue the bonds. If the maker of the bonds was not estopped by the recitals in the bond from showing the *336 ■want of legal authority to make the bonds, what rule of law or justice is there to estop the defendants, in this case, from showing that the commissioners of Wilkes County had the power — legal authority to issue these bonds ?
It is said in the opinion of the court that ‘ ‘estoppels are mutual” and as the plaintiff would be estopped by the recitals that the defendant must be. This rule obtains in many instances,, but I deny its application in this case, as I have shown above from Bigelow on Estop-pel and from Northern Bank v. Porter Township. But were I to admit the rule to be, that where one party is estopped, the other party is also, what would be the result of the reasoning of the court, when I have shown that the maker would not be estopped to show the want of power ?
The court in its opinion says that certain positions were strenuously insisted on by the defendant. I think this must be a mistake, as the'case was not argued before us, either by brief or by oral argument, on behalf of the defendants. Mr. Turner and Mr. Welborn, by leave of court made themselves parties defendant after the action was brought, but they have given the case no further attention. Why they did this I do not know. The case appears to be a controversy so far as parties are concerned, for there are plaintiffs and there are defendants. But as to the conduct of the case before this Court is concerned, it has been unilateral. The opinion of the court speaks of the re-organization of the railroad company, thereby defrauding some one out of his stock. The record furnishes no evidence of any reorganization of the railroad company. It is stated in the opinion of the court that the Supreme Court of the United States is the only court authorized to review this opinion. I *337 agree with the court in this expression of opinion, but I have no idea that it will ever be reviewed by that court, as the case is decided in favor of plaintiffs, and the defendants have not taken interest enough in it to be represented by counsel, and it is not likely they will appeal.
It is said that the talk of repudiation has had no effect on the court, and I have no idea, that it has. And I hope that my aversion to repudiation has had no influence on me in coming to the conclusions I have reached.
My opinion is that the bonds are valid and that their payment should be enforced by the courts. ..