Davis v. Lendir County

This action was instituted by plaintiff on behalf of himself and others, taxpayers, against Lenoir County, the board of county commissioners, and the highway commission of said county, to restrain the issuance and sale of $2,000,000 of bonds, authorized by Public-Local Laws 1919, ch. 391, to construct and build the public roads of that county. The restraining order was dissolved by Daniels, J., at the hearing, and the plaintiffs appealed. The plaintiff, Davis, suing on behalf of himself and others, citizens and taxpayers of Lenoir County, sought to enjoin the issuance of $2,000,000 of bonds authorized by chapter 391, Public-Local Laws 1919, ratified 6 March, 1919, and approved by a vote of the electors of the county at a special election held pursuant to the act. The temporary restraining order issued by Judge Daniels was made returnable before him, and heard 21 May, when he dissolved the restraining order, and denied the motion to continue the same.

The plaintiffs contend that the act was unconstitutional:

1. Because a special act of this nature was in violation of Art. II, sec. 29, of the Constitution. This point has been settled against the contention of plaintiff in Martin County v. Bank, ante, p. 26.

2. Because the Court held the construction and building of public roads are a necessary expense within the meaning of Art. VII, sec. 7, of the Constitution, but this has been so determined in Herring v. Dixon,122 N.C. 420; Tate v. Comrs., ib., 812; R. R. v. Comrs., 148 N.C. 237;Hargrave v. Comrs., 168 N.C. 626; Moose v. Comrs., 172 N.C. 419;Woodall v. Comrs., 176 N.C. at pp. 382-383.

3. The plaintiffs also contend that the bonds cannot be issued without having the approval of a majority of the qualified voters of the county, and this act was approved only by a majority of the votes cast. Being a necessary expense, it has been held that an approval of majority of the qualified voters is not required, but that in the discretion of the Legislature a majority of the votes cast shall be sufficient, as is provided in the statute (sec. 6), or the Legislature may authorize the bonds to be issued for such purpose without any vote at all. Tate v. Comrs., 122 N.C. 812; Wadsworth v. Concord,133 N.C. 587; Burgin v. Smith, 151 N.C. 561; Comrs. v.Comrs., 165 N.C. 632; Hargrave v. Comrs., 168 N.C. 626; (670)Swindell v. Belhaven, 173 N.C. 1; Woodall v. HighwayComrs., 176 N.C. 383.

4. Plaintiffs further contend that the statute is invalid because the tax is to be levied upon property alone, and the equation between property and polls is not observed. In Moose v. Comrs., 172 N.C. 431, the Court cited and reaffirmed R. R. v. Mecklenburg, 148 N.C. 220; R. R. v.Buncombe, ib., 248, and Perry v. Franklin, ib., 521, which held that, "The equation and limitation of taxation prescribed by Art. V, sec. 1, of the Constitution apply only to taxes for the ordinary expenses of the State and county government, and the levy of taxes for special purposes is committed by the Constitution to the discretion of the General Assembly, which may, as to such taxes, exceed the limitation, and may levy the tax on property alone, without observing the equation, subject to the qualification that if the tax is not for a necessary expense it must be submitted to a vote of the people," in which last case only it must be approved by a majority of the registered voters. Wagstaff v. Highway Commission (Hoke, J.),177 N.C. 355. To same purport, Jones v. Comrs., 107 N.C. 248; Bennett v.Comrs., 173 N.C. 625.

Affirmed.

Cited: S. v. Kelly, 186 N.C. 374; Lassiter v. Comrs., 188 N.C. 382;Young v. Hwy. Comm., 190 N.C. 55; Henderson v. Wilmington, 191 N.C. 288;Day v. Comrs., 191 N.C. 782; Sanitary Dist. v. Pruden, 195 N.C. 728;Barbour v. Wake County, 197 N.C. 317; Glenn v. Comrs. of Durham,201 N.C. 236; State v. Overman, 269 N.C. 471.