Atkins v. City of Durham

• Decision Date: 15 June 1936
• Docket Number: 762.
• Citation: 186 S.E. 330,210 N.C. 295
• Parties: ATKINS et al. v. CITY OF DURHAM.
• Court: North Carolina Supreme Court

186 S.E. 330

210 N.C. 295

ATKINS et al. v. CITY OF DURHAM.

No. 762.

Supreme Court of North Carolina

June 15, 1936

Appeal from Superior Court, Durham County; Frizzelle, Judge.

Action by John L. Atkins, on behalf of himself and all other citizens and taxpayers of the City of Durham who may desire to join him in the action, against the City of Durham.The cause was dismissed, and plaintiffs appeal.

Affirmed.

This is an action brought by plaintiffs against defendant to restrain it from issuing $25,000 of bonds for public parks and playgrounds.The prayer of plaintiffs is as follows:

"1.That the defendant be perpetually restrained and enjoined from issuing and selling the said bonds and from levying and collecting the said tax upon the taxable property of the City of Durham, authorized to pay the principal and interest of said bonds, for the reason that,

(a) The acquiring of lands or rights in lands for public parks and playgrounds and the development and improvement of such lands and other lands now owned by the City of Durham, and the furnishing thereof with equipment and apparatus, is not a necessary expense of the City.

(b) The said bonds are for a purpose other than the payment of the necessary expenses of the City, and the question of the issuance of the said bonds and the levy of said tax has not been approved by the voters of the municipality at an election as provided in the said The Municipal Finance Act[Code 1935, § 2918 et seq.].

(c) That the City is attempting to pledge its faith and loan its credit and collect a tax for purposes other than a necessary expense of the City, without the vote of a majority of the qualified voters therefor."

The defendant set up certain facts showing that the proposed bonds were for a necessary expense in the promotion of health, safety, and morals of the people of the city of Durham.That the estimated population of the city of Durham at this time is 64,000.That there are 7,580 white children in the public schools of the defendant city, and 4,890 colored children in the public schools of the defendant city.That there are approximately 12,700 industrial workers residents of the defendant city.That the assessed valuation of real and personal property for taxation for the fiscal year 1935-1936, is $70,718,558.That the city tax rate for the said fiscal year is $1.70 on the $100 valuation.That the defendant city has never defaulted in the payment of interest or bonds.

By agreement of counsel, the case was heard on its merits by his honor, J. Paul Frizzelle, judge presiding, at Durham, N. C.

After hearing the evidence and argument of counsel, the court held as a matter of law that the ordinance authorizing the $25,000 Public Park bonds was a valid and subsisting ordinance of the city of Durham, and that said defendant in enacting said ordinance was performing a governmental function, useful and necessary in the preservation and promotion of the health safety, and moral of the people, to which plaintiff excepted and assigned same as error.ExceptionNo. 1.

After hearing the evidence and argument of counsel, the court held as a matter of law that the proposed issuance of said bonds for public park purposes and the proposed levying of a tax to pay the same and the annual interest thereon is a necessary expense and does not fall within the inhibition of article 7 section 7, of the Constitution of the State of North Carolina; to which plaintiff excepted and assigned the same as error.ExceptionNo. 2.

The court signed the judgment as set out in the record, to which plaintiff excepted and assigned same as error.ExceptionNo. 3.

The following judgment was rendered in the court below:

"This cause coming on for a hearing upon the complaint of the plaintiff to be used as an affidavit, before His Honor, J. Paul Frizzelle, Judge Presiding, and the defendant entering a general appearance and filing answer, upon the answer used as an affidavit in motion to dismiss, and by agreement of counsel, the case being heard on its merits, after the hearing of the pleadings and evidence offered, and the arguments of counsel, I find the following facts:

1.That the plaintiff is a taxpayer of the City of Durham.

2.That the defendant, City of Durham, is a municipal corporation, duly created, organized and existing under and by virtue of law, and possessed with certain powers and authorities conferred upon and delegated to it by the Legislature of the State of North Carolina, in particular those powers set out in Section 2787,Section 2776andSection 2795 Consolidated Statutes of North Carolina.

