Vance County v. Royster

155 S.E.2d 790 (1967) 271 N.C. 53

VANCE COUNTY, Plaintiff,
v.
Thomas S. ROYSTER and wife, Caroline H. Royster, Defendants.

No. 448.

Supreme Court of North Carolina.

July 24, 1967.

Sterling G. Gilliam, Henderson, for petitioner appellant.

Broughton & Broughton, Raleigh, for respondent appellees.

LAKE, Justice.

The motion of the petitioner for permission to withdraw its appeal is allowed.

Upon the appeal of the respondents, the ultimate question for decision is not whether it would be beneficial to the economy of Vance County and the City of Henderson for an airport to be constructed at the proposed site. The question is whether the respondents' property can be taken from them, without their consent, for the purpose of constructing an airport as proposed by the county. It is not a light thing to take property from the owners against their will, even though they be paid therefor the full value of it in money. Such taking can be accomplished only through the exercise of the sovereign power of the State through lawful procedures for a public use which the taker is authorized by the sovereign to make of the property.

Private property can be taken by exercise of the power of eminent domain only where the taking is for a public use. State Highway Commission v. Batts, 265 N.C. 346, 144 S.E.2d 126; City of Charlotte v. Heath, 226 N.C. 750, 40 S.E.2d 600, 169 A.L.R. 569. As we have said in State Highway Commission v. Thornton, N.C., 156 S.E.2d 248, whether a proposed use of property is a "public use," such as will justify the taking of property without the consent of the owner, is a judicial question and is to be determined by considering whether the public will use the property, not by considering the benefits to the economy from a proposed private use of it.

If the taking is for a "public use," the economic feasibility of the proposed use is for the legislative or administrative body to determine. With that determination the courts may not interfere, except upon a clear showing of abuse of discretion such as to make the taking of the property an arbitrary and capricious interference with the right of the owner thereto. Yarborough v. Park Commission, 196 N.C. 284, 145 S.E. 563; Jeffress v. Greenville, 154 N.C. 490, 70 S.E. 919; 29A C.J.S., Eminent Domain, § 89(2). Thus, in the absence of a showing of bad faith, which is not suggested in the present case, the courts will not interfere with the legislative or administrative determination that the taking of the particular property is necessary for the successful operation of the proposed project or prevent the taking on the ground that another site would be better, cheaper or otherwise preferable. 29A C.J.S. Eminent Domain § 90.

Nearly forty years ago, when flight across the ocean was still a marvel and commercial air travel and transportation were in their infancy, the Legislature of this State authorized cities and counties jointly to acquire, construct and operate airports and to exercise the power of eminent domain to acquire land for that purpose. G.S. §§ 63-4, 63-5. The procedure followed in the present case is that prescribed by the statute. It is clearly established by the decisions of this Court that the acquisition of land for, and the construction and operation of, an airport for use by the public is a purpose for which a city or a county or both may appropriate and expend public funds and for which it or they may acquire land by the exercise of the power of eminent domain. Greenboro-High Point Airport Authority v. Johnson, 226 N.C. 1, 36 S.E.2d 803; Turner v. City of Reidsville, 224 N.C. 42, 29 S.E.2d 211.

In a taking of land for the construction of an airport, as in the case of a taking for the construction of a road, if the taking is, in reality, for the purpose of making the property available for use by the public, it is immaterial that, in the immediate future, only a small segment of the public will be likely to make actual use of it. See: Charlotte v. Heath, supra; Cozard v. Hardwood Co., 139 N.C. 283, 51 S.E. 932, 1 L.R.A.,N.S., 969. In Turner v. City of Reidsville, supra, the argument, similar to one of the contentions of the respondents here, was made that land could not be acquired by eminent domain for construction of an airport because "no public airline now makes Reidsville a stopping place for air traffic, nor are there definite assurances for the future, or apparent demand for facilities for public or private aircraft service," and so, it was argued, an airport for Reidsville was neither needed in the public interest nor prospectively advantageous to the citizens or industries, and its construction and maintenance would be a waste of public funds. This Court did not find that argument persuasive then and we do not find it so now, since the wisdom of the proposed construction and operation is not for us to determine or consider. The small number of privately owned airplanes, presently kept in Vance County at private landing strips, and the absence of commitments from commercial airlines to use the proposed airport do not determine the nature of the use to be made of the proposed facility. There is nothing in the record to suggest that it will not be available for use by any airplane, whether owned by a resident of Vance County or otherwise, desiring to land upon it, nor is there anything in the record to support a finding that if it is constructed it will not be used eventually by others than those who now own airplanes regularly kept in Vance County. Thus, the present record does not present a situation comparable to that found in State Highway Commission v. Batts, supra.

