¶1On opening the case, the counsel of the plaintiff proved on principle and by authority, that the jurisdiction against irreparable injury is applicable; under the ■ doctrine, that where there is a right common to many, or an injury that would be common to many, a bill will lie in the name of one, in behalf of himself and others, to have the right established, or the injury prevented; on the ground of *150avoiding multiplicity of suits; and brought this case within-the rule,' by the allegation that the plaintiff was a tax-payer..
¶2The counsel of the defendants admitted the application of this doctrine, and stated they were instructed not to raise the; objection; for if the. General Assembly had power to issue these bonds, their clients had a deep interest in having their-validity established; so as to enhance the value of the bonds, before they were put in market; and, if the Legislature had no power to issue the bonds, it was a matter of concern to» every citizen of the State, that the question should be settled, at the outset, so as to avoid the complication, that would grow out of the ideas of vested rights of repudiation, and the obligation of contracts, should these bonds be put in the market, with a cloud over them.
¶3We fully concur in this suggestion. It is better for all sides; to have the matter settled now and here; and we were gratified to find that the Court has jurisdiction, and can determine the question in the mode in which it is presented by this bill. Manly v. City of Raleigh, 4 Jones, Eq. 370. Mott v. Pennsylvania, 30 Penn. Reports 39.
¶4By the Act of August 1868, chapter 14th, the General Assembly enacts, sec. 1, “ that to enable the Chatham Rail Road Company to finish their Road, the Public Treasurer be directed to deliver to the Company coupon bonds of the State, not to exceed two millions of dollars.” Sec. 2: “In exchange for-said bonds, the Company is to deposit with the Public Treasurer bonds of the Company of the same amount, same interest,, and same dates.” This Act is of no significance, except to show a conviction on the part of the General Assembly, that, the public interest demanded the construction of this Road, and a wish to aid the Company in its construction, provided the General Assembly had power to do so, without a violation of the Constitution.
¶5The provisions of the statute under consideration, are expressed so plainly as to relieve the Court from the task of' construction. The tenor and effect of it is, that, to aid in constructing a Rail Road from Ckeraw to the Coalfields, the-*151State subscribes two millions of stock — and to pay for tbe stock, creates a debt of two millions of dollars, and directs* tbe bonds of tbe State to be banded to tbe President of tbe Company, upon tbe surrender of tbe bonds issued under tbe Act of August, 1868, and in tbe same bill, a special tax is levied to pay tbe interest annually.
¶6Under Art 5, Sec. 5, of tbe Constitution a question is made: ‘‘Has tbe General Assembly power to create this debt of two millions in aid of the Chatham Bail Boad Company, unless tbe subject be submitted to a direct vote of tbe people ? ”
¶7Tbe Section is in these words: “ Until tbe bonds of tbe State shall bo at par, the General Assembly shall have no power to contract any new debt or pecuniary obligation in behalf of tbe State, except to supply a casual deficit, or for suppressing invasion or insurrection, unless it shall in tbe same bill, levy a special tax to pay the interest annually. And the General Assembly shall have no power to give or lend tbe credit of tbe State, in aid of any person, association or corporation, except to aid in tbe completion of such Bail Boads as may be unfinished at tbe time of tbe adoption of this Constitution, or in which tbe State has a direct pecuniary interest, unless tbe subject be submitted to a direct vote of the people of tbe State, and be approved by a majority of those who» shall vote thereon.”
¶8Tbe statute under consideration complies with the first clause, and tbe question depends upon whether tbe two clauses of this Section are to be treated as being separate and independent of each other, or as being so connected as to mean: “ Until the bonds of the State shall be at par,” the General Assembly shall have no power to create any new debt or pecuniary obligation (except in two specified cases), unless a. special tax be levied in the same bill to pay the interest — and in addition to this restriction, although tbe interest of the' new debt is provided for, if the purpose be to aid any person, association or corporation, in respect to a Bail Boad, Navigation or other like object, the General Assembly shall have no power to give or lend the credit of the State, unless the sub*152'ject be submitted to a vote of the people (except in two specified cases.)
