City of Greensboro v. Smith

79 S.E.2d 486 (1954) 239 N.C. 138

CITY OF GREENSBORO et al.
v.
SMITH.

No. 682.

Supreme Court of North Carolina.

January 15, 1954.

Herman C. Wilson and L. P. McLendon, Greensboro, for plaintiffs-appellees.

Horace R. Kornegay, Greensboro, for defendant-appellant.

JOHNSON, Justice.

This appeal does not present for decision the question whether the City Council of Greensboro by the adoption of Chapter 73 of its Code gave legal existence to the Greensboro War Memorial Fund Commission. Whatever legal efficacy, if any, this Commission may have had in the first instance merged into the legislative act, Chapter 436, Session Laws of 1945, and upon its ratification on March 8, 1945, the Commission as a legal entity became solely the creature of the General Assembly of North Carolina, deriving all its legal functions and powers from that body. Thenceforth, the City Council of Greensboro was without power or authority to amend the Commission's charter or modify its corporate powers.

It necessarily follows that the ordinances of the City Council purporting to withdraw from the Commission the power to determine and designate the location of the Memorial and changing the membership of the Commission from fifteen to seventeen were and are void and ineffectual.

The plaintiffs urge that if it be conceded the City Council was without authority to take from the Commission the power to select the site or sites for the Memorial and make the selection or selections itself, even so, the question is moot since the Commission, as shown by the findings of fact, has approved the sites selected by the City Council for the location of the auditorium and the playground to be developed as a part of the proposed Memorial. The contention is untenable for the reason that the seventeen-member Commission which approved the City Council's site selections was and is an illegally-constituted body. The legislative act set up a fifteen-member Commission and clothed it with "full and final power and authority to determine and designate the location of" the Memorial. See Webb v. Port Commission, 205 N.C. 663, 172 S.E. 377; Brumley v. Baxter, 225 N.C. 691, 36 S.E.2d 281, 162 A.L.R. 930. Therefore, the Commission has functioned as an illegally-constituted body since October 15, 1946, when the City Council, without authority of law, increased the membership of the Commission from fifteen to seventeen members. It was this seventeen-member Commission that approved the Forbis Street and Wendover Street sites selected by the City Council as the locations, respectively, for the auditorium and the playground. This action of the illegally-constituted Commission is a nullity. In legal contemplation no site has been selected as required by law. Yet, the City Council and the seventeen-member Commission are about to proceed to expend the moneys contributed to the Memorial Fund, as supplemented by City appropriations, in constructing on the Forbis Street site an auditorium-arena building.

The City of Greensboro has no lawful right to disburse War Memorial Funds or appropriate City funds of any kind toward the construction of improvements on the Forbis Street site or any other site unless and until the same be selected by a legally-constituted Commission as directed by Chapter 436, Session Laws of 1945. It necessarily follows that the court below erred in adjudging that the City of Greensboro has the lawful right to disburse the Greensboro War Memorial Funds for the purpose of erecting the proposed auditorium-arena building on the Forbis Street site, and in improving the Wendover Street site as a playground or recreation center. It is also manifest that the court erred in adjudging that the City of Greensboro has the lawful right to appropriate the sums of $10,000 and $40,922.40, respectively, from surplus revenue for the purpose of supplementing the War Memorial Funds to be used in paying the costs of the projects proposed to be located on these illegally-selected sites.

We come now to consider the challenged appropriations made by the City for the construction of a swimming pool. These appropriations were made from profits derived from the City's Liquor Control Stores.

While the construction of a swimming pool as a part of a city's recreation system may not be financed as a necessary expense of government under our constitutional limitation, N.C.Const. Art. VII, Sec. 7, without a vote of the people, Purser v. Ledbetter, 227 N.C. 1, 40 S.E.2d 702, nevertheless, such a facility is a public purpose, G.S. § 160-155 et seq., for which unallocated Liquor Store profits of the City of Greensboro ordinarily may be appropriated and expended without a vote of the people. As to this, it is noted that Chapter 394, Session Laws of 1951, under which the Liquor Control system of the City of Greensboro operates, expressly provides that the net profits derived by the City from the operation of its liquor stores may be used "in the operation of the water and sewer system of the city, for debt service, for the general fund, or for any public purpose." (Italics added.) See Purser v. Ledbetter, supra; Atkins v. City of Durham, 210 N.C. 295, 186 S.E. 330. See also Henderson v. City of Wilmington, 191 N.C. 269, 132 S.E. 25; Hall v. Redd, 196 N.C. 622, 146 S.E. 583; Nash v. City of Monroe, 198 N.C. 306, 151 S.E. 634; Mewborn v. City of Kinston, 199 N.C. 72, 154 S.E. 76; Goswick v. City of Durham, 211 N.C. 687, 191 S.E. 728; Turner v. City of Reidsville, 224 N.C. 42, 29 S.E.2d 211; Brumley v. Baxter, supra, 225 N.C. 691, 36 S.E.2d 281.

The defendant in challenging the appropriations for the swimming pool alleges and contends that since the voters of the City had authorized the levy and collection of an ad valorem tax for the purpose of maintaining and operating the City's recreation system, it had no right to supplement these special tax funds with moneys derived from the operation of liquor control stores for the purpose of improving its recreation and playground system by the construction of a swimming pool. The defendant cites and relies on the recent decision in Rider v. Lenoir County, 236 N.C. 620, 73 S.E.2d 913. However, the case at hand is factually distinguishable from and is in nowise controlled by the cited case. In the Rider case the bond order on which the proposition submitted to the voters was based contained a stipulation to the effect that the amount of county funds required to finance the proposed hospital project would "not exceed $465,000." We treated that stipulation as a compact with the voters, limiting to $465,000 the amount of county funds which might be expended on the project, and held that the original appropriation, as expressly so limited by the bond order approved by the voters, could not be supplemented by the addition of $138,713.80 from nontax sources. In the Rider case the voters, in adopting the plan that expressly limited the amount of county funds to be spent on the hospital project, by clear implication voted down the right of the county to supplement the project with county funds of any kind. But nothing of the sort appears in the present case. In the issues submitted to the voters in the Greensboro City election of July 25, 1950, respecting the special tax levy for the recreation system, there was no stipulation, express or implied, that the amount to be spent for recreation purposes should be limited to funds raised by the special tax.

We conclude, and so hold, that the court below properly upheld the appropriations of $160,000 from liquor store profits for the construction of a public swimming pool.

However, for the errors in respect to the appropriations for the erection of the Memorial facilities on sites not selected as provided by law the cause will be remanded.

Error and remanded.