Board of Managers of James Walker Memorial Hospital of Wilmington v. City of Wilmington

• Decision Date: 25 February 1953
• Docket Number: No. 594,594
• Citation: 237 N.C. 179,74 S.E.2d 749
• Parties: BOARD OF MANAGERS OF JAMES WALKER MEMORIAL HOSPITAL OF WILMINGTON v. CITY OF WILMINGTON et al
• Court: North Carolina Supreme Court

Page 749

74 S.E.2d 749

237 N.C. 179

BOARD OF MANAGERS OF JAMES WALKER MEMORIAL HOSPITAL OF WILMINGTON v. CITY OF WILMINGTON et al

No. 594

Supreme Court of North Carolina.

Feb. 25, 1953

Isaac C. Wright and Alton A. Lennon, Wilmington, for plaintiff, appellant.

Wm. B. Campbell, Wilmington, for defendant, City of Wilmington appellant.

Marsder Bellamy and David H. Scott, Wilmington, for defendant, New Hanover County, appellant.

PARKER, Justice.

For brevity the plaintiff will be referred to as the Hospital, the defendant the City of Wilmington as the City, and the defendant the County of New Hanover as the County. The plaintiff's assignment of Error No. 4: The Court's conclusion of law No. 1 that Chapter 8 of the Public-Local Laws of 1937, Chapter 470 of the Public-Local and Private Laws of 1939, and Chapter 906 of the Session Laws of 1951 contravene Art. II, Sec. 29 of the Constitution of North Carolina, and are all unconstitutional and void, and the court's adjudication No. 1 to the same effect. The County's assignment of Error No. 3 is similar, with this addition that if said acts are all unconstitutional then the prior acts of the Legislature are effective to require appropriations for the Hospital to be made one-half by the City and one-half by the County.

The City has challenged the constitutionality of the above three solemn and deliberate acts of the Legislature of the sovereign State of North Carolina, which always presents a serious question for determination by a court. The City having thrown down the gauntlet takes upon itself the burden of proving such acts, or anyone or more of them, are unconstitutional beyond all reasonable doubt. 'It is an elementary principle of law, as held by the United States Supreme Court, that no act can be held unconstitutional unless it is so 'proved beyond all reasonable doubt.' Ogden v. Saunders, 12 Wheat. 213, 6 L.Ed. 606; Cooley Cons. Lim. (7th Ed.) 254. This is quoted with approval in [Chadbourn] Sash [Door & Blind] Co. v. Parker, 153 N.C. 134, 69 S.E. 1. To same purport, Walker, J., Johnson v. Board of Education, 166 N.C. 472, 82 S.E. 832, L.R.A.1915A, 828; Whitford v. Com'rs, 159 N.C. 161, 74 S.E. 1014; Hoke, J., in Bonitz v. [Board of] School Trustees, 154 N.C. 379, 70 S.E. 735. All reasonable doubts must be resolved in favor of the constitutionality of legislation. Allen, J., In re Watson, 157 N.C. 347, 72 S.E. 1049. Every presumption is in favor of the constitutionality of an act of the Legislature, and all doubts must be resolved in support of the act. The courts may resort to an implication to sustain an act, but not to destroy it.' Bickett v. Tax Comm., 177 N.C. 433, 99 S.E. 415, 416. It is too axiomatic to require the citation of authority that when it is clear a statute transgresses the authority vested in the Legislature by the Constitution, it is the duty of the court to declare the act unconstitutional. Any other course would lead to the destruction of constitutional government.

The pertinent part of Art. II, Sec. 29 of the North Carolina Constitution is: 'The General Assembly shall not pass any local private, or special act or resolution * * * relating to health, sanitation, and the abatement of nuisances'. This section of the Constitution was adopted in the General Election of 1916, and manifestly has no application to local, private or special acts relating to health enacted by the Legislature prior to 1916. Roebuck v. Board of Trustees, 184 N.C. 144, 113 S.E. 676.

Ch. 906 of Session Laws 1951 reads in part the City and the County 'hereby are authorized and directed to enter into a contract with the James Walker Memorial Hospital, making proper and adequate provision for the hospitalization, medical attention, and care of the indigent sick and afflicted poor of said city anc county [etc.]' Ch. 470, Public-Local and Private Laws 1939 contains the exact words quoted from the 1951 Act, except the words 'and directed.' Ch. 8, Public-Local Laws 1937 provides for the payment of $25,000 each by the City and County to the Hospital to provide medical and hospital attention for the care and maintenance of the indigent sick and afflicted poor of the City and County.

In Board of Health v. Board of Com'rs of Nash County, 220 N.C. 140, 16 S.E.2d 677, it was held that a law affecting the selection of a health officer of Nash County was a law relating to health; and this act applicable to Nash County only, providing that the county commissioners should approve the election of a health officer, was unconstitutional as violating Art. II, Sec. 29 of the Constitution of North Carolina. See also Sams v. Board of Com'rs of Madison County, 217 N.C. 284, 7 S.E.2d 540. A law undertaking to confer power upon the Board of Aldermen of the City of Winston-Salem and the Board of County Commissioners of Forsyth County to consolidate their public health offices and departments, to name a joint city-county board of health, and to appoint a joint city-county health officer was a law relating to health, and was held void for repugnancy to Art. II, Sec. 29 of the Constitution. Idol v. Street, 233 N.C. 730, 65 S.E.2d 313.