¶9The two clauses being in the same section, and connected by the conjunction “ and,” would naturally lead to the inference that they are to be taken in connection; and that the second is superadded to the first, with a view of making a further restriction upon the power of contracting a new debt or pecuniary obligation, in the cases covered by it. This inference is not conclusive; and leaves the question, in some -degree, open for the application of other rules of construction.
¶10The section under consideration is worded with much precision, and without the use of expletives; the terms are inten- . sified. In the first clause the two exceptions have the effect to make it read: “shall have no power to create any new • debt or pecuniary obligation whatever, except,” &c., — not even to build a Penitentiary, unless a special tax, &c. In the second . clause, the two exceptions have the effect to make it read: “ shall have no power to give or lend the credit of the State, ■iu any case whatever, except” &c., “unless the subject be submitted to a vote of the people; ” so, the intention to restrict the power of the General Assembly in regard to increasing •.the public debt in any mode or manner, is as strongly ^expressed as the English language can do it. In matters of construction, the Court is not to confine itself to the particular section; but is to consider the entire instrument, in order to find the general purpose, and the object arrived at.
¶11“To maintain the honor and good faith of the State untarnished, the public debt regularly contracted before and since the rebellion, shall be regarded as inviolable, and never to be questioned.” Art. 1, § 6.
¶12“No law shall be passed to raise money on the credit of the State, or to pledge the faith of the State, directly or indirectly, for the payment of any debt, <fcc., unless the bill is read three times on three different days, and unless the yeas and nays on the second and third readings of the bill shall have been entered on the Journal.” — Art. 2, § 16.
¶13“ The General Assembly shall, by appropriate legislation *153and by adequate taxation, provide for the prompt and regular payment of the interest on the public debt, and, after the year 1880, it shall lay a specific annual tax upon the real and personal property of the State, and the sum thus realized shall be set apart as a sinking fund, to be devoted to the payment of the public debt.” — Art. 5, § 4.
¶14Here, we have a declaration of a purpose to maintain the honor of the State, and pay off the public debt, — a rebuke of hasty legislation, in reference to raising money and pledging the faith of the State, — and an announcement that, although the debt is so large that it cannot be paid off for years, yet the interest must be paid promptly, and a sinking fund be provided for the discharge of the principal. This purpose could not be effected without putting a stop to the increase of the public debt, by restricting the power of the Legislature. Accordingly, that restriction is made by the next Section, which in effect forbids the General Assembly from creating any new debt whatever, “ except,” &c. without providing for the interest; and in respect to debts or pecuniary obligations ■contracted by giving or lending the credit of the State, in aid of any person, association, or corporation, that shall be done in no case whatever, “ except,” &c., unless the subject is submitted to a vote of the people; “ until the Bonds of the State .shall be at par.”
¶15But the Court is also required to look at the previous legislation, by which the evil, calling for these cumulative restrictions was caused, and this will furnish a key to the meaning, ■and open it so plainly to view, “ that he who runs may read.”
¶16The war debt has been put out of the way by a dash of the pen. It will be found, that most of the public debt was incurred in three modes: 1st, by subscribing for stock in Rail Road and navigation companies, and issuing bonds to pay for the stock, the State becoming a member of the corporation; this is the heaviest item, and amounts to, say eight millions of -dollars: 2nd, by issuing bonds of the State, and exchanging such bonds for a like amount of the bonds of the corporation, -the State not becoming a stockholder, and taking collateral *154security of more or less value; this is the next heaviest item,, and amounts to abount three millions of dollars: Bd. by endorsing the bonds of corporations and taking a mortgage or some-other collateral security; this item amounts to about two-millions.
¶17These are the three modes, by which, judging from the past,, it was apprehended the public debt might be so run up, as to ruin the credit of the State, and tarnish her honor, and her' reputation for good faith.
¶18Is the construction admissible, by which the Constitution is. supposed to guard against two of these sources of danger, and leave the public interest exposed to the other ? And that, the one most fruitful of evil! Would we impute wisdom to an individual, who having a field exposed on three sides, should carefully fence up two of the sides, and leave the other side-open ?
