Green v. Kitchin

• Decision Date: 24 November 1948
• Docket Number: 166
• Citation: 50 S.E.2d 545,229 N.C. 450
• Parties: GREEN v. KITCHIN et al.
• Court: North Carolina Supreme Court

50 S.E.2d 545

229 N.C. 450

GREEN v. KITCHIN et al.

No. 166

Supreme Court of North Carolina

November 24, 1948

Geo. C. Green, of Weldon, and Stuart Smith, of Scotland Neck, for appellant.

Allsbrook & Benton, of Roanoke Rapids, and Albert Coates, of Chapel Hill, for appellees.

The action was begun on January 17, 1948.The facts stated in the complaint may be summarized as follows: The plaintiff, George C. Green, is a citizen and taxpayer of the Town of Weldon, a municipal corporation of Halifax County North Carolina, and prosecutes the action in behalf of himself and all other taxpayers of the municipality.

The governing body of the Town of Weldon consists of its mayor J. T. Maddrey, and its commissioners, Walker Campbell, W. A Pierce, C. R. Turner, and Pierce Johnson, who are partiesdefendant.The defendant, P. R. Kitchin, is a policeman of the Town of Weldon, and served in such capacity at a salary of $225.00 per month during the several years preceding the action.In conformity to a resolution adopted by the governing body of the Town of Weldon, the defendant, P. R. Kitchin, took a course in police training at the National Police Academy of the Federal Bureau of Investigation in Washington, D. C., during a ninety day period beginning on or about April 1, 1946, and received from the Town of Weldon sums totalling $1,100.00 to cover his expenses and salary while attending the National Police Academy for such purpose.The payment of these sums was made out of tax moneys collected by the Town of Weldon from the plaintiff and its other taxpayers, and was not authorized by the vote of the citizens of the municipality.On August 27, 1947, the plaintiff made demand upon the governing body of the Town of Weldon that it take proper steps to recover the $1,100.00 of P. R. Kitchin as an illegal disbursement of municipal funds.The governing body refused to do so, and plaintiff thereafter instituted this suit to recover the expenditure from P. R. Kitchin for the benefit of the Town of Weldon.

The defendants filed an answer in which they admitted the averments of fact contained in the complaint.

On the hearing, the plaintiff moved for judgment on the pleadings, and the defendants demurred ore tenus to the complaint on the ground that it did not state a cause of action.The trial court denied the motion of the plaintiff, sustained the oral demurrer interposed by defendants, and entered judgment dismissing the action.The plaintiff appealed, assigning these rulings as error.

Stuart Smith, of Scotland Neck, and George C. Green, of Weldon, for plaintiff, appellant.

Albert Coates, of Chapel Hill, and Allsbrook & Benton, of Roanoke Rapids, for defendants, appellees.

ERVIN Justice.

Stated in its broadest terms, this case presents this problem: Does a city or town possess authority in law to expend moneys raised by taxation in specially training its police officers for the performance of their duties, when the expenditure has not been expressly sanctioned by legislative act or approved by a vote of the majority of the qualified voters of the city or town?

The plaintiff asserts initially that this question must be answered in the negative because the Town of Weldon lacks statutory power to use public funds to train its police.

A city or town has 'the powers prescribed by statute, and those necessarily implied by law, and no other. ' G.S. s 160-1.Neither its charter nor the general law confers upon the Town of Weldon in express words any authority to employ any of its resources in providing instruction for its police.Thus, the question arises at the threshold of the case as to whether such a power is necessarily implied by law.It is an established rule that a municipal corporation is authorized by implication to do an act if the doing of such act is necessarily or fairly implied in or incident to the powers expressly granted, or is essential to the accomplishment of the declared objects and purposes of the corporation.Brumley v. Baxter,225 N.C. 691, 36 S.E.2d 281, 162 A.L.R. 930;Cody Realty & Mortgage Co. v. City of Winston-Salem, 216 N.C. 726, 6 S.E.2d 501;Riddle v. Ledbetter,216 N.C. 491, 5 S.E.2d 542;Kennerly v. Town of Dallas,215 N.C. 532, 2 S.E.2d 538;State v. Gulledge,208 N.C. 204, 179 S.E. 883.

