dissenting: The two primary questions of law are the following :
1. Is the “board to be known as the Port Commission of Morehead City” a municipal corporation within the contemplation of the Constitution and laws of this State?
2. Is chapter 75, Private Laws of 1933, constitutional?
There are certain secondary questions of law presented, but the solution of such questions depends upon the conclusion reached upon the primary questions propounded. The indivisible characteristics of a municipal corporation and the general scope and meaning of the term was described by Hoke, J., in Southern Assembly v. Palmer, 166 N. C., 75, 82 S. E., 18. The distinguished jurist wrote: “The term, as used in our Constitution, from the context and its primary significance, evidently refers to municipal corporations proper, as cities and towns, etc., and to those public gwasi-corporations, such as counties, townships, etc., in which the inhabitants of designated portions of the State’s territory are incorporated for the purpose of exercising certain governmental powers for the public benefit. This may be for the benefit of the general public as for the State at large, and also for the public benefit of the particular locality, but it is as a governmental agency and when established as exclusively such, and for that reason, that this exemption is allowed, and it was never intended to embrace a corporation like the present plaintiff, which, however high its aim and purpose, is, in its form and controlling features, a business enterprise, and on which *688municipal powers have been incidentally conferred in promotion of the primary purpose.
“This concept of a municipal corporation as embodying the elements, (a) designated territory, (b) the inhabitants within the same, and (c) the existence of governmental powers conferred and to be exercised for the public benefit, both general and local, is recognized in many decisions here and' elsewhere and in authoritative textbooks treating of the subject.” Copious quotations from the authorities are contained in the opinion. It was suggested in Commissioners v. Webb, 160 N. C., 594, 76 S. E., 522, that the power to levy taxes for the purpose of general revenue was one of the tests of the existence of a municipal corporation.
A study of decided cases discloses that, while the term “municipal corporation” originally applied to cities and towns, the significance of the term has been expanded and broadened to keep pace with the necessities and development of modern society. Hence public corporations, created by the State as governmental agencies or for the purpose of exercising specified governmental functions in prescribed portions of the State’s territory, are to be regarded as municipal corporations. Thus in Smith v. School Trustees, 141 N. C., 143, 53 S. E., 524, it was written : “But in using the term 'municipal corporations’ in this connection, these writers do not use the word in its restricted sense of municipal corporations proper, confining it to cities and towns, but in a more enlarged and generally received acceptation, which includes municipal corporations technically so termed, and also public corporations created by the State for the purpose of exercising defined and limited governmental functions in certain designated portions of the State’s territory,” etc. It is apparent from these definitions, which are supported by practically unanimous authority, that a municipal corporation must either be a city, town, school district or other subdivision of the government, or, at least, a public corporation endowed with governmental powers and acting as a governmental agency.
Manifestly, the Port Commission is not a city, town or governmental subdivision. Hence the question arises: “Is the Port Commission as set up in chapter 15, Private Laws of 1933, a governmental agency?” It is obvious that an agent must have a principal. For whom is the Port Commission an agent? Only two answers can be given to this question. It must either be a governmental agency of Morehead City or of the State of North Carolina. Is it then a governmental agency of Morehead City? Morehead City has no control over it. While the city appoints the commissioners, it cannot remove them or call them to account. It is true that the Port Commission must submit reports to the governing authorities of the city, but nothing can be done about *689it after they are submitted. The Port Commission purchases or condemns property according to its own notion, and takes and holds title thereto in its own name, free from the control or supervision of the city. The purchase price of such property is paid from funds owned and controlled by the Port Commission, and if there is a surplus from the operation of the projects, such surplus belongs to the Port Commission, and it can use and dispose of the same according to its own discretion and judgment. Bonds'can be issued, not in behalf of Morehead City, but in the name and behalf of the Port Commission, and no liability accrues to the city. If it be conceived that the Port Commission is an agency of Morehead City, then it is obvious that the agent is superior to the principal. Such a result, at least, would constitute a legal freak.
Section 3 of the act authorizes the Port Commission “to develop the port facilities of Morehead City by acquiring, . . . maintaining and operating a eity terminal or terminals for said city upon the-water front of said city,” etc. It is contended that the words “for said city” imply that the Port Commission is performing a municipal or governmental function of Morehead City. Manifestly, if Morehead City had a terminal, it could lease the same to a private enterprise for purposes of operation, and consequently such operation would be done “for said city.” Governmental powers are not to he delegated or conferred upon a corporation by bare implication or by building sovereignty upon a phrase of this sort.
If it had been the intention of the General Assembly of North Carolina to create the Port Commission as an integral and indivisible part of the eity government of Morehead City, such intention should have been declared in apt and appropriate words.
It would seem, therefore, that the Port Commission was not fashioned by the statute as a part of the governmental function of Morehead City • or endowed with any of the governmental power of said eity, and hence we come to consider the question as to whether the Port Commission is a governmental agency of the State of North Carolina. At the outset it is to be observed that the State has no control over the Port Commission, either in the selection of its personnel or in the discharge of its functions. The property purchased by the commission will not belong to the State or be acquired in the name of the State. The bonds will not be issued in the name of the State or create any State obligation. It can perform no act binding upon the State. The funds derived from the operation do not belong to the State, nor are they subject to State supervision or control. The salaries to be paid, are not subject to State regulation or inquest. If there is a profit and such is not absorbed in paying salaries, stipends and emoluments to agents and employees, such profit can be thrown into the Atlantic Ocean so far as the State is concerned.
