City of Greensboro v. Wall , 247 N.C. 516 ( 1958 )

101 S.E.2d 413 (1958) 247 N.C. 516

CITY OF GREENSBORO, George H. Roach, William B. Burke, Tom E. Brown, J. M. Denny, D. Newton Farnell, Jr., William Folk, Jr., Elbert F. Lewis, Albert F. Stevens, Jr., and E. R. Zane, Redevelopment Commission of Greensboro, Joseph T. Carruthers, Jr., M. A. Arnold, Mrs. Elizabeth Bridgers, Vance Chavis and Bynum Hines,
v.
Percy L. WALL.

No. 606.

Supreme Court of North Carolina.

January 10, 1958.

Adam Younce, Greensboro, for defendant, appellant.

H. J. Elam, III, and King, Adams, Kleemeir & Hagan, Greensboro, for plaintiffs, appellees.

Weston P. Hatfield, Winston-Salem, and John T. Morrisey, amici curiae.

BOBBITT, Justice.

Jurisdiction under the Declaratory Judgment Act, G.S. § 1-253 et seq., may be invoked "only in a case in which there is an actual or real existing controversy between parties having adverse interest in the matter in dispute." Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404, 409, and cases cited. It must appear that "a real controversy, arising out of their opposing contentions as to their respective legal rights and liabilities under a deed, will, or contract in writing, or under a statute, municipal ordinance, contract or franchise, exists between or among the parties, * * *" Carolina Power Light Co. v. Iseley, 203 N.C. 811, 167 S.E. 56, 61. The existence of such genuine controversy between parties having conflicting interests is a "jurisdictional necessity." Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E.2d 450.

"It is no part of the function of the courts, in the exercise of the judicial power vested in them by the Constitution, to give advisory opinions, * * *" Stacy, C. J., in Poore v. Poore, 201 N.C. 791, 161 S.E. 532, 533. "The statute (G.S. § 1-253 et seq.) does not require the court to give a purely advisory opinion which the parties might, so to speak, put on ice to be used if and when occasion might arise." [222 N.C. 200, 22 S.E.2d 453.] Seawell, J., in Town of Tryon v. Duke Power Co., supra. "The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advice." Ervin, J., in Lide v. Mears, supra. Also see Calcutt v. McGeachy, 213 N.C. 1, 195 S.E. 49; Branch Banking & Trust Co. v. Whitfield, 238 N.C. 69, 76 S.E.2d 334, and Nascar, Inc., v. Blevins, 242 N.C. 282, 87 S.E.2d 490.

The validity of a statute when directly and necessarily involved, Person v. Board of State Tax Com'rs (Watts), 184 N.C. 499, 115 S.E. 336, may be determined in a properly constituted action under G.S. § 1-253 et seq., Calcutt v. McGeachy, supra; but this may be done only when some specific provision(s) thereof is challenged by a person who is directly and adversely affected thereby. Compare Fox v. Board of Com'rs for the County of Durham, 244 N.C. 497, 94 S.E.2d 482.

Connor, J., reminds us that confusion is caused "by speaking of an act as unconstitutional in a general sense." St. George v. Hardie, 147 N.C. 88, 97, 60 S.E. 920, 924. The validity or invalidity of a statute in whole or in part, is to be determined in respect of its adverse impact upon personal or property rights in a specific factual situation. As noted below, the General Assembly, when it enacted the "Urban Redevelopment Law," was well aware of the fact that "a statute may be valid in part and invalid in part." 82 C.J.S. Statutes § 92; Constantian v. Anson County, 244 N.C. 221, 228, 93 S.E.2d 163, and cases cited; Keith v. Lockhart, 171 N.C. 451, 457, 88 S.E. 640.

The judicial duty of passing upon the constitutionality of an Act of Congress or of an Act of the General Assembly is one "of great gravity and delicacy." Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 396, 67 L.Ed. 785; Person v. Doughton, 186 N.C. 723, 120 S.E. 481. Since "every presumption is to be indulged in favor of" the validity of an Act of the General Assembly, State v. Lueders, 214 N.C. 558, 200 S.E. 22, 24, the established judicial policy is to refrain from deciding constitutional questions unless (1) the judicial power is properly invoked, and (2) it is necessary to do so in order to protect the constitutional rights of a party to the action. State v. Lueders, supra; Turner v. City of Reidsville, 224 N.C. 42, 46, 29 S. E.2d 211. "A party who is not personally injured by a statute is not permitted to assail its validity; * * *". Adams, J., in Yarborough v. North Carolina Park Comm., 196 N.C. 284, 288, 145 S.E. 563, 567.

Persons directly and adversely affected by the decision may be expected to anaylze and bring to the attention of the court all facets of a legal problem. Clear and sound judicial decisions may be expected when specific legal problems are tested by fire in the crucible of actual controversy. Socalled friendly suits, where, regardless of form, all parties seek the same result, are "quicksands of the law." A fortiori, this is true when the Court is asked to pass upon a complicated and comprehensive statute and multiple actions thereunder when no particular provision thereof or action thereunder is drawn into focus and specifically challenged by a person directly and adversely affected thereby.

