Green v. . Kitchin

50 S.E.2d 545, 229 N.C. 450, 1948 N.C. LEXIS 365

• Court: Supreme Court of North Carolina
• Decided: November 24, 1948
• Status: Published

Opinions

STACY, C. J., dissenting.

WINBORNE and DENNY, JJ., concurring in dissent. The action was begun on 17 January, 1948. The facts stated in the complaint may be summarized as follows: The plaintiff, George C. Green, is a citizen and taxpayer of the Town of Weldon, a municipal corporation of Halifax County, North Carolina, and prosecutes the action in behalf of himself and all other taxpayers of the municipality. The governing body of the Town of Weldon consists of its mayor, J. T. Maddrey, and its commissioners, Walker Campbell, W. A. Pierce, C. R. Turner, and Pierce Johnson, who are parties defendant. The defendant, P. R. Kitchin, is a policeman of the Town of Weldon, and served in such capacity at a salary of $225.00 per month during the several years preceding the action. In conformity to a resolution adopted by the governing body of the Town of Weldon, the defendant, P. R. Kitchin, took a course in police training at the National Police Academy of the Federal Bureau of Investigation in Washington, D.C., during a ninety day period beginning on or about 1 April, 1946, and received from the Town of Weldon sums totaling $1,100.00 to cover his expenses and salary while attending the National Police Academy for such purpose. The payment of these sums was made out of tax moneys collected by the Town of Weldon from the plaintiff and its other taxpayers, and was not authorized by the vote of the citizens of the municipality. On 27 August, 1947, the plaintiff made demand upon the governing body of the Town of Weldon that it take proper steps to recover the $1,100.00 of P. R. Kitchin as an illegal disbursement of municipal funds. The governing body refused to do so, and plaintiff thereafter instituted this suit to recover the expenditure from P. R. Kitchin for the benefit of the Town of Weldon.

The defendants filed an answer in which they admitted the averments of fact contained in the complaint.

On the hearing, the plaintiff moved for judgment on the pleadings, and the defendants demurred ore tenus to the complaint on the ground that it did not state a cause of action. The trial court denied the motion of the plaintiff, sustained the oral demurrer interposed by defendants, and entered judgment dismissing the action. The plaintiff appealed, assigning these rulings as error. Stated in its broadest terms, this case presents this problem: Does a city or town possess authority in law to expend moneys raised by taxation in specially training its police officers for the performance of their duties, when the expenditure has not been expressly sanctioned by legislative act or approved by a vote of the majority of the qualified voters of the city or town?

The plaintiff asserts initially that this question must be answered in the negative because the Town of Weldon lacks statutory power to use public funds to train its police.

A city or town has "the powers prescribed by statute, and those necessarily implied by law, and no other." G.S. 160-1. Neither its charter nor the general law confers upon the Town of Weldon in express words any authority to employ any of its resources in providing instruction for its police. Thus, the question arises at the threshold of the case as to whether such a power is necessarily implied by law. It is an established rule that a municipal corporation is authorized by implication to do an act if the doing of such act is necessarily or fairly implied in or incident to the powers expressly granted, or is essential to the accomplishment of the declared objects and purposes of the corporation.Brumley v. Baxter, 225 N.C. 691, 36 S.E.2d 281, 162 A.L.R. 930;Mortgage Co. v. Winston-Salem, 216 N.C. 726, 6 S.E.2d 501; Riddle v.Ledbetter, 216 N.C. 491, 5 S.E.2d 542; Kennerly v. Dallas, 215 N.C. 532,2 S.E.2d 538; S. v. Gulledge, 208 N.C. 204, 179 S.E. 883.

In Blackstonian phrase. North Carolina has delegated to municipalities power to maintain law and order within their respective borders since "the time whereof the memory of mankind runneth not to the contrary." Both its charter and the general law expressly empower the Town of Weldon to appoint and employ police for performing this function within its limits. Private Laws of 1891, Ch. 83, secs. 18, 23; G.S. 160-9, 160-20, 160-21.

The Legislature contemplated that persons engaged as police officers under this explicit grant of authority should be qualified to do the task specified above. Poets may be born, but policemen must be made. Some of the statutes relating to the duties and powers of the police appear in article 6 of chapter 15 and article 2 of chapter 160 of the General Statutes. Both the letter and the spirit of these laws reveal that a city or town cannot convert a neophyte into a policeman in the true sense of the word by the simple expedient of investing him with a badge, a billy, a firearm, and a uniform.

