Jones v. City of New Bern

• Decision Date: 02 March 1910
• Citation: 67 S.E. 173,152 N.C. 64
• Parties: JONES v. CITY OF NEW BERN.
• Court: North Carolina Supreme Court

67 S.E. 173

152 N.C. 64

JONES v. CITY OF NEW BERN.

Supreme Court of North Carolina

March 2, 1910

Appeal from Superior Court, Craven County; R. B. Peebles, Judge.

Action by D. S. Jones against the City of New Bern. Judgment of dismissal on sustaining a demurrer to the complaint as failing to state a cause of action, and plaintiff appeals. Affirmed.

Failure of a municipality to provide a sinking fund for payment of principal, or a special tax for payment of interest, does not affect the legality of city bonds.

R. A Nunn, for appellant.

W. D McIver, for appellee.

BROWN J.

There are three objections made to the validity of the bond issue authorized by the ordinance of the board of aldermen of the defendant city: (1) That the ordinance was not ratified by a majority of the qualified voters, but only by a majority of the votes cast at the election. (2) That there is no provision made for payment of principal or interest. (3) That no notice of the election was given as required by law.

It appears from the complaint and the ordinance which is made a part thereof that the bonds are to be issued for street improvements and paving purposes in pursuance and by authority of defendant's charter. Priv. Laws 1899, c. 82 and the amendments thereto; Priv. Laws 1907, c. 61. The charter contains this provision: "Provided, that before any bonds are issued as herein provided, the question shall be submitted to a vote of the qualified voters of the city and a majority of the votes cast at such election shall be in favor of the issuing of said bonds." It may be considered settled in this state that no city or other municipal corporation can contract a debt for other than necessary expenses except by legislative sanction ratified by a majority of the qualified voters. But, when the debt to be contracted is for a necessary expense, the restrictive provision of the Constitution as to a majority of the qualified voters does not apply. It has likewise been held that the cost of maintaining, repairing, and paving the public streets is a necessary expense. Commissioners v Webb, 148 N.C. 122, 61 S.E. 670. Nevertheless a municipality, such as a city, town, or county, is subject to the control of the General Assembly even in respect to necessary expenses. Const. art. 8, § 4; Burgin v. Smith, 151 N.C. 566, 66 S.E. 607. It is therefore held that the directions of the Legislature must be followed and the provisions of the...