City of Greensboro v. Smith

85 S.E.2d 292 (1955) 241 N.C. 363

CITY OF GREENSBORO, and Robert H. Frazier, M. A. Arnold, William B. Burke, J. A. Cannon, Jr., E. C. Faulconer, William M. Hampton, and Boyd R. Morris,
v.
Herman Amasa SMITH, for and on behalf of himself and all other citizens and taxpayers of the City of Greensboro and subscribers to Greensboro War Memorial Fund, and Greensboro War Memorial Fund Commission, S. I. Stewart, Sr., Charles T. Hagan, Ben Cone, E. D. Broadhurst, Jr., J. E. Smith, J. C. McLaughlin, Mrs. C. Henry Sikes, Allen C. McSween, Fielding L. Fry, W. M. York, Ralph L. Lewis, Paul C. Shu, Orton A. Boren, C. M. Vanstory, Jr., and W. H. Sullivan, Sr., Commissioners.

No. 676.

Supreme Court of North Carolina.

January 14, 1955.

Herman C. Wilson, City Atty., and L. P. McLendon, Greensboro, for plaintiff City of Greensboro, appellant.

Horace R. Kornegay, Greensboro, for defendant Smith, appellee.

Charles T. Hagan, Jr., and William M. York, Greensboro, for defendant Greensboro War Memorial Fund Commission, appellee.

BOBBITT, Justice.

In the construction of the Act our chief concern is to ascertain the legislative intent. As stated by Stacy, C. J., in Branch Banking & Trust Co. v. Hood, 206 N.C. 268, 173 S.E. 601, 602: "The heart of a statute is the intention of the lawmaking body."

Rules of statutory construction relevant here are stated succinctly by Johnson, J., in Victory Cab Co. v. City of Charlotte, 234 N.C. 572, 68 S.E.2d 433, 436, as follows:

"It is an accepted rule of statutory construction that ordinarily words of a statute will be given their natural, approved, and recognized meaning. Commissioners of Johnston County v. Lacy, 174 N.C. 141, 93 S.E. 482, 2 A.L.R. 726; Randall v. Richmond & Danville Railroad Co., 107 N.C. 748, 12 S.E. 605, 11 L.R.A. 460; 50 Am.Jur., Statutes, Sec. 238.

"It is also an accepted rule of construction that in ascertaining the intent of the Legislature in cases of ambiguity, regard must be had to the subject matter of the statute, as well as its language, i. e., the language of the statute must be read not textually, but contextually, and with reference to the matters dealt with and the objects and purposes sought to be accomplished, and in a sense which harmonizes with the subject matter. Gill v. Board of Com'rs of Wake County, 160 N.C. 176, at top of page 188, 76 S.E. 203, 43 L.R.A.,N.S., 293; Spencer v. Seaboard Air Line R. Co., 137 N.C. 107, at page 119, 49 S.E. 96, 1 L.R.A., N.S., 604; 50 Am.Jur., Statutes, Sec. 292."

And, in endeavoring to give the Act meaning in accord with its language and purpose, it must be borne in mind that when the legislation was passed the law in this jurisdiction, as set forth in the next paragraph hereof, was well established.

The acquisition, establishment and operation of an auditorium, G.S. § 160-283, Adams v. City of Durham, 189 N.C. 232, 126 S.E. 611, and of playground and recreation centers, G.S. § 160-155 et seq., Purser v. Ledbetter, 227 N.C. 1, 40 S.E.2d 702; City of Greensboro v. Smith, 239 N.C. 138, 79 S.E.2d 486, are not "necessary expenses" within the meaning of Art. VII, sec. 7, of the Constitution of North Carolina, for which a municipal corporation may borrow money or levy and collect taxes, without an approving vote of the people, but are public purposes for which a municipal corporation may appropriate available surplus funds not derived from taxes or a pledge of its credit. Brumley v. Baxter, 225 N.C. 691, 36 S.E.2d 281, 162 A.L.R. 930.

The Greensboro War Memorial Fund Commission, hereinafter called the Commission, was established to provide a suitable memorial in the City of Greensboro to perpetuate the memory of the men and women of Greensboro who gave their lives for their country in World War II. The statute determines that an auditorium is a desirable and suitable memorial; but "The commission may, in its discretion, also include playground and recreation centers and other activities as a part of such memorial."

