Greensboro-High Point Airport Authority v. Johnson

Seawell, J.

Preliminary to a discussion of the questions involved in the appeal, there are certain postulates which must be conceded:

(a) The establishment and maintenance of an airport is a public purpose within the objects of municipal expenditure. Goswick v. Durham, 211 N. C., 687, 191 S. E., 728; Turner v. Reidsville, 224 N. C., 42, 29 S. E. (2d), 211; City of Reidsville v. Slade, 224 N. C., 48, 29 S. E. (2d), 215.

(b) It is not a necessary expense, however, and debt may not be incurred or taxes levied for that purpose without a vote of the people. Sing v. Charlotte, 213 N. C., 60, 197 S. E., 151.

(c) Other conditions favorable, the municipality may appropriate for building and maintaining the facility out of funds on hand not obligated to other uses. Goswick v. Durham, supra; Adams v. Durham, 189 N. C., 232, 126 S. E., 611; Nash v. Monroe, 198 N. C., 306, 151 S. E., 634; Mewborn v. Kinston, 199 N. C., 72, 154 S. E., 76; Burleson v. Board of Aldermen, 200 N. C., 30, 156 S. E., 241.

(d) The municipal authority to construct, maintain and operate such airport may be confided to a municipal corporate authority created for that purpose by appropriate legislative action. Turner v. Reidsville, supra; City of Reidsville v. Commissioners, supra; Brockenbrough v. Commissioners, 134 N. C., 1, 17, 46 S. E., 28; Webb v. Port Commission, 205 N. C., 663, 172 S. E., 377; Wells v. Housing Authority, 213 N. C., 744, 197 S. E., 693; Cox v. City of Kinston, 217 N. C., 391, 8 S. E. (2d), 252; Mallard v. Housing Authority, 221 N. C., 334, 20 S. E. (2d), 281; Benjamin v. Housing Authority, 198 S. C., 79, 15 S. E. (2d), 737.

*8(e) Tbe county and cities concerned may lawfully join in sucb an enterprise if eacb of them is benefited by it. G. S., 63-4.

It is witbin the stipulated facts tbat the several appropriations made to the plaintiff are out of funds now in their bands, in eacb case, not derived from ad valorem, taxes, but mainly from the sale of property, and it is not disputed tbat the funds are free from other specified purpose or legal commitment. There is nothing in the record itself to indicate otherwise, and we are bound by the stipulation on which the court below acted. In this situation no question of credit or taxation in violation of Article VII, section 7, is involved, and the prohibition constituting the ratio decidendi in Sing v. Charlotte, supra, does not apply.

Tbe main objections which have been urged are tbat tbe several acts of tbe Legislature mentioned in tbe statement have created in tbe plaintiff a municipal corporation, to all intents and purposes independent and distinct from tbe county or municipalities it is intended to serve, and have so insulated it as to deprive tbe municipalities of tbe legal right to contribute to it under the guise of appropriating money for a public purpose; tbat tbe statute fails to give to tbe municipalities an adequate control of tbe Airport Authority; and tbat there is no express language in tbe Act creating tbe Authority an agent of tbe cities of Greensboro and High Point.

These objections are similar in aspect, and tbe answer to eacb of them lies in tbe broad scope of legislative discretion in statutes dealing with towns and cities, and in tbe actual recognition given tbe plaintiff Airport Authority as an agency of these municipalities and tbe authority given to Guilford County, Greensboro and High Point to deal with it in tbe several pertinent statutes made a part of tbe agreed facts. Chapter 98, Public-Local Laws of 1941, as amended by chapter 601, Session Laws of 1943, secs. 1 and 2; chapter 206, Session Laws of 1945.

Our Constitution does not operate as a grant, but as a limitation on tbe legislative power; and all powers not withdrawn through its restrictions are reserved to tbe people to be exercised by tbeir representatives in tbe Legislature. Yarborough v. N. C. Park Commission, 196 N. C., 284, 145 S. E., 563. Since tbe prohibition of Article VII, sec. 7, of the Constitution is concededly not applicable to tbe present case, and in tbe absence of other constitutional restrictions, tbe subjects dealt with in tbe statutes under review fall witbin these reserved powers. We have no power to review a statute with respect to its political propriety as long as it is witbin tbe legislative discretion and has a reasonable relation to tbe end sought to be accomplished.

