#### W. A. ELLISON et al. v. TOWN OF WILLIAMSTON et al.

(Filed 9 March, 1910.)

Taxation — Bond issues — Necessaries—Vote of People — Legislative Intent.

While a municipality may ordinarily provide for the lighting of its streets by electricity, as a necessary expense, by an issue of bonds without submitting the question to the qualified voters, (Constitution, Art. VII, sec. 7), it may not do so when there is an existing special legislative act requiring it to be so submitted, whether the act in question be expressed in terms permissive or mandatory, for such a statute in either case is equivalent to a legislative declaration and requirement that the sense of the voters shall be had before the undertaking is entered upon.. Constitution, Art. VIII, sec. 4.

Appeal from Coohe, J., at December Term, 1909, of Mabtibt.

Civil action, beard on return to a preliminary restraining order.

On tbe bearing it was made to appear that on 15 September, 1909, tbe town authorities bad formally passed tbe following resolutions:

“Whereas, experience has demonstrated tbe necessity for providing a system of lighting tbe streets of said town, and that all experiments herebefore made to do so have proved unsuccessful; and whereas, upon careful investigation, tbe board has ascertained that an electiic light plant can be installed of sufficient capacity to furnish lights for tbe town and its inhabitants at a cost of eight thousand dollars: We therefore declare the installment of an electric light plant for the said town is a public necessity, and that it is necessary to contract a debt of $8,000 for such purpose. . It is therefore resolved to issue bonds in said amount of $8,000, each carrying interest at 6 per cent, payable semiannually, and to mature twenty years from date. The said bonds shall not be sold for less than par, and the proceeds of such sale shall not be used for any other purpose than the purchase and establishment of said plant.

“It is also resolved that a tax of 16% cents on property, 50 cents on each poll, in addition to the municipal taxes as now collected, be levied for the payment of the interest on said bonds and a sinking fund to pay the principal at maturity.

“Above resolutions adopted at a meeting of the town commissioners 15 September, 1909, and ordered to be spread upon minutes as a record thereof.”

That said authorities were entering into a contract for the purpose indicated, and were proceeding in other respects to carry out the terms of the resolutions, when stayed by pi’elim-*148inary order issued in the cause.' That the acts o£ the legislature bearing on the question presented, and relevant to the inquiry, were Private Laws 1901, ch. 129; Private Laws, amending said chapter, 1907, eh. 146, and the general provisions of Eevisal, ch. 73, particularly sec. 2924, to the extent that these general provisions were unaffected by the special legislation referred to.

It was admitted that the proposition had not been submitted to the voters of the town. There was evidence tending to show that the special-tax levy, contemplated and directed by the resolution, would exceed the amount permitted by the terms of section 2924 of the Eevisal, referred to. ■ The court entered judgment making the restraining order perpetual, and defendants 'excepted and appealed.

A. R. Dunning for plaintiff.

II: W. Stubbs for defendant.

Hoke, J.,

after stating the case: Chapter 146, Private Laws of 1907, this being the statute more directly applicable to the question presented, after conferring on the Town Commissioners of 'Williamston “the power, if they deemed best, to submit to the voters of the town a proposition to issue bonds in the amount of $10,000 for the purpose of building a town hall,” contains the following provision:

"Provided fwrth&r, that if the commissioners shall desire to hold similar elections for the issue of bonds or to borrow money for any municipal improvements, as electric lights, sewerage, waterworks or street improvements, and shall so vote at two separate meetings, not coming within two months of each other, and shall record such vote in their minutes, and have a majority present and a majority voting in favor of it at each meeting, they may order an election held in the same manner as above stated, by complying in every way with the full meaning and form of this act. Said elections shall be held as are elections of town officers, and no new registration had unless required by said commissioners.”

And we hold it to be a proper construction of the statute, and others of similar import, that where a legislature confers power upon a municipal corporation to submit the question of a bond issue for an enterprise of this character to the voters of a municipality, and the statute is still in effect, it is equivalent to a legislative declaration and requirement that the sense of the voters shall be had before the undertaking is entered upon. True, we have decided in several of the more recent cases that where the question is presented as an open proposition, the *149obligations of tbe municipality incurred for tlie purpose indicated should be considered a necessary expense, that they do not come within the constitutional provision as to incurring municipal indebtedness, contained in Article YII, sec. 7, and that no vote of the people is ordinarily required. Bradshaw v. High Point, 151 N. C., 517; Webb v. Commissioners, 148 N. C., 120; Fawcett v. Mount Airy, 134 N. C., 125. But these and other decisions are also to the effect that, while there is no definite constitutional restraint in reference to indebtedness of this character, the question continues to be a matter of legislative-regulation, and that the limitations and restraints established by the statute-law must always be observed and complied with.