Before one is fitted to discharge the duties of a police officer, he must know what those duties are and how they can be performed. The requisite preparedness necessitates the possession of a special knowledge, which must be acquired either by traveling the hard road of experience or by sitting at the feet of teachers qualified to give proper instruction.

Since the fact is a matter of common and general knowledge in this jurisdiction, this Court judicially knows that persons employed to serve as police in the municipalities of this State seldom posses familiarity with their duties or skill in performing them when they enter such service. Although one may be experienced in law enforcement, his proficiency as an officer can undoubtedly be enhanced by proper instruction in modern methods of crime prevention and detection. Certainly a city or town must have competent policemen if it is to protect persons and property within its boundaries against the lawless. Whether a municipal corporation should rely upon experience, or training, or both for securing competency in its police ought to be left to the discretion of its governing body. Likewise, whether or not necessity compels or prudence justifies a specific outlay of municipal funds to provide special training for a particular officer seems to be a problem which of right lies within the domain of the municipality involved.

For these reasons, we conclude that the power of a city or town to spend tax money for instruction of its police in the performance of their duties is fairly implied in and incident to a power expressly conferred upon the city or town to appoint and employ police for preserving law and order within its limits. It follows that the Town of Weldon had implicit legislative authority to make the expenditure set out in the complaint.

The case at bar is readily distinguishable from Madry v. Scotland Neck,214 N.C. 461, 199 S.E. 618, holding that cities and towns do not possess implied power to offer rewards for the apprehension or conviction of felons. While the Legislature has authorized municipalities to maintain law and order within their respective limits, it has not empowered them to engage in the apprehension of law breakers elsewhere or to undertake to prosecute criminal cases in the courts.

The plaintiff further asserts that the expenditure named in his complaint must be adjudged illegal as violative of the Constitution of North Carolina even if it was sanctioned by legislative fiat.

In this connection, the plaintiff maintains that when special training is given a police officer, the resultant increase of proficiency is a personal attribute of the officer; that the city or town cannot compel the officer to continue in its service after obtaining the training until it has received recompense for its outlay of public funds; and, that, therefore, the disbursement of public moneys for such purpose inures to the private advantage of the officer rather than to the collective benefit of the inhabitants of the city or town. Upon this premise, the plaintiff asserts that the expending of municipal tax money to train a policeman diverts public funds to the private use of the policeman contrary to Article V, section 3, of the Constitution, expressly limiting the levy of taxes to public purposes, and grants an exclusive emolument or privilege to the policeman contrary to Article I, section 7, of the Constitution, prescribing that "no man or set of men are entitled to exclusive emoluments or privileges from the community but in consideration of public services."

It is unquestionably a sound and salutary rule that the power to make appropriations of money out of the treasury of a city or town must be measured by the same criterions as those by which it is raised by taxation and put into such treasury. 51 Am. Jur., Taxation, section 323. Thus, we are presently confronted by the question of whether the expenditure here assailed was for a public purpose. Nash v. Tarboro, 227 N.C. 283, 42 S.E. (2) 209.

A tax or an appropriation is certainly for a public purpose if it is for the support of government, or for any of the recognized objects of government. Ketchie v. Hedrick, 186 N.C. 392, 119 S.E. 767; 51 Am. Jur., Taxation, section 326; 61 C. J., Taxation, section 20. Hence, the expenditure challenged by the plaintiff was for a public purpose because its object was the maintenance of law and order, which is an essential function of government. 16 C. J. S., Constitutional Law, section 167.

The fact that the execution of the purpose required payment of the money involved to the defendant, P. R. Kitchin, did not affect its public character. This is true because "the test is not as to who receives the money, but the character of the purpose for which it is to be expended." 51 Am. Jur., Taxation, section 330; Stanley v. Jeffries, 86 Mont. 114,284 P. 134, 70 A.L.R. 166. See, also, Briggs v. Raleigh, 195 N.C. 223,141 S.E. 597.

