Robinson v. . Goldsboro , 122 N.C. 211 ( 1898 )

This action, by a resident taxpayer, is to enjoin the city of Goldsboro from issuing bonds and levying a tax, to pay the interest semiannually and the principal at maturity, for the purpose of constructing a system of sewerage for said city.

Laws 1891, ch. 61, passed in strict conformity to the requirements of the Constitution, section 1, for the purpose of providing a system of sewerage for the city of Goldsboro, or of making other public improvements, . . . or for either or both of such purposes "as and when the board of aldermen may determine," authorizes and empowers the board to issue its bonds from time to time not to exceed in the aggregate $40,000. Section 4 requires the board annually to levy a particular and specified tax to pay said bonds. Section 5 requires, before issuing any of such bonds, that the question upon notice shall be submitted to the qualified voters of said city. An amendatory act, chapter 107, Laws 1893, ratified 25 February, 1893, which was not passed as required by Article II, section 14 of the Constitution, in section 4 enacts: "That section one, line seven (7) of chapter sixty-one of the Private Laws of eighteen hundred and ninety-one be amended by striking out the words forty thousand and inserting in lieu thereof the words `fifty (213) thousand,' and, as thus amended, that sections one, two, three, four, and five of said chapter be and the same are hereby reenacted."

The resolution of the board, to hold an election on 2 May, 1898, was under the act of 1891, ch. 61, amended by Laws 1893, ch. 107, to vote on issuing bonds in the sum of $30,000 for the purpose of constructing a system of sewerage" and of levying a tax, etc. The notice of such election was in the same language, and that the electors would vote "approved" or "disapproved." At the time of said election the number of qualified voters was 1,009 and a majority voted "approved." It appears in the record that on 13 March, 1893, an election was held "for a system of sewerage and other public improvements" for issuing bonds in the sum of $50,000, and a majority voted "disapproved."

His Honor dissolved the restraining order and held that the city had power to issue the bonds, and plaintiff appealed.

Two questions are presented to this Court: (1) Did the election held 13 March, 1893, exhaust the power of the defendant, or could the board hold another? To the average mind it would seem that it did not. The first was for a double purpose, to wit, an issuance of bonds for $50,000 for sewerage and other improvements not specified. The second was for a single object specified and for a definite sum. The object and conditions were not the same in the two instances.

In Caldwell v. Justices, 57 N.C. 323, it was held that under a railroad charter, amended at a subsequent session, authorizing a stock subscription by the county, the justices could submit the proposition for approval, although a former proposition had been submitted to the voters and rejected, and so, toties quoties, according to emergencies. This decision has been approved several times and is conclusive of the (214) present question. The words in section 1, "as when the board of aldermen may determine," imply continuing authority to submit the question. (2) Does the passage of Laws 1893, ch. 107, without complying with the Constitution, Article II, section 14, and without three several readings, etc., affect the question? If that act had never been passed no one would doubt the existence of the power under Laws 1891, ch. 61. The act does not profess to repeal anything, and repeals are not to be implied. The act (section 4) amends the former act only as to the amount of the bonds that may be issued, and expressly reenacts sections 1, 2, 3, 4, and 5 of the act of 1891. Those are the sections that confer the power to issue bonds and levy taxes under their prescribed regulations. The point, then, is whether repealing and reenacting at the same time, a former statute, does repeal it. All good authorities are to the contrary. "Where a law is amended and reenacted, those parts of the law simply repeated are not repealed and reenacted, but are considered to have continued in force from the beginning." 23 A. E. Enc., 285, and authorities cited. This Court has repeatedly held "that if the Legislature enacts a law in the terms of the former one, and at the same timerepeals the former, this amounts to a reaffirmance of the former law, which it does not, in legal contemplation, repeal. The provision is continued without intermission." S. v. Williams, 117 N.C. 753; Wood v.Bellamy, 120 N.C. 212. These authorities more than cover the ground in this case. Here, nothing is repealed, and the sections 1, 2, 3, 4, and 5 reenacted were not and had not been repealed, and needed no help. They contained full authority for issuing bonds to the (215) amount of $40,000, and they confer no power now to issue any larger amount. "Local option" laws ought to be liberally construed, to the end that the object and will of the corporate voters may be enforced. If the qualified voters of a municipal corporation desire to tax themselves for their own convenience, comfort, and health, the common-sense view is that they should be allowed to do so by every reasonable intendment of the legislation under which they are authorized to do so.

The power to contract and to levy the tax being conferred, and the consent of the taxpayer fairly obtained, it is difficult to see how the courts could restrain the exercise of such power. We see no error in the record, and the judgment below is

Affirmed.

Cited: Cottrell v. Lenoir, 173 N.C. 146.