HORNER
v.
CHAMBER OF COMMERCE OF CITY OF BURLINGTON, Inc. et al.
No. 737.
Supreme Court of North Carolina.
March 1, 1950.*791 William R. Dalton, Jr., Burlington, for plaintiff, appellant.
Cooper, Sanders & Holt, and W. D. Madry, Burlington, for defendants, appellees.
ERVIN, Justice.
The appeal presents the single question as to whether the complaint discloses any cause of action in favor of the plaintiff. Hence, it calls for the application of the established rule that "when the objection is made that the complaint fails to state a cause of action, a liberal construction will be placed upon the pleading, with a view to sustaining it; and if in any portion of the pleading, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will be sustained, however inartificially it may have been drawn, or however uncertain, defective, or redundant may be its statements, and the complaint is not demurrable unless it is wholly insufficient." McIntosh: North Carolina Practice and Procedure in Civil Cases, section 443.
A municipality is a creature of the State. It has "the powers prescribed by statute, and those necessarily implied by law, and no other." G. S. § 160-1. In consequence, a city or town cannot make a rightful outlay of its tax revenues unless the outlay is explicitly or implicitly authorized by a statute conforming to the Constitution. Moreover, the constitutional power to make appropriations of money out of the treasury of a municipality must be measured by the same criterions as those by which it is raised by taxation and put into such treasury. Green v. Kitchin, 229 N.C. 450, 50 S.E.2d 545.
It is clear that the plaintiff undertakes to challenge the legality of the expenditure in suit on these alternative grounds: (1) That the outlay was not authorized by statute, and consequently was unlawful; and (2) that it was not for a public purpose within the meaning of Article V, Section 3, of the Constitution, and by reason thereof was unconstitutional even if there were legislative sanction for it.
The defendants insist that the complaint falls short of the plaintiff's undertaking; that it fails to state facts sufficient to constitute a cause of action; and that consequently the judgment of the trial court sustaining the demurrer and dismissing the case should be affirmed.
The defendants lay hold upon the allegation of paragraph ten of the complaint that "the tax levy, the appropriation, and the expenditures, gifts and donations, above described, are and were purported to have been made under the provisions of Chapter 158 of the General Statutes of North Carolina," and advance this argument to support their position: That this specific portion of paragraph ten of the complaint is a factual averment in which the plaintiff alleges that the tax money in suit was expended by the Chamber of Commerce under the direction and control of the governing body of Burlington for the objects mentioned in G. S. § 158-1; that these objects constitute public purposes as a matter of constitutional law under Article V, Section 3, of the Constitution; and that it thus appears on the face of the complaint that the expenditure in question was made pursuant to a statute, i. e., Chapter 158 of the General Statutes, enacted in conformity to the Constitution, and by reason thereof the complaint states no cause of action.
G.S. § 158-1 provides that the governing body of any city, whose qualified voters have approved Chapter 158 of the General Statutes in an appropriate election, may annually set apart and appropriate from the funds derived annually from the general taxes levied and collected in the city an amount not less than one-fortieth of one per cent, nor more than one-tenth of one per cent, upon the assessed value of all real and personal property taxable in the city, which funds shall be used and expended under the direction and control of the governing body of the city, under such rules and regulations or through such agencies as they shall prescribe, for the *792 purpose of aiding and encouraging the location of manufacturing enterprises, making industrial surveys and locating industrial and commercial plants in or near the city; encouraging the building of railroads thereto, and for such other purposes as will, in the discretion of the governing body of the city increase the population, taxable property, agricultural industries and business prospects of the city.
When the allegations of the complaint are analyzed in the light of the provisions of G. S. § 158-1, it becomes plain that the defendants put an erroneous construction upon a single allegation of paragraph ten of the complaint; that they insist that such erroneous construction of that single allegation nullifies the other averments of the complaint diametrically contradicting it; and that they come in that way to their conclusion that the complaint is wholly insufficient.
As has been pointed out, the defendants base their contention that the complaint is fatally defective upon the premise that the selected allegation of paragraph ten of the complaint constitutes a factual averment on the part of plaintiff that the tax money in suit was expended by the Chamber of Commerce under the direction and control of the governing body of Burlington for the purposes specified in G.S. 158-1. This premise is insupportable. This being true, the argument based on it is without validity.
The unsoundness of the position of the defendants becomes obvious when we disregard the allegations of the complaint which state legal conclusions rather than facts, and by-pass for the moment the portion of paragraph ten designated with particularity by the defendants.
The complaint does not allege that the tax money in suit was expended by the Chamber of Commerce under the direction and control of the governing body of Burlington. The averment is precisely to the contrary. Paragraph eight specifically asserts in the most explicit language that the money in question was turned over to the Chamber of Commerce by the municipality free from "any restrictions, conditions, or requirements" as to its use, and with intent on the part of the municipal officers that it should be used by the Chamber of Commerce in its "untrammeled discretion in furtherance of the ordinary * * * activities of said Chamber of Commerce."
