Town Of Murphy v. C. A. Webb & Co

• Decision Date: 25 October 1911
• Citation: 156 N.C. 402,72 S.E. 460
• Court: North Carolina Supreme Court
• Parties: TOWN OF MURPHY v. C. A. WEBB & CO.

72 S.E. 460

156 N.C. 402

TOWN OF MURPHY

v.C. A. WEBB & CO.

Supreme Court of North Carolina.

Oct. 25, 1911.

1. Municipal Corporations (§ 918^*)—Public Improvements —Constitutional Provisions—"Necessary Expenses."

In the absence of legislative restriction, there is no objection to the issuance of bonds for the expenses of a town, without a popular vote, and bonds issued by a town to extend its water and sewerage system and make street improvements fall within the class of "necessary expenses."

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 918.*

For other definitions, see Words and Phrases, vol. 5, pp. 4715, 4716.]

2. Municipal Corporations (§ 72*)—Legislative Control —Municipal Debts and Bonds.

Under Const, art. 8, § 4, which makes it the duty of the Legislature to provide for the organization of municipal corporations, and to restrict their power of taxation and borrowing money, the Legislature may require a popular vote as a condition to the issue of municipal bonds, even for necessary purposes, and may otherwise limit the power of cities and incorporated villages to tax or to contract debts.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 176; Dec. Dig. § 72.*]

3. Municipal Corporations (§ 64*)—Legislative Control in General.

Cities and towns are but instrumentalities of the state for the administration of local government, and their authority as such may be enlarged, abridged, or withdrawn by the Legislature.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. 64.*]

4. Constitutional Law (§ 70*) — Judicial Functions—Wisdom of Legislation.

The policy and wisdom of statute law is a matter for the Legislature, and courts must apply the law as they find it.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 129-132; Dec. Dig. § 70.*]

5. Statutes (§ 154*)—Repeal—Reference to and Identity of Act Repealed.

The charter of the town of Murphy (Priv. Laws 1889, c 239) § 17, prohibited the town from borrowing money or issuing bonds, unless authorized by the qualified voters of the town. Priv. Laws 1911, c. 3S7, entitled "An act to extend the corporate limits of the town of Murphy, " by section 1, amended section 1 of the charter, and, by section 2, in terms repealed section 17 of chapter 239 of the "Public" Laws of 1889; that chapter of the Public Laws being a railroad incorporation act, in no way referring to the town of Murphy. Held that, as the chapter and section repealed corresponded with the only chapter and section of the Laws of 1889, public or private, that related to the same subject-matter, the word "public" in the reference might be treated as a clerical error, which would not defeat the intention to repeal section 17 of the charter.

[Ed. Note.—For other cases, see Statutes. Cent. Dig. § 221; Dec. Dig. § 154.*]

6. Statutes (§§ 47, 214*) — Construction-Misnomer or Misdescription.

A misdescription in a statute will not vitiate the enactment, provided the means of identifying the thing intended, are clear, and in aid of construction the court may call in anything in the act itself, or even the erroneous description, though the reference to the extraneous matter may not in itself be full and accurate.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 47, 290; Dec. Dig. §§ 47, 214.*]

7. Municipal Corporations (§ 918*)—Public Improvements—Statutory Provisions.

Section 17 of the charter of the town of Murphy (l'riv. Laws 1889, c. 239). was repealed by Priv. Laws 1911, c. 387, § 2), Revisal 1905, § 2918), concerning the incorporation and powers of towns, which provided that "this chapter shall apply to all incorporated cities and towns where the same shall not be inconsistent with special acts of incorporation or special laws in reference thereto, " and section 2916, specifying the powers of towns, was amended by Pub. Laws 1911, c. 86, ratified two days before the amendment to the charter by Priv. Laws 1911. c. 387, § 2. Held, that Pub. Laws 1911. c. SO. was not intended to affect the power to issue bonds without a vote given the town of Murphy.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1919-1923; Dec. Dig. § 918.*]

Appeal from Superior Court, Cherokee County; Webb, Judge.

Action by the Town of Murphy against C. A. Webb & Co. On a case agreed there was judgment for the plaintiff, and the defendants appeal. Affirmed.