¶19Let us see, what word is relied on to justify this construction; for it rests on a single word. “ And the General Assembly shall have no power to give or lend the credit of the State,, in aid,” &c. It is the word “ give,” and the argument is: This was a regular business transaction — the State subscribes for stock and becomes a member of the corporation, and creates a debt by issuing its bonds to pay for the stock; true, the purpose was to aid the corporation in making a Road which will greatly benefit the State; but, this is in no sense giving the credit of the State; for the State receives a consideration, to wit: the stock; and to give, is to do an act gratuitously; to pass something for nothing. In construing an instrument, the¡ words must be taken in their ordinary meaning in connection with the purpose for which they are apparently used “ To give,” is sometimes used to convey the idea of a gratuity; but it has a much broader meaning. “ Give,” means to pass from? one to another, and the idea of its being done for or without a-, consideration is not involved. In old conveyances “ give and* grant” is used in place of dedi et concessi. I will give you my horse for yours ? What will you give me for my horse ?' What did you give for your house and lot ? I will give you a, *155thousand dollars for it — provided you will give me sis months credit.
¶20This is obviously the sense in which the word is used in the-section under consideration. For, besides the purpose which, as we have seen, the framers of the Constitution had in view,, it is used in connection with the word lend, which imports a gratuity, and is introduced, lest the word “ give” might be confined to cases where a consideration passed, and to cover the-whole ground; so as to show that the credit of the State was-not to be used in any way, either for a consideration or as a gratuity. The General Assembly shall have no power to give-the credit of the State to this corporation, by making a subscription for its stock, is one sense. The General Assembly shall have no power to give the credit of the State to this corporation by an exchange of bonds, is another .sense. The-General Assembly shall have no power to give the credit of the-State to this corporation by endorsing its bonds, is another-sense. And the section might have included this class, without the additional word “ lend.” But its being used, shows an extreme solicitude to cover every supposable case in which the-credit of the State might be used, whereby the public debt, would be increased.
¶21In the first clause of the Section, “ to contract any new debt,”' covers the whole ground, without the additional words “ or pecuniary obligation.” It is remarkable, that these two are the only instances in which the use of what might seem to be an expletive word is resorted to, showing an extreme anxiety that the intention to cover the whole ground should be plainly expressed.
¶22The suggestion, that the credit of the State was given by this statute to aid in the completion of an unfinished Bail Boad,. was not strongly urged on the argument, and, indeed, it could not be. An unfinished road is one that has been begun, and’ partly worked on, and such a road is made an exception, on the ground that it might be proper to finish it; in order to prevent a sacrifice oí the work that had been done. There is-no evidence that such was the fact in regard to this road.
¶23*156The other suggestion, that the State has a direct pecuniary interest in this road, was properly abandoned. The word has, is in the present tense; the exception, is obviously confined to roads in which the State had a direct pecuniary interest at the time of the adoption of the Constitution; otherwise the State might, by a subscription for stock, become directly interested in every Rail Road or Navigation scheme, that should thereafter be projected; and thus, the restrictions of the Constitution would be of no effect, whatever.
¶24Our opinion is, that the statute under consideration is void, and that the General Assembly had no power to pass it, without submitting the subject to a vote of the people.
¶25In making this decision, we are relieved in some measure, from our feeling of responsibility, by the fact, that if the public interest imperiously calls for the construction of this road, the Constitution provides that it may be done, if such be the will of the people.
¶26concurrente. The nature of this case has been so fully stated in the opinion of the Chief Justice, that I may • enter in medias res, without making any useless repetition. It was admitted by the counsel, who argued this case on both sides with unusual ability, that the plaintiff as a tax payer, was entitled to appear in Court and ask for the relief which he demanded, if he could make a case entitling him to it, and thus the case was properly in Court. I think these admissions were properly made, and shall enter into no discussion of that part of the case.