“Public Purpose” as we conceive tbe term to imply, when used in connection with tbe expenditure of municipal funds from tbe public *9treasury, refers to such public purpose witbin tbe frame of governmental and proprietary power given to tbe particular municipality, to be exercised for tbe benefit, welfare and protection of its inhabitants and others coming witbin tbe municipal care. It involves reasonable connection with tbe convenience and necessity of tbe particular municipality whose aid is extended in its promotion.

If tbe appropriations made by tbe county and municipalities were indeed made, as a mere gift, to another political subdivision — another town or city of an independent governmental capacity, incapable of performing tbe public service which has become tbe felt need of tbe 6on-tributing municipality, tbe authority for such a donation might be questioned. But that situation is not before us. Tbe plaintiff Airport Authority is neither a private corporation nor a political territorial subdivision. It is a gmsi-munieipal corporation of a type known since McCulloch v. Maryland, 4 Wheat., 316, and commonly used in this and other states to perform ancillary functions in government more easily and perfectly by devoting to them, because of their character, special personnel, skill and care. Tbe legality of tbe appropriations to its support as involving a public purpose does not depend on tbe strict propriety of tbe terms of tbe creating act as a piece of ideal legislation, as much as it does upon tbe nearness or remoteness of tbe benefits enjoyed by tbe municipality through its operation with respect to tbe public service sought to be promoted. If tbe adjuvant corporation is invested with tbe power and is given tbe capacity to meet tbe demand, tbe legal requirements justifying aid from tbe public funds have been met. The fact that other and even greater powers have been given to tbe corporation than those absolutely necessary to tbe performance of tbe particular function is, as we have said, a matter witbin tbe legislative discretion. Furthermore, tbe reciprocal and functional relation between tbe Greensboro-High Point Airport Authority and tbe cities whose name it bears is outstanding. Proximity to these large communities, which are in key positions with respect to trade and transportation over a wide area, is as essential to tbe existence of tbe airport as tbe latter is to tbe progress and expansion of tbe cities themselves and tbe convenience of their inhabitants and those who communicate or deal with them.

In considering questions concerning tbe powers conferred on tbe quasi-municipal corporation and tbe control over it exercised by tbe municipality with which it is connected, it must be remembered that counties, cities and towns derive practically all their powers from tbe Legislature, through appropriate statutory law, rather than constitutional grants; and tbe Legislature, in implementing their functions or in creating a separate corporate agency to serve a particular governmental purpose, is not bound by tbe limitations of tbe general statute under which the *10municipalities are formed or the special charters and laws delimiting their authority. It may give to these specially created agencies such powers and call upon them to perform such functions as the Legislature may deem best. Brockenbrough v. Commissioners, supra.

If we give full faith and credit to this power of the Legislature over municipal government, it is clear that we must think in terms of agencies rather than of agents when we speak of ancillary corporations which have been given charge of particular municipal public functions. The powers given to such corporations are direct and legislative, and not conferred by municipal resolution unless the statute should so direct. They are, in fact, agents of the law. In so far as constitutional restrictions are concerned, the General Assembly may distribute the functions of a municipality as it may deem best, the only limitation being its own sound judgment in creating a unified and efficient government. By the exercise of the same sound judgment and legislative discretion, it may, as it has attempted here to do, create a more or less autonomous agency, giving to the municipality only such control as it may consider advisable where the particular functions to be performed involve great detail and complexity, and demand close attention and skilled personnel. Perhaps in no other way could continuity and efficiency in the service be secured against political changes and petty directives.

In the type of corporation we have here control is ordinarily given, as it is here, by a representative directorate chosen by the governing bodies concerned, with such other provisions in the Act as will insure to the municipality the integrity of the operations and their continued employment in aid of the public purpose being promoted. Webb v. Port Commission, supra; Wells v. Housing Authority, supra.

