#### W. H. BAIN v. CITY OF GOLDSBORO.

(Filed 10 December, 1913.)

1. Taxation — Cities and Towns — Bond Issues — Waterworks—Vote of the People — 'Constitutional Law — Necessaries—Interpretation of Statutes.

Bonds issued for purpose of enlarging and improving the waterworks system of a town and authorized by legislative enactment, are for a necessary expense and valid without the ques*103tion of their issue haying been submitted to the qualified voters of the municipality, when the statutes do not so require; and chapter 86, Laws 1911, and chapter 201, sec. 3, Public Laws 1913, have no application.

2. Taxation — Cities and Towns — Waterworks—Bond Issues — Injunction — Excessive Tax — Burden of Proof.

Where the issuance of municipal bonds for enlarging and improving the waterworks system of the town are sought to be enjoined by a taxpayer on the ground that the present tax rate is burdensome, and the issuance would increase this rate beyond the limitation placed by the statutes, the burden is upon the plaintiff to show that the tax rate would be unlawfully increased, which in the present case would involve the question of the increase in revenue of the town by the receipts from the waterworks plant.

Appeal by plaintiff from an order of Daniels, J., rendered at chambers, 1 December, 1913; from Wayne.

The General Assembly, at its special session of 1913 (Private Laws, cb. 30), authorized the city of Goldsboro to issue bonds in the total sum of $20,000 for the purpose of completing the enlargement and improvement of its waterworks plant and system, said bonds to run for thirty years, and provided for a specified tax to pay accruing interest and the principal at its maturity. The defendants pr.opose to issue the bonds thus authorized without submitting the question of their issue to the qualified voters of the city. It is alleged by plaintiff, in his complaint, he being a citizen and taxpayer of Goldsboro, that the term of the present members of the board of aldermen of the city will expire in May, 1915; that the population of the city is approximately 8,000 and the assessed valuation of all real and personal property within its corporate limits is approximately four and one-half millions of dollars and' the rate of taxation at the present time 94 cents on the assessed valuation of real and personal property and $2.82 on each poll. Plaintiff asks for an injunction against the issuance of the bonds. The court, upon the pleadings, denied the application, and he appealed.

R. M. Robinson for plaintiff.

D. G. Humphrey for defendant.

*104Walker, J.,

after stating tbe ease: We tbink tbe judgment was correct. No popular vote was required, as none is provided for in tbe act of 1913, and it was evidently contemplated by tbe Legislature, in passing tbe act, that there should be .none. Tbe act of 1911, cb. 86, was intended to apply to municipal corporations whose charters make no special provision for tbe establishment or improvement of waterworks, sewerage, or lighting plants and systems. Murphy v. Webb, 156 N. C., 402. This case also bolds that tbe cost of the improvements for which tbe bonds in question are to be issued fall within tbe general 'class and description of necessary expenses, which do not require a favorable vote of tbe people before tbe bonds are issued. Bradshaw v. High Point, 151 N. C., 517; Fawcett v. Mount Airy, 134 N. C., 125; Robinson v. Goldsboro, 135 N. C., 382, to which may be added Water Co. v. Trustees, 151 N. C., 171, as involving tbe question we are now discussing.

Tbe clause of tbe revenue act (Public Laws 1913, cb. 201, see. 3), limiting tbe rate of municipal taxation to 1 per centum on tbe value of real and personal property, does not apply to oqr facts, as tbe Legislature has given special authority to levy tbe tax for tbe payment of tbe principal and interest of tbe bonds to be issued by the defendant, which brings this case within tbe exception of that section.

There is nothing in tbe facts, as now presented, to show that tbe issue of tbe bonds or tbe levy of tbe tax for tbe purpose of paying principal and interest is contrary to any prohibition, restriction or limitation of tbe law as regards tbe power of municipal corporations to contract a debt or impose a tax upon its citizens. Plaintiff, being tbe actor and bolding tbe affirmative, is required to take tbe burden of proving wherein any such conflict between tbe proposed action of defendant and tbe law exists. This be has not done, according to our view of tbe facts. Tbe case seems to be fully covered by tbe reasoning in Wharton v. Greensboro, 146 N. C., 356, and especially by tbe decision in Underwood v. Ashboro, 152 N. C., 641, where tbe Chief Justice says: “It does not appear that, after deducting rentals, and profits of tbe water system, tbe levy to pay interest on these *105bonds would probably swell tbe total levy for other than special purposes (which are authorized by special statute) beyond the limitation in Revisal, sec. 2924, or Eevisal, sec. 5110. The burden of showing this was on the plaintiff asking for an injunction.” This places the burden where it properly belongs, and the same rule is applicable to Eevisal, see. 2977, as to the 10 per cent restriction upon the right of such a corporation to contract debts, pledge its faith, or loan its credit, which section was considered in Wharton v. Greensboro, supra, where Justice Brown says: “A special purpose within the meaning of the statute embraces all forms of debt not within the legitimate necessary expenses of the municipality.” Where the facts do1 not appear, we must presume that they do not exist, or, otherwise, the party who asserts and relies on their existence would have brought them forward; and, besides, it is incumbent upon the appellant to show error affirmatively in such a case.

Affirmed.