Jamison v. City of Charlotte , 239 N.C. 682 ( 1954 )

80 S.E.2d 904 (1954) 239 N.C. 682

JAMISON
v.
CITY OF CHARLOTTE et al.

No. 524.

Supreme Court of North Carolina.

March 24, 1954.

Covington & Lobdell, Charlotte, for plaintiff, appellant.

John D. Shaw, Charlotte, for appellee City of Charlotte.

Whitlock, Dockery, Ruff & Perry, Charlotte, for appellees County of Mecklenburg and Commissioners of County of Mecklenburg.

H. I. McDougle, Charlotte, for Public Library of Charlotte and Mecklenburg County, amicus curiae.

PARKER, Justice.

It is passing strange that plaintiff's counsel "objects and excepts to each finding of fact embodied in the judgment," when each fact found by the Judge was either alleged in the Complaint, which they signed, and was admitted in the defendants' Answer, or copied verbatim from a stipulation and agreement of facts which they and the defendants' counsel signed.

No issues of fact are raised by the pleadings in this action.

As to the Judge's conclusions of law, the plaintiff's appeal entry is: "The plaintiff objects and excepts to each conclusion of law embodied in the judgment." This is merely a broadside exception. It does not comply with G.S.N.C. § 1-186 and Rule 19(3), Rules of Practice in the Supreme Court, 221 N.C. 544, pp. 554-555, that the exceptions must be specific. Arnold v. State Bank & Trust Co., 218 N.C. 433, 11 S.E.2d 307; Roberts v. Davis, 200 N.C. 424, 157 S.E. 66; Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175.

The plaintiff objects and excepts to the signing and entry of the judgment. "The assignment of error based on the exception to the signing of the judgment raises the solitary question whether the facts found by the judge and the jury support the judgment." Bradham v. Robinson, 236 N.C. 589, 73 S.E.2d 555, 558—a case where the parties agreed to the unique procedure that a jury should answer one issue of fact and the Judge should find the facts as to other issues of facts in the case.

Notwithstanding the form of the appeal entries we shall decide the questions raised by the pleadings and discussed in the briefs of the parties, as this is a case of great public interest to the residents of Charlotte and Mecklenburg County, and has been remanded once. These questions are: One, was the submission to the voters in the City of Charlotte and the submission to the voters in the County of Mecklenburg outside of the City of the single question of issuing "City and County Library Bonds" a combination of two distinct and unrelated propositions in violation of Section 4, Art. V, as amended, and Section 7, Art. VII, as amended, of the State Constitution? Two, will the issuance of $800,000.00 Library Bonds of the County of Mecklenburg and of a similar amount of Library Bonds of the City of Charlotte result in a lack of uniformity of taxation as between the taxpayers in the County and the taxpayers in the City in violation of Section 3, Art. V of the State Constitution? Three, will the issuance of $800,000.00 Library Bonds of the County of Mecklenburg violate Section 3, Art. V, as amended, and Section 2, Art. VII of the State Constitution as not being for public purposes? Four, will the issuance of a similar amount of Library Bonds of the City of Charlotte violate Section 3, Art. V, as amended, of the State Constitution as not being for public purposes?

The plaintiff as a taxpayer in the City and County has the right to bring this action to test the authority of the City and County to issue the proposed bonds. Wilson v. High Point, 238 N.C. 14, 76 S.E.2d 546.

Plaintiff's action to restrain the issuance of the bonds by the City and County upon the alleged ground that the issuance of the bonds would be in violation of the State Constitution is not barred because not brought within thirty days after the publication of the result of the election and the Notice to the Taxpayers and Citizens of the City and County. Sessions v. Columbus County, 214 N.C. 634, 200 S.E. 418.

As to the first question presented for decision. The Appellant contends that Ch. 1034, 1949 Session Laws of North Carolina, and the proceedings had by the City and County in pursuance thereof, violate Art. V, § 4, as amended, and Art. VII, § 7, as amended, of the State Constitution, in that the Statute and the Proceedings had thereunder provided for the issuance of bonds for two distinct and unrelated purposes, to-wit; public library buildings for the City and public library buildings for the County, and provided for submission to the voters residing in the City of these dual purposes in a single question, and did not permit the voters residing in the City to vote separately upon the question of issuing bonds of the City for library buildings for the City and upon the question of issuing bonds of the County for library buildings for the County.

