Greensboro-High Point Airport Authority v. Johnson
226 N.C. 1
N.C.
1946
Check Treatment

Lead Opinion

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.





Concurrence in Part

Barnhill, J.,

concurring in part and dissenting in part: I concur in the conclusion that the judgment below, in so far as it requires the treasurer of Guilford County to pay to plaintiff the amount appropriated to its use by the commissioners of Guilford County, must be affirmed. In my opinion, on this record, the appropriations made by Greensboro and High Point are nothing more or less than gifts or grants in aid which these municipalities have no legal right to make. For that reason plaintiff is not entitled thereto. As to them the judgment should be reversed.

The plaintiff corporation was created by and draws its authority from a Special Act of the Legislature, ch. 98, Public-Local Laws 194:1. Hence the general statute, G. S., 63-4, which authorizes counties and cities jointly to establish and maintain an airport is not pertinent and has no bearing on the question here presented. About the other postulates initially listed in the majority opinion, in so far as they may affect decision here, there is no divergence of opinion.

It is conceded in the majority opinion that a municipality may expend its funds only for a public purpose and that “public purpose” when used in connection with the expenditure of municipal funds refers to such public purpose within the frame of governmental and proprietary powers given to the particular municipality, to be exercised for the benefit, welfare and protection of its inhabitants and others coming within the municipal care.

Thus we seem to be agreed that the appropriation of public money is permissible only when it is within the functional framework and in furtherance of the governmental or proprietary activities of the particular municipality and that to constitute a public purpose the objective must be directly connected with the local government and tend to pro*15mote the general welfare of the residents of tbe corporate community. Williamson v. High Point, 213 N. C., 96, 195 S. E., 90; Davis v. City of Taylor, 67 S. W. (2d), 103, 123 Tex., 39. That is, it must be a corporate purpose directly connected with tbe local government and having for its objective tbe promotion of tbe public health, safety, morals, general welfare, security, prosperity or contentment of tbe inhabitants or residents within tbe political division from whence tbe revenue for its support is derived. Green v. Frazier, 176 N. W., 11, 44 N. D., 395; Lott v. City of Orlando, 196 So., 313, 142 Fla., 338; Platte Valley Public Power and Irrigation Dist. v. Lincoln County, 14 N. W. (2d), 202.

So then, as we are agreed upon tbe applicable general principles of law, tbe legality of tbe appropriations made by High Point and Greensboro for tbe benefit of plaintiff is to be determined by tbe facts appearing in this particular case.

Briefly tbe pertinent facts are these:

1. Tbe 1941 Legislature, by Special Act, cb. 98, Public-Local Laws 1941, created tbe plaintiff corporation as an instrumentality and agent of Guilford County. As such agent or instrumentality it was given power to acquire property and maintain, operate, and regulate airfields within Guilford County, and it was required to make detailed annual reports to tbe county board of commissioners.

2. Tbe Special Act provides for a governing board composed of five citizens of Guilford County. Tbe board of commissioners of Guilford County was empowered, to select three members of said board, one from High Point, one from Greensboro, and one from tbe county at large. Greensboro and High Point are granted tbe privilege of selecting one each.

3. At tbe time of tbe adoption of said Act and thereafter Guilford County owned and operated an airport within tbe county. Tbe board of commissioners of said county in April,- 1942, “decided to carry out tbe provisions of said Act and activated said Greensboro-High Point Airport Authority.” To that end tbe county conveyed all its airport property to plaintiff authority and thereafter operated its airport facilities through tbe plaintiff, its corporate instrumentality and agent.

4. In 1943 tbe 1941 Special Act was amended. Cb. 601, Session Laws 1943. By said amendment plaintiff was (1) granted all tbe powers given to counties or municipalities by general statutes relating to airports, (2) authorized, with the consent of Guilford County, to issue notes, bonds, and other securities and to execute mortgages and deeds of conveyance, and (3) to deny to or withdraw from any other person or corporation tbe right to operate an airport within Guilford County. Thus Guilford was given a greater measure of control over tbe corporate activities of plaintiff.

*165. G-reensboro and High Point are cities witbin and are a part of Guilford County. As such they, together with the rest of Guilford, receive direct benefits from the operation of the airport. But it does not appear that either furnished any part of the property, real or personal, used by plaintiff in maintaining the airport facilities. They did not “join with” Guilford in activating plaintiff.

