Black v. Commissioners of Buncombe County

• Decision Date: 22 October 1901
• Citation: 39 S.E. 818,129 N.C. 121
• Parties: BLACK et al. v. COMMISSIONERS OF BUNCOMBE COUNTY.
• Court: North Carolina Supreme Court

39 S.E. 818

129 N.C. 121

BLACK et al. v. COMMISSIONERS OF BUNCOMBE COUNTY.

Supreme Court of North Carolina

October 22, 1901

Appeal from superior court, Buncombe county; Moore, Judge.

Action by W. P. Black and others against the commissioners of Buncombe county to restrain the defendant from issuing certain bonds or levying certain taxes. From a decree in favor of the defendant, the plaintiffs appeal. Affirmed.

A finding that the first of the three readings in each house were on days separate from the other readings, based on entries on the bill and on the calendars which were not inconsistent with the journals, is sufficiently supported by evidence.

The ratification by the speakers of Act March 11, 1901 authorizing a certain county to levy a tax for the erection of a court house, is conclusive evidence that the bill has passed three several readings in each house.

H. B Carter, for appellants.

Chas A. Webb and Locke Craig, for appellee.

FURCHES C.J.

The commissioners of Buncombe county having managed their financial matters so that the county indebtedness for current necessary expenses of the county on the 1st day of January 1901, was $59,037.13, and the court house not being suited to the wishes of the people and the business of the county, they wished to dispose of the old court house and build a new one; and, having taxed the people and property as high as they could under the constitutional restriction, the legislature, on the 11th March, 1901, passed and ratified an act (Laws 1901, c. 598) intended to enable the commissioners to issue $100,000 coupon bonds, and to levy a special tax to pay the same. Fifty thousand dollars of these bonds were to be used in building a new court house, and $50,000 in paying said indebtedness of Buncombe county. Before the $50,000 bonds could be issued to build a new court house" had to be submitted to a vote of the county, and approved by a majority of those voting thereon. This has been done, and a decided majority of the votes cast were for the new court house, though a majority of all the qualified voters of the county did not vote for the new court house. Under this act (chapter 598), and the vote of the people thus cast, the commissioners believed they were authorized to issue $50,000 bonds for the new court house, and $50,000 for county indebtedness, called "the floating debt of the county"; and, so believing, the commissioners undertook to ascertain, itemize, and declare what was the outstanding "floating indebtedness of the county," and among the list set out by them are such debts as $17,200 due by notes to the Battery Park Bank, $4,000 due Mrs. Featherstone by notes, county board of education for borrowed money due by note $9,921.40, and a number of other notes said to be due by the county. The board, after so ascertaining the indebtedness of the county, proceeded to adopt resolutions providing for the issuance of said bonds, $50,000 for the court house, and $50,000 to pay the "floating indebtedness of the county," and to levy a special tax for the payment of the interest thereon, as provided in said act. The plaintiff, believing that the defendant was not authorized to issue said bonds nor to levy said tax, brought this action to restrain and enjoin the defendant from issuing said bonds or levying or collecting said tax, and plaintiff prayed for an injunction, which being disallowed and the order of injunction refused, plaintiff appealed to this court.

The plaintiff puts his prayer for injunction against issuing the court house bonds upon the ground that the act (chapter 598) was not passed according to the constitutional requirement; that it did not pass three times in each house of the general assembly; and, to be more specific, that it did not pass its first reading. He further objects to the validity of said act for the reason that it did not authorize the court house bonds to be issued until it should be approved by a vote of the people; and he also objects for the reason that it did not require a majority of the qualified voters of the county, and that a majority of the qualified voters of the county did not vote for the new court house. He bases his objection to the issuance of the $50,000 bonds to pay "the floating debt" upon the ground that "the floating debt," or a large portion thereof, is not for the necessary expenses of the county, and that this so appears by the itemized statement of said indebtedness made by the defendant; and, this being so, the defendant has no right to issue bonds for its payment without first having an act of the legislature authorizing a submission of the question to the majority of the qualified voters of the county, and an approval by a majority of the whole qualified vote of the county.

These questions will be considered separately, and we will first consider the objections to issuing the court house bonds. The courts have the right to say what are necessary expenses of a county, but they have no right to supervise and control the conduct and judgment of the commissioners when they are necessary expenses. Brodnax v. Groom, 64 N.C. 244; Satterthwaite v. Board, 76 N.C. 153; Evans v Commissioners, 89 N.C. 154; McKethan v. Board, 92 N.C. 243; City of Charlotte v. Shepard, 120 N.C. 411, 27 S.E. 73; Rodman v. Town of Washington, 122 N.C. 39, 30 S.E. 118; Mayo v. Board, 122 N.C. 5, 29 S.E. 343, 40 L. R. A. 163. And we have held that the building a court house is a necessary expense. Vaughan v. Board, 117 N.C. 434, 23 S.E. 354. But as to the manner in which this expense should be incurred, or as to the cost of the court house, the courts have no power to control the same. This is certainly so, where it is only a matter of judgment, and no mala fides is alleged or shown. It therefore follows that the commissioners of a county have the right to contract for building a court house without any special legislative authority to do so. Vaughan v. Board, supra; Halcombe v. Commissioners, 89 N.C. 346,--exactly in point. And, as the commissioners have the right to contract for building a court house without any special legislative authority, they would have the right to pay for the same, and could be compelled to do so if a sufficient amount of money for that purpose could be raised by taxation within the constitutional limitation. City of Charlotte v. Shepard, 122 N.C. 602, 29 S.E. 842. So it is only necessary to have special legislative authority to levy a special tax when the money cannot be raised under the general provisions, owing to the constitutional limitation. When this cannot be done under the general law, owing to the constitutional limitation, there must be special legislative authority to levy a tax for such purpose; but such special act need not be submitted to the people for their ratification. McCless v. Meekins, 117 N.C. 34, 23 S.E. 99; Tate v. Board, 122 N.C. 812, 30 S.E. 352; Smathers v. Commissioners, 125 N.C. 480, 34 S.E. 554. It is therefore seen...