concurring. It is apparent from the briefs and oral argument that the parties hope for an affirmance of the judgment, thereby securing a declaration from this Court that the deed tendered defendant will vest good title subj ect to covenants restricting the use of the property to industrial purposes.
Neither the pleadings nor the facts stipulated suffice to give an answer to the crucial question seemingly presented by the appeal. That question is: May a municipal corporation which has, with the approval of the electorate, incurred a debt to provide airport service, by order of the city council cease to furnish such service, sell the property, and use the proceeds in such manner as the city council may desire?
The parties stipulated: “That said property is surplus city property no longer needed by the city and should be sold by the city. That said property is no longer needed for an airport. That said property is a mile from the city limits and is not needed for any Governmental or public Purpose.”-Do the parties by this stipulation mean this property is not needed as an airport, a public purpose, because this public purpose has been filled by other properties dedicated to that purpose or do they mean that the city council can set at nought the will of the people and contrary to their direction dispose of property which the electorate has directed the city to acquire for a specific public purpose?
As early as 1929 the Legislature granted municipalities authority *278to acquire, own, and regulate airports or landing fields for the use of airplanes and other aircraft, c. 87, P.L. 1929, now G.S. 63-2. The statute declared an expenditure so made was for a public purpose. G.S. 63-5. This legislative declaration had judicial concurrence. Goswick v. Durham, 211 N.C. 687, 191 S.E. 728; Turner v. Reidsville, 224 N.C. 42, 29 S.E. 2d 211; Reidsville v. Slade, 224 N.C. 48, 299 S.E. 2d 215 (presumably the property here proposed to be sold is the property involved in that litigation); Airport Authority v. Johnson, 226 N.C. 1, 36 S.E. 2d 803.
The complaint alleges that the city council purported to act under the authority given by G.S. 160-59, which provides: “The Governing body of any city or town shall have power at all times to sell at public outcry, after thirty days’ notice, to the highest bidder, any property, real or personal belonging to any such town, and apply the proceeds as they may think best.” This statute has been in effect since 1873. It has never been interpreted to authorize the sale of property purchased for a specific purpose when needed to accomplish that purpose. It permits the sale of such property as may not be needed in the continuing performance of the service undertaken. Mullen v. Louisburg, 225 N.C. 53, 33 S.E. 2d 484; Winston-Salem v. Smith, 216 N.C. 1, 3 S.E. 2d 328; Southport v. Stanly, 125 N.C. 464.
In 1945 the Legislature enlarged the authority of local governmental units to provide aeronautic facilities. C. 490, S.L. 1945, now in substance art. 6, c. 63, of the General Statutes. Section 6 of that Act, now G.S. 63-53, titled “Specific powers of municipalities operating airports,” gives the municipality authority to (a) appoint an officer or board to supervise the construction and operation of the airport, (b) adopt rules and regulations for the efficient operation of the facility, (c) lease to private or other governmental agencies for operation, and (d) “sell or lease any property, real or personal, acquired for airport purposes and belonging to the municipality, which in the judgment of its governing body, may not be required for aeronautic purposes . . .” (Emphasis added.) Each part is predicated on the assumption of continuing service.
G.S. 63-48 defines the word “aeronautics” as “transportation by aircraft; the . . . operation, improvement, repair, or maintenance of airports . . .” G.S. 63-53 does not, in my opinion, authorize the city council to decide whether the municipality, having once undertaken to provide aeronautic facilities, should continue to provide such service. The statute presupposes the continuance of such service. The facts necessary to determine whether there is need for a particular service and the need for a particular piece of property to provide the service are not identical. The Legislature carefully limited the authority of *279the governing authorities to a decision of what was not needed for the performance of the service. Winston-Salem v. Smith, supra; Mullen v. Louisburg, supra.
Municipalities have legislative permission to perform many public services, proprietary in nature. Illustrative are: playground and recreational facilities, G.S. 160-158; public parking lots, G.S. 160-200(31) ; market houses, G.S. 160-167; art galleries, G.S. 160-200(40); parks, G.S. 160-200(12); light and water to patrons outside as well as within the corporate limits, G.S. 160-255; public hospitals, G.S. 131-126.20; housing facilities, 157-42. Some of the services authorized are necessary expenses; others are not. Where the service is not a necessary expense, the governing authorities must permit the electorate to decide whether a debt shall be created to provide the service. When citizens of a municipality have voted to acquire properties needed to provide these services, the governing authorities are not authorized to defeat popular will by declaring the service no longer needed and in this manner obtain authority to sell on the theory that the property is surplus property. Moore v. Gordon, 122 S.W. 2d 239; Bremerton Municipal League v. Bremer, 130 P. 2d 367.
If the city fathers would sell the property and thereby disable the community from rendering the service as directed by the electorate, special legislative authority must be obtained. Perhaps the Legislature in its wisdom has already provided the means by which the governing authorities may act. They are authorized, with the approval of a majority of the qualified voters of the town to “sell or lease upon such conditions and with such terms of payment as the city or town may prescribe any waterwork ... or any other public utility which may be owned by the city or town.” G.S. 160-2(6).
An airport acquired and maintained by a municipality meets the test of a public utility as defined by our decisions. Utilities Com. v. Water Co., 248 N.C. 27, 102 S.E. 2d 377; Turner v. Public Service Co., 170 N.C. 172, 86 S.E. 1033. It has been so held when the specific question was presented. S. v. Johnston, 220 N.W. 273; S. v. Jackson, 167 N.E. 396; Price v. Storms, 130 P 2d 523; S. v. Board of County Comrs., 79 N.E. 2d 698; Jones v. Keck, 74 N.E. 2d 644.
The facts stipulated are in my opinion insufficient to determine the right of the governing authority to order a sale. If the property is not needed for the operation of an airport, the mere fact that the city restricts the purchaser’s right to use for a fixed period to industrial uses would not impair the title.