Town Of Warsaw v. Malone

• Decision Date: 09 October 1912
• Citation: Town Of Warsaw v. Malone, 75 S.E. 1011, 159 N.C. 573 (N.C. 1912)
• Court: North Carolina Supreme Court
• Parties: TOWN OF WARSAW . v. MALONE.

75 S.E. 1011

(159 N.C. 573)

TOWN OF WARSAW .

v.MALONE.

Supreme Court of North Carolina.

Oct. 9, 1912.

1. Municipal Corporations (§ 918^*)—Fiscal Management — Issuance of Bonds — Submission to Popular Vote.

Priv. Laws 1909, c. 204, providing for the issuance by the town of Warsaw of bonds to establish better sewerage and drainage systems and other public improvements, and requiring the question of issuing the bonds to be submitted to the qualified voters of the town, is a restriction on the power of the town to issue bonds without submitting the question to popular vote, even for necessary purposes, for which, in the absence of statute, the town would have the power to issue bonds.

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

2. Municipal Corporations (§ 918^2-*)—Fiscal Management — Issuance of Bonds — Submission to Popular Vote—"Public Improvement."

The construction and maintenance of bridges is a "public improvement" within Priv. Laws 1909, c. 204, requiring the submission to a popular vote of the question of the issuance of bonds by the town of Warsaw for sewerage and drainage systems and other public improvements.

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

For other definitions, see Words and Phrases, vol. 6, pp. 5791, 5792.]

Appeal from Superior Court, Duplin County; Carter, Judge.

Action by the Town of Warsaw against C. N. Malone. Judgment for defendant, and plaintiff appeals. Affirmed.

Johnson & Johnson, of Warsaw, for appellant.

Charles N. Malone, of Asheville, for appellee.

CLARK, C. J. This is an action submitted without controversy under Rev. § 803. In July, 1912, the commissioners of the town of Warsaw passed an ordinance to issue $5,000 in town bonds running 30 years and bearing 6 per cent. interest, to be sold at not less than par, "the proceeds to be used exclusively for the purpose of building and maintaining bridges in the town of Warsaw." The purchaser declined to accept the bonds, alleging their invalidity, and this is an action to compel him to do so.

The defendant does not contest that bridges are a necessary municipal expense, and that the town, in the absence of legislative restriction, would have the power to issue bonds for that purpose (Fawcett v. Mt. Airy, 134 N. C. 125, 45 S. E. 1029, 63 L. R. A. 870, 101 Am. St. Rep. 825), but he relies upon chapter 204, Private Laws 1909. The preamble and section 1 of that act provides for the issuance by the town of $5,000 in bonds "to establish a better sewerage system and drainage system and other public improvements." The act provides that the question of the issuance of the said bonds should be first submitted to the qualified voters of said town. The above ...