The Legislature at its session in 1935 enacted Ch. 64, Public Laws 1935 (codified G.S. § 160-229) which amends C.S. § 2795 (now G.S. § 160-229) by adding at the end thereof all of Ch. 64. C.S. § 2795 is under Part 5 'Protection of Public Health' Article 15, Ch. 56, Municipal Corporations. G.S. § 160-229 is under Part 5 'Protection of Public Health,' Subchapter II, Chapter 160, Municipal Corporations. The 1935 amendment empowered the governing body of a town or city to contract with a public or private hospital for medical treatment and hospitalization of the afflicted poor of the town or city. This was a general law applicable to the State as a whole, except as to the counties and cities or towns excepted therefrom, among which was the City of Wilmington. In Martin v. Raleigh, 208 N.C. 369, 180 S.E. 786, Ch. 64, Public Laws 1935, was held constitutional, and for a necessary municipal expense not requiring the approval of the qualified voters of the city as a prerequisite to the validity of the tax and not in violation of Art. VII, Sec. 7 of the Constitution.

Ch. 65, Public Laws 1935 (codified G.S. § 153-152) amended C.S. § 1335 (now G.S. § 153-152) by adding at the end thereof all of Ch. 65. C.S. § 1335 is under Art. 8 'County Poor,' Ch. 24, Counties and County Commissioners. G.S. § 153-152 is under Art. 13 'County Poor,' Ch. 153, Counties and County Commissioners. The 1935 Amendment to C.S. § 1335 is similar to the 1935 Amendment to C.S. § 2795 except that it applies to counties. This was a general law applicable to the State as a whole, except as to the counties exempted, among which was New Hanover. In Martin v. Board of Com'rs of Wake County, 208 N.C. 354, 180 S.E. 777 the 1935 amendment was held constitutional and a county tax to provide funds for care of the indigent sick was held for a necessary expense not requiring approval of the voters, and not in violation of Art. VII, Sec. 7 of the Constitution.

It would seem the Legislature at its session in 1935 considered that Ch. 64 of its laws enacted then related to health. This law was enacted as a general law, so as not to conflict with Art. II, Sec. 29 of the Constitution.

The Legislature since 1916 by local, special or private acts, has increased or decreased the jurisdiction of certain courts inferior to the Superior Court, which courts were already in existence. The prohibition of Article II, Sec. 29 of the Constitution of North Carolina is against the establishment of such courts, and these cases are not in point. Durham Provision Co. v. Daves, 190 N.C. 7, 128 S.E. 593; State v. Horne, 191 N.C. 375, 131 S.E. 753; Williams v. Cooper, 222 N.C. 589, 24 S.E.2d 484. A local statute was enacted by the Legislature in 1925 enlarging the jurisdiction of the Town of Lumberton, when it already had jurisdiction over streets, to include sidewalks and alleys. The prohibition of the Constitution is against 'the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys' by local, special or private act. This act was held to merely increase the authority already conferred upon the Town of Lumberton in 1907, and was not unconstitutional as violating Art. II, Sec. 29 of the Constitution. Deese v. Town of Lumberton, 211 N.C. 31, 188 S.E. 857. The Legislature in 1915 authorized Wilkes County to issue bonds to provide for a uniform, comprehensive, and practical system of roads in the county. The Legislature by local act in 1919 increased the amount of the bond issue. This was held not prohibited by Art. II, Sec. 29 of the Constitution, which prevents the enactment of any local, private, or special act authorizing the laying-out, opening, maintaining or discontinuing of highways. Commissioners of Wilkes County v. Pruden & Co., 178 N.C. 394, 100 S.E. 695. A school district had been defined as to boundaries, etc., by a Private Law enacted in 1905. The Legislature in 1921 enacted a Private Law authorizing an increase of the bonds to be issued from $3,000 to $50,000. This was not repugnant to Art. II, Sec. 29 of the Constitution which prohibits local acts from 'establishing or changing the lines of school districts.' Roebuck v. Board of Trustees, supra [184 N.C. 144, 113 S.E. 677].

Hailey v. Winston-Salem, 196 N.C. 17, 144 S.E. 377; Hill v Board of Com'rs, 190 N.C. 123, 129 S.E. 154; In re Advisory Opinion, 227 N.C. 716 relied upon by the Hospital are distinguishable.

A local act is one operating only in a specified locality. State v. Dixon, 215 N.C. 161, 1 S.E.2d 521. The three acts of the Legislature adjudged unconstitutional by the trial court operate in New Hanover County, and are beyond peradventure local acts.

These three acts do not apply to the poor like building a county home. Under Art. XI, Sec. 7, of the Constitution of North Carolina a county may build a county...