State Ex Rel. Dyer v. City of Leaksville

Annotate this Case

165 S.E.2d 201 (1969)

275 N.C. 41

STATE of North Carolina, by leave of the Attorney General, ex rel. John DYER, W. L. Edwards and Elizabeth S. Childers v. The CITY OF LEAKSVILLE, a municipal corporation, et al.

No. 766.

Supreme Court of North Carolina.

January 21, 1969.

*204 T. W. Bruton, Atty. Gen., Harry W. McGalliard, Deputy Atty. Gen., for the State.

W. Harold Edwards, Chapel Hill, Jordan, Wright, Nichols, Caffrey & Hill, and Edward L. Murrelle, by Welch Jordan and Edward L. Murrelle, Greensboro, for plaintiff appellants.

D. Floyd Osborne, H. L. Fagg, Earl Vaughn, Leaksville, Womble, Carlyle, Sandridge & Rice, by E. Lawrence Davis, III, and Irving E. Carlyle, Winston-Salem, for defendant appellees.

HIGGINS, Justice.

The plaintiffs' appeal presents the question whether House Bill No. 1139 (Chapter 967, Session Laws of 1967) was passed by the General Assembly in the manner required by Article II, Section 14, North Carolina Constitution. If the question be answered in the affirmative, the plaintiffs *205 contend the Act should be declared unconstitutional upon the ground it violates Article V, Section 3, North Carolina Constitution by permitting levies in violation of the uniform tax rule.

With respect to the first question, Article II, Section 23 of the North Carolina Constitution provides: "* * * All bills and resolutions of a legislative nature shall be read three times in each house before they pass into laws, and shall be signed by the presiding officers of both houses." This Court has held that the ratification certificates signed by the President of the Senate and the Speaker of the House are conclusive of the fact that the bill was read three times and was passed three times in each house of the General Assembly. Carr v. Coke, 116 N.C. 223, 22 S.E. 16, 28 A.L.R. 737; Commissioners v. Snugg, 121 N.C. 394, 28 S.E. 539, 39 A.L.R. 439; Black v. Board of Commissioners, 129 N.C. 121, 39 S.E. 818; Commissioners of New Hanover County v. DeRosset, 129 N.C. 275, 40 S.E. 43; Wilson v. Markley, 133 N.C. 616, 45 S.E. 1023; Frazier v. Board of Commissioners, 194 N.C. 49, 138 S.E. 433. The certificates of the presiding officers are conclusive that the requirements of Section 23 were observed in the passage of the bill. The journals of the House and Senate are not competent evidence to contradict the certificates of the presiding officers that a bill was duly read in each house three times and passed on each reading. Broadnax v. Groom, 64 N.C. 244. Such is the rule with respect to passage of non-revenue bills.

However, Section 14 of the same article provides:

"* * * No law shall be passed to raise money on the credit of the State, or to pledge the faith of the State, directly or indirectly, for the payment of any debt, or to impose any tax upon the people of the State, or to allow the counties, cities or towns to do so, unless the bill for the purpose shall have been read three several times in each House of the General Assembly and passed three several readings, which readings shall have been on three different days, and agreed to by each house respectively, and unless the yeas and nays on the second and third readings of the bill shall have been entered on the journal."

With respect to the requirements in the above quoted revenue section, the House and Senate Journals, and not the certificates of ratification signed by the presiding officers, are the sources of proof as to whether the bill was read on three several days in each house of the General Assembly and passed three several readings on three different days and that the yeas and nays on the second and third readings were entered on the journals.

The additional steps necessary to show the passage of revenue acts are not within the conclusive presumption arising from the certificates of the presiding officers. The journals are made the exclusive sources of such proof. A full discussion, and citations of authority, appear in Justice Connor's opinion in Frazier v. Board of Commissioners, supra.

"The Constitution requires that it should appear, not from the entries on the original bill, but from the journal, that the bill was properly read and that the necessary entry of ayes and noes was made. If the journal shows that the bill was regularly passed, no evidence will be received to contradict what is therein recorded." Frazier v. Board of Commissioners, supra.

Judge Copeland found that House Bill No. 1139, now Chapter 967, Session Laws of 1967, was read three several times in each house of the General Assembly and passed on three several readings, which readings were on three different days with the yeas and nays having been recorded on the second and third readings, and entered on the journals. This finding, in all respects, was supported by the House and Senate Journals. The *206 House Journal shows that House Bill No. 1139 was introduced in the House of Representatives on May 25, 1967 and referred to the Committee on Courts and Judicial Districts. The bill was amended by committee and reported to the House with a favorable report on June 12, 1967. The House considered and approved the amendment. On June 14, 1967, by a recorded roll call vote, 113 named Representatives having voted for passage and none against, the bill passed its second reading and remained on the calendar. On June 15, 1967, by a recorded roll call vote, 115 named Representatives having voted for passage and none against, the bill passed its third reading and was ordered engrossed and sent to the Senate.

