STACY, C. J., not sitting.
BARNHILL, J., concurring.
WINBORNE, J., joins in concurring opinion.
This action was brought by plaintiffs, taxpayers of the city of Charlotte, against the defendants, in the several capacities indicated, to enjoin further levy and collection of local taxes for contribution to the State Retirement Fund under chapter 25, Public Laws of 1941, as amended by chapter 143, Public Laws of 1941, known as the Teachers' and State Employees' Retirement Act, and to restrain defendants from paying out taxes already levied and collected for that purpose.
The Board of Trustees Teachers' and State Employees' Retirement System was made a party to the action by consent, and was permitted to adopt the answer of its codefendants.
The Act referred to provides for a retirement fund for teachers in the public schools, a part of which is raised out of public funds and a part by deductions from teachers' salaries. By its terms, local administrative units which supplement the items of school expense and conduct schools of a higher standard or longer term than those afforded by State support for the eight months term are required to contribute proportionally to the State fund, and the taxing authorities therein are required to provide the necessary funds therefor. Pertinent sections are as follows:
"Each Board of Education of each county and each Board of Education of each city, and the employer in any department, agency or institution of the State, in which any teacher receives compensation from sources other than appropriations of the State of North Carolina shall deduct from the salaries of these teachers paid from sources other than State appropriations an amount equal to that deducted from the salaries of the teachers whose salaries are paid from State funds, and remit this amount to the State Retirement System. City Boards of Education and County Boards of Education in each and every county and city which has employees compensated from other than the State appropriation shall pay to the State Retirement System the same per centum of the salaries that the State of North Carolina pays: Provided, that for the purpose of enabling the County Boards of Education and the Board of Trustees of city administrative units to make such payment, the tax levying authorities in each such city or county administrative unit are hereby authorized, empowered and directed to provide the necessary funds therefor." Chapter 25, Public Laws of 1941, section 8, subsection (c).
Section 1, chapter 143, Public Laws of 1941, adds:
"Provided, that it shall be within the discretion of the County Board of Education in a county administrative unit and the Board of Trustees in a city administrative unit, with the approval of the tax levying authorities of such unit, to provide for the payment from local tax funds of any amount specified in subsection (c) of this section in excess of the
amount to be paid to the Retirement System on the basis of the State Salary Schedule and term. In case the salary is paid in part from State funds and in part from local funds, the local authorities shall not be relieved of providing and remitting the same per centum of the salary paid from local funds as is paid from State funds. In case the entire salary of any teacher, as defined in this Act, is paid from county or local funds, the county or city paying such salary shall provide and remit to the Retirement System the same per centum that would be required if the salary were provided by the State of North Carolina."
The Charlotte city schools were operated under special charter until the enactment of the School Machinery Act of 1933, chapter 252, Public Laws of 1933. Thereafter the Charlotte district was set up as a city administrative unit for the purpose of operating schools under that Act, and has since continued as such city administrative unit.
The School Machinery Act of 1933, pertinent features of which were re-enacted in 1935 and in 1939, contains the following provisions:
"That the county board of education in any county administrative unit and the board of trustees in any city administrative unit, with the approval of the tax levying authorities in said county or city administrative unit and the State School Commission, in order to operate the schools of a higher standard than those provided for by State support, but in no event to provide for a term of more than 180 days, may supplement any object or item of school expenditure: PROVIDED, that before making any levy for supplementing State budget allotments an election shall be held in each administrative unit to determine whether there shall be levied a tax to provide said supplemental funds, and to determine the maximum rate which may be levied therefor." Section 17.
Following the procedure laid down in the Act, the Charlotte City Administrative Unit, on 23 March, 1935, voted supplements to State support of the schools, fixing the maximum tax limit for that purpose at twenty-five cents on the one hundred dollar property valuation, and proceeded to conduct a nine months school term and to pay teachers' salaries.
The local school board filed its supplementary budget for the fiscal year beginning 1 July, 1941, providing for the expenditure of the entire special tax under the 25c levy for purposes other than the payment of the required sums to the Teachers' Retirement Fund, and requested that the sum budgeted in connection with the Retirement Fund, approximately $17,124.75, be raised from sources other than the 25c special school levy. The levy was made and the taxes partially collected, and the authorities concerned propose to proceed with the collection of the rest of the taxes and to make the required contribution to the State Retirement Fund, if not contrary to law.
The plaintiffs obtained a temporary restraining order, and on the hearing of the order to show cause before Olive, Special Judge, the injunction was dissolved and plaintiffs appealed.
