#### *WILLIAM HORNE v. THE STATE OF NORTH CAROLINA.

Claim, against the State — Jurisdiction.

The jurisdiction of the supreme court to hear a claim against the state based upon the non-payment of interest alleged to be due on a bond issued under an act of 1869, has been taken away by an amendment of tlie constitution in pursuance of chapter 268 of the acts of 1879. And such deprivation of jurisdiction after suit brought is not inhibited by the federal constitution as impairing'the obligation of contracts.

Claim against the State heard at January Term, 1881, of The Supreme Court.

Mr. W. P. Batchelor, for the plaintiff.

Attorney General, for the state.

*

Ruffin, J., was associate counsel for the state and did not sit on the hearing of this case.

Ashe, J.

This is an action brought by the plaintiff against the state, under article four, section nine, of the constitution, which provides that “ the supreme court shall have original jurisdiction to hear claims against the state, but its decisions shall be merely recommendatory; no process in the nature of execution shall issue thereon; they shall be reported to the next session of the general assembly for its action.”

The action is to obtain the recommendatory decision of this court upon his claims, which have accrued by -way of interest on a certain bond for one thousand dollars issued under and by virtue of an act of the legislature ratified on the 3rd day of February, 1869, and entitled “ an act to amend the charter of the Western Railroad Company,” which bond has coupons for interest attached at the rate ot six per cent, per annum, payable on the first of April and *363the first of October in each year. And it is for the nonpayment of the coupons falling due from the first of April, 1870, to the first of October, 1879, inclusive, that the plaintiff complains.

At the June term, 1880, of this court the attorney general filed a demurrer to the complaint for a defect in not stating facts sufficient to constitute a cause of action, the grounds of which are set forth in the plea. The cause was continued by consent from June term, 1880, to January term, 1881. In the meantime in pursuance of an act of the legislature, ratified the 14th day of March, 1879, entitled an act to alter the constitution of North Carolina concerning the debt of the state,” an amendment of the constitution was submitted to the qualified voters of the state at the general election held in the state on the second day of November, 1880, and was adopted by a large majority of the voters, to wit, one hundred and eleven thousand nine hundred and thirty votes, so that said amendment is now a part of the constitution of the state. The amendment is to section six, article one, of the constitution by adding at the end thereof the follo'wing: “ nor shall the general assembly assume or pay or authorize the collection of any tax to pay, either directly or indirectly, expressed or implied, any debt or bond incurred or issued, by authority of the convention of the year 1868, nor shall any debt or bond incurred or issued by the legislature of the year 1868, either at the special session of the year 1868, or at its regular sessions of the years 1888 — ’69, and 1869 — 70, except the bonds issued to fund the interest on the old debts of the state, unless the proposing to pay the same shall have first been submitted to the people, and by them’ ratified by the vote of a majority of all the qualified voters of the state at a regular election held for that purpose.”

The claim set forth in the plaintiff’s complaint upon which recommendatory judgment of this court is demanded *364is, for coupons attached to one of the bonds especially proscribed in this amendment of the constitution. The attorney general in behalf of the state, in view of this prohibition of the payment, of this bond contained in the said amendment, moves at this term of the court to dismiss the action on the ground that the jurisdiction of the court has been taken away, over the subject of the action, and this is the question for our consideration.

There has been a prevalent opinion in this state and one entertained by gentlemen of the highest eminence in the legal profession, that the legislature of 1868-’9 transcended its limited powers, under the constitution, in creating the class of bonds to which the one in question belongs, and that they are therefore illegal. Whether this opinion is well founded or not it is not for us to say, as we believe this court is precluded by the said amendment of the constitu-tution from going into that inquiry. When the framers of the constitution invested the supreme court with the original jurisdiction of hearing claims against the state, we are of the opinion that that provision in the constitution had reference exclusively to those claims against the state which the legislature in the exercise of its functions under tho constitution were authorized to pay by appropriate legislation, but was never intended to embrace a case involving the necessity of submitting the question to the people, whether the claim should be paid. We take the distinction to be this, that when the legislature may by act or resolution direct the treasurer of the state to pay a claim against the state, there, the supreme court has jurisdiction ; but when the legislature is prohibited by the constitution from the exercise of such power, and can only order the payment, after obtaining the assent of the people by a popular vote, then it does not have jurisdiction, for it was never intended that the supreme court should have the power or authority of advising the legislature as to the subjects of its legislation *365or of recommending to them the duty of passing a law asking the people to clothe them with a power which is denied them by the constitution. It w’ould be an act of supererogation, an act obnoxious to the charge of presumption, for this court in the face of the unmistakable will of the people, declared in the organic law of the land, to recommend to the legislature the payment of this claim. Can we advise the legislature to pay it, when the constitution declares they shall not pay it?

So far as concerns the objection that the amendment cannot apply to this case, for the reason it was adopted after the commencement of the action, the question is settled by the supreme court of the United States in the cases of R. R. Co. v. Tennessee, 11 Otto, and R. R. Co. v. Alabama, Ibid., 832. The hitter case was on “all fours” with this! There the legislature of the state had passed a statute giving jurisdiction to certain courts of the state to hear and determine claims against the state under the same rules as in suits against individuals, and provided that if judgment be rendered against the state, it should be the duty of the comptroller, on the certificate of the clerk of the court together with that of the judge who tried the cause that the recover}’was just, to issue his warrant for the amount, &c. Subsequently this act was repealed, but before its repeal and w'hile the first act was in force, an action was brought by a railroad company against the state. The action was dismissed by the supreme court of Alabama, and its judgment approved by the supreme court of the United States, upon the ground that the repealing act was not in violation of the provision of the constitution of the United States forbidding the passage of law’s impairing the obligation of contracts.

We are of the opinion the jurisdiction of this court over the subject of this action has been taken aw’ay by the adoption of the amendment to the constitution, and that any *366recommendation we might make would be extra judicial. The action must therefore be dismissed.

Per Curiam. Dismissed.