Board of Managers of the James Walker Memorial Hospital v. City of Wilmington

74 S.E.2d 749 (1953) 237 N.C. 179

BOARD OF MANAGERS OF JAMES WALKER MEMORIAL HOSPITAL OF WILMINGTON
v.
CITY OF WILMINGTON et al.

No. 594.

Supreme Court of North Carolina.

February 25, 1953.

Isaac C. Wright and Alton A. Lennon, Wilmington, for plaintiff, appellant.

Wm. B. Campbell, Wilmington, for defendant, City of Wilmington, appellant.

Marsden Bellamy and David H. Scott, Wilmington, for defendant, New Hanover County, appellant.

PARKER, Justice.

For brevity the plaintiff will be referred to as the Hospital, the defendant the City of Wilmington as the City, and the defendant the County of New Hanover as the County. The plaintiff's assignment of Error No. 4: The Court's conclusion of law No. 1 that Chapter 8 of the Public-Local Laws of 1937, Chapter 470 of the Public-Local and Private Laws of 1939, and Chapter 906 of the Session Laws of 1951 contravene Art. II, Sec. 29 of the Constitution of North Carolina, and are all unconstitutional and void, and the court's adjudication No. 1 to the same effect. The County's assignment of Error No. 3 is similar, with this addition that if said acts are all unconstitutional then the prior acts of the Legislature are effective to require appropriations for the Hospital to be made one-half by the City and one-half by the County.

The City has challenged the constitutionality of the above three solemn and deliberate acts of the Legislature of the sovereign State of North Carolina, which always presents a serious question for determination by a court. The City having thrown down the gauntlet takes upon itself the burden of proving such acts, or anyone or more of them, are unconstitutional beyond all reasonable doubt. "It is an elementary principle of law, as held by the United States Supreme Court, that no act can be held unconstitutional unless it is so ``proved beyond all reasonable doubt.' Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. 606; Cooley Cons. Lim. (7th Ed.) 254. This is quoted with approval in [Chadbourn] Sash [Door & Blind] Co. v. Parker, 153 N.C. [130] 134, 69 S.E. 1. To same purport, Walker, J., Johnson v. Board of Education, 166 N.C. [468] 472, 82 S.E. 832, L.R.A.1915A, 828; Whitford v. Com'rs, 159 N.C. [160] 161, 74 S.E. 1014; Hoke, J., in Bonitz v. [Board of] School Trustees, 154 N.C. [375] 379, 70 S.E. 735. All reasonable doubts must be resolved in favor of the constitutionality of legislation. Allen, J., In re Watson, 157 N.C. [340] 347, 72 S.E. 1049. Every presumption is in favor of the constitutionality of an act of the Legislature, and all doubts must be resolved in support of the act. The courts may resort to an implication to sustain an act, but not to destroy it." Bickett v. Tax Comm., 177 N.C. 433, 99 S.E. 415, 416. It is too axiomatic to require the citation of authority that when it is clear a statute transgresses the authority vested in the Legislature by the Constitution, it is the duty of the court to declare the act unconstitutional. Any other course would lead to the destruction of constitutional government.

The pertinent part of Art. II, Sec. 29 of the North Carolina Constitution is: "The General Assembly shall not pass any local, private, or special act or resolution * * * relating to health, sanitation, and the abatement of nuisances". This section of the Constitution was adopted in the General Election of 1916, and manifestly has no application to local, private or special acts relating to health enacted by the Legislature prior to 1916. Roebuck v. Board of Trustees, 184 N.C. 144, 113 S.E. 676.

Ch. 906 of Session Laws 1951 reads in part the City and the County "hereby are authorized and directed to enter into a contract with the James Walker Memorial Hospital, making proper and adequate provision for the hospitalization, medical attention, and care of the indigent sick and afflicted poor of said city and county, [etc.]" Ch. 470, Public-Local and Private Laws 1939 contains the exact words quoted from the 1951 Act, except the words "and directed." Ch. 8, Public-Local Laws 1937 provides for the payment of $25,000 each by the City and County to the Hospital to provide medical and hospital attention for the care and maintenance of the indigent sick and afflicted poor of the City and County.

