Bramham v. City of Durham

• Decision Date: 22 March 1916
• Docket Number: 324.
• Parties: BRAMHAM v. CITY OF DURHAM.
• Court: North Carolina Supreme Court

88 S.E. 347

171 N.C. 196

BRAMHAM v. CITY OF DURHAM.

No. 324.

Supreme Court of North Carolina

March 22, 1916

Appeal from Superior Court, Durham County; Devin, Judge.

Action for injunction by W. G. Bramham against the City of Durham. Judgment for plaintiff, and defendant appeals. Affirmed.

The action was instituted by plaintiff, a citizen and taxpayer of the city of Durham, to restrain the issuance of coupon bonds of the city for the purpose of construction and repair of streets and sidewalks of Dillard street, in said city, and without the approval of a majority of the qualified voters of the city cast at election held for the purpose.

When there are two legislative acts applicable to the same subject, their provisions are to be reconciled if this can be done by fair and reasonable intendment, but to the extent that they are necessarily repugnant the later must prevail.

J. L Morehead, of Durham, for appellant.

Sykes & Sheppard and S. C. Chambers, all of Durham, for appellee.

HOKE J.

From the facts agreed upon it appeared that the General Assembly of 1915 enacted a statute, applicable in express terms to all the municipalities of the state, establishing a scheme for local improvements therein, including streets and sidewalks the same to be originated by petition, etc., and authorizing the municipal authorities, under certain conditions, to issue bonds in payment of the city's proportion of the improvement, termed "local improvement bonds," and provide for payment of principal and interest by taxation on all the taxable property of the municipality. Public Laws 1915, c. 56, ratified February 27, 1915. At the same session there was enacted a statute in reference to the city of Durham providing for the construction and repair of the streets and sidewalks of the city and authorizing the issuance of coupon bonds of the city, to be designated as "street and sidewalk bonds," in amount not to exceed $300,000, to raise funds for this purpose, same to be paid by taxation, etc. The act also requires that its provisions should be submitted for approval to the qualified voters of the city and makes full provision for holding an election on the question. This statute (Private Laws 1915, c 331) was ratified March 8, 1915, and contains a section repealing all laws and parts of laws inconsistent therewith. The proposition is to issue bonds by virtue of powers claimed under chapter 56 and without submitting the question to the qualified voters of the city.

It is a well-recognized principle of statutory construction that, when there are two acts of the Legislature applicable to the same subject, their provisions are to be reconciled, if this can be done by fair and reasonable intendment, but, to the extent that they are necessarily repugnant, the later shall prevail. The position is stated in substantially these terms by Associate Justice Field in United States v. Tynen, 78 U.S. (11 Wall.) 92, 20 L.Ed. 153, as follows:

"When there are two acts on the same subject, the rule is to give effect to both, if possible. But, if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first."

And in Sedgwick on Statutory Construction, p. 125, quoting from Ely v. Bliss, 5 Beavan, it is said:

"If two inconsistent acts be passed at different times, the last is to be obeyed, and, if obedience cannot be observed without derogation from the first, it is the first that must give way."

Again it is established that, where a general and a special statute are passed on the same subject, and the two are necessarily inconsistent, it is the special statute that will prevail, this last being regarded usually as in the nature of an exception to the former (Cecil v. High Point, 165 N.C. 431-435, 81 S.E. 616; Commissioners v. Aldermen, 158 N.C. 191-198, 73 S.E. 905; Dahnke v. People, 168 Ill. 102, 48 N.E. 137, 39 L. R. A. 197; Stockett, Adm'r, v. Bird, Adm'r, 18 Md. 484)--a position that obtains though the special law precedes the general,...