Blackmore v. . Duplin County

159 S.E. 354, 201 N.C. 243, 1931 N.C. LEXIS 214

• Court: Supreme Court of North Carolina
• Decided: July 2, 1931
• Status: Published

Opinion

Stacy, C. J.,

after stating the case: While there is nothing in the judgment of the Superior Court to indicate that the proposed funding bonds are declared valid and duly authorized as “for a special purpose,” it may fairly be assumed that such is the meaning and intent of the judgment. It is so debated on brief, and this was the interpretation given to it on the argument.

The defendants are proceeding under “The County Finance Act,” as amended, but the record shows that some of its requirements have not been observed.

Section 17 provides that after hearing the protest, if any, against the issuance of the proposed bonds on the day fixed therefor, “the governing body may pass the order in the form of its introduction, or in an amended form, but the amount of the bonds to be issued shall not be increased by such amendment, nor the purpose of the issuance substantially changed, without due notice and hearing as above required.”

The purpose of the issuance, it will be observed, is substantially changed by the amendatory resolution adopted on 8 June. This was without notice or hearing.

Furthermore the time allowed by section 21 of the County Finance Act for filing with the clerk a petition for a referendum on the bond order, to wit, “thirty days after the first publication of the order,” had not expired at the time of the adoption of the amendatory resolution, nor had it expired at the time of the submission of the present controversy on 10 June. But the substantial change in the purpose of the issuance of the bonds without notice or opportunity of hearing, is sufficient to invalidate them. Markham v. Carver, 188 N. C., 615, 125 S. E., 409.

Where the Legislature has prescribed a method of procedure in a matter of this kind, and such procedure is sought to be followed, the statutory provisions on the subject are controlling. Proctor v. Commissioners, 182 N. C., 56, 108 S. E., 360; Owens v. Wake County, 195 N. C., 132, 141 S. E., 546; Hendersonville v. Jordan, 150 N. C., 35, 63 S. E., 167; Commissioners v. Webb, 148 N. C., 120, 61 S. E., 670; Robinson v. Goldsboro, 135 N. C., 382, 47 S. E., 462. Indeed, in certain instances, the legislative method and the requirements thereof, whether expressed in permissive or mandatory terms, are declared to be exclusive and binding on those chargeable with the execution of such powers. Ellison v. Williamston, 152 N. C., 147, 67 S. E., 255; Wadsworth v. Concord, 133 N. C., 587, 45 S. E., 948.

It should be observed, perhaps, that the point upon which the case is made to turn here was not debated in the court below. But it is a rule of appellate courts not to anticipate questions of constitutional law in advance of the necessity of deciding them; nor do they venture advisory opinions on constitutional questions. Wood v. Braswell, 192 N. C., 588, 135 S. E., 529; Person v. Doughton, 186 N. C., 723, 120 S. E., 481.

For the reason stated, plaintiff is entitled to the relief demanded.

Error.