In Board of Health v. Board of Com'rs of Nash County, 220 N.C. 140, 16 S.E.2d 677, it was held that a law affecting the selection of a health officer of Nash County was a law relating to health; and this act applicable to Nash County only, providing that the county commissioners should approve the election of a health officer, was unconstitutional as violating Art. II, Sec. 29 of the Constitution of North Carolina. See also Sams v. Board of Com'rs of Madison County, 217 N.C. 284, 7 S.E.2d 540. A law undertaking to confer power upon the Board of Aldermen of the City of Winston-Salem and the Board of County Commissioners of Forsyth County to consolidate their public health offices and departments, to name a joint city-county board of health, and to appoint a joint city-county health officer was a law relating to health, and was held void for repugnancy to Art. II, Sec. 29 of the Constitution. Idol v. Street, 233 N.C. 730, 65 S.E.2d 313.

The Legislature at its session in 1935 enacted Ch. 64, Public Laws 1935 (codified G.S. § 160-229) which amends C.S. § 2795 (now G.S. § 160-229) by adding at the end thereof all of Ch. 64. C.S. § 2795 is under Part 5 "Protection of Public Health" Article 15, Ch. 56, Municipal Corporations. G.S. § 160-229 is under Part 5 "Protection of Public Health," Subchapter II, Chapter 160, Municipal Corporations. The 1935 amendment empowered the governing body of a town or city to contract with a public or private hospital for medical treatment and hospitalization of the afflicted poor of the town or city. This was a general law applicable to the State as a whole, except as to the counties and cities or towns excepted therefrom, among which was the City of Wilmington. In Martin v. Raleigh, 208 N.C. 369, 180 S.E. 786, Ch. 64, Public Laws 1935, was held constitutional, and for a necessary municipal expense not requiring the approval of the qualified voters of the city as a prerequisite to the validity of the tax and not in violation of Art. VII, Sec. 7 of the Constitution.

Ch. 65, Public Laws 1935 (codified G.S. § 153-152) amended C.S. § 1335 (now G. S. § 153-152) by adding at the end thereof all of Ch. 65. C.S. § 1335 is under Art. 8 "County Poor," Ch. 24, Counties and County Commissioners. G.S. § 153-152 is under Art. 13 "County Poor," Ch. 153, Counties and County Commissioners. The 1935 Amendment to C.S. § 1335 is similar to the 1935 Amendment to C.S. § 2795 except that it applies to counties. This was a general law applicable to the State as a whole, except as to the counties exempted, among which was New Hanover. In Martin v. Board of Com'rs of Wake County, 208 N.C. 354, 180 S.E. 777 the 1935 amendment was held constitutional and a county tax to provide funds for care of the indigent sick was held for a necessary expense not requiring approval of the voters, and not in violation of Art. VII, Sec. 7 of the Constitution.

It would seem the Legislature at its session in 1935 considered that Ch. 64 of its laws enacted then related to health. This law was enacted as a general law, so as not to conflict with Art. II, Sec. 29 of the Constitution.

The Legislature since 1916 by local, special or private acts, has increased or decreased the jurisdiction of certain courts inferior to the Superior Court, which courts were already in existence. The prohibition of Article II, Sec. 29 of the Constitution of North Carolina is against the establishment of such courts, and these cases are not in point. Durham Provision Co. v. Daves, 190 N.C. 7, 128 S.E. 593; State v. Horne, 191 N.C. 375, 131 S.E. 753; Williams v. Cooper, 222 N.C. 589, 24 S.E.2d 484. A local statute was enacted by the Legislature in 1925 enlarging the jurisdiction of the Town of Lumberton, when it already had jurisdiction over streets, to include sidewalks and alleys. The prohibition of the Constitution is against "the laying out, opening, altering, maintaining, or discontinuing of highways, streets, or alleys" by local, special or private act. This act was held to merely increase the authority already conferred upon the Town of Lumberton in 1907, and was not unconstitutional as violating Art. II, Sec. 29 of the Constitution. Deese v. Town of Lumberton, 211 N.C. 31, 188 S.E. 857. The Legislature in 1915 authorized Wilkes County to issue bonds to provide for a uniform, comprehensive, and practical system of roads in the county. The Legislature by local act in 1919 increased the amount of the bond issue. This was held not prohibited by Art. II, Sec. 29 of the Constitution, which prevents the enactment of any local, private, or special act authorizing the laying-out, opening, maintaining or discontinuing of highways. Commissioners of Wilkes County v. Pruden & Co., 178 N.C. 394, 100 S.E. 695. A school district had been defined as to boundaries, etc., by a Private Law enacted in 1905. The Legislature in 1921 enacted a Private Law authorizing an increase of the bonds to be issued from $3,000 to $50,000. This was not repugnant to Art. II, Sec. 29 of the Constitution which prohibits local acts from "establishing or changing the lines of school districts." Roebuck v. Board of Trustees, supra [184 N.C. 144, 113 S.E. 677].

