to be right. Whether, under our system of government and the special provisions of the Constitution relating to counties, the Legislature has the power to compel a county to issue bonds for an existing indebtedness, either for the purpose of liquidating and renewing it or of paying it, is a very interesting and important question. In solving it, we should not rely too much upon the decisions in other states, as the solution may depend, to some extent, at least, upon the laws of the particular state in the courts of which the question is presented, and also upon a general consideration of the powers of the Legislature under the state Constitution. We would not be safe in saying that it should be settled upon principles of general law applicable to such cases, without taking into account any local provisions of law, or any peculiar constitution of our local system of government, by which those general principles may be modified. In the view taken by me of the case, it will not be necessary to express an opinion as to the power of the Legislature to require a county to pay its existing indebtedness by issuing bonds, or to exchange new bonds for those outstanding and not yet matured. It can be well seen how the exercise of such a power, if conceded, might work injustice, and by one of the elementary rules of construction and intention to exercise such a power, if injustice may ensue therefrom, should not be presumed, in the absence of a clear and explicit declaration to that effect, but, on the contrary, that meaning should be adopted which will avoid such a result. Black, Int. of Laws, pp. 87, 100, rules 41, 46. A careful reading of the act in question, and a consideration of it, not in detached portions, but in its entirety, convinces me that the Legislature intended to confer upon the commissioners merely a discretionary power, or, in other words, authority to issue the bonds, if in the exercise of their judgment they found it best for the interests of the people to do so. Why construe the act as a command to the commissioners to issue the bonds, when it had not been definitely determined, and could not well be, that the creditors would accept the new bonds, or even accept payment in money in advance of the maturity of the bonds held by them, and when they were not bound to accept either? Is it not more reasonable to infer that the legislative purpose was to give the commissioners power to act in the premises, as the situation might be presented to them and according to their best judgment? It would be strange, indeed, if the Legislature should peremptorily order bonds to be issued before it had been ascertained whether the commissioners would be able to execute the order. But the language of the act itself is sufficient to show that the Legislature did not intend its provisions to be mandatory. In the title of the act, and in every section where power to issue bonds is given, there is not a single word of command; but every expression used implies discretion, and in the concluding section, by the use of the words, "if the bonds authorized by this act are issued," it clearly appears that a discretion was left to the commissioners, because there could be no such doubt or contingency, as therein implied, if they were required to issue them, whether they thought it proper to do so or not. Those words cannot be considered as referring to the possibility of a refusal by the creditors to accept the bonds, for the commissioners are authorized in that event to sell the bonds and pay the matured indebtedness. Indeed, the provision is that all of the indebtedness, however evidenced, shall be paid with the proceeds of the sale of the bonds (section 10), the creditors having the option to take bonds, instead of money (section 11), and, if the creditor so elects, it is then made the duty of the commissioners to give him bonds at par to the amount of his claim and in liquidation thereof. There is an