The complaint reveals that the defendant, P. R. Kitchin, has been serving the Town of Weldon in the capacity of a police officer ever since he completed the course at the National Police Academy. For this reason, it seems somewhat inappropriate to argue here that the spending of municipal funds to train a policeman for the more efficient performance of his duties must be deemed to serve merely a private purpose because the municipality cannot compel him to remain in its service after obtaining the training until it has received recompense for its outlay of public moneys. But, in any event, this objection seems relevant to the question of the advisability of making the expenditure rather than to the existence of the power to make it. If the city or town does not choose to rely upon the mutual confidence and satisfaction existing between it and the police officer to induce the officer to stay in its employment for the desired period, it has the option of exacting an agreement from the officer with respect to this matter before making any outlay of public moneys.

The expenditure of tax moneys by a city or town to further the training of its policeman does not grant an exclusive emolument or privilege to the policeman contrary to Article I, section 7, of the Constitution because it is for a public purpose and "in consideration of public services." Brumleyv. Baxter, supra; Hinton v. Lacy, 193 N.C. 496, 137 S.E. 669.

Finally, the plaintiff maintains that the expenditure in controversy was illegal under Article VII, section 7, of the Constitution even if it had legislative approval and was for a public purpose. The plaintiff asserts here that the prevention, detection, and prosecution of crime is a function of the State and not of the municipality; that the police of a city or town act for the State and not for the municipality when they undertake to enforce the law: and that in consequence the cost of training police officers of a city or town cannot be deemed a necessary expense of the city or town under Article VII, section 7, precluding a municipal corporation from levying or collecting taxes "except for the necessary expenses thereof" without first being authorized so to do by a vote of the majority of its qualified voters.

The unsoundness of this contention is revealed by a consideration of the legal characteristics of cities and towns. "A municipal corporation is dual in character and exercises two classes of powers — governmental and proprietary. It has a twofold existence — one as a governmental agency, the other as a private corporation. Any activity of the municipality which is discretionary, political, legislative or public in nature and performed for the public good in behalf of the State, rather than for itself, comes within the class of governmental functions. When, however, the activity is commercial or chiefly for the private advantage of the compact community, it is private or proprietary. When injury or damage results from the negligent discharge of a ministerial or proprietary function it is subject to suit in tort as a private corporation. While acting in behalf of the State in promoting or protecting the health, safety, security, or general welfare of its citizens, it is an agency of the sovereign. No action in tort may be maintained for resulting injury to person or property." Millar v. Wilson, 222 N.C. 340, 23 S.E.2d 42.

This Court has uniformly held that where the purpose for which a proposed expense is to be incurred by a municipality is the maintenance of public peace or administration of justice, or partakes of a governmental nature, or purports to be an exercise by the municipality of a portion of the State's delegated sovereignty, the expense is a necessary expense within the Constitution, and may be incurred without a vote of the people.Sing v. Charlotte, 213 N.C. 60, 195 S.E. 271; Palmer v. Haywood County,212 N.C. 284, 193 S.E. 668; 113 A.L.R. 1195; Martin v. Raleigh,208 N.C. 369, 180 S.E. 786.

It necessarily follows that the expenditure in controversy constituted a necessary expense within the meaning of Article VII, section 7, of the Constitution because the purpose of the expenditure was to enable the Town of Weldon to exercise that portion of the sovereignty of the State which had been delegated to it by the State for the maintenance of law and order within its borders. This holding harmonizes with Tucker v. Raleigh,75 N.C. 267, where it is said that a debt contracted to obtain money to pay the compensation of the police is a necessary expense within the purview of the constitutional provision here considered.

In reaching this decision, we have not overlooked the allegations of the complaint that the expenditures involved "were not necessary expenses of said town, were unlawfully and wrongfully made from the revenues thereof, and constituted an unlawful appropriation of said funds for which said P. R. Kitchin is liable." These allegations are not averments of fact. They are mere conclusions of law asserted by the pleader. Consequently, they are not admitted by the demurrer. Cathey v. Construction Co., 218 N.C. 525, 11 S.E.2d 571; Richardson v. Richardson, 207 N.C. 314,176 S.E. 744; Hussey v. Kidd, 209 N.C. 232, 183 S.E. 255.

It follows that the averments of specific facts admitted by the demurrer are not affected by the general conclusions of law drawn therefrom by the pleader, and that the question of whether the expenditure named in the complaint was for a necessary expense within the meaning of Article VII, section 7, of the Constitution has not been converted into an issue of fact for determination by the jury.