Hailey v. Winston-Salem, 196 N.C. 17, 144 S.E. 377; Hill v. Board of Com'rs, 190 N.C. 123, 129 S.E. 154; In re Advisory Opinion, 227 N.C. 716 relied upon by the Hospital are distinguishable.

A local act is one operating only in a specified locality. State v. Dixon, 215 N.C. 161, 1 S.E.2d 521. The three acts of the Legislature adjudged unconstitutional by the trial court operate in New Hanover County, and are beyond peradventure local acts.

These three acts do not apply to the poor like building a county home. Under Art. XI, Sec. 7, of the Constitution of North Carolina a county may build a county home for such poor as a necessary expense without the approval of the voters. Board of Com'rs v. Spitzer, 173 N.C. 147, 91 S.E. 707. These three acts authorize the City and County to make provision for "the hospitalization, medical attention, and care of the indigent sick and afflicted poor" of the City and County alone. To come within the provisions of these three acts the poor must be sick and afflicted. The constitutional prohibition is against local acts relating to health. It seems clear beyond all reasonable doubt that the three acts adjudged unconstitutional are all local acts relating to health and void, as in direct conflict with Art. II, Sec. 29 of the North Carolina Constitution.

The hospital's assignment of Error No. 6 "His Honor erred in not finding as a fact that the defendant City had given its solemn pledge for its generous support to said hospital for the maintenance and medical care of the sick and infirm poor persons who might from time to time become chargeable to the said City and County." The Hospital in its brief argues under this assignment of error that the City was estopped to challenge the constitutionality of the three laws adjudged unconstitutional by the trial court, and further had waived any right to do so. The City cannot be estopped from challenging the constitutionality of laws affecting it in its governmental capacity. "A municipality is not estopped to assert that its policy in a particular matter has been in violation of the Constitution and that it is prohibited from pursuing such course in the future." 38 Am. Jur., Municipal Corporations, p. 378. "The doctrine of ultra vires is applied with greater strictness to public than to private corporations, and the rule is that a municipality * * * is not estopped by an act or contract which is beyond the scope of its corporate powers, especially where the party claiming the estoppel was aware of the municipal incapacity or used no diligence to ascertain whether it had the power which it assumed to exercise." 21 C. J., Estoppel, p. 1194-1195. C. J. cites in support of this rule of law numerous cases, including Bank v. Com'rs of Town of Oxford, 119 N.C. 214, 25 S.E. 966, 34 L.R.A. 487. See also 31 C.J.S., Estoppel, §§ 143, 144. This assignment of error is not upheld.

A waiver may be tersely defined as a voluntary relinquishment of a known right. "A waiver is not, however, allowed to operate so as to * * * transgress public policy or morals." 56 Am.Jur., Waiver, p. 105-106. In the general election of 1916 the people of North Carolina by their votes wrote into their fundamental law The General Assembly shall not pass any local, private or special act "relating to health." Their votes fixed the public policy of the state as to health in that respect. Their decision is final, and no Municipal Corporation or County can waive the Constitutional Inhibition.

The trial court was correct in adjudging that Ch. 8, Public-Local Laws 1937, Ch. 470, Public-Local Laws 1939, and Ch. 906, Session Laws 1951 are all unconstitutional and void as in direct conflict with Article II, Sec. 29 of the Constitution. The plaintiff's assignment of Error No. 4, and the defendant County of New Hanover's Assignment of Error No. 3 to the trial court adjudging those laws unconstitutional are untenable.