other view of the act which supports the construction that by it the commissioners have the right to decide whether bonds should be issued or not. In those sections which refer to the issuing of bonds, the words simply confer power and authority, and the same may be said of the title of the act; whereas, in the sections which provide for an exchange and settlement with the creditors after the bonds are issued, and which refer to the other duties to be performed under the act, the language is changed, so that the directions to the commissioners become positive and peremptory. It does seem to me that, if it was intended the provisions of the act should be mandatory, words more appropriate to express such an intention than those we find in the act would have been used. We derive little or no aid from decided cases in construing the act. We must examine the context in order to ascertain the meaning, and no two cases under the circumstances will be found to be alike. It is true the word "may" is sometimes construed as mandatory, when something is directed to be done for the sake of justice, or when the public interests or individual rights call for the exercise of the power conferred; but it is conceded that "the words 'authorized and empowered' are usually words of permission merely," and neither the word "may," nor the words "authorized and empowered," nor any other equivalent term, will be construed as imperative, if the context of the act shows that such was not the purpose. In the cases cited in support of the contrary view, the plaintiffs were attempting to enforce payment of their claims by a tax levy, and not by the issue of bonds, and to the relief sought by them they had an inherent right. It was really a part of the contract that the debts of the county should be paid in that way, and the legislation was merely in aid of the enforcement of this right. But creditors of this county have no right to receive bonds for their claims. That was no part of the contract. The law, when the original bonds were issued, provided how county debts should be paid-by taxation; and, if the Legislature had provided that a tax "may" be levied for the payment of the county's liabilities, the authorities cited would perhaps be applicable, and the courts could compel compliance with the requirements of the act, within the limits of taxation fixed by the Constitution. I do not think the cases relied on to show the plaintiff's right to a mandamus will be found to conflict with the conclusion we have reached, if they are considered with reference to their special facts and the particular relief demanded. The words quoted from the case of People v. Supervisors, 68 N. Y. 114, namely, "that the said board may in their discretion cause the tax to be levied," when read with what precedes them, will be found to refer, not to a discretion to levy the tax, but to a discretion given to the supervisors of the county to decide whether the tax should be paid by the county or by the two towns specially benefited by the construction of the bridge, and they decided that it should be paid by the two towns. There was nothing in the way of paying the assessment upon the towns by taxation, and it was held that they should be compelled by mandamus to levy the necessary tax; and, so far as the ultimate question de cided is concerned, the other cases cited are like that one. The principle of those cases is familiar; but it does not seem to me to have any bearing on our case, and should not affect the result. The reasons I have given are to my mind sufficient to support the conclusion of the court, and it is not, therefore, deemed necessary to discuss the other questions argued before us. It is fortunate that we have been able to reach a conclusion upon a consideration and construction of the act itself, which saves to the people of the county the privilege of local self-government. It may be that the

Legislature has the power to control directly the action of the county authorities, and I have no disposition at present to controvert the proposition; but the right of the people of the county to manage their own affairs should not abridged, except under the pressure of a plain and positive legal requirement, and when no alternative in the law is admissible.

BRIDGERS v. WILSON COUNTY COM'RS. (Supreme Court of North Carolina. April 12, 1904.) Appeal from Superior Court, Wilson County: Moore, Judge. Mandamus by John F. Bridgers against the commissioners of Wilson county. Judgment for plaintiff. Defendants appeal. Reversed. Connor & Connor, F. A. Daniels, and W. A. Lucas, for appellants. Shepherd & Shepherd and F. A. & S. A. Woodard, for appellee.

WALKER. J. This case is substantially like that of Barnes v. Commissioners (decided at this term) 47 S. E. 737. As we held in that case that mandamus will not lie to control the discretion given to the commissioners by the statute in the granting of licenses, there was error in the judgment of the court in this case directing a mandamus to issue to the defendants, commanding them to issue an order for a license to the sheriff upon finding certain facts recited in the judgment. Remanded, with directions to dismiss the action. Error.

CITY OF WINSTON et al. v. HUDSON. (Supreme Court of North Carolina. May 3, 1904.) Appeal from Superior Court, Forsyth County; W. R. Allen, Judge. W. B. Hudson was charged with selling trading stamps without having first obtained a license, and from a judgment finding him not guilty the state and the city of Winston appeal. Affirmed. Watson, Buxton & Watson and the Attorney General, for plaintiffs. Glenn, Manly & Hendren and W. B. Crisp, for defendant.

WALKER, J. We have decided in State and City of Winston v. Beeson and Sperry & Hutchison Company, 47 S. E. 457, that the city had no power or authority under the pro

visions of its charter to pass the ordinance for a violation of which the defendant is prosecuted, because the term "gift enterprise," as used in the charter, did not embrace the business of the Sperry & Hutchison Company; they being the only words in the charter, as was admitted by counsel for the state and the city, which could by any possible construction apply to the case. This being the law as declared by the court in that case, and the defendant Hudson being charged with a violation of the ordinance in that, as a merchant, he received stamps from the stamp company and delivered them to one of his customers, who had bought goods from him, according to the terms of his contract with the company, it follows that in so doing he committed no criminal offense, and the court upon the special verdict correctly adjudged him not guilty. Affirmed.

