Purser v. Ledbetter

• Decision Date: 11 December 1946
• Docket Number: 529
• Citation: 40 S.E.2d 702,227 N.C. 1
• Parties: PURSER v. LEDBETTER.
• Court: North Carolina Supreme Court

40 S.E.2d 702

227 N.C. 1

PURSER v. LEDBETTER.

No. 529

Supreme Court of North Carolina

December 11, 1946

[Copyrighted Material Omitted]

Judgment reversed and cause remanded for judgment and proceedings in accordance with opinion.

The Charlotte Park and Recreation Commission is an adjuvant municipal corporation, created under Chapter 51 of the Private Laws of 1927, as amended, and is in control' of all public parks, playgrounds and recreational facilities of the City of Charlotte. The defendant Ledbetter is its treasurer, and also the Treasurer of the City of Charlotte. In the present action it is sought to enjoin the expenditure of a fund in his hands, the proceeds of a tax levy authorized by the City in its budget for the fiscal year beginning July 1, 1946, for park and recreational purposes, which tax was imposed under the following circumstances:

At a special election held in May, 1927, the qualified voters of the City authorized an annual levy of two cents upon the $100 valuation of property, and the city has continuously since said time levied this tax.

In May, 1939, at a special election, there was presented to the voters of the City the question of authorizing the levy of a tax not exceeding five cents on the $100 valuation, for park and recreational purposes which failed to carry.

In April, 1946, a special election was held, presenting to the qualified voters the question whether the governing body of the city should be authorized to levy each year, for park and recreational purposes, a tax not exceeding seven cents on the $100 valuation, which also failed to carry.

Subsequently in its budget for the fiscal year beginning July 1, 1946, the governing body of the city appropriated for 'Parks and Recreation Commission' (a) the sum of $22,816 to be raised by the imposition of the two-cent tax theretofore authorized by popular vote, and (b) the further sum of $10,000 to be raised by ad valorem tax in addition thereto. Pursuant to the budget appropriation, the governing body of the city levied the two cents theretofore authorized by vote, and in addition thereto an ad valorem tax estimated to be sufficient to raise the $10,000 specially appropriated. The imposition of the last-named tax was not authorized by popular vote.

Of the taxes so collected there is now in the hands of the defendant Treasurer, $6,745 which, unless restrained, he intends to disburse and expend upon the orders of the Park and Recreation Commission for parks and recreational purposes.

The Parks and Recreation system of the City of Charlotte, now under control of the aforesaid Commission, consists of a total of 460 acres located in different portions of the city including a large armory-auditorium and an athletic stadium. Upon certain of the lands under its control, the Commission has installed playground equipment for children and adolescents, baseball diamonds, softball diamonds, tennis courts, a swimming pool and a nine-hole golf course. The Commission conducts during the summer months and while the public schools are not in session, a program of supervised recreation for children and adolescents upon its several equipped playgrounds.

The armory-auditorium is a source of income to the Commission, which habitually leases it to private persons for more or less public occasions. The athletic stadium is also a source of income, the Commission renting it out for the staging of athletic events. In the operation of the public swimming pool and in the operation of the public golf course, all who use these facilities are charged a fee therefor.

The total income of the Commission for the last fiscal year was in excess of $84,000; and its income from the two-cent tax levy was approximately $24,000. About three-fourths of its income was received from other than tax sources.

At the aforementioned hearing, Judge Bobbitt, upon these facts, rendered a judgment dissolving the injunction and dismissing the action. The plaintiff appealed.

Taliaferro, Clarkson & Grier, of Charlotte, for plaintiff-appellant.

John D. Shaw, of Charlotte, for defendant-appellee.

SEAWELL Justice.

Article VII, Section 7, of the Constitution reads as follows: 'That 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 by a vote of the majority of the qualified voters therein.'

The foregoing is one of the three sections of this Article which is excepted from the power of the General Assembly to alter. Whatever enthusiasms may be engendered or fostered in the name of progress, they can be indulged only within the limitation thus expressed and cannot be expanded beyond it either by legislative action or by judicial construction, provided these coordinate branches of the Government act within the terms of the political and official trusts committed to them.