The public statute, G. S., 63-4, permitting the three municipalities concerned to act jointly is not repealed or modified, or its authority in any way affected by the supplementary acts under which the purpose and policy of the public statute are Carried out in the creation of a single Airport Authority to serve all three municipalities — obviously the only way in which it could be done.

The record itself constitutes a refutation of the theory that the agency thus created is an independent corporation, incapable of performing the public service required of it with respect to Greensboro and High Point, or that it is not committed by the pertinent statutes to supply the public need or convenience thus conceded to be a public purpose, and to the accomplishment of which the municipalities are permitted to spend public money. The airport itself is conveniently located between these populous cities, and they are the immediate beneficiaries of its operation, in so far as the convenience of their citizens is concerned, with respect to mail, freight and passenger service, in all of which the record shows an amaz*11ing amount of “on” and “off” traffic flowing to and from these cities, and only remotely to others. In connection with the performance of these services Greensboro and High Point are given, with Guilford County, joint control of the directorate by proportional appointment of its members. In this situation the contention that the Airport Authority is not committed by law to this service and is not an agency of these two cities, and that their contributions are mere gifts to an independent corporation not charged with carrying out any public purpose or any municipal function in which they are directly interested, would hardly be accepted as sound.

In Briggs v. Raleigh, 195 N. C., 223, the only possible community or municipal benefit to the City of Raleigh discernible in the transaction whereby $75,000 to $100,000 was donated to the fair grounds enterprise, and approved by the Court, other than the satisfaction which comes from a benevolent action, was the fact that it increased the city’s trade or put its inhabitants nearer the educational enterprise.

The appropriation which a municipality may make to an agency of this sort on the ground that it is a public purpose is not a loan and is not intended to be a lien on its assets. Webb v. Port Commission, supra; Wells v. Housing Authority, supra; Mallard v. Housing Authority, supra; Briggs v. Raleigh, supra, and cases cited infra. Disposition of its property upon liquidation, which is not expected to occur, is a legislative care when the necessity arises.

It is pointed out that the Airport Act expressly declares the Authority to be an agent of Guilford County, but makes no such declaration as to Greensboro and High Point. The question of agency, however, must be determined from the entire Act and from the actual relation of the Airport Authority to the municipal functions of these two cities therein established, and the authority given the cities to deal with it, rather than from any declaration in the Act, especially one which is obviously not intended to be exclusive. Perusal of the Act leaves no doubt that the Legislature intended that the Airport Authority should perform for Greensboro and High Point all things necessary for the construction, maintenance and management of airport facilities, which they each might have done independently, but are by public statute (G. S., 63-4) permitted to do jointly. The Act, as we have seen, gives these two cities participation in the selection of members of the commission, or directors, and their replacement and succession — the right to be exercised by each city independently of any other authority, and makes frequent reference to the duties which the Airport Authority is to perform for these cities. In section 5 — and this should be decisive of the point raised — the Act, as amended, gives to Greensboro and High Point full authority to deal with the plaintiff Airport Authority in language which cannot be con*12strued otherwise than an acceptance and recognition of the challenged agency; indeed, more than that, it does in intent and in effect establish that relationship by direct authority to these municipalities to give to the agency material and substantial support. See section 5, supra.

In this connection the whole legislation on the subject must be considered in pari materia, and the provisions of chapter 206, Session Laws of 1945, cannot be ignored. This chapter gives complete and express recognition of the plaintiff Authority as the agency of Greensboro and High Point, as well as of Guilford County; and the authority is given each municipality to deal with it, and upon a plebiscite to lend credit and to issue bonds and raise money for its support. The statutes creating the agency (chapter 98, Public-Local Laws of 1941, and chapter 601, Session Laws of 1943) are cited in chapter 206, supra, and their authority is there expressly preserved. The significance of this later statute lies in the fact that it does not in itself create the agency, but recognizes its creation under the former statutes and the purpose of its creation, and authorizes these municipalities to deal with it and give it aid. Since these cities are given authority to raise money by taxation and expend it in aid of plaintiff agency, the authority is adequate to appropriate for that purpose from surplus and uncommitted funds already on hand. Adams v. Durham, supra. It is true they are not proceeding under this statute to raise the funds, but that does not diminish the authority given to deal with the agency when they have the funds which may be applied.

