Storm v. Town of Wrightsville Beach

• Decision Date: 20 May 1925
• Docket Number: 299.
• Citation: 128 S.E. 17,189 N.C. 679
• Parties: STORM v. TOWN OF WRIGHTSVILLE BEACH ET AL.
• Court: North Carolina Supreme Court

128 S.E. 17

189 N.C. 679

STORM v. TOWN OF WRIGHTSVILLE BEACH ET AL.

No. 299.

Supreme Court of North Carolina

May 20, 1925

Appeal from Superior Court, New Hanover County; Dunn, Judge.

Submission of controversy without action by W. W. Storm against the Town of Wrightsville Beach and others. Judgment for defendants and plaintiff appeals. Affirmed.

Special act authorizing town to issue bonds held unconstitutional because read twice on same day, contrary to mandatory terms of Constitution.

The material facts are as follows:

The 1925 session of the General Assembly passed a special act entitled "An act to authorize the town of Wrightsville Beach to issue bonds." Under the provisions of the act the town of Wrightsville Beach is authorized to issue bonds to the aggregate amount of $60,000 for the following purposes:

(1) Constructing or reconstructing jetties along the beach in the town of Wrightsville Beach, in order to protect the town against encroachments by the ocean and to build up the town; (2) acquiring and improving a waterworks system or plant for the town; (3) constructing or reconstructing public boardwalks on the streets or other public places of the town; (4) constructing or acquiring an incinerator for the destruction of garbage in the town; (5) enlarging the sewer system of the town; and (6) funding or paying $13,000 of outstanding indebtedness of the town incurred before March 6, 1925, for the purpose of constructing jetties as aforesaid and constructing a sewer system for the town.

The bonds are to be issued without a vote of the people of the town, and are to be issued, either under the authority of the special act referred to, or under the Municipal Finance Act 1921 (Consolidated Statutes Supp. 1924, vol. 3, § 2918).

The Senate Journal shows that the first and second readings of the bill (the special act hereinabove referred to) in the Senate took place on the same day. The court was of the opinion that for this reason the special act was unconstitutional, but was further of the opinion that all of the purposes for which the bonds are to be issued are for necessary expenses, and that therefore the town of Wrightsville Beach has authority to issue the same, independently of the special act, and under the authority of the Municipal Finance Act, and thereupon signed the following judgment:

"This controversy without action, coming on to be heard by consent of the parties before his honor, Albion Dunn, judge, on the 25th day of April, 1925, and after hearing the same upon the agreed case herein, and hearing the arguments of counsel for the plaintiff and the defendants, the court is of the opinion that all of the purposes for which bonds herein referred to are to be issued constitute necessary expenses of the town of Wrightsville Beach within the meaning of section 7, art. 7, of the Constitution of North Carolina, and, while the court is of the opinion that the act of the General Assembly of 1925, being entitled 'An act to authorize the town of Wrightsville Beach to issue bonds,' ratified March 6, 1925, was not enacted in accordance with the requirements of the Constitution of North Carolina, yet the proper officers of the town of Wrightsville have authority under the Municipal Finance Act of 1921 to issue said bonds, and that therefore the issuance of said bonds for the purposes set out in the agreed case herein should not be enjoined.

The court further finds as a fact that all requirements of the Municipal Finance Act of 1921 have been complied with, and that the said bonds issued thereunder will be a valid and binding obligation of the said town of Wrightsville Beach."

Plaintiff excepted to the judgment, assigned error, and appealed to the Supreme Court.

K. O. Burgwin, of Wilmington, for appellant.

Marsden Bellamy, of Wilmington, and Reed, Dougherty & Hoyt, of New York City, for appellees.

CLARKSON J.

Are the purposes for which the town of Wrightsville Beach desires to issue $60,000 in bonds "necessary expenses" within the meaning of section 7 of article 7 of the Constitution of North Carolina? We think they are, and "a vote of the majority of the qualified voters therein" is not necessary.

The constitutional provision 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 question, What is a necessary expense? Which is a judicial one for the courts to determine, is one that cannot be defined generally so as to fit all cases which may arise in the future. As we progress, we look for better moral and material conditions and the governmental machinery to provide them. "Better access to the good things of life for all people," safety, health, comfort, conveniences in the given locality. Webster defines "necessary":

"A thing that is necessary or indispensable to some purpose; something that one cannot do without; a requisite; an essential."

What is a necessary expense for one locality may not be a necessary expense for another. Fawcett v. Mt. Airy, 134 N.C. 125, 45 S.E. 1029, 63 L. R. A. 870, 101 Am. St. Rep. 825; Keith v. Lockhart, 171 N.C. 451, 88 S.E. 640, Ann. Cas. 1918D, 916.

It is conceded by able counsel of both parties to this controversy that waterworks and sewerage system included in the bond issue are necessary expenses.

The term, in the Constitution, "necessary expenses" is not confined to expenses incurred for purposes absolutely necessary to the very life and existence of a municipality, but it has a more comprehensive meaning. It has been held in this jurisdiction that streets, waterworks, sewerage, electric lights, fire department and system, municipal building, market house, jail or guard house are necessary expenses. McLin v. Newbern, 70 N.C. 12; Fawcett v. Mt. Airy, supra; Greensboro v. Scott, 138 N.C. 181, 50 S.E. 589; Commissioners v. Webb, 148 N.C. 122, 61 S.E. 670; Hightower v. Raleigh, 150 N.C. 569, 65 S.E. 279; Bradshaw v. High Point, 151 N.C. 517, 66 S.E. 601; Jones v. New Bern, 152 N.C. 64, 67 S.E. 173; Underwood v. Asheboro, 152 N.C. 641, 68 S.E. 147; Hotel Co. v. Red Springs, 157 N.C. 137, 72 S.E. 837; Robinson v. Goldsboro, 161 N.C. 668, 77 S.E. 948; Gastonia v. Bank, 165 N.C. 511, 81 S.E. 755; Le Roy v. Elizabeth City, 166 N.C. 93, 81 S.E. 1072; Power Co. v. Elizabeth City, 188 N.C. 296.

Plaintiff contends that expenditures for jetties are not a necessary expense, and says:

"It is noteworthy also that it has never been decided that expenditures for the garbage incinerator or for boardwalk are necessary expenses."

If streets are a necessary expense, it naturally follows that sidewalks are. 28 Cyc. p. 833:

"The sidewalk is the part of the street set apart for pedestrians. The word 'street,' as ordinarily used, includes a sidewalk, although it is sometimes used in its restricted sense as including only the roadway."

The very name of defendant--Wrightsville Beach--indicates it is a town on the beach, and it is a matter of common knowledge that it prospers mostly by its summer visitors and tourists. They go there for health and recreation. The location of the hotels, boarding houses, and other houses will naturally be along the beach, and "it goes without saying" that boardwalks are a necessary expense to conveniently get from place to place in that kind of locality.

An incinerator for the destruction of garbage in a town, of all things, especially a town on a beach that functions mostly in the summer, is a necessary expense. It eliminates the odor that comes from filth, and is a great health precaution. It destroys the breeding place of flies--annoying, to say the least, to man and beast. It is a medical fact that flies breed so rapidly that in a short period their increase is enormous. Of course they die, but they must have filth to breed in and food to live on. The breeding places must be eliminated; if not, from these places of filth they come into the habitation of man (hence the growth in screening), and pollute and poison food and drink. To this army of little marauders, the medical fraternity claim that in consequence of this filth and disease carrying fly, not only the strong but the weak and especially...