Practically all the cases, expressly or by necessary implication, recognize the basic rule that a single proposition must be placed on the ballot for submission to the voters at a bond election for each distinct and independent object for which an indebtedness is contemplated; or to phrase it differently, several propositions cannot be submitted as a single question so as to have one expression of the voters answer all propositions. The submission of dual propositions as a single question could be used for log rolling purposes, and to defeat the right of the voters to express their choice. Winston v. Wachovia Bank & Trust Co., 158 N.C. 512, 74 S.E. 611; Hill v. Lenoir County, 176 N.C. 572, 97 S.E. 498; Lazenby v. Board of Com'rs of Iredell, 186 N.C. 548, 120 S.E. 214; Anno. 4 A.L.R. 2d 617, Secs. 3, 4 and 5 (an elaborate annotation where cases are cited from thirty-one states); 43 Am.Jur., Public Securities and Obligations, §§ 91 and 92; 64 C.J.S., Municipal Corporations, § 1925. See also Goforth v. Rutherford Ry. Construction Co., 96 N.C. 535, 2 S.E. 361.

Did the question presented to the voters in this case contain separate and unrelated propositions, or was it the submission to the voters of a single proposition so related and united as to form in fact but a rounded whole? If the question submitted contained separate and unrelated propositions, it deprived the voters of the right to express their choice on a single proposition and violated Art. V, § 4, as amended, and Art. VII, § 7, as amended, of the North Carolina Constitution, for the proposed bonds concedingly not being for a necessary expense of the City and County, must be approved by a majority of those who voted in the election of 13 December 1952, and the voters must have had freedom of choice to vote separately upon each proposition submitted to tax themselves. Hill v. Lenoir County, supra. If the question presented to the voters was a single proposition so related and united as to form in fact but a rounded whole, it did not violate the above mentioned provisions of the State Constitution. Briggs v. City of Raleigh, 166 N.C. 149, 81 S.E. 1084; Hill v. Lenoir County, supra; Taylor v. City of Greensboro, 175 N.C. 423, 95 S.E. 771; Allen v. Town of Reidsville, 178 N.C. 513, 101 S.E. 267; Riddle v. Cumberland, 180 N.C. 321, 104 S.E. 662; Lazenby v. Board of Com'rs of Iredell, supra; Anno. 4 A.L. R.2d 617, § 6; 43 Am.Jur., p. 345.

In Briggs v. Raleigh, supra, the question presented to the voters was the issuance of $100,000 of bonds of the city for extending a sewer line, for purchasing a site and building thereon a fire house and for permanent improvements. This Court held the purposes of the various items are related to each other, and the bonds voted upon as a single proposition or upon a single ballot are valid.

In Taylor v. Greensboro, supra [175 N.C. 423, 95 S.E. 772], these two propositions were voted on for or against on a single ballot, to-wit; the creation of a board of education and an increase of the maximum tax rate for school purposes. This Court said: "There was only one proposition submitted to the voters of Greensboro, and that was to amend the city charter in two particulars."

In Allen v. Town of Reidsville, supra, it was held the sale of an electric light plant and the grant of a franchise to the purchaser, under which it could be operated, are so closely related as to justify submission to the voters as one proposition.

In Lazenby v. Com'rs of Iredell, supra, one ballot was used in submitting to the voters of the district the three propositions whether a special tax should be levied, whether the school should have additional grades, and whether the site should be changed. This Court held the submission of these propositions on a single ballot did not invalidate the election because the order of election showed and the court found as a fact that the levy of the special tax was the single question the voters had in mind.

In Board of Education of Oklahoma City v. Woodworth, 89 Okl. 192, 214 P. 1077, it was held that the submission of a proposed bond issue in the sum of $1,900,000 to the voters of Oklahoma City for the purpose of purchasing additional sites for school buildings and playgrounds, the erection of ward school buildings, a junior high school building and a senior high school building comprised a single proposition.

In Kellams v. Compton, Mo.Sup., 206 S.W.2d 498, 501, 4 A.L.R. 2d 612, there was submitted to the voters one question, whether a school district should issue bonds in an amount specified, for the purpose of constructing athletic field bleachers, a high school building, and an elementary school building. That Court said: "The notice follows, substantially, the language of the statute and the projects were not so unrelated or incongruous as to constitute logrolling and a fraud upon the voter."