6. Neither city exercises any control over plaintiff. It may continue its operations or cease so to do and convey its property or liquidate its assets without let or hindrance from them; and in the event of liquidation they would have no claim to any part of its assets.

7. It is alleged in each complaint that plaintiff authority is the corporate instrumentality and agent of Guilford County. But it is not alleged or stipulated by the parties or found by the court that plaintiff is the instrumentality of either city.

So then, briefly stated, we have this situation. Guilford County, through a corporate agency is maintaining airport facilities in Guilford County. It furnished the necessary property and is making contributions toward its maintenance or enlargement. High Point and Greensboro each have appropriated funds to be paid to plaintiff to be used for capital improvements.

Is plaintiff as a matter of law entitled to the funds thus appropriated ? The divergence of opinion arises here.

Under some circumstances a municipality may make a contribution to a wholly independent and unrelated corporation for a particular purpose such as to procure the location of some public institution within or near its bounds. Briggs v. Raleigh, 195 N. C., 223, 141 S. E., 597; Anno. 46 A. L. R., 679, 698, 737. Such occasions are rare — and this is not one of them. Ordinarily public money is expended in furtherance of governmental and proprietary objectives either directly by the municipal authorities or indirectly through corporate agencies.

We are agreed that the maintenance of an airport is a “public purpose” in which a municipality may engage for and in behalf of its citizens either directly or through the agency of an “adjuvant” corporation. So then, concededly, decision here rests squarely upon the question whether plaintiff is the instrumentality or agent of High Point and Greensboro. This is the crux of the case.

In answering this question in the affirmative the majority opinion reasons thus: Plaintiff is operating an airport in Guilford County which serves the residents of High Point and Greensboro. These cities have statutory authority to operate airports and they are mentioned “frequently” in the Special Act creating plaintiff. Therefore, although plaintiff, by express provisions of the Act creating it, is made the instrumentality and agent of Guilford County only, it is in fact also the *17corporate agent of these two cities. It being their agent, they may appropriate funds for its support.

In my opinion the conclusion is a non sequitur. The Act under which plaintiff operates makes it the corporate agent of Guilford County. Expressum facit cessare taciturn.

The county alone exercises supervisory control. While the existence of the right of control in the principal or parent corporation is not an absolute essential, its existence in the one municipality to the exclusion of the others is significant. Expressio unius est exclusio alterius.

I readily concede that under G. S., 63-4, High Point or Greensboro, either separately or jointly with Guilford County, may acquire and maintain an airport and use nontax funds for that purpose without first submitting the question to the voters for their approval. The point is they have not undertaken to do so. When Guilford County elected to seek special legislative authority to operate its airport through a corporate agency it elected to act alone and not in co-operation with other municipalities.

Of course High Point and Greensboro receive direct benefits from the operation of the airport. They are component parts of the county which was created for the very purpose of serving its people, including those residing within the two cities. Any governmental or proprietary activity of the county naturally reacts to their advantage. But the mere fact the airport is an instrumentality of Guilford, is located near these two cities, and the county thus renders a service for them which they could provide for themselves does not make it their agent or warrant the conclusion that the operation of the airport is within the compass of the corporate activities of these cities or either of them.

When we adopt the majority view, read into the special statute an intent it does not express, and hold to the contrary, we in effect declare that every activity of a county constitutes a “public purpose” for each and every town or city within its bounds.

A municipality is not the giver of gifts. Briggs v. Raleigh, supra. Even with express legislative authority it cannot pay gifts or gratuities out of public funds or assume any function which is not within the compass of its own corporate activities or usual or necessary powers. Brown v. Comrs., 223 N. C., 744, 20 S. E. (2d), 104; Madry v. Scotland Neck, 214 N. C., 461, 199 S. E., 618; Williamson v. High Point, supra; 38 Am. Jur., 85, sec. 395, and 91, sec. 399. It must confine itself to the business of government for which it was created and its proprietary powers are to be exercised primarily for the advantage of the compact community. Asbury v. Albemarle, 162 N. C., 247, 78 S. E., 146.

A public auditorium, Adams v. Durham, 189 N. C., 232, 126 S. E., 611, or a public library, Westbrook v. Southern Pines, 215 N. C., 20, *181 S. E. (2d), 95, witbin Greensboro is as to that municipality a public purpose. While High Point may maintain an auditorium or library for itself, I assume no one would seriously contend that it could appropriate funds in aid of such institution in Greensboro. It seems to me to be equally illogical to say that High Point and Greensboro can make a grant or gift 'to maintain the corporate agency of Guilford. When we so hold we go a full bowshot further than this or any other court has heretofore gone.

