North Carolina State Art Soc. v. Bridges
| Citation | 69 S.E.2d 1,235 N.C. 125 |
| Decision Date | 16 February 1952 |
| Docket Number | No. 449,449 |
| Parties | NORTH CAROLINA STATE ART SOC., Inc. et al. v. BRIDGES, State Auditor. |
| Court | United States State Supreme Court of North Carolina |
R. L. McMillan, R. Mayne Albright, Raleigh, for plaintiffs, appellees.
Atty. Gen. Harry McMullan and Asst. Attys. Gen. T. W. Bruton and Claude L. Love, for defendant, appellant.
There was no controversy as to the facts. There was no exception to any of the findings of fact upon which the court below rendered judgment. The refusal of the defendant State Auditor to issue warrants for the purchase of works of art selected by the State Art Commission and his defense to plaintiffs' action were based solely on the view that before any payments could lawfully be made the purchases must have been appraised by the director or chief curator of the National Art Gallery of Washington, D.C., and that the Act did not authorize the substitution of any person however well qualified in lieu of those holding the positions named. There was no other ground alleged for denying the expendability of the legislative appropriation.
Therefore, the single question presented for our determination is whether the validity of the appropriation conditionally made by the General Assembly at its 1947 Session, Chap. 1097, and reaffirmed and implemented in 1951, Chap. 1168, for the purposes declared in those Acts, depends upon the appraisal of selected works of art being made by the particular persons named in the 1951 Act, or whether, upon the refusal of such persons to act, the appraisals by another competent and qualified art critic chosen and approved by the State Art Commission and the directors of the State Art Society, shall be regarded as a substantial compliance with the purposes and intent of the General Assembly as expressed in the Acts of 1947 and 1951. In other words, is the proviso in the Act of 1951 naming the person to make the appraisals mandatory or directory?
It is apparent from an examination of the pertinent statutes in the light of the facts found, that it was the intent of the General Assembly that before payment should be made for the works of art selected for purchase by the State Art Commission appraisal of their value, fitness and desirability should be made by a competent and qualified art critic to prevent imposition and to guard against the purchase of the spurious. The provision in the statute to that extent was manifestly mandatory. But it does not follow that it was considered essential that the appraisals should be made by the particular person holding the position named in the Act, in the event it became impossible for him to serve. It would seem that the employment of an equally qualified art critic to make the appraisals would accord with the expressed purpose of the Act. Whether a particular provision in a statute is to be regarded as mandatory or directory depends more upon the purpose of the statute than upon the particular language used. As expressed by the Apostle Paul in his Second Epistle to the Corinthians, 'The letter killeth, but the spirit maketh alive.' 2 Cor:3-6. It is a general rule of statutory construction that when literal compliance with a non-essential provision of a statute has become impossible, compliance as near as may be, conformable to the general purpose and intent of the act, will be permitted. 50 A.J. 36, et seq.; 59 C.J. 963; Black's Interpretation of Laws, 534; Deibert v. Rhodes, 291 Pa. 550, 140 A. 515. In such case a substantial compliance will be deemed sufficient. The legislature will be presumed not to have intended compliance with a provision incapable of performance. Dalzell v. Kane, 321 Pa. 120, 183 A. 782, 104 A.L.R. 619. In determining whether a particular provision in a statute is to be regarded as mandatory or directory the legislative intent must govern, and this is usually to be ascertained not only from the phraseology of the provision,...
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Catawba Cnty. ex rel. Rackley v. Loggins
...of bad faith or corruption"), cert. denied , 396 U.S. 1024, 90 S.Ct. 599, 24 L.Ed.2d 518 (1970) ; N.C. State Art Soc'y., Inc. v. Bridges , 235 N.C. 125, 130, 69 S.E.2d 1, 4-5 (1952) (concluding that a statute requiring one of two particular individuals to appraise art selected to be purchas......
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