No exception was made in the court below to the manner in which this suit is constituted, or to want of capacity of some of the defendants, as sued, in relation to the subject matter of the action. No doubt the parties desired a decision more broadly dealing with the merits of the case, as voiced by the challenge to the constitutionality of the Retirement Act and its interpretation in connection with related statutes, particularly the tax limitation adopted by popular vote for supplements under the School Machinery Act. We review the case in that light.
But the joinder of parties defendant and the capacity in which they are sued suggest that plaintiffs considered themselves as dealing with an attempted exercise of authority by the city of Charlotte as a municipality and with the "Board of School Commissioners of the City of Charlotte," formerly an agency of the municipality, as a corporate body retaining the relation to the schools in that district given it in the special act of incorporation. That is not the case. The present situation will be much less confusing if we remember that the Charlotte School District, operating as a special charter district, came squarely within the revolutionary fiat of section 4, chapter 562, Public Laws of 1933: "All school districts, special tax, special charter or otherwise, as now constituted for school administration or for tax levying purposes, are hereby declared non-existent." Under the further provisions of this Act, the Charlotte district became a city administrative unit, and the trustees of the former district were retained only as the local administrative body of that unit, shorn of all administrative authority other than that which they get from the School Machinery Act. This concession was made to the governing body of the old district, no doubt, to cushion the shock of total liquidation and out of deference to the importance of the trusts that had been committed to them — the magnitude of the schools — and to conserve the experience and interest built up in administration. But here the old regime ended and the new dispensation began. The unit was now a part of the Public School System and henceforth an agency of the State. In this is found the principle upon which our decision must rest. Its application will be as brief as a full understanding of the subject will permit.
After careful study of the subject through many years prior to 1941, a Commission was appointed (H. R. 48, Public Laws of 1939), which made a through investigation and reported its findings and recommendations to the General Assembly of 1941, which thereupon enacted chapter 25, Public Laws of 1941, as amended by chapter 143, Public Laws of 1941, which is known as the "Teachers' and State Employees' Retirement Act." The purpose of that Act is to provide benefits on retirement for the teachers in the public school system of the State and for State employees. It is based not only upon the principle of justice to poorly paid State employees, but also upon the philosophy that a measure of freedom from apprehension of old age and disability will add to the immediate efficiency of those engaged in carrying on a work of first importance to society and the State. The fund for final distribution on retirement is contributed in part by the State from public funds, and in part by deductions from teachers' and employees' salaries. County administrative units and city administrative units which supplement State support of the eight months school term to secure schools of higher standard or longer term are required to contribute to the State Retirement Fund. The Act makes no provision for submitting the question of local taxation to popular vote.
The plaintiffs contend that the law is unconstitutional and invalid; that the expenditure required comes within the purview of Article VII, section 7, of the Constitution, prohibiting taxation by a municipality, except for a necessary expense, without submitting the question to a popular vote; that if the payment out of the Retirement Fund is not salary, the law is offensive to Article I, section 7, of the Constitution, which provides that no man or set of men are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; and that if in the nature of salary, it necessarily comes within the purview of the 1933 School Machinery Act as a part of the supplements heretofore approved by popular vote, subject to the 25c on the $100 limitation on the tax rate heretofore adopted. There is a further contention that the Act contravenes Article V, section 3, of the Constitution as being inequitably levied and not for a public purpose. We consider these objections as nearly in that order as convenience permits.
1. The Constitution of North Carolina recognizes that it is the duty of the State to establish and maintain "a general and uniform system of public schools, where tuition shall be free of charge to all children of the State between the ages of six and twenty-one years." Constitution, Article IX, section 2. Under Article IX, section 3, the State is required to be divided into a convenient number of districts, in which one or more public schools shall be maintained at least six months in the year.
For a long period of its history, the State performed this duty by proxy, maintaining the schools through the agency of the counties; and Article IX, section 3, of the Constitution, denounces as a criminal offense the failure of their tax levying bodies to comply with the requirement that the schools be maintained at least six months in the year.
The plea that the levy of such a tax by a county, without submission to popular vote, is prohibited by Article VII, section 7, of the Constitution, as not being for a necessary expense was raised and settled in Collie v.Commissioners, 145 N.C. 170, 59 S.E. 44, by the declaration that the requirement that the public schools be maintained is a mandate of a co-ordinate article of the Constitution of equal dignity and force, and must be obeyed; and that Article VII, section 7, had no relation by way of limitation on the taxing power exercised for that purpose. Three of the Justices of the great Court which decided this case, in separate concurring opinions, wrote their names upon this monument to our educational progress.
