Palmer v. County of Haywood

WinbobNE, J.

The question: Is the building of annex to county hospital a necessary expense within the meaning of Art. VII, sec. 7, of the Constitution of North Carolina? The answer is “No.”

Art. VII, sec. 7, reads: “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 by a vote of the majority of the qualified voters therein.”

What are necessary expenses is a question for judicial determination. The judicial decisions in this State uniformly so hold. “The courts determine what class of expenditures made or to be made by a municipal corporation come under the definition of ‘necessary expense.’ The governing authorities of the municipal corporations are vested with the power to determine when they are needed. . . . That is to say, the

courts determine whether a given project is a necessary expense of a municipality, but the governing authorities of the municipality determine in their discretion whether such given project is necessary or needed in the designated locality.” Starmount Co. v. Hamilton Lakes, 205 N. C., 514, 171 S. E., 909; Black v. Comrs., 129 N. C., 121, 39 S. E., 818; Fawcett v. Mt. Airy, 134 N. C., 125, 45 S. E., 1029; Storm v. Wrightsville Beach, 189 N. C., 681, 128 S. E., 17; Henderson v. Wilmington, 191 N. C., 269, 132 S. E., 25.

In defining “necessary expense” it is said in Henderson v. Wilmington, supra, “We derive practically no aid from the cases decided in other states. . . . We must rely upon our own decisions.” Then, after reviewing numerous cases dealing with the subject of “necessary expense,” page 278, Adams, J., said: “The cases declaring certain expenses to be necessary refer to some phase of municipal government. This Court, so far as we are advised, has given no decision to the contrary.” Then, on page 279, continues: “The decisions heretofore rendered by the Court make the test of a ‘necessary expense’ the purpose for which the expense is to be incurred. If the purpose is the maintenance of the public peace or the administration of justice; if it partakes of a governmental nature or purports to be an exercise by the city of a portion of the State’s delegated sovereignty; if, in brief, it involves a necessary governmental expense.”

This Court has repeatedly held that the building, maintenance, and operation of public hospitals is not a “necessary expense.”

In Armstrong v. Comrs., 185 N. C., 405,117 S. E., 388, speaking to the question of erecting a tubercular hospital for Gaston County, Mr. Jus*287tice Soke said: “Appellants insist further that a hospital of this character should be considered a necessary expense, and so comes directly within the purview and effect of the cases cited, but we cannot so hold.”

In Nash v. Monroe, 198 N. C., 306, 151 S. E., 634, a “residence lot and dwellings and buildings thereon” had been given to the city of Monroe for the “purpose of providing a hospital for the sick and diseased and others requiring surgical or medical attention.” The city had contracted the operation of the hospital to a private physician. Then, in order to obtain certain benefits from the Duke Foundation, it was proposed that the management of the hospital should be changed, and that the city and county should buy the physician’s equipment for operating the hospital. The city borrowed $5,000 and gave its note for that purpose in anticipation of collection of taxes. Speaking to the question of validity of the note and the levy of the tax, Mr. Justice Brogden, for the Court, said: “The maintenance of a municipal hospital is not a necessary governmental expense. . . . Moreover, ‘for purposes other than necessary expenses a tax cannot be levied within or in excess of the constitutional limitation except by a vote of the people under special legislative authority.’ The city of Monroe . . . undertook to pledge the faith and credit of the city in order to obtain the money. This cannot be done except in accordance with methods provided by law.”

In Burleson v. Spruce Pine, 200 N. C., 30, 156 S. E., 241, plaintiff sought to enjoin a bond issue under the Municipal Finance Act for the purpose of “constructing, maintaining, and operating a public hospital” in the town of Spruce Pine, after the question had been submitted to and approved by the qualified voters of the town, for the reason, among others, that said bonds are not for necessary expenses within the meaning of Art. VII, sec. 7, of the Constitution. After citing the opinion in the Armstrong case, supra, Mr. Justice Connor stated: “In the instant case, therefore, the bonds will not be valid, unless their issuance was authorized by the General Assembly and approved by a majority of the qualified voters of the town of Spruce Pine. Henderson v. City of Wilmington, 191 N. C., 269, 132 S. E., 25, and cases there cited. In that case, speaking of Art. VII, sec. 7, Constitution of North Carolina, it is said: ‘In analyzing and construing this section in its relation to the sixth section of Art. V, the court has held: (1) That for necessary expenses the municipal authorities may levy a tax up to the constitutional limitation without a vote of the people and without legislative permission; (2) that for necessary expenses they may exceed the constitutional limitation by legislative authority, without a vote of the people, and (3) that for purposes other than necessary expenses a tax cannot be levied either within or in excess of the constitutional limitation except by a vote of the people under special legislative authority.’ This is a clear and *288accurate statement of tbe principles of constitutional law applicable to municipal taxation in tbis State.

“In tbe instant case, tbe issuance of bonds and tbe levy and collection of tbe tax Avas approved by tbe people of tbe tOAvn of Spruce Pine— that is, by a majority of tbe qualified voters of said town. Tbe bonds are, therefore, valid, if their issuance was authorized by statute duly enacted by tbe General Assembly.”

It is significant to note that: (1) Tbe resolution in question expresses as tbe purpose of tbe bond issue: “Constructing an addition to tbe county hospital, Avhich shall be used principally for tbe care of indigent sick and afflicted poor of tbe county,” and (2) in tbe contention that tbe present county hospital is over-crowded, only about 70 per cent of the use of tbe hospital in 1936 is classified as for indigent patients. “Taxes shall be levied only for public purposes.” Art. V, sec. 3, North Carolina Constitution. Tbis is a fundamental principle in tbe law of taxation.

In Ketchie v. Hedrick, 186 N. C., 392, 119 S. E., 767, the Court states: “Tbe limitation of tbe Constitution is very wise. ... It restricts taxation to necessary governmental purposes, except when a purpose outside tbis sphere has secured a majority of the registered voters authorizing taxation to be levied for such purpose.”

Defendants rely upon tbe cases of Martin v. Comrs. of Wake County, 208 N. C., 354, 180 S. E., 777, and Martin v. Raleigh, 208 N. C., 369, 180 S. E., 786. These cases relate to tbe construction of a special act of tbe Legislature, authorizing tbe board of county commissioners in those counties to which tbe act is applicable to contract for provision for medical treatment and hospitalization of tbe sick and afflicted poor of tbe county. It is sufficient to note that tbis act does not apply to Hay-AAmod County, tbe defendant in tbe instant case. It Avas specifically exempted.

Judgment of the court below is

Reversed.