Cox v. City of Kinston
| Decision Date | 10 April 1940 |
| Docket Number | 380. |
| Citation | 8 S.E.2d 252,217 N.C. 391 |
| Parties | COX et al. v. CITY OF KINSTON et al. |
| Court | North Carolina Supreme Court |
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The plaintiffs, in their character as taxpayers in the City of Kinston and within the area affected by the jurisdiction of the Kinston Housing Authority, brought this action in behalf of themselves and others like situated, to permanently enjoin the defendants from proceeding further with the activities undertaken by them as the Housing Authority for the City of Kinston under authority of Chapter 456, Public Laws of 1935 with respect to a housing project in Kinston; and particularly to enjoin them from borrowing money or incurring indebtedness in relation thereto. The defendants are the City of Kinston, the Housing Authority of the City of Kinston, and the individuals composing the Commission constituting such Housing Authority.
Plaintiffs complain that if defendants are not restrained from their operations, which are alleged to be illegal, a debt will be incurred which will eventually result in a liability on the City of Kinston, for which there is no lawful authority, a large part of the property subject to taxation will be taken off the tax books, thereby increasing plaintiffs' taxes; and that by reason thereof the injury and damage to plaintiffs will be irreparable.
They allege that the Housing Act cited is unconstitutional and void, in that it creates no municipal corporation, is not in furtherance of any public purpose, delegates to the groups mentioned in the Act the legislative or judicial function, is discriminatory in its character and seeks to foreclose substantial rights by denying the right of trial by jury and of appeal.
The proceeding under which the Authority was created is also attacked for alleged want of compliance with the statute.
A temporary restraining order was applied for and granted. Upon hearing of the order to show cause, the trying judge found numerous facts with regard to the contentions involved, finding facts in detail with regard to the step-by-step procedure followed by the City and Housing Authority, both as to the organization of the Authority and subsequent proceedings, and found them to be regular and such as were required by law, and declared them to be a valid exercise of power. He heard evidence as to the conditions of sub-standard housing, the existence of low income occupancy, and other matters dealing with the slum clearance features of the Act, and found the facts against plaintiffs' contentions. He adjudged the Act to be constitutional, dissolved the restraining order, and dismissed the action. Plaintiffs appealed, assigning numerous errors.
J. A. Jones, of Kinston, for plaintiffs-appellants.
Whitaker & Jeffress, of Kinston, for defendant City of Kinston.
Ely J. Perry, and John G. Dawson, both of Kinston, for defendants-appellees Housing Authority of City of Kinston, and individual defendants.
Most of the objections and exceptions of the plaintiffs are met in Wells v. Housing Authority, 213 N.C. 744, 197 S.E. 693. That decision upheld the constitutionality of the Act now under review, and discussed the points raised in the case. It is presumed that the decision, constructively at least, covered all of the objections to the constitutionality of the measure which might have been raised in that controversy. Actually the plaintiffs here present some new arguments bearing on that question, not dealt with in the opinion, and these we note.
As we have stated, Wells v. Housing Authority, supra, is conclusive as to the more important features of the attack now made on the constitutionality of the measure. It was there decided (a) that the Authority created by the Act is a municipal corporation, (b) that the Act comprehends a public governmental purpose, and (c) that the Authority is invested by it with a governmental function. These holdings were couched in language as clear and concise as we could employ, and we do not wish to occupy useless space and perhaps create confusion by a repetition here. It is sufficient to say that the arguments presented by plaintiffs' counsel in this immediate connection both orally and by brief, are the same that were addressed to the Court on the same points in Wells v. Housing Authority, supra, and Webb v. Port Commission, 205 N.C. 663, 172 S.E. 377, with much force and clarity, and with a wealth of citation of authority, and the conclusions reached by the Court in those cases were neither careless nor perfunctory. We see nothing new or compelling in the instant presentation, and our conclusion as reached in Wells v. Housing Authority, supra, remains unchanged. Practically all the courts of the several state jurisdictions, to which the matter has been presented on laws similar to our own, at least eighteen in number, are in accord with this decision. In re Opinions of the Justices, 235 Ala. 485, 179 So. 535; Housing Authority of the County of Los Angeles v. Isadore B. Dockweiler, Chairman, Cal. Sup., 94 P.2d 794; Krause et al. v. Peoria Housing Authority et al., 370 Ill. 356, 19 N.E.2d 193; Dornan v. Philadelphia Housing Authority et al., 331 Pa. 209, 200 A. 834; Edwards et al. v. Housing Authority of the City of Muncie et al., Ind.Sup., 19 N.E.2d 741. We need not extend the list. Some of the cited cases cover objections to the constitutionality of this law, mentioned in our further discussion, but in the interest of space the citations will not be repeated.
We address ourselves to the more important objections made by the plaintiffs, not included in the above; but we do not deem it necessary to take up the exceptions seriatim. Where not here mentioned, they have been considered and not sustained.
The plaintiffs contend that the statute is unconstitutional and void because it delegates to the City Council the legislative function, or to such non-judicial body the judicial function, and they base this contention on the constitutional requirement that "The legislative, executive, and supreme judicial powers of the government ought to be forever separate and distinct from each other." Constitution, Article I, Section 8.
It is true that the Constitution gives to the General Assembly the power which has, in this State, been considered exclusive, to enact laws or, as we say, exercise the legislative function, and this cannot be delegated. Constitution, Article II, Section 1. As to the judicial function, the Legislature itself has none, and, therefore, the use of the word "delegation" is not apt as regarding the power of the Legislature to confer judicial powers. The Legislature has always, without serious question, given quasi-judicial powers to administrative bodies in aid of the duties assigned to them, without necessarily making them courts. Such powers are given to the Utilities Commission, the Industrial Commission, the Commissioner of Revenue, the State Board of Assessment, and, in lesser degree, to many other State agencies which we might add to the list. The performance of quasi-judicial and administrational duties by the same Board violates no implication of the cited section of the Constitution, requiring that the supreme judicial power be kept separate from the legislative and executive. Certainly the limited discretion given to these bodies is no part of the "supreme judicial power" of the State.
The creation of investigatory or fact-finding bodies, or the investment of agencies already created with powers of this character, have never been considered a delegation of legislative power. State v. Harris, 216 N.C. 746, 6 S.E.2d 854. While it is sometimes difficult to determine whether the powers conferred for such purposes are legislative in character, we do not consider the present law in that respect even within the penumbra, since the discretion given to the City Council in the matter is well within reasonable limitations and standards set up in the Act, and does not supplement the Act from a legislative point of view.
The Act was complete in every respect when it left the hands of the Legislature, and the discretion lodged with the City Council bears only upon the question whether certain conditions exist justifying the creation of the Authority under the terms and procedure laid down in the statute.
In passing upon the constitutionality of the powers conferred upon the City Council, it must be borne in mind that they are delegated to a municipal government in an act which directly recognizes the purpose to be within the proper governmental pale of the municipality, in so far as the Act confers any powers or duties upon it with respect to the creation of the Housing Authority. Thus, a much...
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