Brown v. Board of Com'rs of Richmond County

• Decision Date: 15 December 1943
• Docket Number: 598.
• Citation: 28 S.E.2d 104,223 N.C. 744
• Parties: BROWN v. BOARD OF COM'RS OF RICHMOND COUNTY et al.
• Court: North Carolina Supreme Court

28 S.E.2d 104

223 N.C. 744

BROWN v. BOARD OF COM'RS OF RICHMOND COUNTY et al.

No. 598.

Supreme Court of North Carolina

December 15, 1943

Petition for writ of mandamus.

This case was here at the Fall Term, 1942. Brown v. Board of Commissioners, 222 N.C. 402, 23 S.E.2d 315. The essential facts there appear.

On the hearing below the Court found certain facts, concluded that Chapter 11, Private Laws 1941, is unconstitutional, and rendered judgment denying a writ of mandamus and dismissing the action. Plaintiff excepted and appealed.

W. S Thomas, Thomas L. Parsons, and George S. Steele, Jr., all of Rockingham, for plaintiff, appellant.

McLeod & Webb and William G. Pittman, all of Rockingham, for defendants, appellees.

BARNHILL Justice.

The local Court, of which plaintiff was elected presiding Judge was abolished by the General Assembly in 1939. This was a permissible exercise of legislative authority. Mial v Ellington, 134 N.C. 131, 46 S.E. 961, 65 L.R.A. 697; O'Neal v. Jennette, 190 N.C. 96, 129 S.E. 184; Queen v. Board of Com'rs, 193 N.C. 821, 138 S.E 310; 12 Am.Jur. 53, sec. 420.

Upon the ratification of that act the office to which plaintiff had been elected became nonexistent. Both the duties and the emoluments of the office terminated. Plaintiff could render no further service and could claim no further compensation as a legal right. Mial v. Ellington, supra.

Hence, he has not been deprived of any property without due process of law and has no legal claim for salary accruing after the date the court ceased to exist.

Even so, does the Legislature have authority to require a subordinate branch of the government to pay in individual a sum which it considers morally due? The answer is found in the Constitution.

'No man or set of men are entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services.' Art. I, sec. 7, N.C.Const.

This constitutes a specific constitutional prohibition against gifts of public money, and the Legislature has no power to compel or even to authorize a municipal corporation to pay a gratuity to an individual to adjust a claim which the municipality is under no legal obligation to pay. 38 Am.Jur., 85 (n. 9 for authorities); Elliott, Municipal Corp., 3d Ed., 305, sec. 311; 1 McQuillin Municipal Corp., Revised, 720, 722; State v. Tappan, 29 Wis. 664, 9 Am.Rep. 622; People v. Westchester County Nat. Bank, 231 N.Y. 465, 132 N.E. 241, 15 A.L.R. 1344. See also Asbury v. Albemarle, 162 N.C. 247, 78 S.E. 146, 44 L.R.A.,N.S., 1189. Nor may it lawfully authorize a municipal corporation to pay gifts or gratuities out of public funds. 38 Am.Jur. 91, sec. 399.

It is competent for the Legislature to impose upon a municipality the payment of claims just in themselves for which an equivalent has been received. But this power may not be extended to include the payment of gifts or gratuities out of public funds. 38 Am.Jur., p. 90.

The legislative determination that an obligation exists against a municipality is not conclusive. The municipality may resort to the courts and there prove that no legal or equitable obligation exists against it; for the municipality cannot lawfully make an appropriation of public moneys except to meet a legal and enforceable claim, and can make no payment upon a claim which exists merely by reason of some moral or equitable obligation which a generous, or even a just, individual, dealing with his own moneys, might recognize as worthy of some reward. 38 Am.Jur. 91, sec. 399 (n. 19). See also Hill v. Stansbury, 223 N.C. 193, 25 S.E.2d 604.

'No county * * * shall contract any debt, * * * nor shall may tax be levied or collected * * * except for the necessary expenses thereof, unless by a vote of the majority of the qualified voters therein.' Art. VII, sec. 7, N.C.Const.

A municipal corporation cannot, even with express legislative sanction, embark on any private enterprise or assume any function which is not in a legal sense public. 38 Am.Jur. 85 sec. 395 (see n. 9 for authorities). The funds of the municipality are necessarily, directly or indirectly, raised by taxation. Consequently, the expenditure of money by a municipality for private purposes does or may necessarily result in the taking of the property of individuals under the guise of taxation for other than public uses. In such a case it can make no difference that no immediate provision for taxes is made. The use of public funds for a private purpose...