The form of the official ballot furnished to the voters in the election 13 December 1952 followed substantially the provisions of Ch. 1034, 1949 Session Laws of North Carolina. Unquestionably the words on the official ballot informed the voters inside the City and the voters inside the County outside of the City, with certainty and exactitude as to the proposition submitted, and how to cast an affirmative or negative vote. It seems clear from examining the official ballot that the voting for the issuance of City and County Bonds to erect and equip public library buildings for the City and County and to levy a tax for said bonds in the City for the bonds of the City, and a tax in the entire County, including the City, for the bonds of the County, was the single question which the voters had in mind at the election.

The purpose of the proposed issuance of bonds is to extend and enlarge the "Public Library of Charlotte and Mecklenburg County," which library is governed by a Board of Trustees consisting of representatives from Charlotte and the County, and is supported, according to the facts stipulated and found by the court, by countywide taxation, an annual appropriation by the City and a percentage of the net profits from the A. B. C. Stores throughout the County, and which has its main library in Charlotte and branches in five towns of the County.

Under the facts presented to us, we are of opinion that the question presented to the voters was in fact a single proposition so related and united as to form a rounded whole, and did not violate the provisions of Art. V, § 4, as amended, and Art. VII, § 7, as amended, of the State Constitution.

Concerning the second question presented for decision the appellant contends that Ch. 1034, 1949 Session Laws of North Carolina, and the proceedings thereunder, violate this provision of Art. V, § 3, as amended, of the State Constitution that "taxes on property shall be uniform as to each class of property taxed", in that the proposed issuance of bonds will place a greater burden of taxation of the taxpayers in Charlotte than on the taxpayers in the County outside of Charlotte.

Art. V, § 3 of our Constitution imperatively requires in express terms that all real and personal property be taxed by a uniform rule. Pocomoke Guano Co. v. Biddle, 158 N.C. 212, 73 S.E. 996, 997. In this respect the Constitution "shows no favor and allows no discretion." Wiley v. Com'rs of Salisbury, 111 N.C. 397, 16 S.E. 542.

Uniformity in taxation on real and personal property is effected, when the tax is levied equally and uniformly on all property in the same class. Wiley v. Com'rs of Salisbury, supra; Pocomoke Guano Co. v. Biddle, supra; Norfolk Southern R. R. v. Lacy, 187 N.C. 615, 122 S.E. 763; Roach v. City of Durham, 204 N.C. 587, p. 591, 169 S.E. 149. The General Assembly of North Carolina has classified intangible personal property for taxation at a lower rate than tangible personal property or realty. G.S.N.C. § 105-198 et seq.

In Holton v. Board of Com'rs of Mecklenburg County, 93 N.C. 430, a statute authorized a tax for public roads to be imposed upon all the property in Mecklenburg County, and that no part of the tax be expended in the City of Charlotte for that purpose. The plaintiff, a taxpayer in Charlotte, contended the provision that no part of the tax should be expended in Charlotte was unequal and unjust. This Court said: "The Constitution does not prohibit such inequality. While it is very true that there must be equality and uniformity in imposing the burden of taxation upon property subject to it, so that each taxpayer shall pay the same proportionate tax on the same species of property taxed that every other taxpayer pays' * * * this rule of equality does not apply to the distribution of the revenue arising from such taxation."

We have stated in Martin County v. Wachovia Bank & Trust Co., 178 N.C. 26, 100 S.E. 134, 138, that the construction of roads and bridges is a matter of general public concern, and that "the Legislature may cast the expense of such public works upon the state at large, or upon territory specially and immediately benefited, even though the work may not be within a part of the total area attached." Among the cases cited is Holton v. Board of Com'rs of Mecklenburg County, supra.

The appellant contends that residents of Charlotte will pay a tax to the City and then a tax to the County to support one institution, and that is in effect double taxation upon taxpayers in Charlotte.

