Felmet v. Comm'rs Of Bun Combe County

• Decision Date: 17 October 1923
• Docket Number: (No. 542.)
• Citation: 186 N.C. 250,119 S.E. 353
• Parties: FELMET. v. COMMISSIONERS OF BUN COMBE COUNTY et al.
• Court: North Carolina Supreme Court

119 S.E. 353

(186 N. C. 250)

FELMET.

v.COMMISSIONERS OF BUN COMBE COUNTY et al.

(No. 542.)

Supreme Court of North Carolina.

Oct. 17, 1923.

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

Action by Claude L. Pelmet to enjoin the County Commissioners of Buncombe County and others from issuing school bonds pursuant to a special statute. Judgment for defendants, and plaintiff appeals. Affirmed.

This is an action by a taxpayer to enjoin the defendant county commissioners and board of education of Buncombe from issuing $75,000 worth of bonds by Grace, a special school tax district in that county, pursuant to chapter 722, Public Local Laws 1915. The court held that the voters were duly authorized, and denied the prayer for a restraining order against the issuance and delivery of said bonds. Appeal by plaintiff.

Geo. D. Robertson, of Asheville, for appellant.

C. N. Malone and G. A. Thomasson, both of Asheville, for appellees.

CLARK, C. J. [1] The plaintiff claims that the bonds are illegal for two reasons: (1) That chapter 722, Public Local Laws 1915, is inconsistent with the General School Law (chapter 136, Laws 1923), and that the latter repeals chapter 722, aforesaid, and therefore the bonds issued pursuant to said special act would be void; (2) the plaintiff also contends that said chapter 722, aforesaid, is contrary to article 8, § 4, of the Constitution.

There is no controversy as to the facts. There is no allegation in the complaint that chapter 722 has not been complied with. When two acts covering the same subject-matter are inconsistent, or in conflict, the following is laid down as the general rule in 36 Cyc. 1090:

"When the provisions of a general law applicable to an entire state are repugnant to the provisions of a previously enacted special law, applicable in a particular locality only, the passage of such general law does not operate to modify or repeal the special law, either in whole or in part, unless such modification or repeal is provided for by express words, or arises by necessary implication."

A local statute enacted for a particular municipality is intended to be exceptional, and for the benefit of such municipality, and is not repealed by the enactment of a subsequent general law. Rodgers v. U. S., 185 U. S. 83, 22 Sup. Ct. 582, 46 L. Ed. 816; Wilson v. Com'rs, 183 N. C. 638, 112 S. E. 418; Alexander v. Lowrance, 182 N. C. 642. 109 S. E. 639; Bramham v. Durham, 171 N. C. 196. 88 S. E. 347; State v. Johnson, 170 N. C. 688, 86 S. E. 788; Cecil v. High Point. 165 N. C. 431, 81 S. E. 616; Com'rs v. Aldermen. 158 N. C. 197, 73 S. E. 905.

In State v. Johnson, supra, Walker, J. says:

"A general law will not be so construed as to repeal an existing particular or special law, unless it is plainly manifest from the terms of the general law that such was the intention of the lawmaking body. A general later affirmative law does not abrogate an earlier special one by mere implication. * * * The general statute is read as silently excluding from its operation the cases which have been provided for by the special one."

And again, Id. 690, it is said:

"Where there are two opposing acts or provisions, one of which is special and particular and certainly includes the matter in question, and the other general, which, if standing alone, would include the same matter, and thus conflict with the special act or provision, the special [act] must be intended to constitute an exception to the general act."

The general law in this case clearly shows that the Legislature did not intend to repeal or modify the special act. The general act contains repealing clauses in section 373 etseq., and made numerous specific repeals therein, indicating a clear intention not to repeal any acts except those specifically mentioned. The fact that the Legislature repealed so many prior acts by special reference to them shows, if it intended to repeal other special acts, it would have named them in the repealing clauses.

It is true that section 378 of the General School Law repeals all laws in conflict with the provisions of the act; but this is a general repealing clause, and cannot be taken as an intention of the Legislature to repeal special acts. State v. Johnson, supra. Moreover, this identical question was presented in a recent case, Wilson v. Com'rs, 183 N. C. 638, 112 S. E. 418, in which it was contended by plaintiffs that certain sections in the Consolidated Statutes or contained in chapter 55, Laws 1915, were in conflict with that act (Chapter 722, Public Local Laws 1915), and would be invalid unless the general laws had been complied with. The court held, however, that the general laws were not applicable to that particular state of facts, and even if they were the general act was inconsistent with the special act, and the latter would prevail. In this case the special act provides that the election for bonds shall be initiated by petition signed by 25 per cent. of the voters, and the petition shall be approved by the Board of Education, whereas section 257, art. 22, of the general act, merely requires a petition of the board...