Allen v. City of Raleigh

• Citation: 107 S.E. 463,181 N.C. 453
• Decision Date: 03 June 1921
• Docket Number: 254.
• Parties: ALLEN ET AL. v. CITY OF RALEIGH ET AL.
• Court: United States State Supreme Court of North Carolina

107 S.E. 463

181 N.C. 453

ALLEN ET AL. v. CITY OF RALEIGH ET AL.

No. 254.

Supreme Court of North Carolina

June 3, 1921

Appeal from Superior Court, Wake County; Connor, Judge.

Action by Daniel Allen, for himself and all other citizens and taxpayers of the City of Raleigh, against the City of Raleigh and others, to restrain the enforcement of two ordinances. Judgment restraining defendants, and they except and appeal. Affirmed.

On the hearing, it appeared that the city of Raleigh, through its proper officials in May, 1921, had passed two ordinances, one laying a tax of $1 on the $100 valuation of property subject to tax in the city limits, for current and general purposes for the years 1921 and 1922, a second ordinance of same date providing for the issuance of city bonds to the amount of $1,400,000 for the purpose of constructing and laying sewers, and had the purpose of presently carrying into effect the provisions of these ordinances, and the suit is to restrain such purpose and have the ordinances declared void on the ground that the city government was without power to pass same, and for the reason chiefly that the statute purporting to confer such power, and under which defendants claimed to act (Municipal Finance Act 1921 [Laws 1921, c. 8], had not been passed according to constitutional requirements of article 2, § 14 of the Constitution, and, further, that under existent conditions the laws in force and controlling on the subject are such as to render the proposed measures invalid.

The court being of opinion that the portions of the Municipal Finance Act under which the city government was endeavoring to proceed was unconstitutional, and that the proposed measures were in violation of the statutes applicable, gave judgment that the defendants be permanently enjoined, and defendants excepted and appealed.

Jno. W Hinsdale, Jr., of Raleigh, for appellants.

Wm. B Snow, of Raleigh, for appellees.

HOKE J.

The Constitution (article 2, § 14) makes provision as follows:

"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, or to impose any tax upon the people of the state, or allow the counties, cities or towns to do so, unless the bill for the purpose shall have been read three several times in each house of the General Assembly and passed three several readings, which readings shall have been on three different days, and agreed to by each house respectively, and unless the yeas and nays on the second and third readings of the bill shall have been entered on the journal."

This provision of our organic law, said in some of the cases to have been established with a view of obtaining more careful deliberation on these important subjects of debt and taxation, and insuring the presence of a lawful quorum and a proper placing of responsibility, has been very insistently enforced by the courts and in various decisions construing the section it has been held that its provisions are mandatory, that the journals of each house respectively afford the only competent and sufficient evidence as to the procedure in a given case, and unless it affirmatively appears from these journals that the Constitutional requirements have been complied with, the statute, in so far as it affects the specified measures, must be held invalid. Guire v. Com'rs, 177 N.C. 516, 99 S.E. 430; Woodall v. Com'rs, 176 N.C. 377, 97 S.E. 226; Claywell v. Com'rs, 173 N.C. 657, 92 S.E. 481; Bank v. Com'rs, 152 N.C. 387-390, 67 S.E. 969, 21 Ann. Cas. 812; Com'rs of New Hanover County v. Derosset, 129 N.C. 275, 40 S.E. 43; Com'rs v. Snuggs, 121 N.C. 394, 28 S.E. 539, 39 L. R. A. 439; Union Bank v. Com'rs of Oxford, 119 N.C. 214, 25 S.E. 966, 34 L. R. A. 487.

This being the law applicable to the principal question presented, it appears from a perusal of the record, and his honor so finds, that the statute containing the provisions as to incurring of debts and levying of taxes, under which the city is purporting to act, was read three times in the House of Representatives on three different days, and the yeas and nays on the second and third readings were entered on the House Journal as the Constitution requires; that the same formalities were originally observed in the Senate, but it appears, further, that for the purpose of allowing an amendment on motion the Senate reconsidered its action by which the bill passed its third reading. The bill was amended, and, as amended, was passed by viva voce vote, which was subsequently concurred in by the House, and that no third reading of the bill was afterwards had, on which the yeas and nays were entered in the Senate Journal. It is recognized that the motion to reconsider may be had by a viva voce vote, even on a measure requiring an aye and no vote for its passage (25 R. C. L. p. 883, citing Andrews v. People, 33 Colo. 193, 79 P. 1031, 108 Am. St. Rep. 76), and in the absence of established rule to the contrary, it is uniformly held that when properly passed it abrogates and entirely nullifies the legislative action to which it relates (Cushing's Laws & Practice of Legislative Assemblies, §§ 1264-1278, inclusive; State v. Foster, 7 N. J. Law, 101). In section 1278, the approved position is said to be:

"When a motion to reconsider prevails it has a twofold effect: First it entirely abrogates the vote passed on the question, which is thereby ordered to be reconsidered; secondly, it again brings forward the question to be discussed and decided in the same manner as it was originally for the consideration and determination of the assembly."

As a parliamentary motion it was devised and introduced for the purpose of enabling a legislative body to change its vote on a pending measure while still under its control, and to do so as stated by entirely abrogating its previous action, and both on reason...