Webb v. Port Commission of Morehead City

• Decision Date: 10 January 1934
• Docket Number: 272.
• Parties: WEBB v. PORT COMMISSION OF MOREHEAD CITY et al.
• Court: North Carolina Supreme Court

172 S.E. 377

205 N.C. 663

WEBB v. PORT COMMISSION OF MOREHEAD CITY et al.

No. 272.

Supreme Court of North Carolina

January 10, 1934

Appeal from Superior Court, Carteret County; Frizzelle, Judge.

Controversy without action between W. M. Webb, on behalf of himself and all other residents and taxpayers of the Town of Morehead City, and the Port Commission, Mayor, and Board of Commissioners of such town. From a judgment for the latter parties, Webb appeals.

Affirmed.

This is a controversy without action submitted to the superior court of Carteret county by the parties thereto, in accordance with the provisions of C. S. § 626.

The cause was heard by his honor, J. Paul Frizzelle, judge holding the courts of the Fifth judicial district, at his chambers, in the town of Snow Hill, N. C., on 23d day of September, 1933, on an agreed statement of facts which is duly verified as required by the statute.

The agreed statement of facts, together with the questions of law in difference between the parties, which arise upon said facts, are substantially as follows:

1. The Port Commission of Morehead City is a corporation created by the General Assembly of North Carolina, by statute duly enacted at its regular session in 1933. Chapter 75, Private Laws of North Carolina, Session 1933. The members of said commission have been duly appointed, and have duly organized by the election of a chairman, secretary, and treasurer, as required by said act. The said commission is now engaged in the performance of its duties as imposed by the act of the General Assembly, and in the exercise of its powers as conferred by said act.

2. Section 2 of said act is as follows:

"Sec 2. The said Port Commission shall have power:

"(1) To sue and be sued in the name of the said Port Commission to acquire by purchase and condemnation, and to hold lands for the purpose of constructing, maintaining or operating the terminal or terminals hereinafter referred to; and to make such contracts and to hold such personal property as may be necessary for the exercise of the powers of the said Port Commission.

"(2) To charge and collect reasonable and adequate wharfage fees and other fees, tolls or dues for the use of such city terminal or terminals, or for the service rendered in the operation thereof.

"(3) To develop the port facilities of Morehead City by acquiring by purchase (construction or otherwise), improving, maintaining and operating a city terminal or terminals for said city, upon the water front of said city, including all necessary wharves, piers, bulkheads, slips, docks, sheds, warehouses, elevators, and railroad and steamship facilities, and also necessary lands, rights in lands and water rights, to be used and operated for the following purposes, namely: for the landing, loading and unloading of vessels, for the loading and unloading of railroad cars or other carriers, for the interchange or transfer of goods, merchandise or other property between vessels, railroad cars or other carriers, and for the temporary shelter or storage of goods, merchandise or property carried or about to be carried by such vessels, railroad cars or other carriers.

"(4) To issue bonds and/or other securities or obligations for the purpose of providing funds for such construction, maintaining and/or operating the said terminal or terminals. Said bonds, if and when so issued, shall be denominated 'Port Commission Bonds of Morehead City,' and shall be issued in such form and denominations and shall mature at such time or times, not exceeding fifty years after their date, and shall bear such rate of interest, not exceeding six per cent per annum, payable either annually or semi-annually, as the said Port Commission may determine. The bonds shall be signed by the Chairman of said Port Commission Board, and the corporate seal affixed or impressed upon each bond and attested by the Secretary to the said Board. The coupons to be attached to said bonds shall bear the facsimile signature of the Chairman officiating at the time of the issuance of said bonds. Such bonds and/or notes issued for the purpose or purposes above set out may be sold at private sale, for not less than par, to the Reconstruction Finance Corporation or other governmental agency, with the approval of the Board of Commissioners of Morehead City; but if such private sale is not so made to said Reconstruction Finance Corporation or other governmental agency, then the sale shall be made under the provisions of the Municipal Finance Act of the State and with the approval of the Local Government Commission.

