Davis v. . Fremont , 135 N.C. 538 ( 1904 )

DOUGLAS, J., dissenting. The commissioners of the town of Fremont, in Wayne County, on May 13, 1904, adopted a resolution reciting that experience had demonstrated the necessity for providing a system of lighting the streets of the town, and that all experiments theretofore made to do so had proved unsuccessful; that after investigation the board had ascertained that an electric light plant can be erected of sufficient capacity to furnish light for the town and its inhabitants at a cost of $4,000. They proceed to declare that the establishment of an electric light plant for the town is a public necessity, and that it is necessary to contract a debt of $4,000 for such purpose. It is thereupon resolved to issue bonds in said amount of $4,000, each carrying interest at 6 per cent and maturing January 1, 1919. Provision is made for a sale of the bonds at not less than par, and that the proceeds of such sale shall not be used for any other purpose than the purchase and establishment of (539) said plant. Provision is also made for levying a tax for the payment of the interest on the bonds and a sinking fund to pay the principal at maturity.

It appears from the pleadings that the town of Fremont was duly incorporated with all the powers conferred upon cities and towns by chapter 62 of The Code. The town had a population of eight hundred, and the assessed value of the real and personal property is $222,000. Its present rate of taxation is forty-five cents on the one hundred dollars worth of property and $1.35 on each poll. Its charter limit is 66 2-3 cents and $2 on each poll.

The plaintiff, a taxpayer in the town, seeks to enjoin the commissioners from issuing the bonds for that the proposition has not been submitted to a vote of the people of the town. The cause was heard by his Honor JudgeAllen upon a motion for an injunction, who found the facts above set forth, and the additional fact that there was no limitation in the charter of the town of Fremont upon the power to contract for necessary expenses, and the further fact that the town can pay the interest on said debt and provide a sinking fund to pay the principal without exceeding the limit of taxation in its charter, and being of opinion that the establishment of the electric light plant is a necessary expense, refused to grant the injunction. Plaintiff appealed.

We are of the opinion that the facts set forth in the order of his Honor bring the case clearly within the ruling of this Court in Fawcettv. Mt. Airy,134 N.C. 125. That case was decided after careful consideration, and with the limitation of. the general principle found inWadsworth v. Concord, 133 N.C. 587, and Robinson v. Goldsboro, at this term, we are content to abide by the law as therein laid down. We think the decision sound in reason and consistent with the conditions existing in this State. The power thus recognized should be carefully exercised. The duty rests upon the people in the town to (540) entrust it only to men of good judgment and incorruptible integrity, who recognize their responsibility to the people. If in jury comes to the people, they are alone responsible for it. We see nothing in the record to cause us to doubt the power being wisely exercised. The judgment below is

Affirmed.

DOUGLAS, J., dissents.

Cited: Greensboro v. Scott, 138 N.C. 184; Elizabeth City v. Banks,150 N.C. 411; Water Co. v. Trustees, 151 N.C. 175, 176; Bradshaw v. HighPoint, ib., 518.