Henderson v. City of New Bern , 241 N.C. 52 ( 1954 )

84 S.E.2d 283 (1954) 241 N.C. 52

Ray HENDERSON, B. H. Taylor and Louis N. Howard,
v.
The CITY OF NEW BERN, a Municipal Corporation, and Mack L. Lupton, Mayor, and Guy E. Boyd, William I. Gause, Durwood W. Hancock, Guy L. Hamilton and C. H. Richardson, as Members of the Board of Aldermen of the City of New Bern, and C. L. Barnhardt, as City Manager (Original Parties Defendant); and
John C. Arnold, E. B. Pugh, N. G. Gooding, Louis Elden, T. J. Baxter, J. G. Baches, M. H. Smith, J. T. Kennedy, Mrs. Joseph F. Rhem, L. C. Scott, Sr., Fred W. Carmichael and W. C. Chadwick (Additional Parties Defendant).

No. 315.

Supreme Court of North Carolina.

November 3, 1954.

Lee & Hancock, New Bern, for plaintiffs-appellants.

Laurence A. Stith and Ward & Tucker, New Bern, for defendants-appellees.

BARNHILL, Chief Justice.

The individual additional defendants are not necessary or proper parties to this action. If they desire to be heard in opposition to the relief the plaintiffs seek to obtain, they must be heard through the defendant municipality which is the real party defendant in interest. Mullen v. Louisburg, 225 N.C. 53, 33 S.E.2d 484. The court below will enter its order striking their names from the record.

"The complexity of today's commercial relations and the constantly increasing number of automobiles render the question of parking a matter of public concern which is taxing the ingenuity of our municipal officials. People who work in the business sections of our cities and towns and who rely on automobiles for transportation find it difficult—sometimes impossible—to locate a place on the public streets where daily parking is permitted. They are driven to seek accommodation in some parking lot maintained (by private enterprise) for the service of the public. There they are met by predetermined conditions which create a marked disparity of bargaining power and place them in the position where they must either accede to the conditions or else forego the desired service." Millers Mutual Fire Insurance Ass'n v. Parker, 234 N.C. 20, 65 S.E.2d 341, 344. Those who visit the business areas of our municipalities, resident or nonresident, to patronize merchants or to conduct other business which in large measure furnishes the lifeblood and vitality upon which these cities and towns must depend are met by the same situation.

Have conditions reached the point where this Court should declare that off-street parking facilities maintained by a municipality to meet this problem is for a public purpose within the meaning of the law and constitutes a legitimate proprietary objective of a municipal corporation, and if so, when and under what conditions may a municipality engage in such an enterprise? These are the questions the parties seek to have us answer.

They are questions of vital importance to the people of the State, and they must be answered clearly and unequivocally. Unfortunately, the record before us is in such condition that we cannot presently answer them with that degree of certainty and clarity the importance of the question demands. This is due in part to the promptness with which the plaintiffs acted and partly to the disposition made of the cause in the court below.

The defendant has passed no resolution finding public necessity and convenience, made no appropriation, G.S. § 160-399, subd. 1, par. c, adopted no ordinance, designated no nontax fund to be used in furtherance of the proposed plan, or taken other action necessary to place it in position, as near as may be, to pursue this alleged proprietary undertaking. It asserts that no tax source funds will be used. Yet it proposes, and the order entered permits, the use of funds derived through on-street parking facilities. Britt v. Wilmington, 236 N.C. 446, 73 S.E.2d 289. In effect, the defendant has been set free to take such action, without specific direction, as it deems essential upon its mere promise that it will take such action. But this will not suffice. The plaintiffs are entitled to be heard and to have the court say, after such action is taken, whether defendant has met the test. Furthermore, only in this manner may we render any decision that will serve to guide and direct defendant and the other municipalities of the State.

For the purpose of this appeal we may and do concede—without deciding— that conditions in a municipality may be such that the maintenance of off-street parking facilities is for a public purpose in that particular municipality. It cannot be said, however, that every hamlet, village, and town of the State, irrespective of size or local conditions, may maintain off-street parking facilities as a proprietary publicpurpose function of the municipality, the legislative declaration to the contrary notwithstanding. Of necessity the question must be made to depend in each instance upon local conditions as found and declared by the municipality in resolutions duly adopted after notice and an opportunity for local citizens to be heard. Jefferson Standard Life Insurance Co. v. Guilford County, 225 N.C. 293, 34 S.E.2d 430. As above indicated, there are other preliminary steps that must be taken by defendant.

To that end the defendant must be left free to take such action as it deems necessary to support its claim to the right to maintain off-street parking facilities. In the meantime, it will be restrained and enjoined from executing the proposed lease agreement. When it has taken such action it shall so notify the court, and the court shall then afford the plaintiffs an opportunity to appear and be heard on the question whether the temporary restraining order against the execution of the proposed lease should be continued in full force and effect. As so modified the order entered in the court below is affirmed.

Modified and affirmed.