There was in the mind of the Court a clear comprehension of the functions and powers of the State and of the agencies set up to perform this duty, and there was no confusion at any time as to where the ultimate duty and power was seated; and none, we think, as to the consequences which must follow a delegation of this duty and power as a matter of convenience of administration to the agencies selected. Nor should there be any doubt today that maintenance of the public schools and the furnishing of those things which are reasonably essential to that end are within the mandatory provision of the Constitution, unaffected by the "necessary expense" provision contained in the municipal section of the Constitution.
The State is not a municipality within the meaning of the Constitution. It seems to us self-evident that it may perform the duties required of it by the Constitution, as well as exercise those powers not otherwise prohibited, without embarrassment by constitutional limitations expressly operating on municipalities alone. Const., Art. IX, secs. 2, 3; Const., Art. VII, sec. 7. The public school system, including all its units, is under the exclusive control of the State, organized and established as its instrumentality in discharging an obligation which has always been considered direct, primary and inevitable. When functioning within this sphere, the units of the public school system do not exercise derived powers such as are given to a municipality for local government, so general as to require appropriate limitations on their exercise; they express the immediate power of the State, as its agencies for the performance of a special mandatory duty resting upon it under the Constitution, and under its direct delegation.
This view is clearly expressed in Frazier v. Commissioners, 194 N.C. 49,61, 138 S.E. 433, from which we quote:
"Schools established and maintained by a county, city, town, or other municipal corporation under a special act of the General Assembly are not necessarily included within the State system of public schools. It has, therefore, been uniformly and consistently held by this Court that Article VII, sec. 7, of the Constitution is applicable to bonds issued and taxes levied by a county, city, town, or other municipal corporation for this purpose . . . These decisions, however, are not determinative of the question here presented for decision. The Constitution of North Carolina does provide — and its provisions in that respect have been held mandatory — that the General Assembly shall provide by taxation and otherwise for a general and uniform system of public schools, wherein tuition shall be free of charge to all children of the State between the ages of six and twenty-one, Article IX, sec. 2; and that to accomplish this end, the State shall be divided into a convenient number of districts, in which one or more public schools shall be maintained at least six months in every year, Article IX, sec. 3. It cannot be too often emphasized that the controlling purpose of the people of North Carolina, as declared in their Constitution, is that a State system of public schools shall be established and maintained — a system of schools supported by the State, and providing for the education of the children of the State — and that ample power has been conferred upon the General Assembly to make this purpose effective . . . The counties of the State are authorized by this statute (County Finance Act) to issue bonds and notes for the erection of schoolhouses and for the purchase of land necessary for school purposes, and to levy taxes for the payment of the same, principal and interest, notas municipal corporations, organized primarily for purposes of local government, but as administrative agencies of the State, employed by the General Assembly to discharge the duty imposed upon it by the Constitution to provide a State system of public schools. The limitations of Article VII, sec. 7, are not applicable to bonds or notes issued by a county, as an administrative agency of the State, under authority conferred by the County Finance Act, for the purpose of erecting schoolhouses, and equipping same, or purchasing land necessary for school purposes. We, therefore, hold that the board of commissioners of any county in the State, upon compliance with the provisions of the County Finance Act, has authority and is empowered to issue bonds or notes of the county for the purpose of erecting and equipping schoolhouses and purchasing land necessary for school purposes, and to levy taxes for the payment of said bonds or notes, with interest on the same, without submitting the question as to whether said bonds or notes shall be issued or said taxes levied, in the first instance, to the voters of the county, where such schoolhouses are
required for the establishment or maintenance of the State system of public schools in accordance with the provisions of the Constitution."
To the same effect are Owens v. Wake County, 195 N.C. 132, 136,141 S.E. 546; Lacy v. Bank, 183 N.C. 373, 380, 111 S.E. 612; Lovelace v.Pratt, 187 N.C. 686, 689, 122 S.E. 661; Tate v. Board of Education,192 N.C. 516, 520, 135 S.E. 336.
From these cases, as well as from the reasoning of the matter, we gather a clear impression that whatever may be the limitations on a municipality with respect to its ordinary government under Article VII, sec. 7, they do not apply to it as an authorized agency in connection with the public school system; and that they do not, in fact, apply to any agencies as school administrative bodies, some of which, indeed, have no municipal functions to becloud the issue. In many city administrative units, the boundaries of the unit do not coincide with the city limits.