We, therefore, conclude that the city and county propose to construct and operate the airport for public use. The proposed taking of the land of the respondents so as to provide for airplanes an approach to the runway of the airport free from trees and structures of considerable height is reasonably incidental to the construction of such an airport. Consequently, the proposed taking of this property is for a public use and is within the authority of the petitioner, unless the proposed construction and operation is otherwise beyond the authority of the petitioner.

For the petitioner to take the land of the respondents, without their consent, for a use incidental to a proposed airport, which airport the petitioner may not lawfully construct and operate, would be a vain and utterly useless deprivation of the respondents' rights in their property. Such an arbitrary, capricious taking of their land would be a violation of Article I, § 17 of the Constitution of this State. The land of a person may not be taken, without his consent, when the purpose, which would otherwise authorize the taking, cannot be accomplished as a matter of law.

It is clear upon the record before us that the proposed taking of the land of the respondents is to provide a safe approach to an airport which is to be constructed pursuant to the lease of the land for the airport proper, the "grant agreement" and the "project application," and not otherwise. If the petitioner does not have authority under the law to construct and operate the contemplated airport pursuant to the provisions of these documents, the taking of the land of the respondents so as to provide a safe approach to such airport is beyond the authority of the petitioner. We therefore, turn to the examination of the petitioner's undertaking in these documents and to the consideration of the authority of the petitioner to enter into such undertaking.

The lease expressly provides that the obligations therein undertaken are the joint obligations of the county, the city, and the Airport Authority. Thus, in the lease the county binds itself to pay rent throughout the 25 year term of the lease. The provision that the lease may be terminated earlier by the three joint lessees does not provide the county alone with a means of escape from this obligation if its joint obligors do not concur in its desire to terminate the lease. The full credit of the county is pledged for the payment of the agreed rent.

The "grant agreement" contains an undertaking by the county and by the city to maintain and operate the airport during the continuation of the lease. There is evidence in the record that the initial operation and the expense for maintenance will be relatively modest, but the obligation is not limited to operations and maintenance presently adequate to satisfy the Federal Aviation Agency. While the amount of the undertaking is not determinative, it is appropriate to recall at this point the following observation of Higgins, J., speaking for this Court in Yokley v. Clark, 262 N.C. 218, 136 S.E.2d 564:

"Costs of operating an airport include maintenance of runways, hangars, repair facilities, observation and directional tower, communications, lights, wind and weather measuring and testing devices, in addition to personnel necessary to man them."

The "grant agreement" also provides that the county, city and airport authority will complete the construction of the airport. The amount to be contributed by the federal agency to the construction cost is limited to a specified maximum. The county's liability is not so limited.

Article VII, § 6, of the Constitution of North Carolina 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 approved by a majority of those who shall vote thereon in any election held for such purpose."

This provision of our State Constitution, like the provision of Article V, § 4, imposing a limitation upon the power of the State, counties and municipalities to contract debts without a vote of the people, does not deprive the county of any power to contract a debt. It merely declares who shall have the power of decision. The Constitution gives to the people that power by requiring their duly elected representatives to submit the question to them for their approval before the indebtedness is assumed. When the Constitution puts into, or leaves in, the hands of the people a checkrein upon the discretion of their duly elected officials, it is not a true Liberalism which would give to the constitutional provision an interpretation such as to loosen the hold of the people upon the checkrein. The Constitution proceeds upon the theory that if it is, indeed, wise to contract an indebtedness for an unnecessary county or city expense, the people of the county or city will recognize this when the facts are presented to them and will approve the assumption of the obligation and, if they do not approve it, it ought not to be undertaken at their expense even though the county or city commissioners, and the courts as well, deem it wise to do so. It is appropriate to refresh our recollection of these comments by Seawell, J., speaking for the Court in Purser v. Ledbetter, 227 N.C. 1, 40 S.E.2d 702:

"We are not inadvertent to the uses of a written Constitution and the arguments that have been addressed to the propriety of a liberal construction so that it may aid, rather than retard, the march of progress. Concededly, from its nature and purpose, a constitution is intended to be a forward-looking document, expressing the basic principles on which government is founded; and where its terms will permit, is to be credited with a certain flexibility which will adapt it to the continuous growth and progress of the State [citations omitted]. But when the Constitution provides how orderly progress may be fostered and advanced, and the process involves political rights reserved or expressly secured to the people, the courts will be careful not to encroach on that prerogative, will be inclined to find in the provision itself the liberality and flexibility which the Constitution intends. * * *

"This decision closes no gate to the people of Charlotte, or of any other municipality, if they have the will to open it. The Constitution makes them trustees of their own progress. It neither drives them or stays them, but leaves them with the responsibility for the wisdom of the venture."

