Glenn v. Wray

• Decision Date: 29 May 1900
• Citation: 36 S.E. 167,126 N.C. 730
• Parties: GLENN et al. v. WRAY, Sheriff, et al.
• Court: North Carolina Supreme Court

36 S.E. 167

126 N.C. 730

GLENN et al. v. WRAY, Sheriff, et al.

Supreme Court of North Carolina

May 29, 1900

Appeal from superior court, Rockingham county; Starbuck, Judge.

Action by J. H. Glenn, in behalf of himself and all other taxpayers of the town of Stoneville, against W. B. Wray, sheriff of Rockingham county, and others, to restrain the levy and collection of a tax. From a judgment in favor of defendants plaintiffs appeal. Affirmed.

Louis M. Swink, for appellants.

Watson Buxton & Watson, for appellees.

CLARK J.

The plaintiffs are not estopper by the decision in Claybrook v. Commissioners, 117 N.C. 456, 23 S.E. 360. That was an action to impeach the validity of the bonds now in question but upon the ground of irregularity in the election, and that alone. The decision therein is conclusive that the bonds are not invalid on that ground. The present action is to attack their validity upon the entirely different ground that the act authorizing an election was not passed in the mode required by the constitution. This was not within the scope of the litigation in Claybrook v. Commissioners, and has not been passed upon. Hence it is not res judicata. Tyler v. Capeheart, 125 N.C. 64, 34 S.E. 108, which cites Williams v. Clouse, 91 N.C. 327; Wagon Co. v. Byrd, 119 N.C. 460, 26 S.E. 144. A case exactly in point is Union Bank of Richmond v. Board of Com'rs of Town of Oxford, 116 N.C. 339, 21 S.E. 410. In that case the indebtedness was first before this court upon an allegation of invalidity because the bonds were not authorized by the town charter of Oxford. The court sustained the objection, but found error because the bonds recited on their face that they were authorized by the act chartering a railroad company, in whose aid the bonds had been voted and issued. There had been no allegation in the pleadings as to the latter act, and its validity had not been passed upon. When the case went back the defense was set up that the latter act was invalid to authorize the issue of bonds, because not passed in the mode required by Const. art. 2, § 14, and on appeal that contention was sustained. Union Bank of Richmond v. Board of Com'rs of Town of Oxford, 119 N.C. 214, 25 S.E. 966, 34 L. R. A. 487. Of course, the payment of interest by the commissioners would be no estoppel. Commissioners v. Payne, 123 N.C. 432, 31 S.E. 711, and cases cited at page 489, 123 N. C., and page 712, 31 S.E. The charter of the town of Stoneville did not authorize the issue of the bonds in this case, but it was competent for the legislature, by a provision in the charter of a railroad company, to authorize the town to hold an election to authorize such issue, without in terms amending the charter of the town. Jones v. Commissioners, 107 N.C. 265, 12 S.E. 69; Wood v. Town of Oxford, 97 N.C. 227, 2 S.E. 653; Union Bank of Richmond v. Board of Com'rs of Town of Oxford, 116 N.C. 339, 363, 21 S.E. 410. Const. art. 2, § 14, renders invalid any act to raise money or create a debt or lay a tax by the state, or to authorize any county, city, or town to do so, unless the bill shall have passed three several readings on three several days in each house, and unless the yeas and nays on the second and third readings shall have been entered on the journals. This is a constitutional requirement, and, unless strictly complied with, the attempted act of the legislature confers no authority, and is without any effect whatever. It is a restriction upon the exercise of legislative power, which the sovereign power has written in the face of the organic instrument which created the legislature. The creature cannot transcend the limits placed upon it by its creator. Union Bank of Richmond v. Board of Com'rs of Town of Oxford, 119 N.C. 214, 25 S.E. 966, 34 L. R. A. 487; Commissioners v. Snuggs, 121 N.C. 394, 28 S.E. 539, 39 L. R. A. 439; Mayo v. Commissioners, 122 N.C. 5, 29 S.E. 343, 40 L. R. A. 163; Rodman v. Town of Washington, 122 N.C. 39, 30 S.E. 118; City of Charlotte v. Shepard, 122 N.C. 602, 29 S.E. 842; Commissioners v. Call, 123 N.C. 308, 31 S.E. 481; McGuire v. Williams, 122 N.C. 349, 31 S.E. 627; Commissioners v. Payne, 123 N.C. 432, 31 S.E. 711; Smathers v. Commissioners, 125 N.C. 480, 34 S.E. 554.

It therefore only remains to consider whether the act authorizing the election upon the issue of those bonds was passed in the manner required by the constitution. It appears from the journals that the bill passed its three several readings in each house on three several days, and that the yeas and nays were duly entered on the journals on the second and third readings in each house. On the third reading in the senate the bill was amended by inserting the words "a majority of"; and as thus amended the bill passed its third reading, and, being sent back to the house of representatives, the amendment was concurred in, and the bill was duly enrolled and ratified. If the amendment were in a material matter, it would be necessary that the amended bill should...