#### W. A. UNDERWOOD v. TOWN OF ASHEBORO.

(Filed 25 May, 1910.)

1. Cities and Towns — Bond Issue — Water System — Necessary Purpose.

An issue of bonds for water-worts and sewerage in a town where the wells are contaminated with typhoid germs, and there is no adequate protection from fire, and no other supply of water, is for a necessary purpose.

2. Same — Taxation—Limitations of Levy — Injunction—Burden of Proof.

The limitations of Revisal, secs. 2974, 2977, 2924, 5110, do not apply to a tax levy for the necessary municipal. purpose of a water and sewer system; and, if otherwise, the party seeking to restrain a bond issue for such purpose has the burden of proof that after deducting rentals and profits of the water system, the levy to pay interest on these bonds would probably swell the total levy, for other than special purposes, authorized by statute, beyond the limitations in either Rev., 2924 or 5110.

Appeal by plaintiff from Biggs, J., from Randolph, heard at chambers in Asheboro, 10 May:, 1910.

On 10 February, 1910, the board of commissioners of the town of Asheboro passed a resolution, without submitting the same to a vote of the people, to issue $50,000 in bonds of the town, due thirty years after date and bearing 5 per cent interest, for the purpose of providing a system of waterworks and sewerage for said town. The plaintiff, a taxpayer of said town, brought this action to restrain the issuing of said bonds. The court decided that the purpose contemplated by the resolution was a necessary expense, and there being no limitation in the charter or by any statute, general or special, upon the power of the town to contract for necessary expenses, adjudged that the town commissioners had authority to incur said indebtedness and issue bonds therefor, and denied the injunction. Plaintiff appealed.

R. G. Kelly and H. M. Robins for plaintiff.

J. A. Spence for defendant.

Clark, C. J.

Upon the facts agreed, which the judge found to be true, it appears that the population of the town of Ashe-boro is about 2,000; that the assessed value of the real and personal property in the town is $752,767 and there are 312 taxable polls; that the bonded indebtedness already existing is $15,000; that by virtue of special elections authorized by the General Assembly, the town levies 50 cents on the $100 of prop*642erty and $1.50 on tbe poll for graded-scbool purposes, and 25 cents on tbe $100 and 75 cents on tbe poll for general, street and other purposes.

It is further agreed and found as facts by tbe judge, that tbe present source of water supply for tbe inhabitants of tbe town is surface wells, and water from four of these have been analyzed and all four were found to be infected with typhoid germs; that tbe town has no provision for protection from fire; that the town is lighted by electric lights, but it has only about 100 yards of paved streets; that tbe cost of putting in tbe proposed water and sewerage system will be between $40,000 and $60,000.-

Tbe protection of tbe town from fire and disease is of tbe first importance, and bis Honor properly adjudged that this provision for water and sewerage was a necessary expense. By tbe terms of tbe Constitution, Art. VII, sec. 7, Rev., 2974, a vote of tbe people is not required before incurring an indebtedness -and issuing bonds for "necessary expenses” in tbe absence of statutory restriction. Const., Art. VIII, sec. 4.

Tbe existing indebtedness is $15,000 and tbe assessed valuation of property, real and personal, in tbe town is $752,767. Tbe proposed issue of $50,000 bonds would, therefore, not violate tbe 10 per cent restriction in Rev., 2977, if it applied to indebtedness for necessary expenses, which it does not. Wharton v. Greensboro, 146 N. C., 356.

Tbe limitation in Rev., 2924, of a levy of more than 50 cents on the $100, and $1.50 on tbe poll, applies to “municipal purposes,” i. e., for ordinary purposes of city or town government. Tbe limitation in Rev., 5110, that tbe town shall not levy to exceed $1 on tbe $100 has this proviso, “except by special authority from tbe General Assembly.” Though tbe town already levies 75 cents on tbe $100, so much thereof (50 cents) as is levied for special purposes (school, etc.) under elections authorized by special statutes .is to be deducted from tbe 75 cents, which leaves ample margin between tbe 25 cents now levied for general purposes and tbe $1 limitation in Rev., 5110, for a levy to pay the interest on these bonds, though that would not be necessary to tbe validity of tbe bonds. Commissioners v. McDonald, 148 N. C., 125. Besides, it does not appear that after deducting rentals and profits of tbe water system tbe levy to pay interest on these bonds would probably swell tbe total levy for other than special purposes (which are authorized by special statute) beyond tbe limitation in either Rev., 2924 or 5110. Tbe burden to show this was on tbe plaintiff asking an injunction.

*643Towns in Randolph County are exempted from tbe very commendable provision in Laws 1§0†, cb. 935, Pell’s Rev., 2924, which restricts the total municipal poll tax in all cases to $2. The excessive poll tax levied in many towns before the passage of this act was a great hardship on the poorer classes.

The judgment refusing the injunction is

Affirmed.