Young v. The Town of Henderson

• Decision Date: 31 January 1877
• Court: North Carolina Supreme Court
• Parties: D. E. YOUNG and others v. THE TOWN OF HENDERSON.

76 N.C. 420

D. E. YOUNG and others

v.THE TOWN OF HENDERSON.

Supreme Court of North Carolina.

January Term, 1877.

CIVIL ACTION, tried at a Special Term of GRANVILLE Superior Court, (held in August, 1876,) before Seymour, J.

The Commissioners of the Town of Henderson caused a street to be opened in said Town and for that purpose condemned a portion of the land belonging to one George B. Reavis. A committee of appraisers reported that the value of the land so condemned was $50, which was tendered to and refused by said Reavis. The amount was then deposited in the office of the Clerk of said Court for the use of said Reavis, who appealed from the action of the Commissioners to the Superior Court. At Fall Term, 1873, the case was referred by consent to John W. Hays, Esq., and in accordance with his report filed at Spring Term, 1874, a judgment was rendered in favor of said Reavis and against said Town for $450. At Spring Term, 1875, upon petition of said Reavis a peremptory mandamus was granted commanding the Commissioners of said Town to levy and collect a tax for the purpose of paying said $450 and interest and costs, and thereupon said Commissioners appointed a Board of three Assessors to value the real estate in said Town. On the 24th of May, 1876, upon such valuation, a tax of 75 cents on the $100 worth of real estate was levied, which was greater in amount than that levied by the Township Trustees on the same property. They also levied a tax of 25 cents on each $100 worth of merchandise purchased for twelve months prior to May 1st, 1876, and $2.00 on the poll.

On the 8th of June, 1876, the plaintiffs suing in their own behalf and also in behalf of other citizens and tax-payers of said town, obtained from His Honor, Judge Watts, an order restraining the defendants from proceeding in the collection of the taxes levied as aforesaid.

At the August Term of the Court, His Honor, Judge Seymour, on motion of defendants, vacated the restraining order of Judge Watts, except as to the tax of 75 cents on the $100 worth of real estate, and as to that ordered that the defendants collect a tax of 75 cents on the $100 as valued by the Board of Township Trustees. From this judgment the plaintiffs appealed.

Messrs. G. Badger Harris and Smith & Strong, for the plaintiffs .

Messrs. Busbee & Busbee and W. H. Young, for the defendants .

RODMAN, J.

The debt to Reavis was one which the Commissioners, independent of any statute to the contrary, had power to contract. The expense of extending a street is of the class of necessary expenses, and being of that class, the corporate authorities alone were entitled to judge whether it was actually necessary or not. Wilson v. City of Charlotte, 74 N. C. 748, and cases there cited; Tucker v. City of Raleigh, 75 N. C. 267. But the charter of the town which is found in the Private Acts of 1868-'9, ch. 79, § 22, enacts, “That among the powers hereby conferred on the Commissioners, they may borrow money, pledge the credit of the town and contract debts for the improvement of the town; Provided nevertheless, that these powers shall be exercised strictly in accordance with Art. 7, § 7, of the Constitution of North Carolina, and after the consent of the General Assembly of North Carolina first had and obtained in the manner prescribed in Art. 2, § 16 of the same Constitution.” In effect this section provides that the Town shall incur no debt without being previously authorized thereto by the General Assembly. But here is a debt which has been contracted, so far as affirmatively appears, without such consent, and a judgment and execution have been obtained upon it. The want of such authority might have been pleaded by Reavis as a bar to the proceedings to condemn his land for the street.

Perhaps also it would have been available to the corporation as a defence to the action of Reavis against them upon their giving up the land condemned. Any tax payer of the corporation would...