Brumley v. Baxter, 531.

• Citation: 36 S.E.2d 281,225 N.C. 691
• Decision Date: 17 December 1945
• Docket Number: No. 531.,531.
• Parties: BRUMLEY. v. BAXTER et al.
• Court: North Carolina Supreme Court

36 S.E.2d 281

225 N.C. 691

BRUMLEY.

v.BAXTER et al.

No. 531.

Supreme Court of North Carolina.

Dec. 17, 1945.

Appeal from Superior Court, Mecklenburg County; Hubert E. Olive, Special Judge.

Action by J. C. Brumley, in behalf of himself and all other taxpayers in the City of Charlotte, against H. H. Baxter and others to restrain the City of Charlotte from executing a deed without monetary consideration conveying certain real property, owned by the city, to the Charlotte Veterans' Recreation Center. From an adverse judgment, plaintiff appeals.

Error.

This was an action to restrain the City of Charlotte from executing deed without monetary consideration conveying certain real property, owned by the City, to the Charlotte Veterans' Recreation Center, under authority of Chap. 460, Public Laws 1945, herein referred to as Senate Bill No. 154.

On the hearing below it was agreed that the plaintiff is a citizen, resident and taxpayer of the City of Charlotte; that the City of Charlotte has a population of more than one hundred thousand inhabitants according to the last Federal census, and that defendant H. H. Baxter is the mayor, and Lillian R. Hoffman the clerk of the city.

"4. That the defendants, Curtis B. Johnson, Elmer Hilker, T. E. Hemby, Louis G. Ratcliffe, and Ernest B. Hunter are acting as commissioners of Charlotte Veterans' Recreation Center, pursuant to an Act of the 1945 Session of the General Assembly of North Carolina, known as Senate Bill No. 154 of the said session, having been appointed as provided in said Act and having obtained a certificate of incorporation from the Secretary of State, a copy of which is attached to the complaint, marked Exhibit A and made a part hereof, and that all the necessary formalities for the organization of said corporation are in accordance with the provisions of said Act of the General Assembly. Copy of the resolution of the City Council of the City of Charlotte relative to the creation of said Veterans' Recreation Authority is hereto attached marked Exhibit C.

"5. That on the 18th day of October, 1945, the City Council of the City of Charlotte, undertaking to act under the authority of Sec. 14 of the Act of the General Assembly hereinbefore referred to, passed a resolution authorizing the execution of a deed by the City of Charlotte to Charlotte Veterans' Recreation Center without monetary consideration. A copy of said resolution, including copy of the said deed, is attached to the complaint, marked Exhibit B, and made a part hereof.

"6. That the Charlotte Veterans' Recreation Center, through its Commissioners hereinbefore named, has already made definite plans to exchange the property to be deeded to it by the City of Charlotte for other property in accordance with the provision in the proposed deed from the City of Charlotte permitting such exchange.

"7. That, unless restrained by the court in this action, the defendant, H. H. Baxter, as Mayor, and the defendant, Lillian R. Hoffman, as Clerk, of the City of Charlotte, will execute and deliver to Charlotte Veterans' Recreation Center deed as authorized in the resolution of the City Council hereinbefore referred to and that, thereupon, the said Charlotte Veterans' Recreation Center, and its commissioners, will undertake to effect an exchange of said property received from the City of Charlotte for other property, as provided in the proposed deed from the City of Charlotte.

"8. That the defendant, City of Charlotte, for many years, owned the northwest corner of East Fifth and North College Streets, the same having located thereon for many years a City Auditorium, which auditorium has been removed from said lot and for approximately 10 years same has been leased by the City of Charlotte, and the lessee thereon has used the same for a filling station and parking lot; that the City of Charlotte, in 1945, as provided by law, sold said property for $51,000.

"9. That for many years the City of Charlotte owned the piece of property located at the northeasterly corner of North Graham Street and West Fifth Street in the City of Charlotte, same having located thereon a water tank used in connection with the water system of the City of Charlotte; that the same has ceased to be used for said purposes and the City of Charlotte duly sold and conveyed this property in the year 1945, for $18,000.

"10. That as a result of the sale of said City properties referred to in paragraphs 8 and 9 above, the City obtained a total sum of $69,000.