The Commission created by the Act is a single purpose agency. Its members serve without compensation. Its task is to solicit funds for such Memorial, to designate the site, to determine the plans for its construction and for the furnishing and equipping thereof; and, thirty days after completion of the Memorial, the Commission terminates. The Commission has no authority or duty in respect of the upkeep, operation or management of the Memorial. When the Memorial is completed, and the time to use it has arrived, the Commission will be functus officio.

The Act manifests a legislative intent that the Memorial shall consist primarily of an auditorium. "Playground and recreation centers and other activities", if included at all, are not to be in lieu of an auditorium but are to be incidental and subordinate thereto.

Moreover, the Act manifests a legislative intent that the Memorial shall be a facility for use, requiring upkeep, operation and management. The Act contemplates that donations for the Memorial, by citizens of Greensboro and other interested persons, shall be made to the City of Greensboro and kept in a separate fund "until such time as a location is selected and the remainder held until the construction of said memorial is possible and deemed advisable." The quoted provision contemplates that the purchase price of the site selected is to be paid from such separate (donated) fund and the remainder held until the Memorial is constructed. The title to property purchased for the Memorial will vest in the City of Greensboro. Construction contracts will be made by the City of Greensboro, in its name. The Commission handles no funds and is not vested with the title to any property. Upon completion of the Memorial, the City of Greensboro will be responsible for its upkeep, operation and management the same as if the property had been purchased with municipal funds. This will be possible only if the use is for a public purpose. In view of the foregoing, we hold that the words "other activities" used in Art. 2, sec. 1, of the Act, and included in the quotation above, used in association with "auditorium" and "playground and recreation centers", refer only to such "other activities" as may also constitute public purposes within the meaning of our decisions.

It appears that campaigns for the solicitation of gifts of funds and property in 1944 and 1946 resulted in subscriptions in the total amount of $893,108.85, all but $37,162.92 having been paid to the City of Greensboro, and that these funds are now held in separate account for such Memorial. While these donated funds are public funds of the City of Greensboro, the General Assembly has provided that they are to be disbursed by the City of Greensboro as directed by the Commission, subject only to these limitations: (1) the Memorial shall consist primarily of an auditorium, but incidental and subordinate thereto there may be playground and recreation centers or other public purpose facilities; (2) the entire cost of the Memorial, including the cost of the site, architect's compensation, furnishings and equipment, incidental expenses of the Commission, etc., shall not exceed the aggregate of such donated funds, plus such additional amounts, if any, as the City Council may be authorized and may see fit to appropriate by way of supplement thereto. Subject to these limitations, the Commission has the authority and the duty to determine what the Memorial shall be, where it shall be, when construction thereof shall commence, and all other matters for decision incident to the construction and completion of the Memorial. On the other hand, the plaintiffs have no responsibility or duty incident to the construction of such Memorial provided the determinations made by the Commission are within the scope of its authority and duty as outlined herein.

It appears from the original complaint that the City of Greensboro had purchased property on Wendover Avenue, presumably that selected by the Commission as the site for the Memorial; that it was purchased with funds derived from the sale of other real estate; and that such property is now owned by the City of Greensboro. It does not appear whether the parties contemplate that the City of Greensboro is to be reimbursed from the separate (Memorial) account to the extent of the cost of this property. It should be noted that, while the Commission has authority within the limitations stated to direct the expenditure of the donated funds, the Commission has no authority whatever over any municipal property other than the donated funds. So, after the Commission has determined the site, the plan and design of the Memorial, etc., the City Council, since the Memorial is to be one usable only for a public purpose, may determine whether it has and will appropriate surplus municipal funds and property, derived from sources other than taxation or a pledge of its credit, by way of supplement in connection with the establishment of the Memorial and, upon its completion, for its upkeep, operation and management.

The general conditions under which the City of Greensboro may supplement the donated funds in the establishment and maintenance of the Memorial are sufficiently indicated. No adjudication is appropriate in the absence of factual data as to the source and character of the "available funds derived from sources other than ad valorem taxes." Hence, paragraph 6 should be deleted.

In conformity with the foregoing, the judgment is modified in these respects, viz.:

1. The words "(a) possible within the funds available or (b)," now appearing in paragraph 2 of the judgment, are stricken therefrom.

2. A proviso, "provided, the Memorial as determined by the Commission shall consist primarily of an auditorium, although, incidental and subordinate thereto, there may be playground, recreational or other public purpose facilities," is added to and made a part of paragraphs 2 and 3 of the judgment.

3. Paragraph 6 of the judgment is stricken therefrom.

As modified, the judgment of the court below is affirmed.

Modified and affirmed.

PARKER, J., took no part in the consideration or decision of this case.