The three acts of the Legislature above held to be unconstitutional have not repealed any laws enacted prior thereto. "Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it. * * * A void act cannot be legally inconsistent with a valid one. Moreover, an unconstitutional law cannot operate to supersede any existing valid law. Accordingly, where a clause repealing a prior law is inserted in an act, which act is unconstitutional and void, the provisions for the repeal of the prior law will usually fall with it and will not be permitted to operate as repealing such prior law." 11 Am.Jur., Constitutional Law, p. 828-829. "An unconstitutional law is void and is as no law." State v. Williams, 146 N.C. 618, 61 S.E. 61, 62, 17 L.R.A.,N.S., 299, 14 Ann.Cas. 562. Therefore Ch. 23, Private Laws 1881 and Ch. 181, Private Laws, 1881; Ch. 12, Private Laws 1901; Ch. 38, Private Laws 1907 and Ch. 66, Public-Local Laws 1915, have not been repealed or modified or in any way affected by the laws enacted in 1937, 1939 and 1951 which are all unconstitutional.

The City assigns as errors the trial court's conclusions of law 2, 3 and 5 and the court's adjudications Nos. 2 and 3—Assignments of Error Nos. 20, 21 and 22.

The trial court's conclusions of law 2, 3 and 5 and adjudications Nos. 2 and 3 were based upon Ch. 66, Public-Local Laws 1915, which is as follows:

"An act to equalize the appropriations, made for the support of the James Walker Memorial Hospital, between the Board of Commissioners of New Hanover County and the Council of the City of Wilmington.

"The General Assembly of North Carolina do enact:

"Section 1. That all appropriations made by the board of commissioners of New Hanover County and the council of the city of Wilmington for the support of the James Walker Memorial Hospital shall be contributed and paid in equal proportions— one-half by the board of commissioners of New Hanover County and one-half by the council of the city of Wilmington.

"Sec. 2. The board of commissioners of New Hanover County and the council of the city of Wilmington shall jointly fix the amounts of said appropriations in such sums as they may deem wise and proper: Provided, the appropriations in any one year shall not be less than fifteen thousand dollars ($15,000).

"Sec. 3. That all laws and clauses of laws in conflict with this act are hereby repealed.

"Sec. 4. That this act shall be in force from and after its ratification. Ratified this the 4th day of February, A.D. 1915."

This act states definitely that its sole purpose is "for the support of the James Walker Memorial Hospital". Is such support a necessary governmental expense within the meaning of Article VII, Sec. 7 of the North Carolina Constitution? The answer under our decisions is "No."

In Armstrong v. Board of Com'rs, 185 N. C. 405, 117 S.E. 388, it was held that a hospital for tubercular patients was not a necessary governmental expense for Gaston County.

In Nash v. Monroe, 198 N.C. 306, 151 S.E. 634, 635, it was held that the maintenance of a hospital was not a necessary governmental expense for the Town of Monroe. The Court said: "``For purposes other than necessary expenses a tax cannot be levied within or in excess of the constitutional limitation except by a vote of the people under special legislative authority.' [Citing authorities.] Undoubtedly, if the city of Monroe had the money in its treasury, it could purchase equipment for its hospital. [Citing authorities.] But the city of Monroe did not have such funds in hand, and undertook to pledge the faith and credit of the city in order to obtain the money. This cannot be done except in accordance with the methods provided by law." See also Burleson v. Board of Aldermen, 200 N.C. 30, 156 S.E. 241.

In Palmer v. Haywood County, 212 N.C. 284, 193 S.E. 668, 669, 113 A.L.R. 1195, the purpose of the bond issue was to construct an addition to the county hospital to be used principally for the care of the indigent sick and afflicted poor of the county, and this court said: "The question: Is the building of annex to County Hospital a necessary expense within the meaning of article 7, section 7, of the Constitution of North Carolina? The answer is ``No.'"

In Sessions v. Columbus County, 214 N. C. 634, 200 S.E. 418, 420, this court said: "The finding and conclusion of the trial court that the hospital here proposed is not a necessary expense of the county within the meaning of Art. 7, Sec. 7, of the Constitution is directly supported by what was said in Palmer v. Haywood County, 212 N. C. 284, 193 S.E. 668, 113 A.L.R. 1195; Burleson v. [Board of Aldermen of Town of] Spruce Pine, 200 N.C. 30, 156 S.E. 241; Nash v. Monroe, 198 N.C. 306, 151 S.E. 634, and Armstrong v. [Board of] Com'rs, 185 N.C. 405, 117 S.E. 388."