The "Urban Redevelopment Law," now codified as G.S. § 160-454 et seq., was enacted by our General Assembly in 1951. The original Act (ch. 1095, Session Laws of 1951) comprises fifteen and one-half pages, single space, 8-point type. Section 21 thereof, which was not codified, provided: "Separability of Provisions. Notwithstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provision of this Act, or the application thereof to any person or circumstances, is held invalid, the remainder of the Act and the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby."

Plaintiffs alleged that all of their actions and proposed actions are authorized by the "Urban Redevelopment Law."

Do the pleadings disclose a justiciable controversy? Defendant's answer does not challenge any of plaintiffs' alleged actions and proposed actions as violative of any particular constitutional or statutory provision. Defendant pleads no position whatever beyond his simple general denial of the legal conclusions alleged in plaintiffs' paragraph XIII. Indeed, it appears affirmatively that defendant suggested that this action be instituted, not because he challenged any of plaintiffs' actions and proposed actions but because he thought it advisable, in the phrase of Seawell, J., to obtain an advisory opinion, which "the parties might, so to speak, put on ice to be used if and when occasion might arise."

The primary impact of plaintiffs' actions and proposed actions will be upon persons who reside or have property interests in the "redevelopment area," the area found by the Commission to be a "blighted area" as defined in G.S. § 160-456(q). The ground of alleged unconstitutionality stressed by defendant in his brief in this Court is that the "Urban Redevelopment Law" purports to vest in the Commission the power of eminent domain. G.S. § 160-465. Yet defendant neither resides nor has property interests in the "redevelopment area." If unconstitutional in this respect, defendant is not directly and adversely affected thereby. Defendant's status is that of a citizen, resident and general taxpayer.

Conceding that a general taxpayer may challenge an illegal expenditure of the tax funds of the City of Greensboro and the validity of a proposed issuance of municipal bonds without legal authority, we are confronted by the fact that defendant's answer does not attack any of plaintiffs' actions on this or any other specific ground.

Defendant, in his brief, incidental to his said contention relating to the Commission's power of eminent domain, contends that "redevelopment" would not be "for a public use or public purpose."

But even in his brief defendant makes no contention that the City of Greensboro, in respect of contracts involving the expenditure of municipal funds for "redevelopment" purposes, must comply with the provisions of G.S. § 160-399(d); or (apart from a statement that "redevelopment" is not a public purpose, hence cannot be considered a necessary expense) that the expenditure by the City of Greensboro of tax funds and bond proceeds would not be "for the necessary expenses" of the municipality within the meaning of Art. VII, sec. 7, Constitution of North Carolina; or that the City of Greensboro has no power to issue municipal bonds for "redevelopment" purposes except upon compliance with the provisions of Art. V, sec. 4, Constitution of North Carolina. If we assume that "redevelopment" is for a public purpose (Art. V, sec. 3, Constitution of North Carolina), the constitutional provisions cited bear upon whether authority for the expenditure by the City of Greensboro of tax funds and bond proceeds does or may depend upon the approval of the voters in a municipal election.

It is understandable that plaintiffs desire blanket approval of their actions and proposed actions. But questions as to the validity and interpretation of the provisions of the "Urban Redevelopment Law" must await judicial decision until specific provisions thereof are challenged by persons directly and adversely affected thereby. Such persons are entitled to their day in court to show, if they can, that the enforcement of all or any of its provisions will result in an invasion or denial of their specific personal or property rights under the Constitution. They should not be precluded or prejudiced by a broadside decision in a case where the controversy is formal rather than genuine.

At the hearing below, plaintiffs offered and the court considered certain affidavits and in part based findings of fact thereon. Upon submission of a controversy without action under G.S. § 1-250, the cause is for determination on the agreed facts. The court is without authority to consider evidence and find additional facts. Consolidated Realty Corp. v. Koon, 216 N. C. 295, 4 S.E.2d 850, and cases cited. This rule applies when the facts are stipulated. Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273. Too, it applies to an action under the Declaratory Judgment Act when the pleadings do not raise issues of fact. G.S. § 1-262. Here the facts are established by defendant's unequivocal admission of all of plaintiffs' factual allegations. Hence, the court should not have considered the affidavits offered by plaintiffs; and the findings of fact incorporated in the judgment to the extent they differ from or go beyond the facts established by the pleadings are not considered here.

Our conclusion is that consideration and decision of the several questions suggested by plaintiffs relating (1) to the powers of the Commission, and (2) to the limitations upon the City of Greensboro in respect of the appropriation of tax funds and the issuance of municipal bonds for "redevelopment" purposes, must be deferred until actions either of the Commission or of the City of Greensboro are properly and specifically challenged by a person directly and adversely affected thereby.

The absence of a genuine justiciable controversy requires that the judgment be reversed and the action dismissed. It is so ordered.

Reversed.