Britt v. City of Wilmington, 593

• Docket Nº: No. 593
• Citation: 73 S.E.2d 289, 236 N.C. 446
• Case Date: November 19, 1952
• Court: United States State Supreme Court of North Carolina

Page 289

73 S.E.2d 289 236 N.C. 446 BRITT,
v.
CITY OF WILMINGTON et al. No. 593 Supreme Court of North Carolina. Nov. 19, 1952

McClelland & Burney, Wilmington, for plaintiff appellant.

Wm. B. Campbell, Wilmington, for defendant appellees.

BARNHILL, Justice.

The record before us generates some doubt as to whether this action is a bona fide adversary proceeding. while plaintiff alleges that the parking facilities the defendant proposes to furnish motorists are not 'for a proper public purpose of for the general welfare and benefit of the City and its inhabitants, but are for the private benefit of the users of such facilities', he stipulates in part that traffic congestion on the streets of Wilmington has reached the point that it creates a public nuisance and 'this traffic congestion is not capable of being adequately abated except by provision for sufficient off-street parking facilities; adequate off-street parking facilities have not been provided and parking spaces now existing must be forthwith supplemented by off-street parking facilities provided by public undertaking; and the provision of such off-street parking facilities is a public necessity.'

Thus it would seem that the parties to the action are seeking the same end--the approval by this Court of the proposed bond issue. If such is the case--and we do not so assert--we could not permit a single resident of defendant city to stipulate away the rights of all the taxpayers of the municipality. Instead, we shall decide the questions of law posed for decision upon the assumption they are presented in good faith upon the essential facts appearing of record, unhampered by stipulations of legal conclusions.

The authority of the defendant city to issue and market the proposed off-street parking facilities revenue bonds under the terms of the resolution adopted by its governing board rests upon the validity of certain stipulations and covenants contained in the bond resolution and of the enforcement ordinance adopted pursuant thereto. The plaintiff in his complaint attacks the right of the defendant city to (1) pledge the revenue derived from the off-street parking facilities to the payment of said bonds, (2) pledge revenue derived from the on-street meters to the payment of the proposed bonds, (3) consolidate into one project the on-street and [236 N.C. 450] off-street parking arrangements, and (4) maintain, and enforce by criminal prosecution, the ordinance adopted by the governing body of defendant regulating the operation of the off-street parking facilities.

We may concede, without deciding, that the proposed off-street parking undertaking is for a public purpose and is a proper municipal objective within the defendant's proprictary powers. If that be true, then, of course, the defendant has the power to pledge the revenues derived from the off-street parking facilities to the payment of the proposed revenue bonds. The very purpose of the Revenue Bond Act, General Statutes Ch. 160, Art. 33, is to permit municipalities to engage in non-governmental activities of a public nature by pledging the revenue derived from such

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undertakings to the payment of bonds issued in connection therewith. Thus it avoids pledging the credit of the municipality to the payment of a debt, for by such arrangements no debt is incurred within the meaning of the Constitution.

We deem it necessary therefore to discuss only two questions raised by plaintiff: The right of defendant (1) to pledge revenue derived from the on-street parking facilities to the payment of the proposed revenue bonds, and (2) to enforce by criminal prosecution the provisions of its ordinance regulating parking in the off-street parking lot.

A municipal corporation is dual in character and exercises two classes of powers--governmental and proprietary. It has a two-fold existence--one as a governmental agency, the other as a private corporation.

Any activity of the municipality which is discretionary, political, legislative, or public in nature and performed for the public good in behalf of the State rather than for itself comes within the class of governmental functions. When, however, the activity is commercial or chiefly for the private advantage of the compact community, it is private or proprietary. Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42.

A municipal corporation cannot, even with express legislative sanction, engage in any private enterprise or assumeany function which is not in a legal sense public in nature, the word 'private' as used in opinions discussing the powers of a municipality being used to designate proprietary, as distinguished from governmental functions. Brown v. Board of Com'rs of Richmond County, 223 N.C. 744, 28 S.E.2d 104; Kennerly v. Town of Dallas, 215 N.C. 532, 2 S.E.2d 538; Williamson v. City of High Point, 213 N.C. 96, 195 S.E. 90; Nash v. Town of Tarboro, 227 N.C. 283, 42 S.E.2d 209; 5 McQuillin Mun. Corp., Rev.Ed. 1278; 37 A.J. 734.

When a municipality is acting 'in behalf of the State' in promoting or protecting the health, safety, security or general welfare of its citizens, it is an agency of the sovereign. When it engages in a public enterprise essentially for the benefit of the compact community, it is acting within [236 N.C. 451] its proprietary powers. In either event it must be for a public purpose or public use.

So then,...