It is not for the court to determine the wisdom of a decision to contract a debt for a county or a city, but it is the duty of the court to determine whether the proposed indebtedness is for a "necessary expense" within the meaning of the above provision of the Constitution. Sing v. City of Charlotte, 213 N.C. 60, 195 S.E. 271; Palmer v. Haywood County, 212 N.C. 284, 193 S.E. 668, 113 A.L.R. 1195; Starmount Co. v. Town of Hamilton Lakes, 205 N.C. 514, 171 S.E. 909; Storm v. Town of Wrightsville Beach, 189 N.C. 679, 128 S.E. 17. Pursuant to this authority and duty, this Court has determined that the construction of a public airport is not a "necessary expense" in that sense. Greensboro-High Point Airport Authority v. Johnson, supra; Sing v. City of Charlotte, supra. Thus, a county or city may not contract a debt or pledge its faith for the construction or operation of such an airport without first submitting the question to a vote of the people of such county or city.

In the present case, the "grant agreement," unlike the lease, contains by reference to the "project application" the express recognition that, since the agreement has not been approved by a vote of the people, the revenues of the county or city derived from taxation cannot be used lawfully for paying the expenses of maintaining and operating the airport. Assuming, without deciding, that this recognition of the foregoing provision of the Constitution is sufficient to limit the liability of the county and city, and the right of the Federal Aviation Agency, to non-tax funds for the payment of these expenses, the "grant agreement" is not thereby insulated against the power of the constitutional provision.

The Constitution not only forbids the levying and expenditure of a tax for a purpose other than a "necessary expense," it also forbids the contracting of any debt for such purpose without first submitting the matter to a vote of the people.

This Court has held that bonds of a city, issued for the purpose of acquiring revenue producing property and which expressly provide that only the revenues produced by such property shall be used for or subject to demand for payment of such bonds, are not a "debt" of the city within the meaning of the above quoted provision of the Constitution. Keeter v. Lake Lure, 264 N.C. 252, 141 S.E.2d 634; Britt v. City of Wilmington, 236 N.C. 446, 73 S.E.2d 289; Williamson v. City of High Point, 213 N.C. 96, 195 S.E. 90; Brockenbrough v. Board of Water Com'rs of City of Charlotte, Commissioners, 134 N.C. 1, 46 S.E. 28. These decisions do not, however, extend to the "grant agreement" in the present case. The "grant agreement," giving to the restrictive provision therein the broadest possible effect, leaves subject to a demand for the construction and for the operation and maintenance of the proposed airport every non-tax revenue of the county, including the revenues from the operation of the Alcoholic Beverage Control Stores, court costs and all other revenues paid into the county's general fund. As this Court said in Yokley v. Clark, supra, with reference to an undertaking by a county and a city to maintain and operate an airport:

"[T]he Constitution forbids contracting the debt or pledging the credit of the Town and County without a vote. The making of the pledge for future fulfillment is unauthorized. The method by which payment was intended, whether by taxation or otherwise, is immaterial, if for an unnecessary purpose. * * *

"Opportunities to spend matching funds from the Federal Government and from other sources without voter approval are attractive to many county and city governing authorities. But, if the proposed appropriation is for an unnecessary public purpose, (as in this case) the town and county officials are without authority either to use tax money or to incur a debt in furtherance of the project."

Neither the lease nor the "grant agreement" having been approved by a vote of the people of the county, the county commissioners were not authorized to enter into either of these contractual obligations on behalf of the county. Consequently, the construction, operation and maintenance of the proposed airport by the county and city are not presently authorized and the taking of the land of the respondents for a use incidental to the operation of it is not authorized. The motion of the respondents, at the close of all the evidence, to dismiss these condemnation proceedings should have been granted.

Reversed.