144 S.E. 377 | N.C. | 1928
The plaintiff is a resident and taxpayer of the city of Winston-Salem, which is a municipal corporation. The city, the members of the board of aldermen, the mayor, and the secretary-treasurer of the city are the defendants. The material facts are set forth in the agreed case as follows:
3. The defendants are about to issue bonds, of the aggregate face amount of $2,500,000, of the city of Winston-Salem, pursuant to the provisions of the Municipal Finance Act, 1921, of North Carolina, constituting chapter 106 of the Public Laws of 1921, Extraordinary Session of North Carolina, as amended, for the purpose of acquiring, constructing, reconstructing and enlarging public school buildings in and for the city of Winston-Salem, and acquiring and developing lands for such school buildings and acquiring original furnishings, equipment and apparatus therefor.
4. An ordinance authorizing the issuance of said bonds was introduced and adopted at a meeting of the board of aldermen of the city of Winston-Salem, held on 20 January, 1928. A copy of said ordinance, marked Exhibit "A," is hereto annexed and made a part of this agreed *19 case. An ordinance calling a special election on the question of issuing said bonds was introduced and adopted by said board on 20 January, 1928. A copy of said ordinance, marked Exhibit "B," is hereto annexed and made a part of this agreed case. At said election held pursuant to said ordinance, on 6 March, 1928, 1,966 votes were cast in favor of the issuance of said bonds and 11 votes were cast against the issuance of said bonds. The total number of persons qualified to vote at said election, as shown by the registration books, was 2,246. Said board of aldermen has canvassed the returns of said election and has judicially determined and declared the result of said election. A copy of the minutes of said board of aldermen, marked Exhibit "C," is hereto annexed and made a part of this agreed case.
5. The city of Winston-Salem as now constituted exists and is organized pursuant to and in accordance with chapter 232 of the Private Laws of 1927, which was ratified and took effect on 3 March, 1927. Previous to the enactment of said chapter 232 of the Private Laws of 1927, said city had existed and been organized pursuant to and in accordance with chapter 180 of the Private Laws of 1915, and the acts amendatory thereof and supplemental thereto. Section 2 of said chapter 232 of the Private Laws of 1927 sets forth the corporate boundary lines of said city. The territory included within said corporate boundary lines embraces territory which was not included within the corporate boundary lines of said city as set forth in said chapter 180 of the Private Laws of 1915, and said territory not embraced within said corporate boundary lines as set forth in said chapter 180 of the Private Laws of 1915 was added to and made a part of said city either by special or local acts of the General Assembly of North Carolina passed subsequent to the enactment of said chapter 180 of the Private Laws of 1915 or by said chapter 232 of the Private Laws of 1927. A substantial portion of said added territory was added to and made a part of said city by special or local acts enacted since 10 January, 1917. Of such territory added since 10 January, 1917, a portion was at the time of its annexation to said city a part of one or more nonlocal tax school districts and a portion was a part of one or more local tax school districts, under the control of the county board of education of Forsyth County. No portion of said territory annexed to said city since 10 January, 1917, was at the time of its annexation a part of any special charter school district.
6. Both chapter 180 of the Private Laws of 1915 and chapter 232 of the Private Laws of 1927 provide that the board of aldermen of the city of Winston-Salem "shall provide for the establishment, continuance, maintenance and support of a system of public schools, and for this purpose shall annually appropriate a certain part of the taxes of the city." *20
The plaintiff prayed that the defendants be enjoined from issuing the proposed bonds and that he recover his cost. The prayer was denied, the court adjudging that the defendants be not restrained or enjoined and that they recover their costs. The plaintiff excepted and appealed.