"11. That in the year 1945, the City of Charlotte purchased from the then owners of the property that property located on North Poplar Street in the City of Charlotte, described in Exhibit B, hereto attached, for $52,500 which funds were taken from the $69,000 received from the sale of the property referred to in paragraphs 8 and 9 above.

"12. That the United States of America since 1941, has been and still is at war with the German Reich, the Kingdom of Italy, the Japanese Empire and other satelite countries, or what is known as the Axis powers; that the State of North Carolina and the City of Charlotte are a part of the United States of America and that approximately 19, 000 of the citizens of Charlotte and the adjacent territory under the jurisdiction of the Charlotte Veterans' Recreation Center entered the armed forces of the United States, and that approximately 2, 000 veterans of World War II have returned to the City of Charlotte and the territory within the jurisdiction of the Charlotte Veterans' Recreation Center.

"13. That the Charlotte Veterans' Recreation Center has a commitment from a citizen of Charlotte for a gift of $40,000 for building purposes conditioned upon the property referred to in the resolution of the City Council being conveyed upon substantially the terms set out in the deed incorporated in the resolution of the City Council, marked Exhibit B and attached to the complaint.

"14. That at the present time the City of Charlotte is the only City in North Carolina having a population of over 100, 000 according to the last Federal census."

The Act under authority of which the City of Charlotte proposes to execute the deed contains the following pertinent provisions: It declares that it is in the public interest that adequate recreational facilities be provided in cities of more than 100, 000 population for persons who have served or are serving in the armed forces of the United States in the present war, and if the governing bodies of such cities find there is lack of adequate recreational facilities, power is given for the appointment of five commissioners to act as Authority. The commissioners so appointed are directed to apply for a charter, setting out their appointment and the proposed name of the corporation, and to secure from the Secretary of State a certificate of incorporation. The boundaries of the Authority are declared to be the city limits and the area within ten miles from such limits. The commissioners are required to provide separate recreational facilities for white and colored. Provision is made for filling vacancies in membership of commission, and for reports. In the construction of the facilities, zoning and building laws are to be observed, but the property shall be exempt from taxation, and also exempt from the operation of Local Government Act or County Fiscal Control Act. Section 14 of the Act authorizes the City, in order to provide construction, repair or management of any Veterans' recreation project, to sell and convey without consideration or for a nominal consideration to an Authority within such City any real property, and bind itself to the performance and observance of the agreements and conditions attached thereto.

The conditions annexed to the deed which the City of Charlotte proposes to execute are that the Charlotte Veterans' Recreation Center shall have the right to convey in fee simple the property thus conveyed in exchange for other real property, the property so conveyed or that for which it may be exchanged to be operated and maintained under control of the Commissioners of the Veterans' Recreation Center in accordance with the provisions of the Act. It is provided in the proposed deed that if the Charlotte Veterans' Recreation Center shall cease to exist or fail to maintain veteran's recreational facilities on the property, or if the commissioners determine at any time that the property is no longer needed for the purposes set forth in the Act, or that the number of veterans who wish to use the facilities offered is not sufficient to justify continuance of the project, then the property shall be sold by the commissioners and the net proceeds used to establish a home for the aged in Charlotte or for an increase in the charity wards of Charlotte Memorial Hospital.

By a vote of 7 to 2 the City Council of Charlotte adopted resolution directing the Mayor and City Clerk to execute deed for the Poplar Street property under authority of the Act for maintaining and operating a Veterans' Recreation Center in Charlotte, incorporating in the deed the terms and conditions above set out. The minority vote in the City Council was in opposition to the terms of the deed rather than the purpose of the conveyance.

Judgment was rendered that the Act of the General Assembly was valid and the Charlotte Veterans' Recreation Center a public corporation validly created; that thereunder the City of Charlotte had full power to execute the proposed deed without consideration upon the terms and conditions set out; and that section 14 of the Act was constitutional and valid. The plaintiff's prayer for restraining order was denied. The plaintiff excepted and appealed.

Robinson & Jones, of Charlotte, for plaintiff.

John D. Shaw, of Charlotte, for defendants.

DEVIN, Justice.

The taxpayers' suit to restrain the proposed donation by the City of Charlotte of valuable real property for the purpose of providing recreational facilities for persons who are now serving in the armed...