Furthermore, the complaint does not say that the tax money was expended to accomplish the objects mentioned in G.S. § 158-1. The averment is otherwise. Paragraph nine alleges in no uncertain terms that the money was mingled with the general funds of the Chamber of Commerce "derived from numerous other sources," and was "used, pro rata, for all the * * * expenses of said Chamber of Commerce." Neither the law nor the lexicographer sustains the assumption or conclusion that the corporate activities and purposes of the Chamber of Commerce are synonymous with the objects enumerated in G.S. § 158-1.
We now return to the designated portion of paragraph ten of the complaint, and observe that it harmonizes in all respects with the other allegations of the pleading. The designated averment relates to these things: (1) "The tax levy * * * above described," i. e., the portion of the ad valorem taxes levied and collected for the ostensible purpose of covering the item in the budget estimate bearing the indefinite description "Publicity: Chamber of Commerce, $2,000.00"; (2) "The appropriation, * * * gifts, and donations, above described," i. e., the tax moneys totalling $2,000 which the municipality turned over to the Chamber of Commerce free from any "restrictions, conditions, or requirements" as to its use and with intent on the part of the officers of the municipality that it should be used by the Chamber of Commerce in its "untrammeled discretion in furtherance of the ordinary * * * activities of said Chamber of Commerce"; and (3) "the expenditure * * * above described," i. e., the tax moneys aggregating $2,000 which the Chamber of Commerce mingled with its general funds "derived from numerous other sources" and "used, pro rata, for all the * * * expenses of said Chamber of Commerce".
The selected part of paragraph ten does not allege that the officers of Burlington *793 and the Chamber of Commerce acted in the premises under Chapter 158 of the General Statutes. It merely states that they purported, i. e., professed outwardly, or pretended to do so. Skeat's Etymological Dictionary of the English Language (4th Ed.), 487; Funk and Wagnalls' New Standard Dictionary of the English Language, 2013; State v. Harris, 27 N.C. 287. When the selected part of paragraph ten is read contextually with the succeeding paragraph of the complaint, it says this and nothing more: The municipal officers and the Chamber of Commerce professed outwardly or pretended to act under Chapter 158 of the General Statutes, but their acts were "unlawful, illegal, and unauthorized," i. e., not done pursuant to that statute or any other law.
No statute undertakes to authorize Burlington to use its tax revenues for the payment of expenses incident to the ordinary corporate activities of the Chamber of Commerce. This being so, it necessarily follows that the complaint states a good cause of action to compel the restoration of funds which have been unlawfully diverted from the public treasury of the municipality. 52 Am.Jur., Taxpayers' Actions, sections 13, 35; 44 C. J., Municipal Corporations, section 4564.
Since the complaint avers that the outlay in suit was for the payment of the ordinary expenses of the Chamber of Commerce, and since such outlay is without statutory authorization, no occasion arises on the present appeal for deciding whether the ordinary activities of the Chamber of Commerce, or the objects enumerated in G.S. § 158-1 constitute public purposes in a constitutional sense. In consequence, we express no opinions as to those matters in deference to the settled rule that courts will not pass on constitutional questions until the necessity for so doing has arisen. Jarrell v. Snow, 225 N.C. 430, 35 S.E.2d 273; Turner v. Reidsville, 224 N.C. 42, 29 S.E.2d 211; State v. Lueders, 214 N.C. 558, 200 S.E. 22; State v. Smith, 211 N.C. 206, 189 S.E. 509; State v. Ellis, 210 N.C. 166, 185 S.E. 663; In re Parker, 209 N.C. 693, 184 S.E. 532; City of Goldsboro v. W. P. Rose Builders Supply Co., 200 N.C. 405, 157 S.E. 58; Virginia Carolina Chemical Co. v. Turner, 190 N.C. 471, 130 S.E. 154; State v. Edwards, 190 N.C. 322, 130 S.E. 10.
We deem it proper, however, to observe that Ketchie v. Hedrick, 186 N.C. 392, 119 S.E. 767, 31 A.L.R. 491, is not an authority for the proposition that the objects enumerated in Chapter 268 of the Private Laws of 1923 constitute public purposes under Article V, Section 3, of the Constitution. It decides this and nothing more: That expenditures for such objects are not necessary expenses of municipalities within the purview of Article VII, Section 7, of the Constitution.
Since the complaint is sufficient to call into play the doctrine that "a tax is an imposition for the supply of the public treasury and not for the supply of individuals or private corporations, however benevolent they may be," the court below ought to have overruled the demurrer, and required the defendants to answer. 51 Am.Jur., Taxation, section 6. For this reason, the judgment is
Reversed.