Guire v. . Commissioners , 177 N.C. 516 ( 1919 )

This is an action to restrain the issue of road bonds under the authority of chapter 67 of the Public-Local Laws of 1917, as amended by chapter 453 of the Public-Local Laws of the same year and by an act ratified 10 March, 1919.

The first act authorizes the issue of bonds for road purposes in Caldwell County in the sum of $250.00, bearing interest at not exceeding 5 per cent and to run not more than forty years.

It was also provided in the act that it should not be operative unless approved by the voters at an election to be held under the act, but that if it should not be approved at a first election that a second election might be held, but that no new registration should be required for such second election.

An election was held under this act on 8 May, 1917, and a majority of the votes cast was against the issue of the bond.

On 10 March, 1919, the General Assembly amended the act of 1917 by changing the rate not exceeding 6 per cent per annum, and at said election a majority of the votes east was in favor of the issue of the bonds. A new registration was ordered for this last election.

The plaintiff contends: 1. That the defendant has no authority to issue said bonds because the amendment of 1919 was material, and it was not passed as required by the Constitution.

2. That the defendant had no right to order a new registration for the second election and that therefore the second election (518) was irregular and void.

His Honor held that the defendant had power and authority to issue said bonds and refused to grant the restraining order, and from the judgment entered accordingly, the plaintiff appealed. The following principles, germane to the present controversy, are established by the authorities:

1. Debts contracted for building and maintaining roads are for necessary expenses. Hargrove v. Comrs., 168 N.C. 626.

2. The county may contact a valid debt for necessary expenses without a vote of the people and without legislative sanction under Art. VII, sec. 7, of the Constitution, but it cannot exceed the limitation on taxation prescribed in Art. V, Sec. 1, to pay the interest on a debt so contracted or to provide a sinking fund for the payment of the principal.Herring v. Dixon, 122 N.C. 424.

3. The county may contract a debt and exceed the limitation on taxation for necessary expenses with the approval of the General Assembly, with or without a vote of the people, as the General Assembly may determine,Pritchard v. Comrs., 160 N.C. 477

4. When the General Assembly requires the question of incurring the debt to be submitted to a vote this amounts to a statutory restriction, and when acting under the statute, the indebtedness cannot be incurred unless approved by the votes according to the provisions of the statute.. Comrs.v. Webb, 148 N.C. 123.

5. Acts of the General Assembly authorizing a county to contract a debt for necessary expenses and to levy taxes to pay interest thereon must be enacted in accordance with the provisions of Art. II, sec. 14, of the Constitution, requiring the bill to pass each House on three several days and the ayes and noes to be entered on the Journals on the second and third readings. Cottrell v. Lenoir, 173 N.C. 145.

6. If in the enactment of the statute a material amendment is adopted "the required readings and entries on the Journal shall be taken anew on the bill as amended" (Claywell v. Comrs., 173 N.C. 657), and this rule applies with greater force when the amendment is by separate act.

Applying these principles to the facts the defendant is without authority to issue the bonds for roads, if the amendment of 1919 is material, as it appears from the record that the act of 1917 provides for an election before issuing bonds, and that the act shall not be against if a majority of the votes cast at the election shall be against (519) road improvements, which was the result of the first election, and the amendatory act of 1919, under which the second election was held, was not passed as required by Art. II, sec. 14, of the Constitution, and the materiality of the amendment cannot be questioned when it is kept in mind that it increases by 1 per cent the interest on a bond issue of $250,000, running for forty years, thereby increasing the interest and taxes each $2,500, or for the forty years $100,000.

The cases dealing with the materiality of amendments, discussed in connection with the constitutional requirement, are Glenn v. Wray,126 N.C. 730; Brown v. Stewart, 134 N.C. 357; Comrs. v. Stafford,138 N.C. 453; Banks v. Lacey, 151 N.C. 4; Russell v. Troy, 159 N.C. 366;Gregg v. Comrs., 162 N.C. 484; Brown v. Comrs., 173 N.C. 599; Claywell v.Comrs., 173 N.C. 659; Wagstaff v. Commission, 174 N.C. 380, in several of which, following Brown v. Stewart, the rule is stated negatively as follows; "We can see no reason why the amendment, imposing no tax, creating no debt nor increasing the amount of the bonds or the rate of the interest thereon, could not be adopted by the Senate and incorporated into the original bill on and before its second reading."

The case of Pritchard v. Comrs., 159 N.C. 636, on which the defendants relies, was correctly decided, and when considered in connection with the record and the opinion in the same case, 160 N.C. 476, is in perfect harmony with the other authorities.

In that case the commissioners proposed to issue bonds for roads, as stated in their order "under authority contained in sec. 6 of ch. 600, Public-Local Laws 1911, as well as under authority from the Constitution and laws of North Carolina," and it was held when the appeal was first considered that the commissioners could issue the bonds, which would be valid obligations, under authority of the Constitution, Art. VII, sec. 7, and at the second hearing that they could not exceed the constitutional limit on taxation for the payment of interest, etc., except with the approval of the General Assembly.

The obligation of the plaintiff to the regularity of the election, because a new registration was ordered, is without merit. The provision in the statute "but no new registration shall be required" is not a prohibition on the power to order a new registration but a statement that it shall not be necessary.

On the facts admitted we cannot sustain the issue of bonds. Reversed.

Cited: R. R. v. Comrs., 177 N.C. 457; Henderson v. Wilmington,191 N.C. 288; Barbour v. Wake Co., 197 N.C. 317; Glenn v. Comrs.,201 N.C. 237. (520)