Thrift v. Board of Com'rs of Town of Elizabeth City

• Decision Date: 26 May 1898
• Citation: Thrift v. Board of Com'rs of Town of Elizabeth City, 30 S.E. 349, 122 N.C. 31 (N.C. 1898)
• Parties: THRIFT v. BOARD OF COM'RS OF TOWN OF ELIZABETH CITY et al.
• Court: North Carolina Supreme Court

30 S.E. 349

122 N.C. 31

THRIFT v. BOARD OF COM'RS OF TOWN OF ELIZABETH CITY et al.

Supreme Court of North Carolina

May 26, 1898

Appeal from superior court, Pasquotank county; Brown, Judge.

Action by Frank Thrift against the board of commissioners of the town of Elizabeth City and another.Judgment for plaintiff and defendants appeal.Affirmed.

I. M Meekins, for appellants.

Shepherd & Busbee, for appellee.

DOUGLAS J.

This is an action brought to enjoin the board of commissioners of Elizabeth City from entering into a contract with thedefendant White for a water supply for the town and its inhabitants for the term of 30 years.Sections 1and7 of said contract are as follows:

"Section 1.Be it ordained by the town commissioners of the town of Elizabeth City, that the exclusive privilege be and is here by granted to the said John Orlando White, his associates or assigns, for a term of thirty years from and after the passage and approval of this ordinance, to construct and maintain water works within the corporate limits of the town of Elizabeth City, North Carolina, for supplying said town and its inhabitants with water for public and private uses; and to use the streets, alleys, side walks, public grounds, streams and bridges of said town of Elizabeth City embraced within the entire territory of the present corporate limits of the town, and all territory under their jurisdiction, and also whatever other territory and additions may at any time hereafter be annexed to said corporate limits, and become a part and portion thereof, for the purpose of placing, constructing, embedding, laying, taking up and repairing pipes, conduits, mains, buildings, machinery, hydrants and other structures, appliances and other devices, needful and requisite for the supplying, conducting and service of water to said town and its inhabitants."

"Sec. 7.In consideration of the advantages, conveniences and benefits which may result to said town and its inhabitants from the construction, maintenance and operation of said water works and of the water supply hereby secured for public and private uses, and as an incentive and inducement for the said grantee, his associates or assigns, to enter upon the construction of said water works, the exclusive franchise and license hereby granted to and vested in the said John Orlando White, his associates or assigns, shall remain in full force and effect for the full term of thirty years from the date of the completion of said water works.And the said town of Elizabeth City does hereby agree to rent of said grantee, his associates or assigns, for the use and purposes hereinafter mentioned, the seventy (70) hydrants hereinbefore mentioned for and during the term of thirty years, beginning at the time of the completion of said water works.Said town of Elizabeth City agrees to pay the said John Orlando White, his associates or assigns, rent for the use of said seventy (70) hydrants, the sum of forty dollars each, yearly, or, for the whole seventy hydrants, the sum of two thousand eight hundred dollars yearly, which rent shall be paid in equal semi-annual instalments on or before the last day of June and December in each and every year during said term."

It is admitted that there is no express statutory authority for such contract, and no legislative authority whatever, other than the section in the town charter authorizing the levy of taxes for general purposes not to exceed 75 cents on the $100 valuation.The plaintiff contends "that the ordinance in question is a contract by which the defendants pledge the faith and credit of the town, within section 7 of article 7 of the state constitution, and that the same is not a necessary expense, within the said constitutional provision," and that no grant of the exclusive use of the streets can be made "without express legislative authority."The defendants contend that the rental of an adequate water supply is such a necessary expense of the ordinary city government as not to require a submission to a popular vote of the inhabitants.It is apparently admitted that the rental can be paid from the ordinary tax levy, within the limit allowed by the charter.

The court below rendered the following judgment: "The court is of the opinion: (1) That waterworks are not a necessary expense, within the meaning of the constitution.Shepard v. Charlotte.(2) That it is beyond the power of the defendants to levy an increased tax, for the purposes set out in the pleadings, without further legislation approved by a majority of the qualified voters.(3) That it is not within the power of the defendants to bond the corporation for thirty years' rental.It is adjudged, upon the pleadings, that the defendant be perpetually enjoined against proceeding further in the execution of said ordinance, or accepting bond and paying out the revenues of the town under said ordinance, and from levying any tax in furtherance of, or discharge of, such obligation growing out of said ordinance, or doing any of the acts or things set out in paragraph 10 of the complaint."

We see no error in the judgment.It may now be taken as well settled by this court that water and lights are not in themselves such necessary expenses of a town as to authorize an unusual levy of tax, or the incurring of a debt, without proper legislative authority, and the approval of a popular vote.City of Charlotte v. Shepard,120 N.C. 411, 27 S.E 109, and same case on rehearing at this term (29 S.E. 842); Mayo v. Town of Washington(at this term)29 S.E. 343...