To constitute double taxation both taxes must be imposed on the same property, for the same purpose, by the same state, federal or taxing authority, within the same jurisdiction, or taxing district, during the same taxing period and there must be the same character of tax. Pure Oil Co. v. State, 244 Ala. 258, 12 So. 2d 861, 148 A.L.R. 260; Fox v. Board for Louisville & Jefferson County Children's Home, 244 Ky. 1, 50 S.W.2d 67; C. F. Smith Co. v. Fitzgerald, 270 Mich. 659, 259 N.W. 352, appeal dismissed C. F. Smith Co. v. Atwood, 296 U.S. 659, 56 S. Ct. 115, 80 L. Ed. 470; Spencer v. Snedeker, 361 Pa. 234, 64 A.2d 771; 84 C.J.S., Taxation, § 39; 51 Am.Jur., Taxation, § 284; Cooley Taxation 4th Ed. Vol. One, §§ 223 and 230. See also State v. Wheeler, 141 N.C. 773, 53 S.E. 358, 5 L.R.A.,N.S., 1139; ("Nor is there any constitutional prohibition against double taxation."); Town of Kenilworth v. Hyder, 197 N.C. 85, 147 S.E. 736, 740 ("furthermore, neither the state nor the federal Constitution affords protection against double taxation by the state."); Charlotte Coca-Cola Bottling Co. v. Shaw, Com'r of Revenue, 232 N.C. 307, 59 S.E.2d 819, 821 ("double taxation, as such, is not prohibited by the Constitution, and is not invalid if the rule of uniformity is observed."); Sabine v. Gill, Com'r of Revenue, 229 N.C. 599, 51 S.E.2d 1, 3 ("* * double taxation, even within the State, is not ipso facto necessarily obnoxious to the Constitution when the intention to impose it is clear and it is free from discriminatory features, however odious to the taxpayer."). Anderson v. City of Asheville, 194 N.C. 117, 138 S.E. 715; Banks v. City of Raleigh, 220 N.C. 35, 16 S.E.2d 413, relied upon by the appellant, are distinguishable.

The 14th Amendment to the U.S. Constitution does not prohibit a state from imposing double taxation. Cream of Wheat Co. v. County of Grand Forks, 253 U.S. 325, 40 S. Ct. 558, 64 L. Ed. 931; Baker v. Druesedow, 263 U.S. 137, 44 S. Ct. 40, 68 L. Ed. 212; Swiss Oil Corp. v. Shanks, 273 U.S. 407, 47 S. Ct. 393, 71 L. Ed. 709.

Absolute equality and uniformity in taxation are seldom, if ever, attainable. Such a conception has been characterized as "utopian" and "a baseless dream." The diversity of human judgment and the fallibility of all human beings preclude such a possibility. "The most that can be expected from wise legislation is an approximation to this desirable end; and the requirement of equality and uniformity found in the constitutions of some states is complied with when designed and manifest departures from the rule are avoided." Stanley v. Board of Supervisors of Albany County, 121 U.S. 535, 7 S. Ct. 1234, 1239, 30 L. Ed. 1000.

Chapter 1034, 1949 Session Laws of North Carolina, and the proceedings thereunder, do not violate Art. V, § 3 of the North Carolina Constitution, as contended by the plaintiff. There is no double taxation for one tax will be imposed by the City of Charlotte and another by the County of Mecklenburg, and further double taxation is neither prohibited by the State nor Federal Constitutions, though the courts do not look upon it with favor. Sabine v. Gill, Com'r of Revenue, supra.

We shall discuss together the third and fourth questions, which present for decision whether the proposed issuance of bonds of the City of Charlotte and of the County of Mecklenburg for "The Public Library of Charlotte and Mecklenburg County," and tax levies by the City and County to pay their respective bonds, au thorized by the election had by virtue of Ch. 1034, 1949 Session Laws of North Carolina, are for public purposes of the City and County within the purview of Art. V, § 3, as amended, and Art. VII, § 2 of the State Constitution. The answer without qualification is Yes.

Art. IX, § 1 of the North Carolina Constitution declares: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Thomas Carlyle in "Heroes and Hero Worship, Lecture V, The Hero as Man of Letters" says: "The true University of these days is a collection of books."

G.S.N.C. § 153-77 provides that the special approval of the General Assembly is hereby given to the issuance by counties of bonds for the purposes named in the section and to the levy of property taxes for the payment of the bonds; this includes purchase of necessary land, and in case of buildings the necessary equipment. The purpose named in subsection (m) is the erection and purchase of library buildings and equipment.

G.S.N.C. § 115-300 gives the State Board of Education authority to adopt such rules governing the establishment of public libraries receiving State aid as will best serve the educational interest of the people. G.S.N.C. § 115-301 says the State Board of Education may use such portion of the State appropriation to rural libraries as it may deem necessary to aid the public schools in establishing local libraries as provided in this section.

The General Assembly at its 1953 Session rewrote Art. 8, Ch. 160 of the General Statutes relating to Public Libraries in Ch. 721, 1953 Session Laws. Prior to the 1953 Session of the General Assembly G.S.N.C. § 160-77 provided that two or more counties or municipalities, or a county or counties and a municipality or municipalities, may join for the purpose of establishing and maintaining a free public library under the terms and provisions of Art. 8, Ch. 160 G.S. This provision was reenacted in the 1953 Session of the Legislature in Section 160-75 with additional provisos as to the amount each participating unit shall contribute to the establishment and support of the joint library. Prior to 1953 the old statute, G.S. § 160-75, and the 1953 statute, G.S. § 160-74, gave counties and municipalities power to contract with existing libraries.