This case was brought to test the validity of certain bonds, issued by the plaintiff, for the purpose of extending or enlarging its water and sewerage system and of making street improvements, and was heard in the court below upon the following case agreed:

(1) The plaintiff is a municipal corporation, chartered by the name aforesaid, and organized under and by virtue of chapter 239 of the Private Laws of 1889, and the acts amendatory thereof, and especially chapter 387 of the Private Laws of North Carolina of 1911.

sell to them certain bonds of the town of Mur-

(2) On the 31st day of August, A. D. 1911, the plaintiff contracted with the defendants to phy, of the par value of $25,000, which are to draw interest at the rate of 6 per cent, and to run for a period of 30 years, and the proceeds of which are to be used for extending the water and sewerage system of the town of Murphy, and for making certain necessary street improvements.

(3) The plaintiff claims that it has the right to issue the bonds under and by virtue of its charter, to wit. chapter 239 of the Private Laws of 1889, as amended by chapter 387 of the Private Laws of 1911, and of a resolution which was adopted by the board of commissioners of said town, on the 6th day of September, 1911, and that no vote of the people is required.

(4) The defendants have refused to carry out said contract, by receiving and paying for the said bonds, for the reason that section 17 of said chapter 239 of the Private Laws of 18S9 does not permit the said town to borrow money or issue bonds, unless authorized by the qualified voters of said town.

(5) The plaintiff claims that section 2 of said chapter 387 of the Private Laws of North Carolina of 1911 repeals said section 17, and permits and authorizes the town to issue the bondswithout submitting the question of their issue to a vote of the qualified voters of the town. The defendants contend that said chapter 387, Private Laws 1911, does not repeal said section 17.

(6) It is also agreed that chapter 239 of the Private Laws of 1889 is the charter of the town of Murphy, and that chapter 239 of the Public Laws of 1889 is "an act to incorporate the Fayetteville & Albemarle Railroad Company."

(7) It is agreed between the plaintiff and the defendants that the superior and the Supreme Courts be requested to pass upon the question herein raised, and that judgment be entered according to the final decision which may be given, and, if the court is of the opinion that the bonds are valid, that the defendants be required to receive and pay for the bonds; but, if the court is of the opinion that the bonds are invalid, then the defendants shall not be required to pay for said bonds.

The court, after hearing argument and upon consideration of the facts, rendered judgment for the plaintiff, and the defendants appealed.

Chas. A. Webb, for appellant. E. B. Norvell, for appellee.

WALKER, J. (after stating the facts as above). [1, 2] It is thoroughly well settled by our own decisions that for the necessary expenses of a county or town bonds may be issued without a vote of the people authorizing the same, and the purposes for which the bonds in question were issued fall within the class of necessary expenses. Fawcett v. Mount Airy, 134 N. C. 125, 45 S. E. 1029, 03 L. R. A. 870, 101 Am. St. Rep. 825; Wads-worth v. Concord, 133 N. C. 587, 45 S. E. 948; Robinson v. Goldsboro, 135 N. C. 382, 47 S. E. 4G2; Commissioners v. Webb, 148 N. C. 122, 61 s. E. 670; Bradshaw v. High Point, 151 N. C. 517, 66 S. E. 601; Ellison v. Williamston, 152 N. C. 147, 67 S. E. 255. But while this power which resides in the municipal body is not restricted by the Constitution, it was provided by that instrument, with reference thereto, as follows: "It shall be the duty of the Legislature to provide for the organization of cities 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." Const, art. 8, § 4. It has therefore been held by this court that the Legislature may require a favorable popular vote, as preliminary to the valid issue of municipal bonds, even for necessary expenses, and may otherwise restrict or limit the power of cities and incorporated villages (or towns) to tax or contract debts, either directly or indirectly, and when the Legislature has exercised the power thus conferred upon it the local authorities must heed its mandate and proceed accordingly. Evans v. Commissioners, 89 N. C. 154; Wadsworth v. Concord, supra; Robinson v. Goldsboro, supra; Perry v. Commissioners, 148 N. C. 521, 62 S. E. 608; Bur-gin v. Smith, 151 N. C. 5G6, 66 S. E. 607; Jones v. Newbern, 152 N. C. 64, 67 S. E. 173; Ellison v. Williamston, supra. For this reason, we held, in Wharton v. Greensboro 146 N. C. 356, 59 S. E. 1043, that the act of 1889, c. 486 (Revisal, § 2977), was a constitutional enactment and that under it, where other provision had not been made by subsequent legislation, no city or town could contract a debt, pledge its faith, or loan its credit for the maintenance of internal improvements, or for any special purpose whatsoever, to an extent exceeding in the aggregate 10 per cent, of the assessed value of the real and personal property situated therein, and that any levy of taxes above that limit would be null and void.

While in respect to cities and towns, it is said that the power of the Legislature to control them, in the exercise of their municipal powers, is...