Horner v. Chamber of Commerce of City of Burlington

• Decision Date: 01 February 1952
• Docket Number: No. 743,743
• Citation: 68 S.E.2d 660,235 N.C. 77
• Court: North Carolina Supreme Court
• Parties: HORNER, v. CHAMBER OF COMMERCE OF CITY OF BURLINGTON, Inc. et al.

Page 660

68 S.E.2d 660

235 N.C. 77

HORNER, v. CHAMBER OF COMMERCE OF CITY OF BURLINGTON, Inc. et al.

No. 743

Supreme Court of North Carolina.

Feb. 1, 1952

William R. Dalton, Jr., Burlington, for plaintiff, appellee.

Cooper, Sanders, & Holt and W. D. Madry, Burlington, for defendants, appellants.

ERVIN, Justice.

There is certainly no statutory warrant for the outlay of tax funds under scrutiny unless it can be found in G.S. § 158-1, which provides that the governing body of any city, whose qualified voters have approved Chapter 158 of the General Statutes in an appropriate election, may annually set apart and appropriate from the funds derived annually from the general taxes levied and collected in the city an amount not less than one-fortieth of one per cent, nor more than one-tenth of one per cent, upon the assessed value of all real and personal property taxable in the city, which funds shall be used and expended under the direction and control of the governing body of the city, under such rules and regulations or through such agencies as such governing body shall prescribe, for the purpose of aiding and encouraging the location of manufacturing enterprises, making industrial surveys and locating industrial and commercial plants in or near the city; encouraging the building of railroads thereto, and for such other purposes as will, in the discretion of the governing body of the city, increase the population, taxable property, agricultural industries, and business prospects of the city.

The facts found by the trial judge undoubtedly sustain the adjudication that the outlay in question does not fall within the compass of G.S. § 158-1, and by reason thereof constitutes an unlawful diversion of tax funds from the treasury of Burlington. The findings are binding on the parties to the appeal if they are supported by evidence. Poole v. Gentry, 229 N.C. 266, 49 S.E.2d 464.

This brings us to the chief question presented by the assignments of error: Does the testimony support the findings of fact of the trial judge?

In determining whether there is evidentiary support for the findings of the trial judge in an action where trial by jury is waived, this court considers not only the facts in evidence favorable to the successful party, but also all reasonable inferences which may be drawn from such facts in his favor. 5 C.J.S.,Appeal and Error, § 1656i.

When the evidence in the instant case is considered in this manner, it indicates that the tax moneys in controversy were appropriated and used under these circumstances:

1. The governing body of Burlington, i. e., the Burlington City Council, made an absolute gift of the tax moneys to the Chamber of Commerce without specifying how they were to be spent, and without reserving the right to...