Bain v. City of Goldsboro

*104 Walker, J., after stating tbe ease: We tbink tbe judgment was correct. No popular vote was required, as none is provided for in tbe act of 1913, and it was evidently contemplated by tbe Legislature, in passing tbe act, that there should be .none. Tbe act of 1911, cb. 86, was intended to apply to municipal corporations whose charters make no special provision for tbe establishment or improvement of waterworks, sewerage, or lighting plants and systems. Murphy v. Webb, 156 N. C., 402. This case also bolds that tbe cost of the improvements for which tbe bonds in question are to be issued fall within tbe general 'class and description of necessary expenses, which do not require a favorable vote of tbe people before tbe bonds are issued. Bradshaw v. High Point, 151 N. C., 517; Fawcett v. Mount Airy, 134 N. C., 125; Robinson v. Goldsboro, 135 N. C., 382, to which may be added Water Co. v. Trustees, 151 N. C., 171, as involving tbe question we are now discussing. Tbe clause of tbe revenue act (Public Laws 1913, cb. 201, see. 3), limiting tbe rate of municipal taxation to 1 per centum on tbe value of real and personal property, does not apply to oqr facts, as tbe Legislature has given special authority to levy tbe tax for tbe payment of tbe principal and interest of tbe bonds to be issued by the defendant, which brings this case within tbe exception of that section. There is nothing in tbe facts, as now presented, to show that tbe issue of tbe bonds or tbe levy of tbe tax for tbe purpose of paying principal and interest is contrary to any prohibition, restriction or limitation of tbe law as regards tbe power of municipal corporations to contract a debt or impose a tax upon its citizens. Plaintiff, being tbe actor and bolding tbe affirmative, is required to take tbe burden of proving wherein any such conflict between tbe proposed action of defendant and tbe law exists. This be has not done, according to our view of tbe facts. Tbe case seems to be fully covered by tbe reasoning in Wharton v. Greensboro, 146 N. C., 356, and especially by tbe decision in Underwood v. Ashboro, 152 N. C., 641, where tbe Chief Justice says: “It does not appear that, after deducting rentals, and profits of tbe water system, tbe levy to pay interest on these *105 bonds would probably swell tbe total levy for other than special purposes (which are authorized by special statute) beyond the limitation in Revisal, sec. 2924, or Eevisal, sec. 5110. The burden of showing this was on the plaintiff asking for an injunction.” This places the burden where it properly belongs, and the same rule is applicable to Eevisal, see. 2977, as to the 10 per cent restriction upon the right of such a corporation to contract debts, pledge its faith, or loan its credit, which section was considered in Wharton v. Greensboro, supra, where Justice Brown says: “A special purpose within the meaning of the statute embraces all forms of debt not within the legitimate necessary expenses of the municipality.” Where the facts do1 not appear, we must presume that they do not exist, or, otherwise, the party who asserts and relies on their existence would have brought them forward; and, besides, it is incumbent upon the appellant to show error affirmatively in such a case. Affirmed.