Summary
stating that "all doubts" must be resolved in favor of the constitutionality of a statute
Summary of this case from James v. BartlettOpinion
Filed 6 March, 1968.
1. Taxation 7 — The power of taxation and the power of appropriation of tax monies are subject to the constitutional proscription that tax revenues may not be used for private individuals or corporations, no matter how benevolent.
2. Same; Constitutional Law 10 — The initial responsibility for determining what is a public purpose rests with the legislature and its findings are entitled to great weight, but an enactment for a private purpose is unconstitutional and cannot be saved by a legislative declaration to the contrary.
3. Constitutional Law 10 — When a constitutional question is properly presented, it is the duty of the court to ascertain and declare the intent of the Constitution and to reject any legislative act in conflict therewith.
4. Same — There is a presumption in favor of the constitutionality of a statute.
5. Same — The court will not question the wisdom of the General Assembly in enacting a valid statute.
6. Constitutional Law 2 — The Constitution of the State is a restriction of powers, and those powers not surrendered are reserved to the people through their representatives in the General Assembly.
7. Taxation 7 — The concept of public purpose is incapable of fixed definition but expands with the population, economy, scientific knowledge, and with changing conditions.
8. Same — For a use to be public it must benefit the public in common and not particular persons, interests or estates.
9. Evidence 3 — The court will take judicial notice that the social order is not threatened by widespread unemployment such as confronted the nation during the depression years.
10. Taxation 7; Eminent Domain 3 — The term "public purpose" is generally used in the same sense in the law of taxation and in the law of eminent domain.
11. Same — It is the rule in this State that government may not engage in private enterprise, nor may the power of eminent domain be used in behalf of private interest.
12. Taxation 7 — The issuance of revenue bonds by the Industrial Development Financing Authority, pursuant to G.S. Chapter 123A, in order to acquire sites and to construct and equip buildings and other facilities thereon for lease to private industry, such bonds to be retired by the rental payments, is not a public use or purpose for which State tax funds may be appropriated to enable the Authority to commence its operations. N.C. Constitution, Art. V, 3.
APPEAL by plaintiff from McKinnon, J., 2 October 1967 Special Civil Session of WAKE docketed in the Supreme Court as Case No. 550 and argued at the Fall Term 1967. Before argument in the Court of Appeals, upon motion of all parties, this appeal was certified for transfer to this Court pursuant to G.S. 7A-31 (b).
Johnson Gamble for plaintiff appellant.
Attorney General T. Wade Bruton and Deputy Attorney General Harry McGalliard for Wayne Corpening, G. Andrew Jones, Jr., and G. H. Brooks, defendant appellees.
Herman Wolff, Jr., for North Carolina Industrial Development Financing Authority, defendant appellee.
HUSKINS, J., took no part in the consideration or decision of this case.
PARKER, C.J., dissenting.
BRANCH, J., joins in the dissenting opinion.
Plaintiff, a taxpayer, instituted this action to enjoin defendants, the Director of the Department of Administration for the State of North Carolina, the State Budget Officer, the State Disbursing Officer, and the North Carolina Industrial Development Financing Authority (Authority) from expending any money from the State's Contingency and Emergency Fund, or other tax funds, for or on behalf of Authority. Authority was created by Chapter 535 of the Session Laws of 1967, the "North Carolina Industrial Development Financing Act" (Act), now codified as Chapter 123A of the North Carolina General Statutes. This appeal involves the constitutionality of the Act. All material facts are stipulated.
The legislative findings, which preface the enactment, are: The creation of Authority as "a public agency and an instrumentality of the State" is necessary "to meet the challenge of attracting new industry posed by the inducements to industry offered through legislative enactments in other jurisdictions." Its purposes, specifically declared to be "public," are to promote industry and the natural resources of the State, increase gainful employment and purchasing power, improve living conditions, advance the general economy, expand facilities for research and development, increase vocational training opportunities, and otherwise contribute to the prosperity and welfare of the State "by providing facilities for operation by private operators useful for industrial and research pursuits. . . ." G.S. 123A-2.
The material portions of the Act, except when quoted, are summarized below:
The projects which Authority may undertake are the rehabilitation, enlargement, construction, operation, maintenance, and equipment of any building or structure (with necessary appurtenances thereto) for use as a factory, mill, processing, fabricating, or assembly plant, distribution center, or facility for industrial, medical, electronic or other types of research and development. "[N]o retail or wholesale store and no office, storage or other commercial facility not incidental" to the foregoing uses, however, shall be included in any project. G.S. 123A-3 (7).