G.S.N.C. § 153-9, subsection 37, provides that the Board of Commissioners of the counties in which there is a public city or town library, in order to help in extending the services of such libraries to rural communities of the county, can appropriate out of the funds under their control an amount sufficient to pay the expenses of such library extension service.

G.S.N.C. Ch. 125 concerns the State Library in Raleigh, North Carolina.

Ch. 1034, 1949 Session Laws, is not in conflict with the general State Law as to Public Libraries.

Art. V, § 3 of the State Constitution states: "Taxes shall be levied only for public purposes". We have stated many times what a public purpose is. A clear and succinct statement of a public purpose is in Green v. Kitchin, 229 N.C. 450, 50 S.E.2d 545, 549: "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."

It seems to be the general rule that funds may be raised by taxation for the establishment and support of public libraries. 51 Am.Jur., Taxation, § 356; 38 Am.Jur., Municipal Corporations, § 562.

A public library is not a necessary public expense. Westbrook v. Town of Southern Pines, 215 N.C. 20, 1 S.E.2d 95; Twining v. City of Wilmington, 214 N.C. 655, 200 S.E. 416.

The people of this State speaking directly in their Constitution have said that religion, morality and knowledge being necessary to good government and the happiness of mankind the means of education shall be forever encouraged; and speaking indirectly through their representatives in their General Assembly have repeatedly enacted laws to promote the establishment and maintenance of public libraries by counties and municipalities. They are convinced that "a good book is the precious life-blood of a master spirit, embalmed and treasured up on purpose to a life beyond life" (Milton "Areopagitica"), and such a book says to every man "I will go with thee, and be thy guide in thy most need, to go by thy side." The levying of taxes for public libraries by the State, counties and municipal corporations is for "a public purpose" under Art. V, § 3, as amended, of our Constitution, and the people have said so in emphatic tones. Neither does it conflict with Art. VII, § 2 of the Constitution, as contended by appellant.

By virtue of Ch. 1034, 1949 Session Laws of North Carolina, the people of Charlotte who will be liable for the City Bonds, and necessarily affected by the tax to pay them voted for the issuance of these bonds, sanctioning and approving by a majority vote the action of the Legislature. Under our government ultimate sovereignty is vested in the people, and they alone can say how they shall be governed. The people of Charlotte by their vote have said an increase in the public library facilities of their City and County Library will spread the means of education and thereby promote good government in their city and county, which will be to the distinct benefit of the City of Charlotte which pays the greater part of the taxes in Mecklenburg County, and the fact that some of the money from the City Bonds will, or may be, spent outside of the City does not prevent the City Bonds being issued for a public purpose of the City under the facts presented to us. Briggs v. City of Raleigh, 195 N. C. 223, 141 S.E. 597; Turner v. City of Reidsville, 224 N.C. 42, 29 S.E.2d 211. The case of Wilson v. High Point, supra, is clearly distinguishable.

Sir William Osler in "A Way of Life:" An Address delivered to Yale students on the evening of Sunday, April 20, 1913: used words which could well be inscribed on the wall of public libraries. "As the soul is dyed by the thoughts, let no day pass without contact with the best literature of the world. Learn to know your Bible, though not perhaps as your fathers did. In forming character and in shaping conduct, its touch has still its ancient power. Of the kindred of Ram and sons of Elihu, you should know its beauties and its strength. Fifteen or twenty minutes day by day will give you fellowship with the great minds of the race, and little by little as the years pass you extend your friendship with the immortal dead. They will give you faith in your own day." Man is always changing, but the elemental passions of the human heart remain as at creation's dawn. The great ideas of the classic writers come ringing down the centuries vibrant and alive, inspiring and influencing our thoughts as effectually as in the days when Homer throughout the Greek world sang the wrath of Achilles.

"* * * In furtherance of a general public policy, it has been held that courts must, as a rule, wherever possible, uphold the validity of municipal bond elections, unless clear grounds for invalidating them are shown." 43 Am.Jur., Public Securities and Obligations, § 78.

Chapter 1034, 1949 Session Laws of North Carolina, is constitutional and the proposed bonds, when issued, will be valid obligations of the City of Charlotte and the County of Mecklenburg.

The judgment of the lower court is

Affirmed.