At the session of 1927 the General Assembly amended the charter of Winston-Salem, defined the corporate limits of the city, and provided for its government. Private Laws 1927, ch. 232. In section 45 the board of aldermen is required to make provision for the establishment, continuance, maintenance, and support of a system of public schools; to appropriate annually for this purpose a certain part of the taxes of the city, and to ascertain and fix the amount of the appropriation. The substance of these provisions was included in the charter of 1915. Private Laws 1915, ch. 180. The appellant says that section 45 is in conflict with Article VII, sec. 7, of the Constitution, and therefore inoperative for the reason that the maintenance of schools is not a necessary expense (Hollowell v. Borden,
In that case the decisive fact was that the Legislature had enacted a law which upon its face, without providing for a vote of the people, authorized the aldermen of Gastonia to issue bonds for improving the streets, etc., and for erecting graded school buildings; and the Court held that as the erection of school buildings is not a necessary expense, so much of the act as authorized the sale of bonds for this purpose was invalid because the act did not require submission of the question to the qualified voters. No election had been held and the will of the voters had not been ascertained. But in the case at bar an election was duly conducted and the qualified voters with substantial unanimity approved the issuance of bonds. The language used in Gastonia v. Bank, supra, is not to be given a strictly literal meaning; it must be considered in connection with other decisions. For example, in Bank v. Comrs.,
The Municipal Finance Act expressly confers upon cities and towns the power to issue their negotiable bonds for any purpose for which they may raise or appropriate money, except for current expenses (3 C. S., 2937), and it impliedly confers the power to hold the necessary election. It is the machinery which is of "secondary consideration." The simple omission from the act of an express provision for holding an election cannot defeat the will of the qualified voters expressed in the manner prescribed under an implied power conferred by the law.
The plaintiff's second position is this: that the charter of the city conflicts with Art. VII, sec. 7, because it attempts to annex to the city *22
the territory of one or more nonlocal tax districts without permitting the voters in the annexed territory to vote either upon the question of annexing such territory or upon the question of levying school taxes therein. We may avoid confusion on this point by keeping in mind the distinction between statutes which control in the creation and consolidation of school districts and legislative authority to enlarge the boundaries of a municipal corporation. In Coble v. Comrs.,
It is contended that the charter is at variance with Article II, section 29, of the Constitution which declares, "The General Assembly shall not pass any local, private, or special act or resolution . . . establishing or changing the lines of school districts." We regard it as obvious that the incorporation of the city of Winston-Salem is not synonymous with the creation of a school district within the meaning of this section of the Constitution. The word "district" as used in the public school law is defined in 3 C. S., 5387. The definition was probably framed in view of the distinction between school districts and taxing districts. Coble v. Comrs.,supra. Art. II, sec. 29, applies to the former but not to the latter.Harrington v. Comrs.,
It is provided in C. S., 2832 (Art. 16) that any city shall have the right to acquire, establish, and operate . . . schools. The appellant contends that this section is not available to the defendant for the reason that section 2786 (Art. 15) declares that all the provisions of Article 15 shall apply to all cities and towns whether they have or have not adopted a plan of government under C. S., ch. 56, and that this provision necessarily implies that the power granted by section 2832 relates only to cities and towns which have adopted such a plan. That the latter section applies, as in express words it declares, to "any city," seems to have been assumed inHenderson v. Wilmington,
The appellant takes the additional position that the erection of buildings for schools is not a municipal purpose for which the Legislature may authorize a city to issue bonds. The grant of power to acquire, establish, and operate schools (sec. 2832) is by implication the grant of such power as is necessary to exercise the power expressly granted. This section is at least permissive, but the charter of the city is mandatory: "the board of aldermen shall provide for the establishment, continuance, maintenance, and support of a system of public schools." This mandate and the express direction that the board shall annually appropriate a part of the city taxes for the designated purpose manifestly contemplate the acquisition or erection of such buildings as may be necessary for the continuance and maintenance of the schools. Necessary buildings are an integral factor in the maintenance of the school system and their construction under the facts here presented is clearly a municipal purpose. It is not necessary to review the numerous cases which are cited in the brief of the appellees as having direct relation to the subject. The judgment is
Affirmed. *24