Adcock v. Town of Fuquay Springs

Adams, J. The General Assembly may confer upon municipal corporations the power to create debts and issue bonds for necessary expenses without the approval of a majority of the qualified voters; but when it is provided by statute or ‘ordinance that a proposition to incur the indebtedness shall be submitted to the voters their approval is necessary to a valid issuance of the bonds. McKethan v. Comrs., 92 N. C., 243; Swinson v. Mount Olive, 147 N. C., 611; Comrs. v. Webb, 148 N. C., 120; Ellison v. Williamston, 152 N. C., 147. The cost of con *425 structing water and sewer systems is one of tbe necessary expenses of a municipal corporation; but as tbe commissioners of Fuquay Springs deemed it advisable to obtain tbe assent of tbe voters it was essential to sbow at tbe bearing an “affirmative vote of tbe majority of tbe voters voting on tbe bond ordinance.” Tbis was done; so there is no dispute concerning tbe purpose for wbicb tbe debt was to be contracted. 3 C. S., 2938(2), (3); 2948. Tbe appellants impeach tbe election on tbe ground that it was held without authority of law. Tbe statute reads as follows: “Whenever tbe taking effect of an ordinance authorizing tbe issuance of bonds is dependent upon tbe approval of tbe ordinance by tbe voters of a municipality, tbe governing body may submit tbe ordinance to tbe voters at an election to be held not more than six months after tbe passage of the ordinance. Tbe governing body may call a special election for that purpose or may submit tbe ordinance to tbe voters at tbe regular municipal election next succeeding the passage of tbe ordinance, but no such special election shall be held^ within one month before or after a regular election.” C. S., 2948(2). We deem it clear that tbe last two words, “regular election,” relate to the antecedent “regular municipal election” and not, as contended by the appellees, to a general State and National election. Tbis is tbe more reasonable, if not tbe only reasonable, interpretation of tbe statute. Tbe regular municipal election was held on 7 May, 1927, and tbe special bond election on 7 June, 1927. Tbe question is whether tbe latter election was held within one month after tbe former. Tbe word month shall be construed to be a calendar month, unless otherwise expressed. C. S., 3949(3). “Tbe modern authorities, which are very numerous, recognize but two sorts of months, lunar and calendar. Tbe lunar month, when spoken of in statutes, consists of twenty-eight days; a calendar month contains tbe number of days ascribed to it in tbe calendar, varying from twenty-eight to thirty-one.” S. v. Upchurch, 72 N. C., 146. “A calendar month means a month as designated in tbe calendar without regard to tbe number of days it may contain; it is to be computed, not by counting days, but by looking at tbe calendar, and it runs from a given day in one month to a day of tbe corresponding number in tbe next month, except when tbe last month has not so many days, in wbicb event it expires on tbe last day of that month.” 38 Oyc., 312. In tbis respect our statute has adopted tbe computation of tbe civil instead of tbe common law. Satterwhite v. Burwell, 51 N. C., 92. Tbe time within wbicb an act is to be done shall be computed by excluding tbe first and including tbe last day. C. S., 922. If 7 May be *426 excluded the election o£ 7 June took place within a calendar month after the regular municipal election, because 7 June was the last day of the calendar month commencing after the expiration of 7 May. This is the law as expounded in Burgess v. Burgess, 117 N. C., 447, which was an action for the recovery of land. There the plaintiff had title in fee and the defendant held possession under the assignee of the bid offered by the board of county commissioners at a sale made by the sheriff for nonpayment of taxes. The statute under which the land was sold contained this provision: “At any. time within one year after the expiration of one year from the date of sale of any real estate for taxes . . . the sheriff shall execute and deliver to the purchaser, his heirs or assigns, a deed of conveyance.” Laws 1891, eh. 326 (not 323), sec. 66, p. 328. The Court gave the statute the following interpretation: “It is the general rule that when the computation of time is to be made from an act done, the day in which the act is done is to be excluded. Jacob v. Graham, 1 Black (Ind.), 393. The 3 May, 1892 (the date of the sale), would therefore be excluded, and the 3 May, 1893, included to complete the year. The 4 May, 1893, would be the first day after the expiration of the year. The same method of computing time within which an act is to be done is enacted in section 596 of The Code and decided in Keeter v. R. R., 86 N. C., 346; Barcroft v. Roberts, 92 N. C., 249, and Glanton v. Jacobs, ante, 427. The deed, therefore, from Turner to the defendant was void, and the plaintiff ought to have recovered in the action.” The decision clearly sustains the contention that the election of 7 June was held within a month after the regular municipal election. The remaining question, whether the statute prohibiting an election within the prescribed time (0. S., 2948(2) is mandatory or directory, has been resolved against the position taken by the defendants. With respect to a special tax in special school districts a statute provided that no election for revoking such tax should be ordered and held in the district within less than two years from the date of the election at which the tax was voted and the district established. C. S., 5533. In Weesner v. Davidson, 182 N. C., 604, this inhibition was held to be mandatory, the Court observing, “The clear intent of the Legislature was to avoid the multiplicity and frequency of these elections, and we must give effect to each and every part of the statute.” Authority to take one day from the time limit would in legal effect sanction the subtraction of any other number of days and would thereby practically nullify the statute and defeat the commendable purpose for which it was enacted. The election of 7 June was void because it took place within a period during which the statute in express terms provided it should not be held. Judgment Reversed.