Bennett v. Commissioners of Rockingham County

• Decision Date: 26 May 1917
• Docket Number: 359.
• Citation: 92 S.E. 603,173 N.C. 625
• Parties: BENNETT v. COMMISSIONERS OF ROCKINGHAM COUNTY.
• Court: North Carolina Supreme Court

92 S.E. 603

173 N.C. 625

BENNETT v. COMMISSIONERS OF ROCKINGHAM COUNTY.

No. 359.

Supreme Court of North Carolina

May 26, 1917

Appeal from Superior Court, Rockingham County; Lane, Judge.

Action by Junius W. Bennett against the Commissioners of Rockingham County.Judgment denying application for restraining order and plaintiff appeals.Error.

Civil action to restrain the issue and delivery of $200,000 bonds of county of Rockingham in pursuance of a resolution of the board of commissioners, heard, by consent, before his honor H. P. Lane, Judge, as resident judge of the Eleventh district, at Reidsville, N. C., on the 28th day of April 1917.

On the hearing, it appeared: That in January, 1917, the board of commissioners of Rockingham county, in meeting assembled after reciting that it was necessary to build and improve the public roads of the county, to have and raise $200,000, and that said sum was required for the purpose and was a necessary expense thereto, passed and spread upon the minutes a resolution to issue and sell bonds to that amount of the denomination of $1,000 numbered from 1 to 200, payable at stated periods, etc., with interest at 4 1/2 per cent., payable semiannually, etc., establishing a form, etc., and providing for their issue and sale.Section 2 of the resolution is as follows:

"Sec. 2.It is hereby declared that all recitals and statements in the aforesaid bond are true and the full faith and credit of the county of Rockingham are hereby pledged to each successive holder of each of said bonds and coupons for the punctual payment of the principal and interest thereof when and as the same become due.And the said county hereby covenants and agrees with each successive holder of each of said bonds and coupons that there shall be levied and collected each year on all taxable property in said county an annual tax sufficient to constitute a sinking fund for the payment of said bonds at maturity, which tax for the payment of said principal when collected shall be and remain a sinking fund to pay said bonds and shall be safely and properly kept for this purpose by said county.The tax authorized for the payment of interest and principal of said bonds shall continue in force until the whole amount of principal and interest shall have been paid.The tax authorized hereby for the payment of the principal and interest of said bonds shall be and the same is hereby levied and directed to be collected each and every year while any of said bonds and coupons are outstanding and unpaid upon all the property, subject to taxation by said county.There shall be and there is hereby provided a sinking fund to be kept by the treasurer of said county and his successors in office and to be designated as the 'Sinking Fund' for payment of said bonds and the proceeds of the tax levied above mentioned for the purpose of paying the principal of said bonds, shall be paid into said sinking fund as soon as the same has been collected and shall remain in said sinking fund until required for the payment of the principal of said bonds and when the respective payment of the principal and interest of the said bonds shall fall due the treasurer of said county and his successors in office shall and are hereby each respectively authorized, directed and commanded to pay out of the money collected for the payment of the interest upon said bonds, and for payment of the principal thereof the respective amount of principal and interest of said bonds as soon as the same shall fall due."

That said bonds have been bargained at par to Sidney Spitzer & Co. of Toledo, Ohio, but have not yet been issued or delivered.It further appeared, as recited in his honor's judgment, that the ordinary state taxes levied in Rockingham county was 47 2/3 cents on the $100 valuation of property and 18 1/3 cents for general county purposes, and that the county was now levying a tax of 24 cents on the $100 valuation for road purposes under chapter 581,Laws 1899, a special levy for the county home of 4 cents on the $100, and that the tax required to comply with the resolution of the board of commissioners would approximate 17 cents on the $100 valuation.

On these, the facts chiefly relevant, there was judgment denying the application for restraining order, and plaintiff, having duly excepted, appealed.

P. W. Glidewell, of Reidsville, for appellant.

Ira R. Humphreys, of Reidsville, for appellees.

HOKE J.

The Constitution, in article 5, § 1, provides in effect that, for ordinary purposes, the state and county tax combined shall in no case exceed the sum of $2 on the poll and 66 2/3 cents on the $100 valuation of property.So far as we are aware and as to debts and obligations incurred since the provision was established, no departure from this limitation on the amount of taxation has been approved except when and to the extent required to maintain a four months' school, as enjoined by article 9, § 3(Collie v. Commissioners,145 N.C. 170, 59 S.E. 44), and except when the tax is levied for a "special purpose and with the special approval of the General Assembly"(Moose v. Commissioners, 172 N.C. 419, 90 S.E. 441;Railway v. Commissioners,148 N.C. 220, 61 S.E. 690).

In view of the constitutional provision and the decisions of the court construing the same, we are of opinion that the county commissioners of Rockingham county are without power to incur this indebtedness of...