Reade v. City of Durham

• Decision Date: 30 May 1917
• Docket Number: 326.
• Citation: Reade v. City of Durham, 173 N.C. 668, 92 S.E. 712 (N.C. 1917)
• Parties: READE v. CITY OF DURHAM.
• Court: North Carolina Supreme Court

92 S.E. 712

173 N.C. 668

READE v. CITY OF DURHAM.

No. 326.

Supreme Court of North Carolina

May 30, 1917

Appeal from Superior Court, Durham County; Kerr, Judge.

Action by R. P. Reade against the City of Durham. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action brought by plaintiff, as a resident and taxpayer of the city of Durham, to enjoin the issue of bonds for the purchase, or construction and maintenance of a system of waterworks by said city, for the purpose of supplying its inhabitants with water. The act of the General Assembly authorizing the issue of bonds for the purpose aforesaid was ratified on the 9th day of January, 1917. The plaintiff alleges that the act is void, because it was passed after the amendments to the Constitution of the state, which were adopted by the people at the election held on Tuesday November 7, 1916, had become of full force and effect, the contention being that the amendments took effect on the day of their adoption by the people, and when adopted, and that this being so, the Legislature was forbidden to pass the act authorizing the issue of bonds by the city of Durham for the purposes therein set forth. There are other grounds stated upon which the appellee, City of Durham, contends that the act is a valid exercise of legislative power, but, as we will decide the case upon the single ground that the amendments were not in force at the time the act in question was passed it is unnecessary to consider the others, and they are perhaps, too important to be examined and passed upon before they are so directly and squarely presented that their decision will be absolutely essential. The Constitution of the state provides in article 13, § 2:

"No part of the Constitution of this state shall be altered unless a bill to alter the same shall have been agreed to by three-fifths of each house of the General Assembly. And the amendment or amendments so agreed to shall be submitted at the next general election to the qualified voters of the whole state, in such manner as may be prescribed by law. And in the event of their adoption by a majority of the votes cast, such amendment or amendments shall become a part of the Constitution of the state."

Under this provision of the Constitution the General Assembly, at the session of 1915, and on March 9th of that year, passed by a three-fifths vote of each house, an act to submit certain alterations or amendments of the Constitution to the people for adoption, which, in substance, at least, if not literally, are as follows:

"Section 1. By adding at the end of article II a new section, to wit:

Sec. 29. The General Assembly shall not pass any local, private or special act or resolution: Relating to the establishment of courts inferior to the superior court; relating to the appointment of justices of the peace; relating to health, sanitation and abatement of nuisances; changing the names of cities, towns and townships; authorizing the laying out, opening, altering, maintaining or discontinuing of highways, streets or alleys; relating to ferries or bridges; relating to nonnavigable streams; relating to cemeteries; relating to the pay of jurors; erecting new townships, or changing township lines, or establishing or changing the lines of school districts; remitting fines, penalties and forfeitures, or refunding moneys legally paid into the public treasury; regulating labor, trade, mining or manufacturing; extending the time for the assessment or collection of taxes or otherwise relieving any collector of taxes from the due performance of his official duties or his sureties from liability; giving effect to informal wills and deeds. Nor shall the General Assembly enact

any such local, private or special act by the partial repeal of a general law, but the General Assembly may at any time repeal local, private or special laws enacted by it."

The above was the first amendment proposed for adoption by the people. The second of the amendments provided for the passage of general laws for the selection of emergency judges of the superior courts, and the third amendment for the enactment of general laws concerning chartering and organizing all corporations; and for amending, extending, and forfeiting of all charters with specified exceptions; and for altering or repealing such general laws, or special acts, where permitted at any time; and, further, by the amendment, the Legislature was forbidden to create corporations, or extend, alter, or amend their charters by special legislation, except in the cases enumerated therein. The fourth of these amendments was as follows:

"It shall be the duty of the Legislature to provide by general laws for the organization of cities, towns, and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debts by such municipal corporations."

The act further provides, omitting immaterial parts:

"Sec. 2. That the several amendments to the Constitution hereinbefore set forth as numbered from one to four inclusive, respectively, shall be and are hereby submitted to the qualified voters of the whole state at the next general election as separate amendments to the Constitution, all amendments proposed under each number respectively being regarded as one amendment.

Sec. 3. That the said several proposed amendments shall be designated on one ballot by their appropriate article and section numbers, and also by their appropriate descriptive titles, and as so designated on said ballot shall be consecutively numbered in the manner and form hereinafter set forth."

"Sec. 6. That, except as herein provided, the election upon the several amendments herein designated shall be conducted in the same manner and under the same rules and regulations as provided under the laws governing general elections and in force at the time of said general election at which these amendments shall be submitted. The said election shall be held and the votes returned, compared, counted and canvassed, and the result announced, under the same rules and regulations as are in force at the general election in the year one thousand nine hundred and sixteen for returning, comparing, counting and canvassing the votes for Governor; and if the majority of the votes cast be in favor of any amendment, it shall be the duty of the Governor of the state to certify said amendment under the seal of the state to the secretary of state, who shall enroll the said amendment so certified among the permanent records of his office.

Sec. 7. That at least six months prior to the said election the secretary of state shall cause to be printed not less than five hundred thousand (500,000) copies of the amendments to be submitted at the said election, in one pamphlet, together with a copy of the Constitution as it now stands, and a form of ballot, including number, title, description, and instructions to voters as shown hereinbefore; and that at least one thousand (1,000) of said pamphlets shall be forwarded within thirty days after publication to the register of deeds of each county in the state for distribution; and that the remainder of said pamphlets shall be distributed under the supervision of the Governor and secretary of state.

Sec. 8. Each amendment on which the number of affirmative votes shall exceed the number of negative votes shall become a part of the Constitution; and any amendment so adopted shall take effect on the second Wednesday after the first Monday in January in the year one thousand nine hundred and seventeen. Any provision of the amendments passed and submitted by this General Assembly and so adopted by the qualified voters inconsistent with or in conflict with any provisions of the present Constitution shall be held to prevail.

Sec. 9. All laws and clauses of laws in conflict with the provisions of this act are hereby repealed.

Sec. 10. This act shall be in force from and after its ratification."

The amendments were submitted, as required by the act, at the general election in November, 1916, and all of them were adopted by the people.

The rules and regulations of the general election law of the state in force in November, 1916, for returning, comparing counting, and canvassing the votes for Governor provide that the board of state canvassers shall estimate the votes cast for officers of the executive department from the abstracts returned to the secretary of state, and shall publish a statement of the result, but only for public information, and it shall not have the effect of determining who has been elected to the particular office of that department of the government, but the election of such officer shall be ascertained and declared according to section 3, art. 3, of the Constitution, which provides that the returns for Governor and other executive officers shall be sealed up and transmitted to the Speaker of the House of Representatives, who shall open and publish the same in the presence of a majority of the members of both Houses of the General Assembly, and the person having the highest number of votes shall be declared to have been duly elected, with a provision for settling contested elections. The statute (Revisal of 1905, § 5326), as subsequently amended, enacts the provisions as contained in article 3, § 3, of the Constitution, and provides, further, that on the first Tuesday after the convening of the General Assembly, and after an election of executive and certain other officers mentioned, the Senate and House shall meet in joint session in the hall of the House of Representatives, at 11 o'clock in the forenoon, when and where the Speaker shall proceed, in compliance...