"Bonds and notes issued under this act shall be exempt from all State, county or municipal taxes or assessments, direct or indirect, general or special, and the interest paid on said bonds or notes shall not be subject to taxation as income, nor shall said bonds or notes, or coupons of said bonds, be subject to taxation when constituting part of the surplus of any bank, trust company or other corporation.

"(5) Any resolution or resolutions authorizing any bonds may contain provisions which shall be part of the contract with the holders of the bonds, as to:

"(a) Pledging the wharfage fees and other fees, tolls, dues or other revenues to secure the payment of the bonds;

"(b) The rates of the tolls to be charged for the use of the facilities of the terminal or terminals, and the use and disposition of the tolls and other revenues;

"(c) The setting aside of reserves or sinking funds, and the regulation and disposition thereof;

"(d) Limitation on the purposes to which the proceeds of sale of any issue of bonds to be issued may be applied;

"(e) Limitations on the issuance of additional bonds, and

"(f) The procedure, if any, by which the terms of any contract with bondholders may be amended or abrogated, the amount of bonds the holders of which must consent thereto, and the manner in which such consent may be given.

"(6) To do all things necessary or convenient to carry out the powers expressly given in this act."

3. The Port Commission of Morehead City has filed with the Public Works Administration, at Washington, D. C., an application for a loan with which to provide funds for acquiring, constructing, maintaining, and/or operating terminal and terminal facilities at Morehead City, and is proposing to issue bonds and/or other securities or obligations for the purpose of procuring said loan. The bonds when so issued are to be denominated "Port Commission Bonds of Morehead City," and are to be issued in such form and denominations, and will mature at such time or times, not exceeding fifty years from their date, and will bear interest at such rate, not exceeding 6 per cent. per annum, as the said port commission may determine, with the approval of the Public Works Administration, and not inconsistent with chapter 75, Private Laws of North Carolina, Session 1933. The bonds are to be signed by the chairman of said port commission, and shall have affixed thereto or impressed thereon the corporate seal of said commission, attested by its secretary. The coupons to be attached to said bonds will bear the facsimile signature of the chairman of said commission, officiating at the time of the issuance of said bonds. It is proposed that the said commission shall sell said bonds at private sale, for not less than par, to the Public Works Administration or other governmental agency; and that if such sale be not made to such governmental agency, then the sale shall be made under the provisions of the Municipal Finance Act of the State of North Carolina, with the approval of the Local Government Commission of said state.

4. Section 6 of said act is as follows: "Sec. 6. All wharfage fees and other fees, tolls, dues, or other revenues derived by the Port Commission from the operation of such terminal or terminals shall be applied to the payment of the cost of the operation and administration of said terminal or terminals (including interest on bonds or other evidences of indebtedness issued therefor, and the cost of insurance against loss by injury to persons or property), and the balance to be paid to the Treasurer and to be used for the purpose of providing a sinking fund with which to pay at or before maturity all bonds and/or notes or other evidences of indebtedness incurred for and on behalf of the building, constructing, maintaining, and operating of said terminal."

5. Section 7 of said act is as follows: "Sec. 7. Whenever the said Port Commission shall determine that such wharfage fees and other fees, tolls, dues and other revenues will be or are insufficient to pay in any year the cost of operation and administration of said terminal or terminals (including interest on bonds or other evidences of indebtedness issued therefor, and the cost of insurance against loss by injury to persons or property), and sinking fund requirements for such year, it shall certify to the Board of Commissioners of Morehead City the amount of such anticipated or existing deficiency, and upon receipt of such certificate it shall be the duty of said Board of Commissioners of Morehead City to cause to be levied on all the taxable property within the territorial limits of said City in the same manner as other City taxes are levied, a special tax in an amount sufficient to meet such deficiency, not exceeding, however, an amount equivalent to ten cents on each one hundred dollars of taxable values for the year or years in which such levy is sought and/or required to be made, and the tax so levied shall be in addition to all other taxes authorized by law to be levied in said municipality; and the authorization for such levy and the levy of such taxes for said special purpose are hereby declared to be levies for...