There is no finding of fact by the trial court that the City or the County had money in its treasury to support the Hospital. In its findings of fact No. 18 the trial court found that if an appropriation should be made by the City to the Hospital during the fiscal year from 1 July 1952 through 30 June 1953, the City would have to increase its tax rate approximately 4½¢ upon the $100.00 valuation of taxable property.

Art. VII, Sec. 7 of the North Carolina Constitution provides: "No debt or loan except by a majority of voters.—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."

There is no evidence, nor finding of fact, that a majority of the qualified voters of the City or the County have ever voted to support the Hospital. Such being the case, and as the support of the Hospital is not a necessary governmental expense, neither the City nor the County can contract any debt, pledge its faith or loan its credit, nor can they levy any tax or collect any to support the Hospital, nor can the City or County pay any money derived from such sources for the support of the Hospital.

The trial court's conclusions of law 2, 3 and 5 and adjudications of law 2 and 3 are at variance with our decisions and the City's assignments of error Nos. 20, 21, 22 and 23 thereto are sustained.

The County assigns as Error No. 4 the trial court's conclusion of law No. 4 and that part of its adjudication of paragraph 3 which reads "and that the said council of the City of Wilmington pay during said fiscal year to the plaintiff not less than $7,500.00" and its adjudication paragraph 4. By reason of what is said above this assignment of error is sustained. For the reasons stated above the County's assignment of Error No. 5: That the trial court erred in its adjudication No. 3 is sustained.

Ch. 38, Private Laws 1907, is as follows:

"An Act to Improve the Efficiency of the James Walker Memorial Hospital, of Wilmington, North Carolina.

"The General Assembly of North Carolina do enact:

"Section 1. That the Board of Commissioners of New Hanover County, and the Mayor and Board of Aldermen of the City of Wilmington, by and with the consent of the board of audit and finance, be and they are hereby empowered to appropriate, from time to time, from the public funds of the said county and city, such sums as, in their judgment, may be necessary to run the James Walker Memorial Hospital in an efficient manner.

"Sec. 2. This act shall be in force from and after its ratification.

"In the General Assembly read three times, and ratified this the 7th day of February, A.D. 1907."

For the reasons stated above in respect to the 1915 Act neither the City nor the County can pay any money to support the Hospital derived from taxes, nor contract any debt, pledge their faith or loan their credit for such purpose under this Act.

Ch. 12, Private Laws 1901, is entitled "An Act to provide for the government of the ``James Walker Memorial Hospital of the City of Wilmington, N. C.'" This Act is the charter of the Hospital. In Section 3 it is stated that for the purpose of providing the proper means for sustaining the hospital, and for the maintenance and medical care of such sick and infirm poor persons as may be placed therein, the County shall annually provide $4,800, and the City $3,200, which fund shall be placed in the hands of the Board of Managers to be paid out, under their direction, according to such rules, regulations and orders as they may from time to time adopt. Section 4 of the Act provides that should any portion of this annual appropriation remain unexpended on 1 March of each year, it shall be invested in specified bonds to be known as a Permanent Fund. The income from the Fund may be used for the maintenance of the Hospital, but no part of the Fund shall be used except in case of additional emergency or for some permanent improvement or addition to the Hospital. For the reasons stated above neither the City nor the County can contract any debt, pledge its faith or loan its credit, nor can they levy any tax or collect any to support the Hospital, nor can the City or County pay any money derived from such sources to the Hospital under this Act. Palmer v. Haywood County, supra.

Ch. 23, Private Laws 1881 and Ch. 181, Private Laws 1881, have no application to the instant case. These Acts provided for the erection of a hospital in the City of Wilmington by the County and City. Land was bought and a building erected. The plaintiff's charter was granted by Ch. 12, Private Laws 1901. The City and County then conveyed the land upon which they had operated a hospital under the 1881 Law to the plaintiff. The plaintiff was authorized to tear down the old building. Mr. James Walker, a generous and public spirited citizen of Wilmington, North Carolina, in 1900 began the construction of a modern hospital for the plaintiff.