Attention should be directed to the distinction drawn in the decisions between agencies created for administrative purposes within the public school system and charter districts incorporated by special acts of the Legislature and empowered to maintain and conduct schools independently of it, which do not proceed on the authority as it comes from the State, through Article IX of the Constitution. Frazier v. Commissioners, supra;Owens v. Wake County, supra. Such independently operating schools were abolished by chapter 562, Public Laws of 1933, sec. 4, along with all other taxing districts — doubtless with the intent to bring all such activities within the public school system, and to secure uniformity and equality of opportunity into the school effort throughout the State. The city administrative unit and the county administrative unit, administrational devices first adopted in this Act, are not allied to such specially incorporated schools. They are, as the name implies, units within the public school system — established agencies of the State to carry on the then existing functions of the public school system, and logical and convenient agencies for investment with further power and duties as might be found expedient or necessary.
The suggestion that the Retirement Plan and payments of benefits thereunder are intrinsically not necessary purposes for maintaining the public school system is no doubt advanced under the same contention that taxation and expenditure under the Retirement Act must necessarily come within the limitation of Article VII, sec. 7, of the Constitution — a proposition we are compelled to reject for the reasons above stated; but we have the implied suggestion that they do not have that relevancy to the purposes expressed in Article IX of the Constitution that would bring them within that authority.
The extent to which the measures provided in the Retirement Act may be auxiliary to the efficient administration of the public school
system and justified as a measure of justice for those engaged therein is primarily, and in this instance we think wholly, for the Legislature. The evidence before that body indicated that they are highly important and effective in improving, stabilizing and maintaining standards of service in an underpaid and overburdened profession, which is now sustained by high idealism and sacrifice as much as by the meager pay.
We understand that what courts appropriately refer to as the "mandate" of Article IX of the Constitution carries with it not merely the bare necessity of instructional service, but all facilities reasonably necessary to accomplish this main purpose. And in this respect the word "necessary" has long been regarded as a relative, not an exigent, term — certainly not one which may be used to drain the life and substance out of a project with which it is connected, but one which itself must accept an interpretation consonant with the reasonable demands of social progress. We do not differ with the General Assembly in its policy as expressed in this legislation, but we point out that the matter is exclusively within the province of that body. It is their verdict, embodied and expressed in the Act, that the Retirement Plan has a definite relation to the just and efficient administration of the public school system which brings it within the scope of constitutional authority. Under the mandatory provisions of the Retirement Act, the public policy thus expressed is applied to the entire public school system and its administration at the hands of every administrative unit within it. After all, it is difficult to see how any want of relevancy, even if it could be supposed to exist, would bring the subject within the purview of Article VII, sec. 7, of the Constitution.
It is true, as suggested, that the city administrative unit, under the provisions of the School Machinery Act, voluntarily undertook to supplement certain items of State expenditure and thereby undertook to conduct a school of higher standard and longer term than that provided by State support. But once having assumed the burden, albeit voluntarily, the unit did not thereby separate itself from the school system, or break the thread of constitutional authority, or exempt itself from the consequences of the burden it assumed, or the additional trusts imposed by law.
The provision in the School Machinery Act under which a local unit desiring to supplement State support for the schools is required to submit the question to a popular vote is not in deference to Article VII, sec. 7, of the Constitution. It is simply the legislative adoption of a similar method of control over extravagant expenditure pro hac vice. It does not affect the status of the administrative unit as an agency of the State. And when the burden is assumed, the Act under consideration not only confers authority, but is mandatory in its provisions that
the local administrative unit make its contribution to the State Retirement Fund, and that the taxing authorities therein provide the necessary funds. Chapter 25, Public Laws of 1941, sec. 8 (c); chapter 143, Public Laws of 1941, sec. 1.
The theory that the obligation of the Constitution extends no further than the six months school term, the minimum requirement expressed in Article IX, sec. 3, is unsound. The mandate is expressed in its simplest and most comprehensive form in sec. 2, without qualification or limitation, except that implied from the ability of the State to respond. The State does, from its ordinary revenues, support an eight months school term under the 1933 Act, without impeachment of exceeding its power. Indeed, the situation would remain unchanged if there were no constitutional requirement at all, since, without it, the duty of the State to educate its citizens has been recognized amongst intelligent and civilized peoples from antiquity. It is no doubt written into the fundamental law so that it may survive political indifference and so that the humblest citizen, speaking for himself and those in like right, may demand its performance. It is merely a question of transmitting authority to a lawfully designated agency, and of the quality and extent of the power so delegated.
2. The plaintiffs argue that unless the payment out of the Retirement Fund is in the nature of a salary, it is a gratuity and offensive to Article I, sec. 7, of the Constitution, which provides that no man or set of men are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services.
It is conceded by the plaintiffs that if payment from the fund is in the nature of salary or compensation for services rendered, it is at least not offensive to Art. I, sec. 7, of the Constitution.