Authority is composed of seven members: the State Treasurer, the Chairman of the Department of Conservation and Development, and five gubernatorial appointees, who shall have the qualifications specified in G.S. 123A-4 (a). Authority is empowered to appoint an executive director, a secretary, and such other officers as it deems advisable.
In addition to all the usual powers incidental and necessary to routine corporate existence, G.S. 123A-5 (1)-(13) gives Authority the following powers (enumeration ours):
(a) To issue industrial revenue bonds (and revenue refunding bonds) to provide funds to pay the cost of acquiring sites and the construction and equipment of projects thereon; (b) to make all contracts necessarily incident to such acquisition, construction and financing; and (c) to lease, sell, or otherwise dispose of any real or personal property.
The "criteria and requirements" which shall govern Authority in undertaking a project are:
(1) The project "shall make a significant contribution to the economic growth" of the governmental unit "in which it shall be located"; (2) it shall not involve the relocation of an existing industrial or research facility to some other part of the State "unless the Authority determines that there is a clear and justifiable reason therefor"; (3) the proposed lessee of any project shall be financially responsible, willing and able to operate, repair and maintain the leased project at its own expense; and (4) the local governmental unit in which the project is to be located must "be able to cope satisfactorily with the impact of such project" by providing the services and facilities necessary to its construction, operation, and maintenance.
Authority's determination whether the foregoing "criteria and requirements" have been met is final. G.S. 123A-6.
The governmental body of the local unit must approve a project and request Authority to finance and construct it before Authority may do so. G.S. 123A-7 (b).
Authority's bonds shall be designated "North Carolina Industrial Development Financing Authority Revenue Bonds . . . . . . . Series," each series being designated by the name of the local unit in which the project is to be located. The bonds shall mature as Authority designates (but not later than 40 years) and may be redeemable under conditions fixed by it prior to the issuance of the bonds. The proceeds of each issue shall be used only to pay the cost of the project for which such bonds are issued. G.S. 123A-14 (b).
Authority's bonds, by the express provisions of G.S. 123A-13, "shall not be deemed to constitute a debt, liability or obligation of the State or of any political subdivision thereof or a pledge of the faith and credit of the State or of any such political subdivisions," but principal and interest "shall be payable solely from the revenues and other funds provided therefor." Each bond issued shall contain a statement to this effect on the face thereof.
Notwithstanding any recitals in Authority's bonds, they are made negotiable instruments under the laws of this State, subject only to the provisions for registration in any resolution authorizing them and to any trust agreement securing them. G.S. 123A-19. The bonds are made legal and proper investments for public officers or agencies, insurance companies, trust companies, banking associations, investment companies, and all fiduciaries. They are also made securities which may be deposited with any state or municipal agency "for any purpose for which the deposit of bonds or obligations of the State is now or may hereafter be authorized by law." G.S. 123A-20.
Authority shall not mortgage any part of any project, but it may secure its bonds by a trust agreement whereby "the fees, rents, charges, proceeds from the sale of any project, . . . insurance proceeds, condemnation awards and other funds and revenues to be received therefor" are pledged to a corporate trustee. G.S. 123A-15.
Construction contracts may be awarded in the manner Authority decides will best promote free and open competition. It may, however, award contracts "upon a negotiated basis." G.S. 123A-10. No member of Authority shall be interested in any contract with it unless Authority determines his interest to be "so minor as not to be within the purview" of G.S. 123A-11.
After a project is constructed, Authority shall lease it to one or more persons, firms, or private corporations for operation and maintenance. Neither Authority nor any other governmental agency may operate any project financed under the Act except temporarily in order to protect its interest in the project pending its leasing. G.S. 123A-8. Authority's lease agreements may provide, inter alia: (a) Lessee shall operate and maintain the facility at its own expense; pay a rental sufficient to pay principal, interest, and redemption premiums, if any, on the bonds issued by Authority to finance the leased premises, plus any costs of construction or financing not paid out of the proceeds of the bonds or otherwise; (b) the lease shall not terminate before all bonds and other obligations incurred by Authority in connection with the leased project shall be fully paid, or adequate funds for such payment shall be deposited in trust; and (c) lessee may extend or renew the lease or purchase the project upon conditions consistent with the Act and in accordance with the provisions of G.S. 123A-8 (5).
