Rodman-Heath Cotton Mills v. Town of Waxhaw

• Decision Date: 13 May 1902
• Citation: 41 S.E. 488,130 N.C. 293
• Parties: RODMAN-HEATH COTTON MILLS v. TOWN OF WAXHAW.
• Court: North Carolina Supreme Court

41 S.E. 488

130 N.C. 293

RODMAN-HEATH COTTON MILLS v. TOWN OF WAXHAW.

Supreme Court of North Carolina

May 13, 1902

Appeal from superior court, Union county; Robinson, Judge.

Suit by the Rodman-Heath Cotton Mills against the town of Waxhaw. From a decree for defendant, plaintiff appeals. Affirmed.

Furches C.J., and Clark, J., dissenting in part.

P.L.1889 c. 119, incorporating the town of Waxhaw, is valid, though the provisions relating to the power of taxation are invalid for they may be eliminated without affecting the other portions of the act.

Adams & Jerome and J. H. Pou, for appellant.

Redwine & Stack, for appellee.

DOUGLAS J.

This is an action to enjoin the defendant from selling certain property belonging to the plaintiff, seized for nonpayment of taxes, and to further enjoin the defendant from collecting any taxes under its present charter, on the ground that said charter was not passed in accordance with the provisions of section 14 of article 2 of the constitution. It being admitted that the said charter (P. L. 1889, c. 119) was not so passed, it becomes a question of law as to the necessity of such a compliance. We see no reason why cities and towns may not be incorporated by an act passed in the ordinary legislative method. Article 2, § 23, of the constitution provides that "all bills and resolutions of a legislative nature shall be read three times in each house before they pass into laws; and shall be signed by the presiding officers of both houses." This court has repeatedly held that the ratification of an act by the presiding officers of the two houses of the general assembly, declaring it to have been read three times in each house, is conclusive evidence of such fact. Carr v. Coke, 116 N.C. 223, 22 S.E. 16, 28 L. R. A. 737, 47 Am. St. Rep. 801; Bank v. Commissioners, 119 N.C. 214, 222, 25 S.E. 966; Commissioners v. Snuggs, 121 N.C. 394, 400, 28 S.E. 539, 39 L. R. A. 439; Commissioners v. De Rosset, 129 N.C. 275, 40 S.E. 43; Black v. Commissioners, 129 N.C. 121, 39 S.E. 818. It is equally settled by these and other cases that while such ratification is conclusive evidence of a compliance with article 2, § 23, of the constitution, it neither proves, nor tends to prove, any compliance with the provisions of section 14 of the same article. This section is as follows: "No law shall be passed to raise money on the credit of the state or to pledge the faith of the state, directly or indirectly, for the payment of any debt, or to impose any tax upon the people of the state, or to allow the counties, cities or towns to do so, unless the bill for the purpose shall have been read three several times in each house of the general assembly, and passed three several readings, which readings shall have been on three different days, and agreed to by each house respectively, and unless the yeas and nays on the second and third reading of the bill shall have been entered on the journal." We have repeatedly held that this section is mandatory, and not directory, and that a failure to comply with its provisions is fatal to any statutory authority to levy a tax or create a debt. Bank v. Commissioners, and Commissioners v. Snuggs, supra; Thrift v. Commissioners, 122 N.C. 31, 30 S.E. 349, 44 L. R. A. 427; City of Charlotte v. Shepard, 122 N.C. 602, 29 S.E. 842; Mayo v. Commissioners, 122 N.C. 5, 29 S.E. 343, 40 L. R. A. 163; Commissioners v. Call, 123 N.C. 308, 31 S.E. 481, 44 L. R. A. 252; Commissioners v. Payne, 123 N.C. 432, 31 S.E. 711; Commissioners v. De Rosset, and Black v. Commissioners, supra. This section of the constitution makes no distinction whatever between "necessary expenses" and unnecessary or extraordinary expenses, and we have no power to create any such distinction by judicial construction. Such a distinction is made only in article 7, § 7, which is as follows: "No county, city, town or other municipal corporation shall contract any debt, pledge its faith, or loan its credit, nor shall any tax be levied, or collected by any officers of the same, except for the necessary expenses thereof, unless by a vote of the majority of the qualified voters therein." (The italics are ours.) We are therefore compelled to hold that no city or town can levy any tax or incur any debt for any purpose whatever, unless the act authorizing such tax or debt is passed in accordance with the provisions of article 2, § 14, of the constitution. Therefore the charter of the town of Waxhaw, not having been so passed, confers no power of taxation.

As however, this power of taxation can be eliminated from the act without destroying its validity as a charter (Greene v. Owen, 125 N.C. 212, 34 S.E. 424, and cases therein cited), we are of opinion that said act incorporated the town of Waxhaw, which, by virtue of such incorporation, became at once subject to all the provisions of, and endowed with all the powers conferred generally upon towns and cities by, chapter 62 of the second volume of the Code. It is settled that the Code was passed in accordance with the provisions of article 2, § 14, of the constitution. The defendant has, therefore, for the purpose of meeting its necessary expenses, the powers of taxation set out in section 3800 of the Code, subject, however, to the restrictions contained in its charter. Such charter, while incapable of conferring the power of taxation, may restrict such general power in accordance with article 8, § 4, of the constitution, which is as follows: "It shall be the duty of the legislature to provide 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...