Burt v. Town of Biscoe

• Decision Date: 11 December 1935
• Docket Number: 399.
• Citation: Burt v. Town of Biscoe, 183 S.E. 1, 209 N.C. 70 (N.C. 1935)
• Parties: BURT v. TOWN OF BISCOE.
• Court: North Carolina Supreme Court

183 S.E. 1

209 N.C. 70

BURT v. TOWN OF BISCOE.

No. 399.

Supreme Court of North Carolina

December 11, 1935

Appeal from Superior Court, Montgomery County; John H. Clement Judge.

Action by E. R. Burt, on his own behalf and on behalf of all other citizens and taxpayers of the Town of Biscoe similarly situated and who desire to make themselves parties to the action, against the Town of Biscoe, a municipal corporation. From an adverse judgment, the plaintiff appeals.

Affirmed.

Generally where public or general and private or special statutes relate to same subject and the two are essentially inconsistent, special statute prevails as exception to general statute.

This is a civil action brought by the plaintiff in the superior court of Montgomery county, and heard before Clement, Judge, at the courthouse in Statesville, N. C., on the 6th day of November 1935, upon an agreed statement of facts, and, from a judgment for the defendant, the plaintiff appealed.

The agreed statement of facts is as follows:

"That E. R. Burt, the plaintiff, is a citizen, taxpayer and qualified voter of the Town of Biscoe.

That the Town of Biscoe is a municipal corporation, created by chapter 24, Private Laws of 1901.

That the Town of Biscoe has made application to the Federal Emergency Administration of Public Works, an Agent of the United States of America, for a loan of $44,000 and a grant in the sum of $36,000 for the purpose of financing the construction of a water works and sewerage system for the said town and that the Public Works Administration has agreed to make said loan and said grant to the said town in the amounts named.

That at a regular meeting of the Board of Commissioners for the Town of Biscoe held on the 4th day of November, 1935, a resolution was adopted whereby it was determined that the said town should issue $44,000 negotiable coupons, water and sewer bonds of said town for the purpose of constructing a waterworks and sewerage system in and for said town, said bonds to be dated October 1, 1935, and maturing $1,000 on October 1st in each of the years 1939 to 1950; $2,000 thereof on October 1st in each of the years 1951 to 1963, and $3,000 thereof October 1st in each of the years 1964 and 1965, and under the terms of said resolution the bonds are purported to be issued pursuant to the Emergency Bond Act of 1935 (being chapter 426 of the Public Laws of 1935). The resolution sets forth the form of bond and rate of interest and all details with reference to the issuance thereof and provides that an annual tax shall be levied and collected sufficient to pay the principal and interest of said bonds as same becomes due, and that it shall become effective immediately upon its passage and shall not be submitted to the voters of said town.

It is also admitted that chapter 208 of the Public-Local Laws of 1925, applicable to Montgomery County, is especially pleaded in this action and that same has not been repealed or affected by any act other than by the Emergency Bond Act of 1935.

That the Town of Biscoe proposes to issue bonds in accordance with the terms and provisions of said resolution and said Emergency Bond Act and that said bonds are proposed to be sold to the United States of America.

Garland S. Garriss,

Attorney for Plaintiff.

R. T. Poole,

Attorney for Defendant."

The judgment of the court below is as follows: "This cause coming on to be heard before His Honor, J. H. Clement, Judge, upon an agreed statement of facts, at the Court House in Statesville, North Carolina, on the 6th day of November, 1935, and being heard, and it appearing to the Court that the plaintiff is not entitled to the relief sought in said action: It is, therefore, ordered, adjudged and decreed by the Court that this action be dismissed at the cost of the plaintiff.

J. H. Clement, Judge Presiding."

To the judgment as signed, the plaintiff excepts and assigns error, and appeals to the Supreme Court.

Garland S. Garriss, of Troy, for appellant.

R. T. Poole, of Troy, for appellee.

CLARKSON Justice.

The main question involved on this appeal is whether or not bonds may be issued for waterworks and sewerage system, under Emergency Municipal Bond Act of 1935 (Pub.Laws 1935, c. 426), without regard to a particular local act? We think so under the facts and circumstances of this case.

Under article 7, § 7, of the Constitution of North Carolina, "a vote of the majority of the qualified voters therein" is not necessary when the purpose of the bond issue is for a "necessary expense." It has been decided by this court that a waterworks and sewerage system is a necessary expense. Storm v. Town of Wrightsville Beach, 189 N.C. 679, 681, 128 S.E. 17.

The Emergency Municipal Bond Act, chapter 426, Public Laws 1935 has this in it: The caption of the act is as follows: "An Act to authorize cities and towns to issue bonds for municipal improvements for the purpose of financing or aiding in the financing of any work, undertaking or project to which any loan or grant is or may be made by the United States of America through the Federal Emergency Administrator of Public Works, or through any other...