That part of the County's assignment of Error 3 that if the 1937, 1939 and 1951 Laws above mentioned are all unconstitutional "then the prior acts of the General Assembly are effective to require that the appropriation for the James Walker Memorial Hospital be made one-half by the City of Wilmington and one-half by New Hanover County" is not sustained.

In a trial by the judge, as in the instant case, "the rules as to the admission and exclusion of evidence are not so strictly enforced as in a jury trial, since the judge is to determine what he will consider, and his rulings are subject to review on appeal, with all the information before the court." McIntosh N.C. Prac. and Proc. p. 553.

We have carefully considered the Hospital plaintiff's assignments of Errors Nos. 1, 2 and 3, and they are untenable. If some incompetent evidence was admitted by the trial judge, it was not prejudicial error. The findings of fact are supported by competent evidence.

The plaintiff's assignment of Error No. 5: "His Honor erred in his conclusion of law No. 4 and in the order, paragraph 3 and paragraph 4. This assignment of error is sustained upon the grounds stated above. The trial court was in error in concluding as a matter of law as it did in paragraph 4 and in adjudging as it did in paragraphs 3 and 4.

The plaintiff's assignment of Error No. 7 which is to the signing of the judgment is sustained, as the judgment must be modified in accordance with the opinion in this case.

The defendant County's assignment of Error No. 1: Failure to allow its motions for nonsuit, and its conclusion of law No. 5. The assignments of error for failure to allow its motion for nonsuit are not tenable. The complaint alleges, and the evidence supports the allegations of the complaint, that this is a proper case for a Declaratory Judgment on the part of the plaintiff against both defendants. The County's assignment of error to the court's conclusion of law No. 5 is sustained for reasons set forth above in this opinion.

The defendant County's assignment of Error No. 2 is to the admission of evidence and to the findings of fact Nos. 13, 14, 18 and 19 and part of 11. This assignment of error is overruled.

The defendant County's assignment of Error No. 7 is to the signing of the judgment. This assignment of error is sustained for the judgment must be modified in accordance with the opinion in this case.

The defendant City's assignments of Errors Nos. 1 to 12, both inclusive, are not sustained. Even if evidence technically incompetent was admitted, it was not prejudicial error.

The defendant City's assignments of Errors Nos. 13 and 14 are to failure of the court to allow its motions for judgment of nonsuit. These assignments of error are overruled for the same reasons set forth in overruling similar assignments of error by the defendant County.

The defendant City's assignment of Error No. 15 is to the trial court's findings of fact Nos. 1 and 2. The defendant City's assignment of Error No. 16 is to the trial court's findings of fact Nos. 5, 6 and 7. These findings of fact are supported by competent evidence. These assignments of error are overruled.

The defendant City's assignment of Error No. 17 is to the trial court's findings of fact No. 8. This finding of fact is a summary of Ch. 66, Private Laws [Public-Local] 1915, with the addition that since 1915 the said appropriations have been made by the City and County in equal amounts. It is not a finding of fact, nor a conclusion of law, nor an adjudication that the payments made to the Hospital by the City and the County under this Act were either lawful, or constitutional, or required, or authorized. We have held in this opinion that this 1915 law does not require nor permit the City or County to make appropriations for the support of the Hospital. It would seem that this finding is not prejudicial error, and this assignment of error is overruled.

The defendant City's assignment of Error No. 18 is to the trial court's finding of fact No. 20; and assignment of error No. 19 is to the finding of fact No. 21. These assignments of error are overruled.

The defendant City's assignment of Error No. 24 is to the court's adjudication No. 5 taxing the costs against it and to the signing of the judgment. G.S. § 1-263 provides that in a proceeding for a Declaratory Judgment the court may make such award of costs as may seem equitable and just. This proceeding is to declare rights, status and other legal relations of all the parties under a number of local Acts. All were vitally interested. It is equitable and just that the costs should be equally divided between the Hospital, the City and the County—each paying onethird, and it is so ordered. The defendant City's assignment of error taxing it with the costs is sustained. The City's assignment of error as to the signing of the judgment is sustained, for the judgment must be modified in accord with this opinion.

