Hughey v. Cloninger

245 S.E.2d 543 (1978) 37 N.C. App. 107

James F. HUGHEY
v.
Polie Q. CLONINGER, George A. Jenkins, Bud Black, Gene Carson, Harley B. Gaston, Jr., Robert A. Heavner, and Charles A. Rhyne, County Commissioners of Gaston County and Gaston County.

No. 7727SC702.

Court of Appeals of North Carolina.

July 11, 1978.

Roberts & Planer, P. A. by Joseph B. Roberts, III, Gastonia, for plaintiff-appellant.

Hollowell, Stott & Hollowell by Grady B. Stott, Gastonia, for defendants-appellees.

Tharrington, Smith & Hargrove by George T. Rogister, Jr., Raleigh, for amicus curiae, North Carolina School Boards Ass'n.

Chambers, Stein, Ferguson & Becton, P. A. by James C. Fuller, Jr., Charlotte, for amicus curiae, North Carolina Ass'n of Educators.

MITCHELL, Judge.

The plaintiff appellant assigns as error the trial court's conclusion as a matter of law that Gaston County could lawfully appropriate and expend public funds by direct disbursement to and for the Dyslexia School of North Carolina, Inc. In support of this assignment, the plaintiff refers us to numerous sections of the Constitution of North Carolina which he contends prohibit such appropriations and expenditures. We need consider only one.

The Constitution of North Carolina commands that: "The power of taxation shall be exercised . . . for public purposes only . . . ." N.C.Const. art. V, § 2(1). This "public purpose" requirement acts as a limitation equally upon the power to tax and the power to appropriate and expend public funds. In Mitchell v. Financing Authority, 273 N.C. 137, 159 S.E.2d 745 (1968), the Supreme Court of North Carolina expressly declared that:

The power to appropriate money from the public treasury is no greater than the power to levy the tax which put the money in the treasury. Both powers are subject to the constitutional proscription that tax revenues may not be used for private individuals or corporations, no matter how benevolent....

.....

A slide-rule definition to determine public purpose for all time cannot be formulated; the concept expands with the population, economy, scientific knowledge, and changing conditions. As people are brought closer together in congested areas, the public welfare requires governmental operation of facilities which were once considered exclusively private enterprises. . . and necessitates the expenditure of tax funds for purposes which, in an earlier day, were not classified as public. . . . Often public and private interests are so co-mingled that it is difficult to determine which predominates. It is clear, however, that for a use to be public its benefits must be in common and not for particular persons, interests, or estates; the ultimate net gain or advantage must be the public's as contradistinguished from that of an individual or private entity. . . . (citations omitted).

273 N.C. 143-144, 159 S.E.2d 749-750.

Clearly, both appropriations and expenditures of public funds for the education of the citizens of North Carolina are for a public purpose. Education Assistance Authority v. Bank, 276 N.C. 576, 174 S.E.2d 551 (1970). In determining whether the particular appropriations and expenditures by direct disbursement to the school in the case before us are for a "public purpose" in the constitutional sense, however, we must look to the means to be employed as well as the end to be attained. Turner v. Reidsville, 224 N.C. 42, 44, 29 S.E.2d 211, 213 (1944). Here, the appropriations and expenditures by direct disbursements to and for a private nonprofit corporation, although clearly an attempt to attain a benevolent and commendable end, constitute a primary benefit to the private entity itself. Of the seventy-three children enrolled in the school, those children from Gaston County who receive a tuition reduction are directly benefited by the appropriations and expenditures. Only a portion of the funds, however, are used for tuition reduction. Assuming the entire student body of the school to be comprised of students from Gaston County, which the record reveals it is not, the $350 reduction in tuition per student per semester would only amount to a total of $25,550 of the $48,068 appropriated for the spring semester of 1977. A minimum of $22,518, on the other hand, would go directly to benefit the private entity.

Even where, as here, it is clear that the promotion of the school and its program will be of advantage to the community and the public welfare, it is the character of the school as the object of the appropriations and expenditures which must determine their validity. For this reason, the Supreme Court of North Carolina has held that direct assistance to private entities such as this school, distinguishable from direct disbursements to students for educational purposes, may not be the means used to effect a public purpose. See Stanley v. Department of Conservation and Development, 284 N.C. 15, 34, 199 S.E.2d 641, 653-654 (1973), and Foster v. Medical Care Commission, 283 N.C. 110, 195 S.E.2d 517 (1973).

In Foster the Supreme Court of North Carolina held that tax funds could not be employed to finance a nonprofit hospital even though its primary purpose was the same public purpose served by publicly owned hospitals. Here the school serves the clearly benevolent and commendable purpose of providing educational assistance to dyslexic children. The public schools, which clearly could be used as a constitutionally permissible means for achieving this legitimate end, apparently lack sufficient teachers to provide for these children adequately. This lack does not, however, make the present case distinguishable from Foster. There, the private nonprofit hospital also would have provided a valuable public service not otherwise adequately available. We are, therefore, of the opinion that Foster is the controlling authority to be applied in the present case and requires us to find that the appropriations for and expenditures by disbursement to the school do not serve a "public purpose" in the constitutional sense, as the private school may not be used as a legitimate means for achieving this end. Even though the school as a private nonprofit corporation is engaged in a clearly benevolent activity, which would not be constitutionally prohibited if provided through the public schools of Gaston County, it remains a private entity. As such it may not receive appropriations and expenditures from public funds as a constitutionally permissible means of achieving the desirable and commendable end of assisting in the education of the dyslexic children of Gaston County. Stanley v. Department of Conservation and Development, 284 N.C. 15, 34, 199 S.E.2d 641, 653-654 (1973); Turner v. Reidsville, 224 N.C. 42, 44, 29 S.E.2d 211, 213 (1944); see also Wells v. Housing Authority, 213 N.C. 744, 197 S.E. 693 (1938). The foregoing authorities require our holding that the trial court erred in its conclusion as a matter of law that the funds appropriated by Gaston County to the Dyslexia School of North Carolina, Inc., were for a "public purpose" in the constitutional sense.

Having determined that the appropriations and expenditures of the funds in question were not constitutionally permissible, we must also hold that the trial court erred in concluding that the expenditures of the funds here involved by Gaston County were in accordance with The Local Government Budget and Fiscal Control Act, G.S. 159-7 through G.S. 159-40. That act itself proscribes expenditures of revenues for purposes otherwise prohibited by law. G.S. 159-13(b)(4). As the expenditures of revenues by direct disbursements to and for the school were not constitutionally permissible, they were prohibited by the terms of the act. Therefore, the act does not tend to be brought into conflict with our holding in regard to the constitutionality of the appropriations and expenditures in this case.

The defendants have referred us to numerous other sections of the Constitution of North Carolina and the General Statutes as authority for the appropriations and expenditures for the school by Gaston County. Our holding that the appropriations and expenditures were not constitutionally permissible makes detailed analysis of these contentions unnecessary. Nevertheless, we have reviewed each and find, for various reasons, that none of the sections of the Constitution of North Carolina or the General Statutes relied upon by the defendants authorized appropriations or expenditures such as those presented on these facts.

The judgment of the trial court is reversed, and this case is remanded to the Superior Court of Gaston County for entry of judgment granting a permanent injunction in accordance with the plaintiff's prayer for relief.

Reversed and remanded.

PARKER and HEDRICK, JJ., concur.