HOWELL v. WILSON COUNTY COM'RS. (Supreme Court of North Carolina. April 12, 1904.) Appeal from Superior Court, Wilson County; Moore, Judge. Mandamus by A. M. Howell against the commissioners of Wilson county. Judgment for plaintiff. Defendants appeal. Reversed. Connor & Connor, F. A. Daniels, and W. A. Lucas, for appellants. Shepherd & Shepherd and F. A. & S. W. Woodard, for appellee.

WALKER, J. The facts in this case are substantially like those in Barnes v. Commissioners (decided at this term) 47 S. E. 737, and for this reason it must be governed by the principles stated in that case. The court adjudged that a mandamus issue to the defendants, commanding them to investigate the application of the plaintiff, and, if they should find that he is a fit and proper person to have license and that the place where he proposes to sell liquors is a suitable one, then to issue an order to the sheriff to grant him a license upon his paying the fees and taxes as required by law, or show cause why a peremptory mandamus should not issue. For the reasons given in Barnes v. Commissioners of Wilson, there was error in said judgment. Remanded, with drections to dismiss the action. Error.

ACCOUNT.

Accounting by executor or administrator, see
"Executors and Administrators," § 6.

ACCOUNT, ACTION ON.

In justices' courts, see "Justices of the Peace,"
§ 2.
Pleading in general, see "Pleading," § 3.
Variance, see "Pleading," § 8.

ACKNOWLEDGMENT.

Operation and effect of admissions as evidence,
see "Evidence," § 5.

§ 1. Taking and certificate.

A commissioner of deeds for North Carolina,
residing in another state, is not required to affix
his seal to the certificate acknowledging the
execution of a deed conveying land in North
Carolina.-Johnson v. Duvall (N. C.) 611.

Battle's Revisal, c. 35, § 14, providing for
proof or acknowledgment of deed of married
persons before probate judges, held to have no
application to deeds of unmarried men.-West-
feldt v. Adams (N. C.) 816.

2. Operation and effect.

The certificate of acknowledgment of a writ-
ing not required by law to be recorded is no
evidence of its execution.-Rutherford v. Ruth-

erford (W. Va.) 240.

ACTION.

Abatement, see "Abatement and Revival."

ABUTTING OWNERS.

Assessments for expenses of public improve-
ments, see "Municipal Corporations," § 3.
Compensation for taking of or injury to lands
or easements for public use, see "Eminent
Domain," § 2.

ACCEPTANCE.

§ 6.

Commencement within period of limitation, see
"Limitation of Actions," § 1.

Constitutional guaranties of remedies, see "Con-
stitutional Law," § 8.

Counterclaim, see "Set-Off and Counterclaim."
Distress proceedings converted into action for
rent, see "Landlord and Tenant," § 3.
Issuance of execution in partition proceedings as
action, see "Partition," § 1.
Jurisdiction of courts, see "Courts."

Limitation by statutes, see "Limitation of Ac-
tions."

ACCESSION.

$ 1.

ACCIDENT.

Accident insurance, see "Insurance," § 7.
Cause of personal injuries, see "Negligence,"
§ 1.

ACCOMMODATION PAPER.

See "Bills and Notes."

ACCORD AND SATISFACTION.

See "Payment"; "Release."

47 S.E.-65

Co-tenants, see "Partition," § 1.

Actions by or against particular classes of
parties.

See "Building and Loan Associations"; "Car-
riers," §§ 2-9; "Counties," § 3; "Executors
and Administrators," § 5; "Municipal Corpo-
rations," § 8; "Partnership," § 2; "Railroads,"
§ 1; "Street Railroads," § 2.
Heirs, see "Descent and Distribution," § 3.
Stockholders, see "Corporations," § 1.
Sureties on officer's bond, see "Officers," § 2.
Surviving partners, see "Partnership,' $ 3.
Telegraph or telephone company, see "Tele-
graphs and Telephones," §§ 1, 2.