Of the two, the judiciary has the last say. While the legislative construction of the Constitution is entitled to great weight, it is not binding upon the Court. Hedgecock v. Davis, 64 N.C. 650; Chadbourn Sash, Door & Blind Co. v. Parker, 153 N.C. 130, 134, 69 S.E. 1; Person v. Board of Tax Com'rs, 184 N.C. 499, 503, 115 S.E. 336. The ultimate decision as to what constitutes a necessary expense is always for the Courts.

And we may be permitted an interlude to say that a statute which declares certain things to be a necessary expense and immediately provides for a submission of the project to a popular vote, itself presents a question of legislative intent for decision of the Court. See 1945 Supplement to General Statutes of 1943. The Public Laws of 1945, Chapter 1052, the 'Recreation Enabling Law,' Sec. 160-156, caption, 'Declaration of state public policy,' declares that the 'Creation, establishment and operation of a recreation system is a governmental function and a necessary expense as defined by Article VII, section seven, of the constitution of North Carolina,' and in the same frame and connection, provides for a submission of the proposal to a vote of the qualified voters, regardless of whether voluntarily initiated by the Governing Body (Sec. 160-159) or on petition of the requisite number of qualified voters (Sec. 160-163). The suggestion by appellee that such a referendum only serves the purpose of advising the Governing Body in the exercise of its discretion and that an unfavorable result in the election may be immediately disregarded under a general power of tax for necessary municipal expense, has been dealt with in numerous decisions and the answer given is contra. Ellisn v. Town of Williamston, 152 N.C. 147, 67 S.E. 255; Warsaw v. Malone, 159 N.C. 573, 75 S.E. 1011; Town of Murphy v. C. A. Webb, 156 N.C. 402, 72 S.E. 460; Town of Hendersonville v. Jordan, 150 N.C. 35, 63 S.E. 167; Commissioners of Hendersonville v. C. A. Webb, 148 N.C. 120, 61 S.E. 670; Robinson v. Goldsboro, 135 N.C. 382, 47 S.E. 462; Wadsworth v. Concord, 133 N.C. 587, 45 S.E. 948.

As we have heretofore observed, municipalities derive their powers almost wholly from legislative enactment under Article VIII, Section 4, of the Constitution, and are subject to statutory restriction and regulation of the taxing power. Justice Hoke, speaking for the Court in Ellison v. Town of Williamston, supra [152 N.C. 147, 67 S.E. 256] said: 'We hold it to be a proper construction of the statute, and others of similar import, that where a Legislature confers powers upon a municipal corporation to submit the question of a bond issue for an enterprise of this character * * * and the statute is still in effect, it is equivalent to a legislative declaration and requirement that the sense of the voters shall be had before the undertaking is entered upon. True, we have decided in several of the more recent cases that, where the question is presented as an open proposition, the obligations of the municipality incurred for the purpose indicated should be considered a necessary expense; that they do not come within the constitutional provision as to incurring municipal indebtedness contained in article 7, s 7; and that no vote of the people is ordinarily required. Bradshaw v. [City of] High Point, 151 N.C. 517, 66 S.E. 601; Commissioners [of Hendersonville] v. [C.A.] Webb, 148 N.C. 120, 61 S.E. 670; Fawcett v. Mt. Airy, 134 N.C. 125, 45 S.E. 1029, 63 L.R.A. 870, 101 Am.St.Rep. 825. But these and other decisions are also to the effect that, while there is no definite constitutional restraint in reference to indebtedness of this character, the question continues to be a matter of legislative regulation, and that the limitations and restraints established by the statute law must always be observed and complied with.'

And further: 'When a statute of the Legislature provides for an election on a proposition of this character to incur a given indebtedness, even for a necessary expense, and the statute is still in force, such an act is expressive of a legislative requirement that before the enterprise may be entered upon an election must be held; whether the act be expressed in terms permissive or mandatory, and that any effort of the authorities to proceed without the sanction of popular approval so obtained, would be without warrant of law. To hold otherwise would be to declare that an act of our Legislature deliberately and formally passed was utterly without significance. (Italics supplied.)

These clear-cut cases, undistinguishable from the case at bar might be laid down as determinative of the present appeal; but because of the importance of the subject we prefer to rest decision on the Constitution rather than on an Act of the General Assembly which may be changed...