Commissioners of Town of Hendersonville v. C.A. Webb & Co.

• Decision Date: 29 May 1908
• Citation: 61 S.E. 670,148 N.C. 120
• Parties: COMMISSIONERS OF TOWN OF HENDERSONVILLE v. C. A. WEBB & CO.
• Court: North Carolina Supreme Court

61 S.E. 670

148 N.C. 120

COMMISSIONERS OF TOWN OF HENDERSONVILLE v. C. A. WEBB & CO.

Supreme Court of North Carolina

May 29, 1908

Appeal from Superior Court, Buncombe County; Ward, Judge.

Action by the commissioners of the town of Hendersonville against C A. Webb & Co. Judgment for plaintiffs, and defendant appeals. Reversed.

Civil action, heard on case agreed and by consent of parties before his honor, Ward, J., holding court of the Fourteenth district, on May 11, 1908.

The facts are stated as follows: "(1) That heretofore the plaintiff, by a resolution duly and legally adopted, decided that it was necessary, and for the good of the town of Hendersonville, that certain sidewalks of said town be rebuilt and repaired and laid in cement, and that, in order to secure the money to defray the cost of the same, said town, under and by virtue of its charter, and the amendments thereof, and of section 2930 of the Revisal of 1905, and especially under sections 1 and 6 of chapter 97, pp. 216, 218, of the Private Laws of 1901, decided to issue its coupon bonds to the amount of $18,000, dated April 1, 1908, drawing interest at 6 per cent., and payable, $2,000 April 1, 1918 and $2,000 each year thereafter until all are paid. That by virtue of Priv. Laws 1901, p. 218, c. 97, § 6, the town commissioners have passed an ordinance requiring the property owners abutting on said sidewalks to make cement sidewalks according to a plan set out in said ordinance, and have notified all the property owners to begin performance of said work as required by said section and ordinance, and that the said owners have failed to do so, according to law, and that the said commissioners, under the law, in the exercise of their discretion decided to do said work, and to thereafter collect out of said property owners the costs thereof according to law. (2) That the defendants duly entered into a contract with said town for the purchase of said bonds; said contract of purchase to be carried out only upon conditions that defendant's attorneys approved the legality of said bonds. That said attorneys, after an examination into the legality of said bonds, advised defendants that in their opinion the said town had no right to issue bonds for the purpose of laying sidewalks, but that, if it has such right yet, under sections 1 and 6 of chapter 97, of the Private Laws of 1901, the said town could not issue said bonds, unless the said town was authorized to do so by a majority of the qualified voters thereof, at an election duly and legally called for that purpose, and that no election has been held for this purpose. (3) That the defendants in good faith, in pursuance of the advice so given them by their attorneys, have declined to complete said contract, and to take up said bonds, claiming that said town has no right to issue said bonds. Upon the foregoing statement of facts, the court is requested to decide: (1) Whether said town has the right and authority to issue said bonds; and (2) whether it has the right to issue said bonds in the absence of an election. If the court shall hold that the city has the right to issue said bonds, then the defendants agree to carry out said contract; otherwise they shall not do so." And it was further agreed that no election had been held on the proposition to issue the bonds in question. Upon these facts the court below, being of opinion that the bonds would constitute a valid indebtedness of the town, without any election of the voters thereof, adjudged that, on the bonds being duly tendered by plaintiffs, defendants should accept and pay for same, and defendant excepted and appealed.

Chas. A. Webb and Murray Allen, for appellant.

E. W. Ewbank and Busbee & Busbee, for appellees.

HOKE J.

The decisions of this state sanction the position that the costs of maintaining the streets to the extent and in the manner required for the well ordering and good government of a town is a necessary expense, and that an indebtedness incurred for such a purpose does not come under the prohibition of section 7, art. 7, of the Constitution, which forbids a municipality to contract a debt, pledge its faith, or loan its credit etc., except for the necessary expenses...