Hailey v. City Of Winston-salem

• Decision Date: 12 September 1928
• Docket Number: (No. 346.)
• Citation: 144 S.E. 377,196 N.C. 17
• Court: North Carolina Supreme Court
• Parties: HAILEY. v. CITY OF WINSTON-SALEM et al.

(196 N.C. 17)

144 S.E. 377

HAILEY.

v.CITY OF WINSTON-SALEM et al.

(No. 346.)

Supreme Court of North Carolina.

Sept. 12, 1928.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Municipal Purposes.]

Appeal from Superior Court, Forsyth County; MacRae, Special Judge.

Action for injunction by Thomas Hailey against the City of Winston-Salem and others. Judgment for defendants on submission of controversy without action, under C. S. § 626 et seq., and plaintiff appeals. Affirmed.

The plaintiff is a resident and taxpayer of the city of Winston-Salem, which is a municipal corporation. The city, the members of the board of aldermen, the mayor, and the secretary-treasurer of the city are the defendants. The material facts are set forth in the agreed case as follows:

(3) The defendants are about to issue bonds, of the aggregate face amount of $2,500, 000, of the city of Winston-Salem, pursuant to the pro visions of the Municipal Finance Act, 1921, of North Carolina, constituting chapter 106 of the Public Laws of 1921, Extraordinary Session, of North Carolina, as amended, for the purpose of acquiring, constructing, reconstructing, and enlarging public school buildings in and for the city of Winston-Salem, and acquiring and developing lands for such school buildings and acquiring original furnishings, equipment, and apparatus therefor.

(4) An ordinance authorizing the issuance of said bonds was introduced and adopted at a meeting of the board of aldermen of the city of Winston-Salem, held on the 20th day of January, 1928. A copy of said ordinance, marked Exhibit A, is hereto annexed and made a part of this agreed case. An ordinance calling a special election on the question of issuing said bonds was introduced and adopted by said board on the 20th day of January, 1928. A copy of said ordinance, marked Exhibit B, is hereto annexed and made a part of this agreed case. At said election held pursuant to said ordinance, on the 6th day of March, 1928, 1.966 votes were cast in favor of the issuance of said bonds and 11 votes were cast against the issuance of said bonds. The total number of persons qualified to vote at said election, as shown by the registration books, was 2, 246. Said board of aldermen has canvassed the returns of said election and has judicially determined and declared the result of said election. A copy of the minutes of said board of aldermen, marked Exhibit C, is hereto annexed and made a part of this agreed case.

(5) The city of Winston-Salem as now constituted exists and is organized pursuant to and in accordance with chapter 232 of the Private Laws of 1927, which was ratified and took effect on the 3d day of March, 1927. Previous to the enactment of said chapter 232 of the Private Laws of 1927, said city had existed and been organized pursuant to and in accordance with chapter 180 of the Private Laws of 1915, and the acts amendatory thereof and supplemental thereto. Section 2 of said chapter 232 of the Private Laws of 1927 sets forth the corporate boundary lines of said city. The territory included within said corporate boundary lines embraces territory which was not included within the corporate boundary lines of said city as set forth in said chapter 180 of the Private Laws of 1915, and said territory not embraced within said corporate boundary lines as set forth in said chapter 180 of the Private Laws of 1915 was added to and made a part of said city either by special or local acts of the General Assembly of North Carolina passed subsequent to the enactment of said chapter 180 of the Private Laws of 1915 or by said chapter 232 of the Private Laws of 1927. A substantial portion of said added territory was added to and made a part of said city by special or local acts enacted since the 10th day of January, 1917. Of such territory added since the 10th day of January, 1917, a portion was at the time of its annexation to said city a part of one or more nonlocal tax school districts, and a portion was a part of one or more local tax school districts, under the control of the county board of education of Forsyth county. No portion of said territory annexed to said city since the 10th day of January, 1917, was, at the time of its annexa-tion, a part of any special charter school district.

(6) Both chapter 180 of the Private Laws of 1915 (section 52) and chapter 232 of the Private Laws of 1927 (section 45) provide that the board of aldermen of the city of Winston-Salem "shall provide for the establishment, continuance, maintenance, and support of a system of public schools, and for this purpose shall annually appropriate a certain part of the taxes of the city."

The plaintiff prayed that the defendants be enjoined from issuing the proposed bonds and that he recover his cost. The prayer was denied; the court adjudging that the defendants be not restrained or enjoined and that they recover their costs. The plaintiff excepted and appealed.

Richmond Rucker, of Winston-Salem, for appellant.

Fred M. Parrish, of Winston-Salem, for appellees.

ADAMS, J. [1] At the session of 1927 the General Assembly amended the charter of Winston-Salem, defined the corporate limits of the city, and provided for its government. Private Laws 1927, c. 232. In section 45 the board of alderman is required to make provision for the establishment, continuance, maintenance, and support of a system of public schools, to appropriate annually for this purpose a certain part of the taxes of the city, and to ascertain and fix the amount of the appropriation. The substance of these provisions was included in the charter of 1915. Private Laws 1915, c. 180. The appellant says that section 45 is in conflict with Article 7 § 7, of the Constitution, and therefore inoperative for the reason that the maintenance of schools is not a necessary expense (Hollowell v. Borden, 148 N. C. 255, 61 S. E. 638); that the charter contains no provision for submitting to the qualified voters of the city the question of levying a tax for schools, and that the omission of such a requirement invalidates that part of the section which purports to authorize the levy. His deduction is that, as no means is provided for the exercise of the power, the power itself must fail. To support this proposition he cites Gastonia v. Bank, 165 N. C. 507, 81 S. E. 755.

In that case the decisive fact was that the Legislature had enacted a law which upon its face, without providing for a vote of the people, authorized the aldermen of Gastonia to issue bonds for improving the streets, etc., and for erecting graded school buildings, and the court held that, as the erection of school buildings is not a necessary expense, so much of the act as authorized the sale of bonds for this purpose was invalid, because the act did not require submission of the question to the qualified voters. No election had been held, and the will of the voters had not been ascertained. But in the case at bar an election was duly conducted, and the qualified voters with substantial unanimity approved the issuance of bonds. The language used in Gastonia v. Bank, supra, is not to be given a strictly literal meaning; it must be considered in connection with other decisions. For example, in Bank v. Com'rs, 116 N. C. 339, 363, 21 S. E. 410, it was insisted that it is as essential to the validity of bonds that the Legislature in express terms should authorize the election and specifically require the votes of a majority of the qualified voters as that it should authorize financial aid from the town. Disapproving this contention the court remarked:

"It is admitted to be an essential prerequisite to the validity of such bonds that the Legislature should grant the power to aid, and that the majority of the qualified voters should signify their approval by their ballots cast. The machinery for ascertaining the will of the electors is a secondary consideration. The main purpose was to prohibit the imposition of a tax for certain objects, without the assent of a majority of the qualified...