Owens v. . Wake County

Adams, J. Tbe two orders set forth in the statement of facts were made pursuant to certain provisions of the County Einance Act. Public Laws 1927, ch. 81. The first purports to authorize county bonds in the amount of $400,000 to be used for the purpose of building schoolhouses in the county; and the second, to authorize county bonds in the amount of $30,000 to be applied in the construction of highways, culverts, and bridges. The question of contracting these debts has never been submitted to the qualified voters of the county. Constitution, Art. VII, sec. 7. In 1925 the General Assembly passed an act depriving the board of commissioners of Wake County of all authority to issue bonds or otherwise to create a bonded indebtedness on behalf of the county unless the debt was approved by a vote of the qualified electors of the county. Public-Local Laws 1925, ch. 509. The plaintiff contends that this act prohibited the defendants from issuing either class of the proposed bonds; the defendants contend that it was repealed by the County Finance Act. The relevant clauses of section 43 are as follows: “All acts and parts of acts, whether general, special, private or local authorizing or limiting or prohibiting the issuance of bonds or other obligations of a county or counties, are hereby repealed: . . . Provided further, that nothing herein contained shall have the effect of repealing any act now in force, or enacted by the General Assembly of one thousand nine hundred and twenty-seven, requiring the question of issuing bonds by any county to be submitted to a vote of the people.” Public Laws 1927, eh. 81. The act of 1925 was in force when the County Finance Act was passed and was saved from repeal by the express terms of the proviso. The statement in Hartsfield v. Craven County, 194 N. C., 358, in regard to the effect of this repealing clause on the local act referred to therein must be considered in connection with the facts in that ease. There all the bonds were to be issued for funding or refunding valid indebtedness incurred before the first day of July (Public Laws 1927, ch. 81, sees. 8(j), 9(e) 1), not for .a new debt then to be contracted. Moreover, the larger part of the outstanding debt had been contracted for necessary expenses, the local act authorizing the payment of existing indebtedness incurred for such purpose (Public-Local Laws 1923, ch. 609) ; and the remainder of the outstanding debt had been incurred for school purposes within the principle to which we shall hereafter refer. See Comrs. v. Assell, 194 N. C., 412. Although the act of 1925, supra, is effective, the order authorizing bonds in the sum of $400,000 for the purpose of erecting and furnishing *136 schoolhouses in Wake County is not for this reason invalid, but may be upheld. This conclusion rests upon two grounds : 1. In 1924 the General Assembly conferred upon county commissioners authority, in their discretion, without submitting the issue to a vote of the people, to borrow money for erecting or repairing buildings in which to carry on schools for a term of six months. Public Laws, Extra Session, 1924, ch. 120. "Wake and several other counties were excepted. In the County Finance Act it was provided that the repealing clause should not affect any local or private act enacted at the session of 1927, but that the powers thereby conferred and the procedure therein provided should be deemed an addition to and not a substitution for those conferred by the local act. The act of 1924, supra, was amended at the session of 1927 by striking Wake from the counties named in the proviso, and all conflicting laws were repealed. Public-Local Laws 1927, eh. 276. If the first clause of section 43 the County Finance Act repealed the act of 1924 as to all the other counties, the authority of the commissioners of "Wake was not thereby destroyed, because the Legislature, conforming to the second proviso in section 43, expressly amended the act of 1924 and continued it in force as a local act applicable to Wake County. We do not accede to the plaintiff’s position that the repeal of the original act of 1924 necessarily carried with it all amendments, for the amendment of 1927 was expressly exempted from the effect of the repealing clause. 2. It may be noted that no petition for a referendum was filed under section 21 of the County Finance Act; but it is provided in section 9(e)2 that if the bonds are for a purpose other than the payment of necessary expenses, the order shall take effect when approved by the voters of the county. The plaintiff says that the erection of schoolhouses is not a necessary expense within the meaning of Art. VII, sec. 7, of the Constitution, and that the approval of the qualified voters is a condition precedent to the issuance of the bonds. Hollowell v. Borden, 148 N. C., 255; Lacy v. Bank, 183 N. C., 373. Counties, cities, and other municipal corporations may establish or maintain schools when authorized to do so by special acts of the General Assembly; and in such cases Art. VII, sec. 7, is applicable to bonds issued and the taxes levied to pay them. It is otherwise as to the maintenance of a general and uniform system of public schools, for which the counties may issue bonds and levy taxes, not as municipal corporations organized for the purpose of local government, but as administrative agencies of the State employed to discharge a duty imposed by the Constitution. In Lacy v. Bank, supra, it is said: “The restrictions contained in Art. VII, see. 7, which prohibits counties, cities, and towns, and other municipal corporations from contracting debts or levying *137 taxes except for necessary expenses unless approved by a majority of tbe qualified voters therein, must be understood to refer to debts and taxes in furtherance of local measures and do not extend to a State-wide measure of the instant kind, undertaken in obedience to a separate provision of the Constitution, and in which counties are, as stated, expressly recognized as the governmental units through which the general purpose may be made effective.” Constitution, Art. IX, sec. 3; Collie v. Comrs., 145 N. C., 170; Board of Education v. Comrs., 150 N. C., 116; Board of Education v. Comrs., 174 N. C., 469; Board of Education v. Comrs., 178 N. C., 305. The subject has recently been considered and the controlling principle clearly stated in an opinion delivered by Connor, J., in Frazier v. Comrs., 194 N. C., 49, cited and approved in Hall v. Comrs., 194 N. C., 768, and his full review of the authorities makes unnecessary any further citation. The principle, as he points out, antedates the County Finance Act; and, in accordance with this principle the definition of “necessary expenses” given in section 2, as the Court said in Lacy v. Bank, supra, must be understood to refer to local measures and not to those undertaken in obedience to the mandatory requirements of sections 1, 2, and 3 of Art. IX of the Constitution. It is admitted in the statement of facts that the bonds in question are required for the establishment and maintenance of the State system of public schools in accordance with the foregoing provisions. We find no sufficient objection to the proposed bonds for the purchase of land and the erection of schoolhouses; but the act of 1925, supra, is a direct inhibition against issuing the bonds for road construction unless they are approved by the voters of the county. The construction of highways, culverts and bridges involves necessary expense, and ordinarily legislative permission to issue bonds for this purpose is sufficient. Smathers v. Comrs., 125 N. C., 487; Swinson v. Mt. Olive, 147 N. C., 611. But general or special legislation which provides that a proposition to incur an indebtedness or to issue bonds for a given purpose shall be submitted to the voters, amounts in law to a statutory restriction, and such indebtedness shall not be incurred unless the measure is approved by the voters, although it is classed as a necessary expense. Comrs. v. Webb, 148 N. C., 120; Hendersonville v. Jordan, 150 N. C., 35; Ellison v. Williamston, 152 N. C., 147. As to the bonds for sehoolhouses the judgment is affirmed; the issuance of those proposed for road construction should have been enjoined. As thus modified the judgment is affirmed. Modified and affirmed.