Hightower v. City of Raleigh

• Decision Date: 05 May 1909
• Parties: HIGHTOWER et al. v. CITY OF RALEIGH et al.
• Court: North Carolina Supreme Court

65 S.E. 279

150 N.C. 569

HIGHTOWER et al. v. CITY OF RALEIGH et al.

Supreme Court of North Carolina

May 5, 1909

Appeal from Superior Court, Wake County.

Action by E. W. Hightower and others against the City of Raleigh and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

A special tax cannot be levied or a sinking fund created to take care of a municipal indebtedness without legislative authority.

James H. Pou, for appellants.

W. B Jones and Aycock & Winston, for appellees.

BROWN J.

This action is brought by the plaintiffs against the city of Raleigh and others to restrain the city from issuing bonds of said city in the sum of $125,000 for the purpose of erecting a municipal building in said city, and to restrain the building commission from proceeding with the erection of said building. The bonds are to be issued under the authority of an act of the General Assembly, ratified on the 8th day of March, 1909, entitled "An act to erect a municipal building in the city of Raleigh." The board of aldermen of the city of Raleigh had, before the passage of said act adopted the following resolution: "Be it resolved by the board of aldermen of the city of Raleigh: That the building now used as a police station and occupied by the municipal officers of the said city is totally inadequate, unsafe and unsanitary and not suited to the purposes for which it is used and the good of the city demands the immediate erection of a building suitable for said purpose. (2) That the Senators and Representatives of Wake county in the present General Assembly are hereby requested to introduce into said General Assembly a bill conferring upon the board of aldermen and such subsidiary commission as they think proper authority to issue bonds to the amount of one hundred and twenty-five thousand ($125,000) dollars to sell the same and use the proceeds thereof in the erection, furnishing and equipment of such building and the General Assembly is requested to enact the said bill into a law." The findings of the board of aldermen declare that a municipal building is a necessity and a necessary municipal expense. Upon such finding the General Assembly has empowered and directed the issue of the bonds now sought to be restrained.

While legislative authority is desirable and even necessary to authorize the special tax and sinking fund, it was not absolutely necessary to enable the municipal authorities to contract this debt. They have that power under the Constitution, inasmuch as a municipal building in cities the size of Raleigh is a recognized municipal necessity as much so as a courthouse is to a county. McQuillan on Mun. Ord. § 511; Bates v. Basset, 60 Vt. 530, 15 A. 200, 1 L. R. A. 166; Greely v. People, 60 Ill. 22. The approval of a majority of the qualified votes is not necessary to validate a debt contracted in order to procure the necessary funds for constructing such buildings. Const. art. 7, § 7; Swinsin v. Mt. Olive, 147 N.C. 612, 61 S.E. 569; Fawcett v. Mt. Airy, 134 N.C. 125, 45 S.E. 1029, 63 L. R. A. 870, 101 Am. St. Rep. 825; Wilson v. Charlotte, 74 N.C. 748; Vaughan v. Commissioners, 117 N.C. 429, 23 S.E. 354. Without legislative authority, a special tax could not be levied or a sinking fund created. Commissioners v. McDonald, 148 N.C. 126, 61 S.E. 643. To give value to these bonds...