Highway Commission v. . Webb

Walker, J. This Case was submitted to the court below as a controversy without action, under the statute, to determine the validity of certain bonds proposed to be issued by the plaintiff, and which the defendants had contracted to purchase. They refused to pay for the bonds, upon the ground that the plaintiff had no power to issue them, and that, therefore, when issued they would be invalid. It appears from the case agreed that the plaintiff was incorporated by Laws 1905, ch. 210, and was vested with all the powers, rights, duties and authority of the board of county commissioners with respect to the public roads of Yalleytown Township. By Laws 1909, ch. 237, the plaintiff was authorized to improve and macadamize the public roads of the said township, and for that purpose it was authorized to issue coupon bonds of the township “for an amount sufficient, not exceeding $25,000, to pay the necessary expenses of constructing and improving and macadamizing the public roads in the township, and to sell the same publicly or privately, at not less than their par value.” Bonds to the amount of $25,000 were issued in accordance with the terms and provisions of the act of 1909, and were sold by the commission and the proceeds applied *711 in constructing, improving and macadamizing tbe public roads in tbe township; but it was found tbat tbe amount realized from tbe sale of tbe bonds, namely, $25,000, was not sufficient to carry out tbe scheme of improvement contemplated by tbe commission. It was thereupon decided tbat additional bonds be issued to an amount not exceeding $75,000, and tbe defendants contracted to buy tbe same. Tbe question, therefore, is whether tbe commission has tbe power, under tbe law, to issue any additional bonds without tbe special approval of tbe legislature. This question has been so recently decided, after a thorough investigation and full discussion by this Court, that it would seem to be now well settled tbat no such power resides in tbe commission. While tbe expense of improving and macadamizing tbe public -roads may be conceded, for tbe sake of argument, to be a necessary expense, we held in Wadsworth v. Concord, 133 N. C., 587, tbat wherever the debt of a municipality is to be incurred, even for a necessary expense, it is within tbe province of tbe Legislature to prescribe tbe terms and conditions upon which municipal corporations may enter into a contract by which such a debt is incurred. This principle was approved in Davis v. Fremont, 135 N. C., 538. We recognized the correctness of tbe principle in tbe case of Wharton v. Greensboro, 149 N. C., 62. In tbe recent case of Burgin v. Smith, 151 N. C., 561, tbe subject was fully discussed by Mr. Justice Manning, and it was held by the Court tbat where tbe right to incur a debt, even for a necessary expense, was limited to a certain amount by an act of tbe Legislature, tbat amount could not be exceeded where tbe contract was an entire one; and we further held tbat tbe Legislature bad tbe constitutional power to restrict or limit the amount of indebtedness to be incurred by a county or municipality, even for a necessary expense. The Court cited and approved Hightower v. Raleigh, 150 N. C., 569, in which we held tbat, “while it is within tbe province of tbe Court to determine what are necessary public buildings, and what classes of expenditure fall'within tbe definition of necessary expenses of a municipal corporation, thg authority for determining tbe kind of building which is needed, or what would be a reasonable cost for it, is not within tbe purview of tbe judicial authority, but is vested in tbe Legislature and tbe municipal authorities, and not in the courts.” We have held at this term, in Ellison v. Williamston, ante, 147, tbat tbe Legislature has tbe power to restrict tbe authority of a municipality to issue bonds. Tbe case of Burgin v. Smith was approved, and it was said by Mr. Justice Uolce, when referring to tbe previous decisions of this Court upon tbe ques *712 tion now presented, that where the limit as to the amount o£ bonds is fixed by the Legislature in the act authorizing them to be issued by the municipality, the latter cannot exceed that limit without further legislative sanction. It may be said generally that in all such cases the Legislature has plenary power to control the action of the municipalities in this State in the creation of any indebtedness, even for necessary expenses, and there is nothing in the Constitution which is in conflict with this statement of the law. When that instrument is read as a whole, it appears to have been the intention that the Legislature should have complete control and authority in such mat-1 ters. We do not mean to say that the special approval of the General Assembly is required in order that a municipality may contract a debt for necessary expenses, but only to decide that where the Legislature does take action and restrict the right of a municipality to contract a debt, even for necessary expenses, by limiting the indebtedness to a certain amount, it is only exercising power which is clearly recognized by the Constitution.- There was no error in-the ruling of the court, by which its decision was given against the plaintiff upon the case agreed. Affirmed.