¶27The material question is, whether that part of an act of the General Assembly, ratified on the 18th of December, 1868, which relates to the Chatham Rail Road Company, (§§ 4, 5, 6,) taken in connection with the act of which it is amendatory, violates § 5 of art. 5, of the Constitution of the State, and transcends the constitutional power of the General Assembly.
¶28In any argument on this subject, it must be admitted that the power of the Legislature, over the subject, is supreme, ■unless restricted by the article of the Constitution cited. It *157must also be admitted, that the article of the Constitution, means something, that it was intended to operate as some restriction of the legislative power, and is not entirely a dead letter, and that it must have the full force which its. words fairly and reasonably import
¶29Section 5 is divided, by its subject, into two independent clauses, and might well have been put into two sections. The-first clause, (omitting the exceptions, which in this are immaterial,) says, until the bonds of the State shall be at par, the-General Assembly shall have no power to contract any new debt or pecuniary obligation in behalf of the State,” unless it shall, in the same bill, levy a special tax to pay the interest, annually. The requisition to levy a tax has been complied with in the act under consideration, and no question can arise-upon this clause.
¶30The second clause then begins. It is connected with the former clause by the conjunctive “ and,” but it imposes a new and independent additional restriction on the legislative-power. The effect of the word “ and ” is simply to say, as an additional restriction. The additional restriction is super-added in certain special cases to the former general one. In no case (omitting the exception) could the General Assembly contract a new debt without imposing a tax. But there is a class of cases in which the Legislature is forbidden to contract a new debt in behalf of the State, even if the State bonds are at par or a tax to pay the interest be imposed, without submitting to it a vote of the people. That class is provided for in the second clause of section 5 : “ And the General Assembly shall have no power to give or lend the credit of the State in aid of any person, association or corporation (except to aid in the-completion of such Rail Roads as may be unfinished at the time of the adoption of this Constitution, or in which the State has a direct pecuniary interest) unless the subject be submitted to a direct vote of the people of the State, and be approved by a majority of those who shall vote thereon.” For the purposes, of the present argument, the words in brackets may be omitted;, *158for it is true, or must be admitted, that the road provided for in the Act of 18th December, 1868, is neither an unfinished road nor one in which the State had, at the adoption of the Constitution, “ a direct pecuniary interest.”
¶31The Chatham Rail Road, between the termini and the route established by previous legislation, was an unfinished Road, in the legislative meaning of the phrase; but the Road which was to start from one of the termini of the Chatham Road, er from some point on it, and run thence to Cheraw, was a Road which was unfinished, in the sense that it had never been begun, but not in the sense contemplated by the Constitution, which meant only to include those roads which had been begun, but were unfinished at its adoption. We are obliged to give this meaning to that phrase in the Constitution, as any other construction would render it totally ineffective, and defeat any policy which it may be supposed it was intended to enforce.
¶32The question then is reduced to this, does the Act of Dec. 18th, 1868, “give or lend the credit of the State in aid ” of the Chatham Rail Road Company or any other person, association or corporation ? If it does, it is prohibited by the clause of the Constitution above cited, which this Court is bound to obey as the paramount law. The question being reduced to these brief dimensions, it seems to me, with all respect for my learned brothers who have come to a different conclusion, that the answer can scarcely be doubtful. Waiving all discussion as to the lexicographical or technical and legal meaning of the word give,” as to whether it includes a grant, both with and without valuable consideration, it seems to me to be clear, that the words “give or lend” were intended to include every mode in which the State could render its aid to a Rail Road Company by means of its credit. It would be scarcely respectful to the intelligence of the Convention of 1868, to suppose that they intended to forbid the Legislature from giving the credit of the State without consideration, and yet to allow them to do it on the consideration of a pepper corn, of a certain number of shares of stock of a purely *159nominal value. It is said that the Statute of uses, enacted with great care by the English Parliament, had no other effect than to add three words to a conveyance. That was because the Judges were determined to defeat the law. But we can «orne to the consideration of this question in no such spirit, and with no such purpose. Our duty is to give to the clause of the Constitution the effect which its words plainly import, and mot to filter them into a nullity by hypercritical refinement. The construction which I give to this clause makes it mean something; any other construction, in my opinion, makes it mean nothing. Indeed, I do not know how its meaning could have been more clearly expressed. Had it said as the Constitution of Ohio does, “ shall not in any manner give or lend its ■credit”, &c — would it have been more expressive or exhaustive of every mode than the present phraseology ?