In Blackstonian phrase, North Carolina has delegated to municipalities power to maintain law and order within their respective borders since 'the time whereof the memory of mankind runneth not to the contrary. ' Both its charter and the general law expressly empower the Town of Weldon to appoint and employ police for performing this function within its limits.Private Laws of 1891, Ch. 83, secs. 18, 23; G.S. s 160-9, 160-20, 160-21.

The legislature contemplated that persons engaged as police officers under this explicit grant of authority should be qualified to do the task specified above.Poets may be born, but policemen must be made.Some of the statutes relating to the duties and powers of the police appear in article 6 of chapter 15 and article 2 of chapter 160 of the General Statutes.Both the letter and the spirit of these laws reveal that a city or town cannot convert a neophyte into a policeman in the true sense of the word by the simple expedient of investing him with a badge, a billy, a firearm, and a uniform.

Before one is fitted to discharge the duties of a police officer, he must know what those duties are and how they can be performed.The requisite preparedness necessitates the possession of a special knowledge, which must be acquired either by traveling the hard road of experience or by sitting at the feet of teachers qualified to give proper instruction.

Since the fact is a matter of common and general knowledge in this jurisdiction, this Court judicially knows that persons employed to serve as police in the municipalities of this State seldom possess familiarity with their duties or skill in performing them when they enter such service.Although one may be experienced in law enforcement, his proficiency as an officer can undoubtedly be enhanced by proper instruction in modern methods of crime prevention and detection.Certainly a city or town must have competent policemen if it is to protect persons and property within its boundaries against the lawless.Whether a municipal corporation should rely upon experience, or training, or both for securing competency in its police ought to be left to the discretion of its governing body.Likewise, whether or not necessity compels or prudence justifies a specific outlay of municipal funds to provide special training for a particular officer seems to be a problem which of right lies within the domain of the municipality involved.

For these reasons, we conclude that the power of a city or town to spend tax money for instruction of its police in the performance of their duties is fairly implied in and incident to a power expressly conferred upon the city or town to appoint and employ police for preserving law and order within its limits.It follows that the Town of Weldon had implicit legislative authority to make the expenditure set out in the complaint.

The case at bar is readily distinguishable from Madry v. Town of Scotland Neck,214 N.C. 461, 199 S.E. 618, holding that cities and towns do not possess implied power to offer rewards for the apprehension or conviction of felons.While the legislature has authorized municipalities to maintain law and order within their respective limits, it has not empowered them to engage in the apprehension of law breakers elsewhere or to undertake to prosecute criminal cases in the courts.

The plaintiff further asserts that the expenditure named in his complaint must be adjudged illegal as violative of the Constitution of North Carolina even if it was sanctioned by legislative fiat.

In this connection, the plaintiff maintains that when special training is given a police officer, the resultant increase of proficiency is a personal attribute of the officer; that the city or town can not compel the officer to continue in its service after obtaining the training until it has received recompense for its outlay of public funds; and, that, therefore, the disbursement of public moneys for such purpose inures to the private advantage of the officer rather than to the collective benefit of the inhabitants of the city or town.Upon this premise, the plaintiff asserts that the expending of municipal tax money to train a policeman diverts public funds to the private use of thee policeman contrary to Article V, Section 3, of the Constitution, expressly limiting the levy of taxes to public purposes, and grants an exclusive emolument or privilege to the policeman contrary to Article I, Section 7, of the Constitution, prescribing that 'no man or set of men are entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services.'

It is unquestionably a sound and salutary rule that the power to make appropriations of money out of the treasury of a city or town must be measured by the same criteria as those by which it is raised by taxation and put into such treasury.51 Am.Jur., Taxation, section 323.Thus, we are presently confronted by the question of whether the expenditure here assailed was for a public purpose.Nash v. Town of Tarboro,227 N.C. 283, 42 S.E.2d 209.

A tax or an appropriation is certainly for a public purpose if it is for the support of government, or for any of the recognized objects of government.Ketchie v Hedrick,186 N.C. 392, 119 S.E. 767, 31 A.L.R. 491;51 Am.Jur., Taxation, section 326;61 C.J., Taxation, section 20.Hence, the expenditure challenged by the plaintiff was for a public purpose because its object was the maintenance of law and...