3.That the population of the City of Durham in 1870, consisted of 256 inhabitants; and that the population of the City of Durham in 1890, was 5,485; and in 1900 was 6,679; and in 1910 was 18,241; and in 1920 was 21,719; and in 1930 was 52,037; and that the estimated population of said City of Durham at this time is 64,000.

4.That the outlays and maintenance of the public parks and playgrounds for Recreational Department of the City of Durham for the year 1925, was $5,400.00; and that said amount has gradually arisen and said outlays aforesaid for the year 1935, was $20,937.25.That small fees are charged and collected in connection with the operation of the swimming pools and use of said conveniences in the public parks and playgrounds of said defendant City, which fees are grossly less than the actual annual outlays and expenses incident for the maintenance of said parks, playgrounds and recreational centers.

5.That the assessed valuation of real and personal property listed for taxation for the fiscal year 1935-1936 is $70,718,558.00, and that the defendant, City of Durham, has never defaulted in the payment of interest and bonds.

6.That the governing body of the defendantCity of Durham on April 20, 1936, duly adopted an ordinance authorizing $25,000 Public Park Bonds, all in the form, words and figures as set out in the complaint.

From the foregoing facts the Court arrives at the following conclusions of law:

1.That the ordinance authorizing $25,000 Public Park Bonds was duly passed by the governing body of the defendant, City of Durham, on April 20, 1936, and the same is a valid and subsisting ordinance of the defendant, City of Durham, and said defendant, City of Durham, in enacting said ordinance was performing a governmental function, useful and necessary in the preservation and promotion of the health, safety and morals of the people.

2.That the proposed issuance of said bonds for said Public Park purposes, and the proposed levying of a tax to pay the same and the annual interest thereon is a necessary expense and does not fall within the inhibition of article 7, section 7, of the Constitution of the State of North Carolina.

From the foregoing findings of facts and conclusions of law, it is Ordered, Adjudged and Decreed that the prayer for the restraining order herein be and the same is denied, and this cause is dismissed and the defendant will recover its costs to be taxed by the Clerk.J. Paul Frizzelle, Judge Presiding."

The plaintiffs made the following exceptions and assignments of error: "His Honor erred in holding that the ordinance authorizing the $25,000.00 Public Park Bonds is a valid and subsisting ordinance of the defendant, City of Durham, and that said City of Durham in enacting said ordinance was performing a governmental function, useful and necessary in the preservation and promotion of the health, safety and morals of the people.His Honor erred in holding as a matter of law that the proposed issuance of said bonds for said public park purposes and the proposed levying of a tax to pay the same and the annual interest thereon is a necessary expense and does not fall within the inhibition of article 7, section 7, of the Constitution of the State of North Carolina.His Honor erred in signing the judgment as set out in the record."

The exceptions and assignments of error made by plaintiffs and other necessary facts will be set forth in the opinion.

W. H. Hofler, of Durham, for appellants.

S. C. Chambers, of Durham, for appellee.

J. L. Morehead, of Durham, amicus curiæ.

CLARKSON Justice.

We do not think that any of the exceptions and assignments of error made by plaintiffs can be sustained.The record discloses that the city of Durham now has many parks and playgrounds, among them "Long Meadow Park," a gift to the city of Durham"for the white people of Durham County," and "Hillside Park,""for the colored people of Durham County."

The city council of the city of Durham passed the following ordinance:

"Section 1.That the City of Durham issue its bonds pursuant to the Municipal Finance Act, as Amended, in an amount not exceeding $25,000, for the purpose of acquiring lands or rights in lands for public parks and playgrounds, including any buildings thereon at the time of acquisition, and the development and improvement of such lands and other lands now owned by the City of Durham and dedicated for public park purposes, together with the construction or reconstruction of buildings thereon and the furnishing thereof with equipment and apparatus.

Sec. 2.That a tax sufficient to pay the principal and interest of said bonds shall be annually levied and collected.

Sec. 3.That a statement of the debt of the City has been filed with the Clerk and is open to public inspection.

Sec. 4.That this ordinance shall take effect 30 days after its first publication unless in the meantime a petition for its submission to the voters is filed under said Act, and that in such event it shall take effect when approved by the voters of the City at an election as provided in said Act."

N.C.Code 1935(Michie)§ 2947, in part, is as follows:...