Cole v. City of Asheville, 6828SC400

• Decision Date: 23 October 1968
• Docket Number: No. 6828SC400,6828SC400
• Citation: 163 S.E.2d 628,2 N.C.App. 652
• Parties: A. B. COLE, Resident and Taxpayer of the City of Asheville, on behalf of himself and other taxpayers of the City of Asheville v. The CITY OF ASHEVILLE, North Carolina, a Municipal Corporation.
• Court: North Carolina Court of Appeals

Page 628

163 S.E.2d 628

2 N.C.App. 652

A. B. COLE, Resident and Taxpayer of the City of Asheville on behalf of himself and other taxpayers of the City of Asheville v. The CITY OF ASHEVILLE, North Carolina, a Municipal Corporation.

No. 6828SC400.

Court of Appeals of North Carolina.

Oct. 23, 1968.

Van Winkle, Buck, Wall, Starnes & Hyde, by O. E. Starnes, Jr., Asheville, for defendant appellant.

Carl A. Hyldburg, Jr., and Herbert A. Wallace, Asheville, for plaintiff appellee.

MORRIS, Judge.

The validity of the ordinance creating an Asheville Transit Authority is not before us. The only error assigned is the failure of the trial court to find as a fact and conclude as a matter of law that the operation of a public transportation system is a necessary expense as the term is used in Article VII, section 6, of the Constitution of the State of North Carolina.

Article VII, section 6, provides:

'No county, city, town, or other municipal corporation shall contract any debt, pledge its faith or loan its credit, nor shall any tax be levied or collected by any officers of the same except for the necessary expenses thereof, unless approved by a majority of those who shall vote thereon in any election held for such purpose.'

We feel compelled to rule that this case is governed by the recent cases of Horton v. Redevelopment Commission, 259 N.C. 605, 131 S.E.2d 464; Vance County v. Royster, 271 N.C. 53, 155 S.E.2d 790; and Moody v. Transylvania County, 271 N.C. 384, 156 S.E.2d 716.

In Horton the Supreme Court held that any provisions of the Urban Redevelopment Law which allowed a municipality to sell bonds, appropriate funds, and to levy taxes to carry out its powers and functions under the Urban Redevelopment Law without the approval of a vote of the qualified voters in the municipality, were repugnant to Article VII, section 6, of the North Carolina Constitution. The Court said that where the expense was for the administration of justice, maintenance of the public peace, or partakes of a governmental nature, or if it is an exercise by the municipality of a portion of the State's delegated sovereignty, then the expense is a necessary expense under Article VII, section 6, and there need not be a vote of the people. The Court says that the term 'necessary expense' refers to 'the ordinary and usual expenditures reasonably required to enable a county to properly perform its duties as part of the state government'. 'The cases declaring certain expenses to have been 'necessary' refer to some phase of municipal government. This Court, so far as we are advised, has given no decision to the contrary.' The Court gives a summary of those expenses classified as 'not necessary'.

'The following have been held not as necessary expenses' within the purview of Article VII, section 7, of the State Constitution: a swimming pool, City of Greensboro v. Smith, 239 N.C. 138, 79 S.E.2d 486; municipal parks and recreational facilities, Purser v. Ledbetter, 227 N.C. 1, 40 S.E.2d 702; support and maintenance of James Walker Memorial Hospital, Board of Managers of the James Walker Memorial Hospital of Wilmington v. City of Wilmington, 237 N.C. 179, 74 S.E.2d 749; a hospital, Sessions v. Columbus County, 214 N.C. 634, 200 S.E. 418; Palmer v. Haywood County, 212 N.C. 284, 193 S.E. 668, 113 A.L.R. 1195; Burleson v. Board of Aldermen, 200 N.C. 30, 156 S.E. 241; Nash v. (City of) Monroe, 198 N.C. 306, 151 S.E. 634; a public library, Westbrook v. Town of Southern Pines, 215 N.C. 20, 1 S.E.2d 95; Jamison v. (City of) Charlotte, 239 N.C. 682, 80 S.E.2d 904; an airport, Greensboro-High Point Airport Authority v. Johnson, 226 N.C. 1, 36 S.E.2d 803; a chamber of commerce, Ketchie v. Hedrick, supra, (186 N.C. 392, 119 S.E. 767, 31 A.L.R. 491); a drill tower for firemen, Wilson v. (City of) Charlotte, 206 N.C. 856, 175 S.E. 306.'

In Vance County v. Royster, supra, the Supreme Court in an opinion by Lake, J., held that the expenditures of tax money, and the contracting of a debt by a county for the purposes of maintaining a county airport was not a 'necessary expense' although it was for a public purpose. There the Court said:

'This provision of our State Constitution, like the provision of Article V, § 4, imposing a limitation upon the power of the State, counties and municipalities to contract debts without a vote of the people, does not deprive the county of any power to contract a debt. It merely declares who shall have the power of decision. The Constitution gives to the people that power by requiring their duly elected representatives to submit the question to them for their approval before the indebtedness is assumed. * * *

It is not for the court to determine the wisdom of a decision to contract a debt for a county or a city, but it is the duty of the court to determine whether the proposed indebtedness is for a 'necessary expense' within the meaning of the above provision of the Constitution. Sing v. City of Charlotte, 213 N.C. 60, 195 S.E. 271; Palmer v. Haywood County, 212 N.C. 284, 193 S.E. 668, 113 A.L.R. 1195; Starmount Co. v. Town of Hamilton Lakes, 205 N.C. 514, 171 S.E. 909; Storm v. Town of Wrightsville Beach, 189 N.C. 679, 128 S.E. 17.'

In Moody v. Transylvania County, supra, the Supreme Court was faced with the question of whether an ambulance service was a necessary expense for which a county could legally...