Roy v. City

• Decision Date: 30 May 1914
• Docket Number: (No. 29.)
• Parties: LE ROY. v. ELIZABETH CITY.
• Court: North Carolina Supreme Court

(166 N.C. 93)

81 S.E. 1072

LE ROY.

v.ELIZABETH CITY.

(No. 29.)

Supreme Court of North Carolina.

May 30, 1914.

1. Municipal Corporations (§ 907*) — Indebtedness—Power of General Assembly.

A market house being a necessary expense, Acts 1907, c. 117, authorizing a municipality to issue bonds for the erection of a market house, is valid, though not providing for a vote by the people; for the General Assembly may authorize a municipality to incur indebtedness for necessary expenses without popular vote.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1895; Dec. Dig. § 907.*]

2. Statutes (§ 21*) — Enactment — Mode of Enactment.

An act amending an earlier act, which authorized a municipality to incur indebtedness, need not be passed in accordance with Const, art. 2, § 14, requiring the ayes and noes on the passage of such acts to be entered in the journal, where it imposed no additional burden upon the taxpayers of the municipality.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 18-27; Dec. Dig. § 21.*]

3. Municipal Cobporations (§ 93i*)—Bonds —Validity.

Where the statute authorized the issuance of bonds for the erection by a municipality of amarket house upon a named site, the validity of the bonds is not affected because, after issuance, the market house was erected on other land.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1944-1947; Dec. Dig. § 931.*]

4. Municipal Corporations (§ 931*)—Bonds —Validity.

Where the statute authorizing a municipality to issue bonds for the erection of a market house required them to be sold at par for which price they had been sold, payment of the reasonable expenses incurred in issuing the bonds was not such a misappropriation of the proceeds as to invalidate the bonds.

[Ed. Note.—For other eases, see Municipal Corporations, Cent. Dig. §§ 1944-1947; Dec. Dig. § 931.*]

5. Municipal Corporations (§ 917*)—Bonds —Issuance—Validity.

Where a statute authorizing a municipality to issue bonds for the erection of a market house did not require the unanimous consent of the board of aldermen, and there was no such requirement in the charter, the bonds may be issued upon approval by a majority of a quorum.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1913-1918, 1941; Dec. Dig. § 917.*]

Appeal from Superior Court, Pasquotank County; Ferguson, Judge.

Action by J. H. Le Roy against Elizabeth City. From an order dissolving an injunction against the issue and sale of bonds, plaintiff appeals. Affirmed.

The Legislature of 1907 passed an act known as chapter 117 of the Private Laws of 1907, which act was amended, first, by chapter 319 of the Private Laws of 1909, and again by chapter 487 of the Private Laws of 1913.

Said original act reads as follows: "The General Assembly of North Carolina do enact:

"Section 1. That the board of aldermen of the corporation of Elizabeth City is hereby authorized and empowered to establish and erect a market house, town hall, auditorium and mayor's office, and shall equip the said building in such a manner as to meet the needs and necessities of the people and the corporation of Elizabeth City, and shall also establish and erect suitable buildings for the fire department and apparatus.

"Sec. 2. That the board of aldermen of Elizabeth City is hereby authorized and empowered and shall issue bonds in the 'name of the corporation of Elizabeth City, in the denomination of five hundred dollars each, with coupons and in such form as may be determined by the said board, to an amount not exceeding forty thousand dollars, payable in 20 years from the issuing thereof, and at such a time and place as the board of aldermen may prescribe. The said bonds shall bear interest at a rate of not exceeding five per cent, per annum, payable semiannually. The said bonds shall mature as follows: One thousand dollars per annum for the first five years; two thousand dollars per annum for the next ten years; and three thousand dollars per annum for the next five years.

"Sec. 3. The said building as set out above is to be placed on the property now owned by the town of Elizabeth City, on the northeast corner of Matthews and Pool streets.

"Sec. 4. That the said bonds shall not be sold for less than par, and the proceeds arising therefrom shall be held by the treasurer of the corporation of Elizabeth City for the pui~pose set out above.

"Sec. 5. That the said building shall be erected by contract with the board of aldermen of Elizabeth City and the board of permanent improvements, and no contract for the erection of said building shall be made by the board of aldermen of Elizabeth City without first having the approval of the board of permanent improvements."

The amendment by the act of 1909 provides that, if the sum of §40, 000 shall be insufficient to carry out the purposes of the act of 1907, that additional bonds in the sum of $10,000 may be issued, after submitting to a vote of the people the question of issuing such additional bonds, and authorizes the defendant to buy additional property adjacent to the lot referred to in section 3 of the act of 1907, if necessary.

The act of 1913 eliminates all of the buildings in section 1 of the act of 1907, except the market house, and repeals section 3 of the original act. The act of 1913 was not passed in accordance with the formalities required by article 2, § 14, of the Constitution.

Acting under the authority of these acts, the board of aldermen of Elizabeth City, by a majority vote, with the approval of the board of permanent improvements, has contracted to sell bonds in the sum of $30,000 at par for the purpose of building a market house.

The plaintiff contends:

"That said proposed issue of said bonds is wrongful and unlawful, and said proposed bonds illegal and void:

"(a) For that the proceeds of said bonds are not for the necessary expenses of said town and there has been no ratification by a majority of the qualified voters.

"(b) For that chapter 487 of Private Laws of 1913, which materially amended chapter 117, Private Laws of 1907, was not passed as required by article 2, § 14, of the Constitution of North Carolina.

'"(c) For that the board is expressly prohibited by the Legislature from building said market...