The defendant City's assignments of Error No. 25 is that the trial court erred in failing to find and conclude as a matter of law, and to adjudge that the obligation to pay the cost of medical care of the indigent sick and afflicted poor rested upon the County of New Hanover. Under Art. XI, Sec. 7 of the North Carolina Constitution that duty rests upon the State. The State has neither delegated all such of its duty to New Hanover County, nor authorized it to assume all such duty. This assignment of error is not sustained.

The defendant City's assignment of Error No. 26 is that the trial court erred in not finding and concluding that the entire obligation of the taxpayers of the City is fully met when a county-wide tax levy is made for the purpose of providing funds for the medical care of the indigent sick and afflicted poor. The assignment of error is overruled. We know of no law to support the contention of the defendant City.

The defendant City of Wilmington in its brief cites two cases in support of its assignments of Errors No. 25 and 26. Martin v. Raleigh, supra, and Martin v. Board of Com'rs of Wake County, supra. Neither case supports any such contention on the part of the defendant City.

The trial court should have concluded as matters of law, and adjudicated:

1. That the defendant City of Wilmington was not estopped to challenge the constitutionality of the laws alleged in the complaint, nor had it waived any right to do so.

2. That neither Ch. 8, Public-Local Laws 1937, nor Ch. 470, Public-Local and Private Laws 1939, nor Ch. 906, Session Laws 1951, repealed any prior Acts of the General Assembly.

3. That Ch. 23 and Ch. 181, Private Laws 1881, have no application to this proceeding.

4. That Ch. 66, Public-Local Laws 1915, Ch. 38, Private Laws 1907 and Ch. 12, Private Laws 1901, provide for the defendant City of Wilmington and the defendant County of New Hanover to pay money annually to the plaintiff for its support and maintenance; that the support and maintenance of the plaintiff is not a necessary expense for the defendant City nor the defendant County, even though the money contributed should be used principally for the care of the indigent sick and afflicted poor of the City and County.

5. That there is neither allegation nor proof that an election was ever held by either the City or County on the question of the City or County paying any money to the plaintiff, and that for either the City or County to pay any money for the support and maintenance of the plaintiff is prohibited by Art. VII, Sec. 7 of the North Carolina Constitution.

Art. XI, Sec. 7 of the North Carolina Constitution provides that beneficent provision for the poor, the unfortunate and orphan is one of the first duties of a civilized and Christian State. The General Assembly may by statute, provided it is not unconstitutional, delegate a portion of its sovereignty to the governing body of any town or city or county, separately or jointly, who, when they deem it for the best interest of the town or city or county, can contract with hospitals for the medical treatment and hospitalization of the sick and afflicted poor of the town or city or county within their territorial limits. The General Assembly has enacted such a law for towns and counties. G.S. § 160-229. Martin v. Raleigh, supra. The City of Wilmington was exempted from this law when enacted. The General Assembly has enacted a similar law for counties. G.S. § 153-152. Martin v. Board of Com'rs of Wake County, supra. The County of New Hanover was exempted from this law when enacted. If the City of Wilmington and the County of New Hanover desire to contract with the James Walker Memorial Hospital for the medical treatment and hospitalization of the sick and afflicted poor within their territorial limits, they can by appropriate legislation bring themselves within the provisions of G.S. § 160-229 and G.S. § 153-152 or by other appropriate Acts not in conflict with the North Carolina Constitution, can assume such an obligation. However, that is a matter of public policy for the people of the City of Wilmington and the people of the County of New Hanover to decide, and not for this court.

It is ordered that the judgment of the trial court be modified in accordance with this decision, and as modified, it is affirmed.

Modified and affirmed.

DEVIN, Chief Justice.

I concur in the opinion written for the Court by Justice PARKER, and I am in accord with the conclusion that in this case the support and maintenance of plaintiff's hospital is not a necessary municipal expense within the meaning of Art. VII, sec. 7 of the Constitution.

However, in view of the expanding need of hospital facilities and hospital care in this state, the issue here resolved against the power of municipal corporations to levy a tax or to expend funds derived from taxation for this purpose may in the future, in a proper case, require re-examination of this question. The growing concept of public health as a matter of prime importance, invoking the exercise of governmental power, is illustrated by the statutes creating hospital authorities and the fruitful results attending the activities of the Hospital Care Commission.

The issue is not foreclosed.