Ellison v. Town Of Williams-ton

• Decision Date: 09 March 1910
• Citation: Ellison v. Town Of Williams-ton, 67 S.E. 255, 152 N.C. 147 (N.C. 1910)
• Court: North Carolina Supreme Court
• Parties: ELLISON et al. v. TOWN OF WILLIAMS-TON et al.

67 S.E. 255

152 N.C. 147

ELLISON et al.

v.TOWN OF WILLIAMS-TON et al.

Supreme Court of North Carolina.

March 9, 1910.

1. Municipal Corporations (§ 918^*)—Issuance of Bonds—Submission to Voters.

The Legislature having by Priv. Laws 1907, c. 146, conferred power upon town commissioners of Wiiliamston to submit to the voters of the town a proposition to issue bonds to furnish electric lights, which is a necessary expense, it was equivalent to a legislative requirement that the sense of the voters should be had before the undertaking was entered upon.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1919; Dec. Dig. S 91S.*]

2. Municipal Corporations (§ 867*)—Issuance of Bonds—Necessity for Submission to Voters.

While obligations of a municipality incurred for necessary expenses do not come within Const. art. 7, § 7, providing that no municipality shall contract a debt except for necessary expenses, unless by a vote of the majority of the qualified voters therein, the question is one of legislative regulation, and all limitations established by statute as to incurring debts for necessary expenses must be observed.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1841; Dec. Dig. § 867.^2-*]

Appeal from Superior Court, Martin County; C. M. Cook, Judge.

Action by one Ellison and others against the town of Williamston and others. Judgment for plaintiffs, and defendants appeal. Aflirmed.

On the hearing it was made to appear: That on September 15, 1909, the town authorities had formally passed the following resolutions:

"Whereas, experience has demonstrated the necessity for providing a system of lighting the streets of said town, and that all experiments herebefore made to do so have proved unsuccessful; and, whereas, upon careful investigation the board has ascertained that an electric light plant can be installed of sufficient capacity to furnish lights for the town and its inhabitants at a cost of eight thousand dollars:

"We therefore declare the installment of an electric light plant for the said town is a public necessity, and that it is necessary to contract a« debt of $8,000 for such purpose. It is therefore resolved to issue bonds in said amount of $8,000, each carrying interest at 6 per cent., payable semi-annually, and mature twenty years from date. The said bonds shall not be sold for less than par, and the proceeds of such sale shall not be used for any other purpose than the purchase and establishment of said plant.

"It is also resolved that a tax of 16 2/3 cents on property, 50 cents on each poll, in addition to the municipal taxes as now collected, be levied for the payment of the interest on said bonds and a sinking fund to pay the principal at maturity.

"Above resolutions adopted at a meeting of the town commissioners September 15, 1909, and ordered to be spread upon minutes as a record thereof."

That said authorities were entering into a contract for the purpose indicated, and were proceeding in other respects to carry out the terms of the resolutions, when stayed by preliminary order issued in the cause. That the acts of the Legislature bearing on the question presented, and relevant to the inquiry, were Priv. Laws 1901, c. 129, Priv. Laws 1907, c. 146, amending said chapter, and the general provisions of Revisal, c. 73, particularly section 2924, to the extent that these general provisions were unaffected by the special legislations referred to. It was admitted that the question presented had not been submitted to the voters of the town. There was evidence tending to show that the special tax levy contemplated and directed by the resolution would exceed the amount permitted by the terms of section 2924 of the Revisal, referred to. The court entered judgment making the restraining order perpetual, and defendants excepted and appealed.

H. W. Stubbs, for appellants.

A. R. Dunning, for appellees.

HOKE, J. (after stating the facts as above). Chapter 146, Priv. Laws 1907, this being the statute more directly applicable to the question presented, after conferring on the town commissioners of Williamston "the power, if they deemed best, to submit to the voters of the town a proposition to issue bonds in the amount of $10,000 for the purpose of building a town hall, " contains the following provision: "Provided further, that if the commissioners shall desire to hold similar elections for the issue of bonds or to borrow money for any municipal improvements, as electric lights, sewerage, waterworks or street improvements, and shall so vote at two separate meetings, not coming within two months of each other, and shall record such vote in their minutes, and have a majority present and a majority voting in favor of it at each meeting, they may order an election held in the same manner as above stated, by complying in every way with the full meaning and form of this act. Said elections shall be held as are elections of town officers, and no new registration had unless required by said commissioners." And we hold it to be a propen construction of the statute, and others of similar import, that where a Legislature confers power upon a municipal corporation to submit the question of a bond issue for an enterprise of this character to the voters of a municipality, and the statute is still in effect, it is equivalent to a legislative declaration and requirement that the sense of the voters shall be had before the undertaking is entered upon. True, we have decided in several of the more recent cases that, where the question is presented as an open proposition, the obligations of the municipality incurred for the purpose indicated should be considered a necessary expense; that they do not come within the constitutional provision as to incurring municipal indebtedness contained in article 7, § 7; and that no vote of the people is ordinarily required. Bradshaw v. High Point, 151 N. C. 517, 66 S. E. 601; Commissioners v. Webb, 148 N. C. 120, 61 S. E. 670; Fawcett v. Mt. Airy, 134 N. C. 125, 45 S. E. 1029, 63 L. R. A. 870, 101 Am. St. Rep. 825. But these and other decisions are also to the effect that, while there is no definite constitutional restraint in reference to indebtedness of this character, the question continues to be a matter of legislative regulation, and thatthe limitations and restraints established by the...