Our conclusions may be simply stated in summary as follows:

Whether the expenditure in question was for a public purpose under Article V, section 3, of the Constitution, or was a necessary expense under Article VII, section 7, of the Constitution involved questions of constitutional law, which we have answered in the affirmative. Whether the expenditure had been authorized by the Legislature presented a question of statutory construction, which we have likewise answered in the affirmative. Whether the expenditure was necessary or needed in the particular instance specified in the complaint was a matter committed by law to the discretion of the governing body of the Town of Weldon.

These conclusions are in complete harmony with well considered decisions of this Court holding that "the courts determine whether a given project is a necessary expense of a municipality, but the governing authorities of the municipality determine in their discretion whether such given project is necessary or needed in the designated locality." Starmount Co. v. HamiltonLakes, 205 N.C. 514, 171 S.E. 909. See, also, in this connection: Fawcettv. Mt. Airy, 134 N.C. 125, 45 S.E. 1029.

The town made this expenditure to maintain law and order within its borders. In so doing, it was performing an inherent function of sovereignty delegated to it by the State under statutes enacted by the Legislature in conformity to the Constitution. Since the Town of Weldon could not confer upon itself the constitutional and statutory authority to make an expenditure for this purpose by any action of its governing authorities, we are unwilling to adjudge that it acted illegally in this particular case in exercising a discretionary power conferred upon it by the Constitution and legislative fiat merely because of some supposed insufficiency in the phrasing of the resolution of its governing body directing the making of the expenditure. But even if it be assumed that the Town of Weldon could not exercise a discretionary power conferred upon it by the Constitution and the Legislature in the absence of some linguistic proclamation by its governing body that the expenditure in question was necessary or needed in the locality embraced by its limits, it seems to us that the action of the town council in expressly authorizing and directing the expenditure to be made ought to be deemed tantamount to a determination and declaration on its part that it was necessary or needed for the proper enforcement of law and order within the municipality.

Our conclusions do not open a Pandora's box and render all authorized proceedings of the governing authorities of municipal corporations subject to judicial control. The converse is true for the reason that courts will not interfere with the exercise of discretionary powers conferred on municipal corporations for the public welfare, unless their action is so clearly unreasonable as to amount to an oppressive and manifest abuse of discretion. Cox v. Kinston, 217 N.C. 391, 8 S.E.2d 252; Riddle v.Ledbetter, 216 N.C. 491, 5 S.E.2d 542; S. v. Weddington, 188 N.C. 643,125 S.E. 257, 37 A.L.R. 573; Hudson v. Greensboro, 185 N.C. 502,117 S.E. 629; Brown v. Hillsboro, 185 N.C. 368, 117 S.E. 41; S. v. Rice,158 N.C. 635, 74 S.E. 582, 39 L.R.A. (N.S.) 266; S. v. Staples,157 N.C. 637, 73 S.E. 112, 37 L.R.A. (N.S.) 696.

For the reasons set out above, the judgment of the court below must be Affirmed. ADDENDUM.

After writing the above, the majority added a paragraph to its opinion saying that the allegation in question was not one of fact, but one of law, and hence not admitted by the demurrer.

A concurring dissent was thereupon filed pointing out that the added position of the majority was at variance with all the decided cases on the subject, calling special attention to Black's Case where the identical question was in focus and pronouncement made thereon.

The majority then adds five more paragraphs to its opinion, the last four by way of "summary."

The first two paragraphs of the summary are new and appear to constitute a negation of the position last taken and to amount to a confession of error. The third immediately executes a volte-face on a supposed presumption which runs counter to the record and the decided cases. The entire summary is devoid of any reference to the crucial allegation and admission on demurrer that the expenses in question "were not necessary expenses of said Town." No presumption can arise, or be indulged, in the face of a contrary admission on the record. The fourth paragraph of the summary seeks to give assurance of benevolence in respect of the effect of the holding. Then why disrupt a long line of decisions and leave the law in confusion, when clarity and simplicity are so immediate and readily attainable?

If this Court is not going to follow its own established precedents, or the law as it is written, S. v. Davis, ante, 386, how is the practitioner to know what he can safely advise in legal matters, or the disquietude necessarily engendered thereby to be allayed? Confidence as well as logic must buttress the Court's decisions.