Burleson v. . Board of Aldermen

156 S.E. 241, 200 N.C. 30, 1930 N.C. LEXIS 11

• Court: Supreme Court of North Carolina
• Decided: December 19, 1930
• Status: Published

Opinion

Connor, J.

The findings of fact on which the judgment in this action was rendered were made by the judge from admissions in the pleadings, and from the official minutes of the town of Spruce Pine. There were no exceptions to these findings. The only exception on which plaintiffs assign error on their appeal to this Court, was to the judgment. Their contention upon this assignment of error is that the bonds which the defendants propose to issue and to sell were not a binding and legal obligation of the town of Spruce Pine, for the reasons: (1) that said bonds are not for a necessary expense within the meaning of Article VII, section 7 of the Constitution of North Carolina; (2) that the only legislative authority for the issuance of bonds by a municipal corporation for the purpose of constructing, maintaining and operating a public hospital is C. S., 1255; and (3) that the provisions of C. S., 7255, with respect to the issuance of bonds and the levy and collection of a tax, by a municipal corporation, for the purpose of constructing, maintaining and operating a public hospital have not been complied with in the instant case. For these reasons, plaintiffs contend that said bonds will not be a binding and legal obligation of the town of Spruce Pine, for the payment of which defendants will be authorized to levy and collect a tax, annually, notwithstanding their issuance has been approved by a majority of the qualified voters of said town.

It is conceded by defendants that the provisions of C. S., 7255, have not been complied with in the instant case. They contend, however, that the bonds which they propose to issue and to sell are authorized by C. S., 2796, and C. S., 2937; that the provisions of these statutes have been complied with, and that the issuance of said bonds, and the levy and collection of a tax, annually, for the payment of said bonds as they shall become due, was approved by a majority of the qualified voters of the town of Spruce Pine at an election duly called and held in accordance with the provisions of C. S., 2948.

In Armstrong v. Commissioners, 185 N. C., 405, 117 S. E., 388, the defendants insisted on their appeal to this Court that a public hospital should be considered a necessary expense of a municipal corporation, and that for this reason bonds issued by the defendants in that ease for the purpose of constructing, maintaining and operating a public hospital would be valid, although not issued in compliance with the provisions of Article VII, sec. 7, Constitution of North Carolina. In the opinion in that ease, it is said: “We cannot so hold.” In the instant case, therefore, the bonds will not be valid, unless their issuance was authorized by the General Assembly and approved by a majority of the qualified voters of the town of Spruce Pine. Henderson v. City of Wilmington, 191 N. C., 269, 132 S. E., 26, and cases there cited. In that case, speaking of Article VII, section 7, Constitution of North Carolina, it is said: “In analyzing and construing this section in its relation to the sixth section of Article V, the Court has held: (1) that for necessary expenses the municipal authorities may levy a tax up to the constitutional limitation without a vote of the people and without legislative permission; (2) that for necessary expenses they may exceed the constitutional limitation by legislative authority, without a vote of the people; and (3) that for purposes other than necessary expenses a tax cannot be levied either within or in excess of the constitutional limitation except by a 'vote of the people under special legislative authority.” This is a clear and accurate statement of the principles of constitutional law applicable to municipal taxation in this State.

In the instant case, the issuance of the bonds and the levy and collection of the tax was approved by the people, of the town of Spruce Pine— that is, by a majority of the qualified voters of said town. The bonds are, therefore, valid, if their issuance was authorized by statute duly enacted, by the General Assembly.

C. S., 2796, provides that the governing body of a city or town may acquire, establish and maintain a hospital or hospitals. Under the authority of Adams v. City of Durham, 189 N. C., 232, 126 S. E., 611, it may apply for that purpose funds already on hand in the treasury of the city or town; it cannot, however, raise money for that purpose by issuing the bonds of the city or town, or by levying and collecting taxes, without legislative authority and without the approval of a majority of the qualified voters of said city or town, at an election duly called and held therein.

G. S., 2937, provides that a municipality may issue its negotiable bonds for any purpose or purposes for which it may raise or appropriate money, except for current expenses. As a municipal corporation may appropriate money for the purpose of acquiring, establishing and maintaining a hospital, it may issue its bonds, and levy and collect taxes, for that purpose, with the approval of a majority of the qualified voters of the corporation. The requisite legislative authority is conferred by this statute.

In the instant case, the bonds were authorized by an ordinance duly adopted by the board of aldermen of' the town of Spruce Pine, in accordance with the provisions of C. S., 2938. The election at which a majority of the qualified voters, of said town approved the issuance of the bonds and the levy and collection of the tax authorized by the ordinance was duly called and held in accordance with the provisions of C. S., 2948.

C. S., 7255, is not applicable to the bonds which defendants. in the instant case propose to issue and to sell. Noncompliance with its provisions does not affect the validity of said bonds. There was statutory authority for the issuance of the bonds as well as popular approval, as required by the Constitution of this State. There is no error in the judgment.

Affirmed.