The cases cited in the majority opinion sustain the position that a municipality may act through a corporate agency, which is conceded. No one of them, however, has any bearing on the question of the legality of the proposed appropriations.

Briggs v. Raleigh, supra, is more nearly in point, but that case is easily distinguishable. There the appropriation or contribution was made to obtain the location of a public institution near the boundary of -the city and comes within the principle enunciated in the line of decisions there cited. Anno. 46 A. L. R., 679, 698, 737.

The 1945 amendment, ch. 206, Session Laws 1945, is an enabling Act. Whether the Legislature may thus empower the cities named to lend their credit to and guarantee the obligations of the plaintiff is not before us for decision. It contains no provision which alters or attempts to alter the then existing status of plaintiff in its relation to these cities, and it expressly provides that nothing therein contained shall be construed to repeal any of the provisions of the 1941 Act, one of which makes plaintiff an agent of Guilford County.

Even if it be conceded that this amendment in effect authorizes Greensboro and High Point to adopt plaintiff as their instrumentality and agency the fact remains the plaintiff has not elected to so allege, and it is not so found or stipulated although expressly denied in the further answers.

As to High Point there is another serious question. It adopted a 1945-1946 budget in part as follows:

“Special appropriations are hereby made out of monies derived from the sale of properties and the amount appropriated to Greensboro-High Point Airport Authority is for construction of capital improvements and in the sum of $25,000.”

Ordinarily cities obtain funds with which to buy property through taxation. When tax money is used to purchase property and the property is sold, the money received therefrom is in a legal sense derived from taxation. The conversion and reconversion do not change its essential nature as tax money.

The appropriation, as required by statute, G. S., 160-434, specifies the source of the money for its payment — -proceeds from the sale of prop*19■erty. It must be made, if at all, as directed. Tbe parties stipulate: “. . . and tbe city of High. Point bas on band funds not derived from ad valorem taxes as aforesaid with wbicb to pay tbe aforesaid appropriation.”

Is tbis a stipulation of fact tbat tbe property sold was not purchased witb tax money, or an erroneous conclusion tbat proceeds from tbe sale of property wbicb was acquired through taxation are not derived from ad valorem taxes ? It is not clear tbe parties meant tbe first. It would seem to be tbe latter. In any event it is left in serious doubt and for tbat reason plaintiff bas not shown a clear legal right to tbis appropriation.

In filing tbis opinion I have sought merely to state tbe reasons why I cannot concur in tbe conclusion of tbe majority. In tbe light of what I have said it bas been thought advisable to amplify tbe majority opinion by way of reply and further argument. Even so, I have no desire to engage in a running debate. As I have expressed my understanding of tbe law as applied to tbe facts appearing in tbis record I am content. I add only tbis :

(1) It is now contended tbat although plaintiff was created and activated under a special Act wbicb defines and limits its authority we may apply tbe general statute.

(2) Tbe majority opinion as originally drafted is bottomed on a fact wbicb is neither alleged in tbe complaints nor stipulated in tbe agreed facts, but which is expressly denied in the answers. To warrant relief in a mandamus proceeding there must be allegation and proof or admission sufficient to disclose a clear legal right to tbe relief demanded. Here it is granted on a fact wbicb is specifically denied and unrefuted by allegation or finding of fact.

(3) Now it is said tbat we are dealing witb agencies and not agents, and tbat plaintiff is an agency wbicb “servés tbe convenience” of Greensboro and Higb Point, and tbis is sufficient to justify and authorize tbe appropriations. Tbis, to my mind, is notable for its novelty.

(4) Neither tbe financial condition of plaintiff nor tbe rosy future of aviation, separately or in combination,' justifies tbe appropriations.

(5) In Webb v. Port Commission tbe right of Morebead City to make contribution toward tbe support of tbe Port Commission was not at issue. Brockenbrough v. Charlotte is similarly distinguishable. Tbe other authorities cited are so different factually they have no application here.

It may be tbat upon proper allegation and finding tbe 1945 amendment, cb. 206, Session Laws 1945, could be given an intent and meaning tbat would support an affirmance. Be tbat as it may, on tbis record tbe plaintiff, in my opinion, bas failed to show a clear legal right to tbe *20relief demanded as against Greensboro and High. Point. Henee I vote to affirm the judgment in the case against the treasurer of Guilford County and to reverse as to the treasurers of High Point and Greensboro.

