Crayton v. City of Charlotte

AlleN, J. There are many subdivisions of the argument of the plaintiff attacking the proposed bond issue, but they all depend on the proposition that the election purporting to authorize the issue of bonds was called and held under chapter 131, Laws 1915, which provides that “No bonds shall be issued which together with all other bonded debt of the municipality shall exceed 10 per centum of the assessed valuation of the real and personal property situated in said municipality,” and as the resolution was adopted calling the election, and the election held when the bonded indebtedness exceeded 10 per cent of the assessed valuation, there is no authority to issue the bonds. The question has been presented earnestly and forcibly in the briefs filed in behalf of the plaintiff and defendant, but the diligence of counsel and the researches of the Court have not discovered any authority directly in point, and we must turn to the language of the statutes and the evil intended to be remedied to find the Legislative intent and the 'effect of the limitation on the power to issue bonds. The act of 1915 confers the authority to issue bonds on the governing-body of the city or town, but requires the approval of the qualified voters before issuing. The language is the “board of commissioners, council, or other governing body is hereby authorized to issue bonds of such municipality in all respects as provided in the foregoing section, but before issuing said bonds the question of their issuance shall be submitted to .the qualified voters of such municipality.” . The limitation in the act is on the power to issue bonds, and not on the right of the voters to approve, and as the power to issue is conferred upon the governing body, it is a limitation on the power of that body and not on the right to hold an election. The distinction between the limitation on the right to issue bonds and the holding of an election to ascertain the will of the voters does not rest on mere conjecture or on a technical and strained construction of the act, but, on the contrary, is clearly recognized by the General Assembly in the act of 1915 and in the act of 1917, ch. 138, superseding it, which, being related and dealing with the same subject-matter, should be construed together, because in the act of 1915 the limitation is on the right to issue bonds — “No bonds shall be issued” — -while in the act of 1917, after requiring that all bonds shall be authorized by an ordinance, it is provided in section 19, subsec. 2, that “The ordinance shall not be passed unless it appears from said statement either that the net debt does not exceed 10 per centum of said average assessed valuation or that the net increase does not exceed three per centum of the assessed valuation.” Why this change in language, placing a prohibition on the first step *20 to be taken in tbe issuance of bonds, unless it was in tbe mind of tbe General Assembly tbat tbe limitation in tbe act of 1915 related to tbe time of issuing tbe bonds? Tbis is also in accord witb tbe principle generally prevailing tbat “Tbe time of tbe actual issue of municipal bonds is tbe time for determining wbetber tbe debt limit is exceeded” (28 Cyc., 1584); and it bas been beld in tbe application of tbe principle tbat “An ordinance is not void wbicb provides for a contract wben financial condition will permit” (28 Cyc., 1540, and note), wbicb is tbe legal effect of tbe.resolution of 23 February. If it be objected tbat tbis construction attributes to tbe General Assembly tbe purpose of permitting an election to be beld wben no bonds can be issued, tbe answer is tbat authority must precede tbe issuing of tbe bonds, and time is required after authorization before issue, and frequently tbe retirement of a part of the municipal indebtedness or an increase in valuations may be foreseen, sometimes much in advance of tbe event. ■ And no injury can befall tbe taxpayer, as be becomes interested only wben tbe bond is issued or tbe'taxes collected for tbe payment of principal and interest. We are, therefore, of opinion tbat under tbe act of 1915 the relation between tbe indebtedness and tbe valuation of tbe property is to be ascertained as of tbe time of issuing tbe bonds. Tbis does not, however, establish tbe right of tbe defendant to issue tbe bonds in controversy, because under tbe act of 1915 tbe indebtedness, computed as required by tbat act, without allowing certain deductions in tbe act of 1917, exceeds 10 per cent of tbe valuation. How is tbe question affected by tbe act of 1917 ? Tbe act of 1917, ratified 7 March, known as tbe Municipal Finance Act, provides in section 38 tbat “All acts and parts of acts, general or special (including acts passed at tbis session of tbe General Assembly prior to tbe passage of tbis act), to tbe extent tbat they relate to tbe subject-matter of tbis act, are superseded by this act: Provided, however, (a) Tbat acts and proceedings heretofore done, or taken by any municipality or tbe voters thereof, or any board or officers thereof, pursuant to acts or parts of acts superseded by tbis act shall not be affected by tbis act, but all such acts or proceedings similar to any acts or proceedings provided for in tbis act shall have tbe same force and effect as if done and taken pursuant to tbis act, and only subsequent proceedings shall be taken as provided in tbis act: Provided, further, (fe) Tbat in all cases where, pursuant to acts or parts of acts so superseded, an ordinance or resolution bas been heretofore passed authorizing tbe issuance of bonds or notes or calling an election for such purpose, nothing in tbis act shall prevent tbe issuance of tbe bonds or notes in accordance witb *21 tbe terms of -sucb ordinance or resolution, and it shall not be necessary to pass tbe ordinance provided for in section 17 of this' act, and no vote o£ tbe people shall be necessary for tbe issuance of sucb bonds or notes unless they are for purposes other than tbe payment of necessary expenses, or unless sucb vote shall be required by tbe terms of tbe acts or parts of acts so superseded or by tbe terms of tbe ordinance or resolution so passed.” It supersedes the act of 1915 but validates proceedings already taken under tbe act and provides that bonds may be issued pursuant to ordinances and resolutions calling for elections passed prior to tbe ratification of tbe act; and that subsequent proceedings shall be as prescribed in tbe act of 1917. If so, tbe resolution of 23 February calling for tbe election on tbe question of issuing bonds is valid under tbe act of 1917, and as tbe ordinance required by tbe latter act is dispensed with by section 38, subsection (b), tbe election of 26 April was regularly called under tbe act of 1917; and if regularly called, it was a valid election, as no other irregularity has been pointed out. If this conclusion is sound, tbe governing body of tbe defendant has called an election at which tbe voters have given their approval to tbe proposition to issue bonds, and as tbe subsequent proceedings are to be taken under tbe act of 1917, tbe ascertainment of tbe proportion between tbe indebtedness and tbe assessed valuation of property must be under that act, and as it is conceded if this be done tbe indebtedness does not exceed 10 per cent of tbe assessed valuation, tbe defendant has tbe right to issue tbe bonds in question, and tbe same, when' issued, will be binding-obligations of tbe defendant. . Affirmed.