Commissioners v. . MacDonald , 148 N.C. 125 ( 1908 )

BROWN, J., concurring arguendo. CONNOR, J., dissenting; HOKE, J., concurring in dissenting opinion. The bonds ($50,000) were issued by Pitt County, though not for necessary purposes, but by virtue of a popular election and under special authority of the General Assembly (Laws 1907, ch. 493). They are valid bonds of the county of Pitt, and this has been expressly held as to these identical bonds. Cox. v. Commrs., 146 N.C. 584.

The bonds being valid, it follows that taxes can be levied, up to the constitutional limitation, to pay the interest as it falls due and the principal at maturity. Ralls v. United States, 105 U.S. 733. The purchasers of the bonds, not content with the validity of the bonds, now urge that there is no power to levy taxes for the payment of interest if in excess of the constitutional limit, nor to raise a sinking fund to take up the principal thirty years hence. This is true. There can be no levy of taxes in excess of the constitutional limitation, even for necessary purposes, without special permission of the General Assembly, nor for other than necessary purposes except by a vote of the people besides. The act of the General Assembly in this case (Laws 1907, ch. 493) contains no authority to exceed the constitutional limitation for interest or principal, nor to provide a sinking fund. Consequently there has been no vote of the people on that proposition and no such authority has been given. Board of Education v. Commrs., 107 N.C. 110.

It does not appear in this record that it will be necessary to levy taxes in excess of the constitutional limitation to meet the interest on these bonds. Being valid bonds, the commissioners can be compelled by mandamus, if necessary, to levy up to that limit to meet the interest.Ralls v. United States, supra. It does not appear that the defendants contracted for bonds for which there should be authority conferred by legislative enactment and popular vote to levy taxes (127) in excess of the constitutional limit to pay interest and to raise a sinking fund to pay the principal. Presumably they did not, as they must have had the statute before them and have seen that the authority to do these things was not given. When these bonds fall due, thirty years hence, Pitt County will doubtless have sufficient wealth and population to meet them with the greatest ease, or sufficient credit to renew them if desired.

Upon the case agreed it appears that the contract of the defendants calls for the delivery of valid bonds of Pitt County. These are valid bonds, for which taxes to pay interest can be levied up to the limit prescribed. They are, therefore, a good tender under the contract.

Charlotte v. Shepard, 122, N.C. 602, is not in point. There being no constitutional limitation upon taxation by a town, when an act of the General Assembly authorizes an issue of bonds upon a vote of the people, and such vote is favorable, there is authority to levy taxes without limitation (unless prescribed in the act) to meet principal and interest.Young v. Henderson, 76 N.C. 420. Not so as to county bonds not issued for necessary purposes, as to which authority to issue carries authority to levy taxes for payment of interest, but not beyond the limitation unless so provided in the act and voted by the people. Smathers v. Commrs.,125 N.C. 480; Ralls v. United States, 105 U.S. 733. Even for the most necessary county purposes taxes cannot be levied beyond the limit except by legislative authority, and for other than necessary expenses no tax can "be levied or collected" unless authorized "by a vote of the majority of the qualified voters." Const., Art. VII, sec. 7. The bonds being valid and a good tender, under the contract as set out in the record, the judgment is

Modified and affirmed.