Drysdale v. Prudden
| Citation | 143 S.E. 530 |
| Decision Date | 06 June 1928 |
| Docket Number | (No. 536.) |
| Parties | DRYSDALE et al. v. PRUDDEN et al. |
| Court | North Carolina Supreme Court |
DRYSDALE et al.
v.
PRUDDEN et al.
(No. 536.)
Supreme Court of North Carolina.
June 6, 1928.
[143 S.E. 531]
Appeal from Superior Court, Henderson County; Schenck, Judge.
Controversy without action under C. S. § 626 by Alex B. Drysdale and others as the Board of Druid Hills Sanitary District against Paul P. Prudden and others, copartners doing business under the firm name and style of Prudden & Co. Judgment for plaintiffs, and defendants appeal. Affirmed.
This is a controversy without action. C. S. § 626.
The following is the agreed statement of facts:
"(1) The above-named Alex B. Drysdale, J. D. Duff, and Yates W. Little, hereinafter called the plaintiffs, are the members and constitute the board of Druid Hills sanitary district, elected and qualified in accordance with the provisions of chapter 100 of the Public Laws of 1927.
"(2) The above-named Paul P. Prudden, Harry L. Hutchison, Albert C. Mittendorf, Howard A. Emig, Edward A. Dahly, Ralph M. Winter, and Parker Campbell, hereinafter called the defendants, are copartners, engaged in the business of investment banking under the firm name of Prudden & Co.
"(3) The Druid Hills sanitary district was created pursuant to the provisions of a general act entitled An act to enable the creation, government, maintenance and operation of sanitary districts and prescribing the powers of such districts, ' ratified March 4, 1927, constituting chapter 100 of the Public Laws of 1927; and every requirement of the said general act for the creation of the said district and the issuance of the bonds hereinafter mentioned has been complied with, the said district having been created by a resolution of the board of health of the state of North Carolina, passed August 23, 1927, which resolution contained a description, by metes and bounds, of the territory comprising the district and an election upon the question of the issuance of the hereinafter described bonds having been duly held, all according to the requirements of the said general act, and in the election the vote was unanimous for the issuance of the hereinafter described bonds.
"That, after the word 'included' in the second line of the proviso of section 5 of chapter 100 of the Public Laws of 1927, there are the words 'within or excluded' in the act as passed by the Legislature, but that these words 'within or excluded' were omitted in the publication of the printed act in the bound volume of the Public Laws of 1927.
"(4) The identical territory comprising the said Druid Hills sanitary district was created, or attempted to be created, into a district called Druid Hills sanitary and maintenance district by a special act, ratified March 7, 1927, entitled 'An act to create in Henderson county a special sanitary and maintenance district to be known as the Druid Hills sanitary and maintenance district, ' constituting chapter 229 of the Private Laws of 1927. The governing board of the district appointed by the herein cited special act unanimously requested that the territory described in the special act be included in the territory comprising the district as created by resolution of the board of health of the state of North Carolina, passed August 23, 1927.
"(5) Acting pursuant to said general act, and disregarding said special act, the plaintiffs have taken proceedings for the issuance of bonds of Druid Hills sanitary district in the aggregate principal amount of $75,000 for the purpose of acquiring, constructing, maintaining, and operating a sewerage system and water supply system in and for said district, and have entered into a contract with the defendants whereby the defendants have agreed to purchase said bonds at par and accrued interest, it being stipulated in said contract, however, that the defendants shall not be obligated to take up and pay for said bonds, unless said bonds constitute the full and valid obligation of Druid Hills sanitary district, and be payable from an unlimited ad valorem tax upon all taxable property of said district and not from special assessments.
"(6) The plaintiffs contend that said bonds have been lawfully authorized, and, when issued, will be the full and valid obligations of Druid Hills sanitary district, payable from an unlimited ad valorem tax upon all taxable property of the said district, and not from special assessments, and that the tax limit prescribed by chapter 229 of the Private Laws of 1927, the special act, is not applicable to said bonds, for the following reasons:
"(a) Chapter 229 of the Private Laws of 192T is a local and private act relating to sanitation and health, in violation of section 29 of article 2 of the Constitution of North Carolina.
"(b) The tax authorized by section 10 of chapter 229 of the Private Laws of 1927 is in violation of section 3 of article 5 and section 9 of article 7 of the Constitution of North Carolina, in that said tax is not to be levied uniformly upon all taxable property within the district.
"(c) Even if chapter 229 of the Private Laws of 1927 is constitutional, it is inapplicable to Druid Hills sanitary district, created under chapter 100 of the Public Laws of 1927. The special act should not be construed to be inconsistent with, or as repealing, the said general act, but should be held and construed to be cumulative thereto.
"(d) Chapter 100 of the Public Laws of 1927 is in all respects constitutional and valid and authorized for the payment of bonds issued thereunder not special assessments, but an unlimited ad valorem tax upon all taxable property within the district created thereunder.
"(7) The defendants contend that said bonds have not been lawfully authorized, and that, when issued, will not be the full and valid obligations of Druid Hills sanitary district payable from an unlimited ad valorem tax upon all taxable property of the said district, and not from special assessments, and that the tax limit prescribed by chapter 229 of the Private Laws of 1927, the special act, is applicable to said bonds, for the following reasons:
"(a) Chapter 229 of the Private Laws of 1927 is not a local and private law relating to sanitation and health, in violation of section 29 of article 2 of the Constitution of North Carolina.
"(b) The-tax authorized by section 10 of chapter 229 of the Private Laws of 1927 is not in violation of section 3 of article 5, and section 9 of article 7, of the Constitution of North Carolina. Said section 3 and section 9 apply only to an ad valorem tax levied by a district such as the Druid Hills sanitary and maintenance district. "(c) Even if the tax authorized by section 10
[143 S.E. 532]of chapter 229 of the Private Laws of 1927 is not valid and constitutional as an ad valorem tax, it may and should be upheld and given effect as a special assessment against real property benefited.
"(d) The enactment of chapter 229 of the Private Laws of 1927 terminated the applicability of chapter 100 of the Public Laws of 1927 to the territory created by chapter 229 into Druid Hills sanitary and maintenance district.
"(e) Even if Druid Hills sanitary district is not a complete nullity, chapter 229 of the Private Laws of 1927 is applicable to it, and (1) The district has no power to issue bonds; (2) the district has no power to construct a sewer or water system; (3) the district has no power to levy an unlimited ad valorem tax.
"(f) Even if chapter 229 of the Private Laws of 1927 is unconstitutional or inapplicable to Druid Hills sanitary district, chapter 100 of the Public Laws of 1927 is in, conflict with section 17 of article 1 of the Constitution of the state.of North...
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