¶33“Thou shall not kill!” Would this prohibition be made more forcible by adding “ in anyway ?” Assuming the meaning •of the word “ give ” to be what is here contended for, does the State give its credit in aid of the Chatham Rail Road Company, by giving its bonds for stock tobe sold by the Company to raise funds to build the road? The bonds were the •credit of the State, and for what' purpose could they have been given, except to aid the Company to build the road •described in the act ?
¶34These considerations compel me to the opinion that the act •of the Legislature is in violation of the Constitutional restriction cited, and can, therefore, have no force, until submitted to and sanctioned by a vote of the people.
¶35In the view which I have taken of § 5, Art. 5 of the Constitution, it is quite immaterial in reference to the act under •consideration, whether the bonds of the State are at par or not. The Legislature cannot (even if the bonds are at par) give or lend the credit of the State, in aid, &c., without submitting the question to the people.
¶36This view renders it unnecessary to consider a question, discussed at the bar, as to the validity of a debt contracted by the legislature', within the first clause of §5 and not within the *160exceptions, without laying a special tax to pay the interest.. If, for example, the Legislature" should contract with some, person to build a State House for $100,000, or any other sum, and should issue bonds to him for that sum in payment, without, levying a special tax to meet the interest, and if the contractor should in his contract, agree to receive the bonds at par, and it should be so set out and and provided in the act, would such an act be unconstitutional ? Would the fact that the bonds-were declared in this particular case to be, and to be received at par, be a substantial fulfilment of the constitutional condition precedent ?
¶37A short discussion of this point in reference to the case in question will not be without value. What does the Constitution mean, when it says, until the bonds of the State shall be at par ? at par with what ? It can only mean at par with gold and silver, or with the legal tender notes of the United States. It cannot mean at par with the work of the contractor, or at par with any piece of land or other property which the State, might think proper to buy, because the value of these things is uncertain, and rests only in opinion and agreement. Such a construction would deprive the words “ at par ” of all definite meaning. Gold and silver (or their legal equivalent) are necessarily the only standards by which the value of the State bonds must be measured. If then in the case supposed, the State should undertake to pay the contractor in State bonds, it would render it impossible to ascertain whether or not the bonds would be at par. In such a case the bonds would not be at par, in the sense of the Constitution, and no legislative declaration, and no agreement in the contract, could make them so, so long as it appeared that they were parted with for a thing of uncertain and unascertainable value. It is a matter of no consequence in the construction of this section of the Constitution, what the bonds of the State ordinarily sell for in the money markets of the world; no Court can ever be called on to say whether at the ratification of a certain Act of Assembly, they were worth 99 or 100. The test in every case must be whether on the particular bonds, issued *161under the circumstances supposed, the State actually received in legal money the sum which it became liable to pay. In no other way than by the conversion of the bonds into money,, can it be ascertained that they are at par, and in no other way can the policy of the Constitution-be effected
¶38These considerations are responsive to some portions of the argument which has been addressed to the Court, but in the view that I take of it they are not necessary to this case
¶39I have not considered, at all, the policy of the Act of December, 18th 1868. "With that question I have nothing to do. I feel bound to obey the Constitution which the people of North Carolina have adopted as their supreme law, according to my understanding of it, and to give them the benefit of those restrictions on the legislative power, which, by inserting,, they have shown that they considered valuable. I admit,, fully, the weight of the observation which has been made, that a Court should not refuse to give effect to an Act of the-Legislature as unconstitutional, unless it is clearly so. But,, in this case, I have not been able to bring myself to entertain a doubt as to the meaning of the Constitution. I think its words are plain and that we are obliged to give them the effect which I have assigned to them, or to deprive them of all practical effect, and of all sensible meaning whatever, and,, so thinking, my course of duty is plain and unavoidable.