The Senate Journal shows that on June 16, 1967 House Bill No. 1139 was received in the Senate as a message from the House, and was referred to the Committee on Calendar. On June 22, 1967, by a recorded roll call vote, 46 Senators having voted for passage and none against, House Bill No. 1139 passed its second reading and remained on the calendar. On June 23, 1967, by a recorded roll call vote, 44 Senators having voted for passage and none against, House Bill No. 1139 passed its third reading and was ordered enrolled.

The records before Judge Copeland furnished authentic proof supporting the finding and conclusion that House Bill No. 1139 was duly passed and is valid and binding.

Although Chapter 967, Session Laws of 1967 (with voter approval) abolished the municipalities of Leaksville, Draper, Spray and Meadow Greens Sanitary District; however, the Act did not abolish the Eden Metropolitan Sewerage District, which included, within its limits, all of Leaksville, Draper and Spray, but did not include Meadow Greens Sanitary District. Property within Metropolitan continued subject to tax for all of Metropolitan's liabilities, including its large bonded debt. Property within the new municipality, but not within Metropolitan, is not subject to levy for Metropolitan's obligations. By specific provision of Section 8 of Chapter 967, the consolidation left the Eden Metropolitan Sewerage District unaffected. Its functions, obligations and taxing authority are left intact.

The plaintiffs contend the rule of uniformity is broken in that property both within the new municipality and within the Metropolitan Sewerage District is subject to both tax levies, whereas the property in the city, but outside Metropolitan, is subject only to the city tax levies. Unquestionably the Constitution requires that the rule of uniformity be observed. It is observed if the rate is uniform throughout each taxing authority's jurisdiction. When property is within more than one taxing authority, each has the right to make its own levy. The constitutional requirement is that taxing powers shall be exercised "by uniform rule". The rule of uniformity is not violated by double taxation resulting from taxes levied by different authorities if each authority adheres to the uniformity rule in its levies. Anderson v. City of Asheville, 194 N.C. 117, 138 S.E. 715; Town of Kenilworth v. Hyder, 197 N.C. 85, 147 S.E. 736; Sabine v. Gill, 229 N.C. 599, 51 S.E.2d 1; Jamison v. City of Charlotte, 239 N.C. 682, 80 S.E.2d 904; Myles Salt Co. v. Board of Commissioners, 239 U.S. 478, 36 S.C. 204, 60 L. Ed. 392; McQuillin on Municipal Corporations, 2d Ed., Sec. 2565.

"`Sometimes it is deemed wise to create a tax district for special purposes, generally for public improvements, such as for highway taxes, bridge taxes, drainage taxes, or the like, and to fix the boundaries of such district as including two or more counties or towns or even making the district wholly independent of such political boundaries. * * * Taxing districts may be as numerous as the purposes for which taxes are levied. Equality and uniformity of taxation does not preclude the *207 power of the state to create separate taxing districts, provided the taxes are equal and uniform within each taxing district.'" Town of Kenilworth v. Hyder, supra.

The plaintiffs allege the failure to abolish Metropolitan and transfer its duties and obligations (including its heavy bonded debt) to the new municipality resulted in an unequal tax burden on the property within the Metropolitan taxing area. True, this burden is not shared by property which is within the city but is outside Metropolitan. Inequality in tax burdens follows the creation of municipal corporations with partially overlapping boundaries. The remedy, if one is due, must be supplied by the agency which created the taxing districts and fixed their boundaries. The General Assembly and not the court, has the requisite power.

The Legislature has the sole power to create municipal corporations. The courts do not have that power.

"Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted to them. * * * The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state. * * * The state, therefore, at its pleasure, may modify or withdraw all such powers, * * * expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. * * * In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. * * *" Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S. Ct. 40, 52 L. Ed. 151.

The questions whether the Eden Metropolitan Sewerage District of Rockingham County should have been, or should be, abolished, and its duties and obligations assumed by the city or left undisturbed (as provided in the Act) were within legislative, not judicial, competence. Appeal for relief, if warranted, should be to the General Assembly.

We have carefully considered the plaintiffs' excellent brief and examined the cases therein cited. However, the record fully supports the findings, conclusions, and judgment of the Superior Court. The judgment is

Affirmed.