*690If the Port Commission is a State agency, manifestly it can operate anywhere within the boimdaries of the State, because the act prescribes no designated territory for its activities, and creates for it no inhabitants. Hence the Port Commission could use its funds to build terminals and docks in Southport or condemn land for warehouses in Asheville or Micaville.
The theory that the Port Commission is an arm of the State is based upon the idea that the encouragement of water transportation by building terminals and docks at Morehead City will reduce freight rates and aid and facilitate the commercial prosperity of the State. Of course, such a consummation is devoutly to be wished, but the same laudable proposition would be involved in the construction of a railroad or steamship line, and it could not be seriously contended that such enterprises, although exercising governmental power, would constitute municipal corporations within the purview of the Constitution of this State. The fundamental policy of the State inheres in its Constitution, and legislative declarations of policy are persuasive and controlling so long as they are not subject to the superior mandate of the Constitution.
It has been held that Port Commissions, created in various parts of the United States, are municipal corporations, but an examination of the acts creating such Port Commission leaves no doubt not only as to the actual endowment of the corporation with governmental powers but also its actual creation as a governmental agency. See Rosencranz v. City of Evansville, 143 N. E., 593; Paine v. Port of Seattle, 126 Pac., 628; Cook v. Port of Portland, 27 Pac., 263.
A consideration of all the principles of law involved, leads me to the conclusion that the Port Commission, as set up in chapter 75, Private Laws of 1933, is not a municipal corporation.
If the Port Commission is not a municipal corporation and within the boundaries of Article YII of the Constitution of North Carolina, it must be classified under Article VIII, section 1, of said Constitution for the reason that said article undertakes in express words to define and interpret “corporations other than municipal.” Section 1 declares: “No corporation shall be created, nor shall its charter be extended, altered or amended by special act,” etc. Chapter 75, Public Laws of 1933, is a special act. It is contended, however, that this Court has interpreted Article VIII, section 1, to apply exclusively to private enterprises. This contention is based upon the following decisions: Mills v. Commissioners, 175 N. C., 215, 95 S. E., 481; Dickson v. Brewer, 180 N. C., 403, 104 S. E., 887, and Watts v. Turnpike Co., 181 N. C., 129, 106 S. E., 497. It is to be noted that the Mills case and the Diclcson case involved the exercise of power by a school district and two counties. *691School districts and counties have always been held to be municipal corporations. The Watts case involved a business enterprise and in discussing the rights of parties with reference to Article VIII, section 1, of the Constitution, the Court said: “The inhibitory features and effect of these amendments do not apply or extend to municipal or gttasi-public corporations, such as counties, cities, towns and other recognized governmental agencies,” etc. In the Dickson case, supra, referring to Article VIII, section 1, of the Constitution, the Court said that this clause of the Constitution “would seem clearly to have reference to private or business corporations and does not refer to public or quasi-public corporations acting as governmental agencies.” In other words, all corporations within the purview of Article VII of the Constitution, and all corporations acting as governmental agencies are outside the inhibition of Article VIII, section 1. Conversely all corporations, public or private, which are not created as governmental agencies, fall within the inhibition of Article VIII, section 1, of the Constitution.
The opinion of the Court does not interpret the Port Commission as a municipal corporation, within Article VII of the Constitution, and moreover, declares that it is not a corporation other than municipal within Article VIII. Consequently it is neither fish nor fowl. It is apparently some sort of a new creature defying constitutional classification that can wander at will in and about the State, incurring no liability, and subject to no control, regulation or supervision. It owns neither a grain of sand nor drop of water as a basis of credit, and its only asset is the promise of a loan of money.
Undoubtedly, the Legislature had the power to fashion the Port Commission as a piece of governmental machinery and supply it with all the necessary running parts essential to the discharge of contemplated function. It had the power to create a State agency, subject to the supervision and control of the sovereign as in the Park case, 196 N. C., 284, or as a municipal agency as in the Brockenbrough case, 134 N. C., 1, without invading or offending Article VII or Article VIII of the Constitution. But it chose to do neither. Instead, it set up a skeleton without a drop of governmental blood or a breath of governmental life, and the Court is called upon to work a miracle and clothe it with nerve and sinew and make it a living soul.
The sole question of law in this case is the construction of a statute as written. The Court is not charged with the duty of giving a transfusion of constitutional blood. The language is plain. Judicial legislation in the guise of interpretation of a statute is not within the constitutional function of the Court.
*692The underlying reasons for the creation of the Port Commission and the anticipated result from such creation are wide reaching, but the problem for us to determine is whether or not the act as written actually constitutes the Port Commission as a governmental agency. My conclusion is that it does not and that the act ought to- fail.
I am authorized to say that Stacy, C. J., concurs in this dissent.