The further reformation of the majority opinion comes so- late it leaves me no time within which to make this dissent conform to its outline without causing undue delay in final decision. I must rest content with its present form.

Winborne, J., joins in this opinion.



Concurrence Opinion

Denny, J.,

concurring: The Greensboro-High Point Airport Authority was created as an agency of Guilford County by chapter 98 of the Public-Local Laws of 1941. The agency was created for the purpose of operating and maintaining an airport formerly owned and operated by Guilford- County, which airport is located about equidistant from Greensboro and High Point. The corporation or agency created by the above Act derives its powers from the Act and the amendments thereto, as well as from the general law. See section 9 of the Act set out in the majority opinion. This fact, however, does not prevent the operation, expansion and maintenance of the airport by such agency from being for a public purpose, as declared by the general law. G. S., 63-5. Turner v. Reidsville, 224 N. C., 42, 29 S. E. (2d), 211; Reidsville v. Slade, 224 N. C., 48, 29 S. E. (2d), 215.

While strictly speaking the Greensboro-High Point Airport Authority is an agency of Guilford County, it operates and maintains an airport primarily for the benefit of the City of Greensboro and the City of High Point, and is authorized by the Act of its creation to contract with said municipalities. No doubt the primary purpose in creating the Airport Authority was to establish and maintain adequate airport facilities for these two cities, in lieu of the establishment of separate airports by the respective municipalities or for the establishment of a single airport under the general law by the joint action of the municipalities to be served. G. S., 63-4.

I think that chapter 206 of the Session Laws of 1945, authorizes the City of High Point, the City of Greensboro and Guilford County to contribute to the support, expansion and maintenance of the Greensboro-High Point Airport, now operated by the Airport Authority. The governing boards of the respective municipalities named in this Act cannot levy an ad valorem tax for the support, expansion or maintenance of an airport, without a vote of the people. Sing v. Charlotte, 213 N. C., 60, 195 S. E., 271. This Act, however, provides that these respective municipalities “may levy an annual ad valorem tax for the promotion, purchase, operation, repair, maintenance, expansion or construction of *21airports, airport facilities, equipment, buildings and parking areas in Guilford County, provided a majority of tbe qualified voters in tbe respective political subdivisions approve same at an election called and beld for any or all of said purposes.” Tbe Act further authorizes tbe municipalities which are parties hereto, to enter into an agreement or contract with the Greensboro-High Point Airport Authority for receiving, administering and expending any funds obtained under authority of the Act. An election in which the qualified voters might approve the levy of an ad valorem tax for the purposes authorized in the Act, would not affect one way or the other the right of the respective governing boards to contract with the Greensboro-High Point Airport Authority relative to the expenditure of the tax funds. I think when the General Assembly authorized Greensboro, High Point and Guilford County to contract with the Greensboro-High Point Airport Authority for the expenditure of funds raised by ad valorem taxes, it gave these municipalities the power to contract with said Airport Authority for the development of the Greensboro-High Point Airport and to appropriate any unappropriated funds in the treasury of the respective political subdivisions for that purpose, provided such funds were derived from sources other than taxation.

In this jurisdiction a municipal hospital is held not to be a necessary governmental expense. Nevertheless, if a municipality has funds in its treasury, derived from sources other than taxation, such funds may be expended for the support and maintenance of a municipal hospital. Nash v. Monroe, 198 N. C., 306, 151 S. E., 634. A city may use funds on hand for. a public purpose, without the approval of the voters, provided the funds were obtained from sources other than taxation. Burleson v. Board of Aldermen, 200 N. C., 30, 156 S. E., 241; Mewborn v. Kinston, 199 N. C., 72, 154 S. E., 76; Adams v. Durham, 189 N. C., 232, 126 S. E., 611.

It is stipulated that the funds appropriated by the respective municipalities which are parties hereto, were derived from sources other than taxation. We are bound by the record.

The imposition of a tax is not involved. The funds appropriated are already on hand and the expenditure thereof will impose no further liability on the respective municipalities. Moreover, the expenditure of the funds is restricted to capital improvements at the Greensboro-High Point Airport. This is in conformity with the provisions of the 1945 Act, which authorizes the municipalities and the Airport Authority to contract as to the expenditure of any sums received from the municipalities and expended by the Airport Authority. Therefore, I vote to affirm.