Supplementing what has been said about the complete control of counties, cities and towns by the Legislature from which their powers are derived, we might refer to some of the “set-ups” which have met our approval and compare them with similar features of the act under review.

The Morehead Port Commission was created by chapter 75, Private Laws of 1933, and the act of creation was reviewed in Webb v. Port Commission, supra. Perusal of the Act — which is largely recapitulated in the case cited, will show that there is no control whatever of the Port Commission given to the governing body of Morehead City except that given through the appointment of members of the Commission; and yet the Court upheld the provision permitting financial aid to be given by Morehead City on the principle of its interest in the public purpose being served.

By chapter 271, Private Laws of 1899, a corporation known as “The Board of Water Commissioners of the City of Charlotte” was created to carry on that function for the city. Apart from the appointment of the members of this board by the Aldermen of Charlotte, there is not a vestige of control given to the city, unless the privilege of locating hydrants and paying for their installation and upkeep could be so con*13sidered. Not only did it take away all tbe powers of tbe City Board of Aldermen in tbe premises and give them to tbe newly created corporation, but tbe statute provides tbat tbe acts of tbe Water Commissioners shall be deemed tbe acts of tbe municipality. Tbe law was amended by chapter 196, Private Laws of 1903, and came under review here in Brockenbrough v. Charlotte, supra. Commenting on this law in tbe cited ease, Justice Connor, speaking for tbe Court, says:

“It is clear tbat tbe Legislature may, in aid of municipal government, or for the purpose of discharging any municipal functions, or for any proper purpose, create municipal boards and confer upon them such powers and duties as in its judgment may seem best.” (Italics ours.)

In other instances tbe Legislature has gone further and has completely committed municipal functions to a legislative board or corporation without any control of tbe governing body of tbe county, and yet tbe county is required to furnish tbe finances. Huneycutt v. Comrs., 182 N. C., 319, 109 S. E., 4, dealt with a situation of tbat kind and found abundant support for its approval in tbe cases cited on p. 321.

Tbe municipalities represented here have attempted to appropriate funds to a public purpose served by a statutory agency in whose appointment they participate and whose benefits are laid upon their threshold. Tbe technical objections to tbe form of tbe statute do not outweigh tbe presence of tbat reality which tbe law and tbe decided cases have always sought as tbe determining factor — tbe relation of tbe municipality to tbe public purpose to which it lends its support — the practical satisfaction of tbe municipal need felt by its inhabitants. If tbe statute creating tbe Airport Authority has defects which merit legislative or judicial attention, they are not before us on this appeal.

Unquestionably tbe immediate future of civil aviation will bring to us results undreamed of; transportation of mail, passengers and freight will reach proportions hitherto thought impossible. Already we have in this method of travel and transportation a rival of all other means now employed; and an opportunity which these cities; amongst our largest and most prosperous, can no more afford to lose than we can afford to deny to them except upon cogent reasons.

In affirming Hesse v. Rath, 224 App. Div., 344, 230 N. Y. Supp., 676, 249 N. Y., 436, 164 N. E., 342, tbe Court, speaking through Cardozo, Ch. J., says:

“A city acts for city purposes when it builds a dock or a bridge or a subway. ... Its purpose is not different when it builds an airport. . . . Aviation-is to-day an established method of transportation. Tbe future, even tbe near future, will make it still more general. Tbe city tbat is without tbe foresight to build tbe ports for tbe new traffic may soon be left behind in tbe race of competition. Chaleedon was called *14the city of the blind, because its.founders rejected the nobler site of Byzantium lying at their feet. The need for vision of the future in the governance of cities has not lessened with the years. The dweller within the gates, even more than' the stranger from afar, will pay the price of blindness.”

We have been cited no provision of the Constitution, and we find nothing in the statutes, which would justify us in raising a judicial bar to the appropriations which the municipalities have sought to make for the accomplishment of this widely recognized public purpose, or justify reversal of the judgment entered in the Superior Court. The defendants are acting in a ministerial capacity and are amenable to the writs demanded.

The judgment is

Affirmed.