We do not have to decide whether the cited section of the Constitution narrows its exception to payment for services currently rendered. The appellants are content to have the payments from the Retirement Fund, hypothetically, at least, regarded as deferred payments of salary. The appellees argue, and sustain the argument, we think, by convincing authority from jurisdictions where the question has been raised, that the benefits from the Retirement Fund may be so regarded. Schieffelin v. Berry,217 A.D. 451, 216 N.Y. Supp., 367; People ex rel. Kroner v. Abbott,274 Ill. 380, 113 N.E. 696; Cobbs v. Home Ins. Co., 18 Ala. Ap., 206,91 So. 627; Whitehead v. Davie, 189 Cal. 715, 209 P. 1008; Talbott v.Independent School District of Des Moines, 230 Iowa 949, 299 N.W. 556;Retirement Board v. McGovern, 316 Pa., 161, 174 A. 400.
3. It is conceded that the contribution of the unit to the State Retirement Fund might be paid out of local funds collected under the 25c levy
made to supplement State support if more convenient, but the taxes imposed under the 1941 Act are not subject to such limitation. There is no reference in either Act from which such an inference would be justified. Comparing the two laws, we find them widely separated in time and directed to substantially different subjects. If, as conceded by plaintiffs, the funds raised under authority of each of them are for generically similar purposes — operational in character — there is sufficient difference between them to justify the conclusion that the contributions required by the Retirement Act are not within the contemplation of the 1933 Act. The items then to be supplemented were definitely known and recognized, and were of a character totally different from the Retirement Fund contribution under the 1941 Act. So different is the latter, in fact, that it constitutes an entirely new feature of social and economic philosophy wrought into the public school system less than two years ago — in form, substance and effect unlike anything theretofore contemplated.
Moreover, the funds so collected are not supplemental in character and are not locally expended. They go into a general State fund, out of which payments are made irrespective of the source of origin.
We are likewise of the opinion that the contemplated levy is not limited or controlled by section 55 (4) of the City Charter — chapter 366, Public-Local Laws of 1939. The provision there is:
"The City Council of the City of Charlotte shall levy an annual tax for the support and maintenance of said public schools in the City of Charlotte in accordance with the Public Laws of the State of North Carolina as the same may now or hereafter be enacted and in any amount which is now or may hereafter be approved by a vote of the people of said city for said purposes."
We do not think that the subject dealt with in the Retirement Act of 1941 was within legal contemplation of this law. At most, it gives authority for further taxation in the support of schools as might be approved by a vote of the people, but does not prevent a levy under an appropriate State law, irrespective of the statute. We regard the point as settled adversely to appellants' contention by Julian v. Ward, 198 N.C. 480, 152 S.E. 401.
4. The challenge to the Retirement Act as contravening Article V, sec. 3, of the Constitution is not supported by argument or citation of authorities. Perhaps the inequalities which are pointed out by the appellants, and which we do not regard as inequities, may be corrected by further experience in the administration of the Act.
The contention that the Act does not comprehend a public purpose cannot be sustained. If the Retirement Plan has that relation to the public school system which the legislative policy supposes it to have, and
this can be reasonably discerned, giving the legislative body the "benefit of the doubt," if any, the Act is sufficiently invested with a public purpose and the tax is valid. It should not be declared unconstitutional unless it is so beyond reasonable doubt. Hood, Comr. of Banks, v. Realty,Inc., 211 N.C. 582, 191 S.E. 410; Glenn v. Board of Education,210 N.C. 525, 187 S.E. 781.
The Act includes thousands of teachers and employees of the State, as a class and without discrimination. If this is not sufficient to satisfy the "public purpose" requirement of the Constitution, the benefit they receive may be regarded as incidental. The benefit to the general public comes from a policy, widely approved, and adopted here, not without careful and exhaustive study, and with appreciation of its effect upon the entire citizenry, in the enhancement of the State's largest and most important enterprise, the conduct of the public schools. The relation of the Retirement Plan to the public school system has been fully discussed above, and the discussion will not be repeated here. It is sufficient to say that the expected improvement in standards of service, and the stabilization of teacher employment, are sufficient to constitute a public purpose, and justify the imposition of the tax.
We conclude that the Act is a constitutional and valid expression of the legislative will, both generally and in its application to the local administrative units with which it deals. The contribution to the State Retirement Fund required of the Charlotte City Administrative Unit is mandatory in character, does not require submission to popular vote, and is not affected by the maximum tax rate heretofore adopted by this unit in voting supplements to the schools or the suggested limitations of the city charter.
The acting defendants are in the exercise of lawful powers and are not subject to judicial restraint.
The judgment of the court below is
Affirmed.