Speaking to this question, in Webb v. Commissioners, supra, the Court said: “While there is no constitutional inhibition, however, on the issuance of these bonds, the authorities with us are to the effect that when the charter of a municipality, or general or special legislation applicable to the question, requires or provides that a proposition to incur an indebtedness or issue bonds for a given purpose shall be submitted to the voters of a town for their approval, this will amount to a statutory restriction, and such indebtedness shall not be incurred unless the measure has been sanctioned and approved by the voters, according to the provisions of the statute; and this though such indebtedness is properly classed as a necessary expense.” Citing Robinson v. Goldsboro, 135 N. C., 382; Wadsworth v. Concord, 133 N. C., 587.

Although the framers of our Constitution did not deem it expedient to fix the definite restraint on incurring indebtedness for necessary municipal expenses contained in Article YII, sec. 7, for reasons indicated in Perry v. Commissioners, 148 N. C., 521, they were so deeply sensible of the importance of the subject, and of the dangers that might arise from an unlimited power to contract debts, even for necessary purposes, that they incorporated a provision as follows:

“Article YIII, sec. 4. It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessments and in contracting debts by such municipal corporations.”

We are, therefore, acting in furtherance of this salutary provision of our organic law, as well as applying accepted principles of statutory construction in holding, as stated, that when' a statute of the Legislature provides for an election on a proposition of this character, to incur a given indebtedness, even for *150a necessary expense, and tbe statute is still in force, sucb an act is expressive of a legislative requirement tbat before tbe enterprise may be entered upon an election must be beld, wbetber tbe act be expressed in terms permissive or mandatory, and tbat any effort of tbe authorities to proceed without tbe sanction of popular approval so obtained would be without warrant of law. To bold otherwise would be to declare tbat an act of our Legislature, deliberately and formally passed, was utterly without significance.

There is nothing in this position tbat militates against tbe decisions of our Court on this subject, so far as we have examined. In Bradshaw’s case, supra, tbe act providing for a popular vote was held to have been repealed by a subsequent statute. In tbe case of Greensboro v. Scott, 138 N. C., 181, tbe same fact was in evidence; tbat tbe act directing an election bad been, in effect, repealed. And tbe present Chief Justice, distinguishing tbe case from tbat of Robinson v. Goldsboro, supra, among other things, said: “In Robinson v. Goldsboro, 135 N. C., 382, tbe act requiring a popular vote bad not been abrogated or modified by a subsequent enactment.”

In Fawcett’s case, supra, tbe commissioners of Mount Airy bad been empowered to submit to tbe voters a proposition to issue bonds to the amount of $50,000 for tbe purpose of “procuring for tbe town a system of waterworks and installing an electric plant to furnish tbe town with water and light.” Tbe election was beld, tbe measure approved, and tbe bonds issued and sold. It was subsequently disclosed tbat tbe bonds issued pursuant to this election were not sufficient for tbe purpose, and tbe commissioners, acting under tbe general authority vested in them by tbe law, issued bonds for tbe remainder of .the cost.

There, as stated, tbe measure bad been approved, and a bond issue for the amount bad been issued and disposed of. Tbe force and effect of tbe act was at an end, and tbe statute having fixed no limit on tbe amount, as in Burgin v. Smith, 151 N. C., 561, it was beld tbat the question as to residue of tbe required expenditure was an open proposition to be dealt with by tbe municipality under its general power to provide for the necessary expenses of tbe town. In tbe case át bar, however, tbe statute providing for a popular election being now in force, this requirement must be complied with before tbe undertaking may lawfully proceed.

Tbe Court being of opinion tbat the municipal authorities are thus far without power to issue tbe bonds, it is not necessary to consider or determine tbe effect of an excessive tax' levy. In Commissioners of Pitt County v. MacDonald, 148 N. C., 125, we have beld, in effect, tbat when a bond issue has been otherwise *151properly made, tbe validity of sucb bonds will not be affected by tbe fact tbat in a given year tbe tax rate allowed by tbe law was insufficient to enable tbe county to make a present payment thereon; and tbis principle would seem to accord with tbe defendant’s view as to tbe effect of tbe tax levy being excessive. But tbis has ceased to be of importance, as we have held tbat tbe entire enterprise is without warrant of law until tbe question bad been submitted to a vote of tbe people in the way tbe statute provides.

We are of opinion, therefore, tbat tbe restraining order was properly made perpetual, and tbe judgment of bis Honor to tbat effect must be affirmed.

Affirmed.