The lessee of any project is required to list it for taxation in the manner of an owner and to pay "an amount equal to the total amount of ad valorem taxes that would . . . be levied" upon the leased property if it were owned by a private citizen. G.S. 123A-9. Authority, however, shall not be required to pay any taxes on any property which it owns under the provisions of the Act or upon any income derived therefrom. Its revenue bonds, their transfer, and the income derived therefrom (including any profit made from a sale thereof) shall also be free from taxation by the State or any of its political subdivisions. The bonds are, however, subject to inheritance and gift taxes, and the leasehold interest of the lessee in a project is not exempt from taxation.
When all bonds and all costs incurred by Authority for any project have been paid (or sufficient money deposited in trust for their payment), Authority shall convey its interest in the project by quitclaim deed to the local unit in which the project is located if its governing body consents to the conveyance. This conveyance will be subject to any agreement, lease, option, covenants, limitations, liens, and other encumbrances affecting the project. "Any property so conveyed may be administered and used by the local unit for the purposes of this chapter or any other lawful purpose." G.S. 123A-22.
In order to enable Authority to organize and commence its operations, G.S. 123A-12 authorizes the Governor and the Council of State to transfer to it out of the Contingency and Emergency Fund such amounts, not otherwise obligated, as they shall deem necessary to enable Authority to organize and operate during the first two years of its existence.
On the same day the General Assembly passed the Act (19 May 1967), it also adopted Resolution No. 52. This resolution recited that North Carolina — reluctantly, with reservations, and as a defensive measure — had joined thirty-five states in authorizing the issuance of industrial revenue bonds. It urged the President and the other forty-nine states to request the Congress of the United States "to make the interest received by the owners of so-called industrial revenue bonds hereafter issued subject to all applicable federal income tax laws."
The five members of Authority appointed by the Governor are defendants Wilbur Clark, Frank H. Kenan, T. Huber Hanes, Jr., J. Carlton Fleming, and David L. Ward, Jr. On 16 August 1967, Authority was duly constituted and organized. It now has a chairman, a secretary, and an acting executive director.
Pursuant to Authority's request, and purporting to act under the authority of G.S. 123A-12, the Governor and Council of State approved an allotment in the sum of $37,062.0 from the State's Contingency and Emergency Fund for the use of Authority for the fiscal year 1967-68. The Contingency and Emergency Fund represents money collected from citizens, residents, associations, and corporations of the State through various forms of taxation.
On 6 September 1967, plaintiff instituted this action to restrain the payment of any money from the Contingency and Emergency Fund to Authority and to enjoin Authority from accepting and spending any such funds. Plaintiff alleges that the Act is unconstitutional in that (1) it authorizes the use of public funds for other than a public purpose in violation of N.C. Constitution article 5, 3 and article 1, 17 and the 14th Amendment, 1 of the United States Constitution; (2) it authorizes lending the credit of the State to private entities without a vote of the people in violation of N.C. Constitution article 5, 4 and article VII, 6; (3) it delegates legislative authority contrary to the provisions of N.C. Constitution article 1, 8; (4) it authorizes the creation of a debt in contravention of N.C. Constitution article 7, 6 or article 5, 4; and (5) it exempts property from taxation in violation of N.C. Constitution article 5,
Answering the complaint, defendants admitted each allegation of fact and controverted each conclusion of law set out therein. Defendants prayed the court to declare the Act constitutional in every respect and to deny plaintiff the equitable relief he seeks.
When the case was called for trial, Judge McKinnon heard the cause upon the parties' stipulation of facts. Inter alia, this stipulation contained the facts detailed above. It also contained a list of thirty-nine states "allowing industrial development" bonds; estimates of the total amount of such bonds issued each year since 1951; statements with reference to the bonded indebtedness of the State of North Carolina and its tax revenues; statements compiled by the U.S. Chamber of Commerce purporting to show the effect upon an area of every one hundred new factory workers; and statements which suggest that "several large industrial firms" permitted options upon industrial sites in North Carolina to expire because this State did not "afford financing of industrial sites through tax-exempt industrial revenue bonds."
Judge McKinnon found the facts to be in accordance with the stipulations. He adjudged that the Act promoted a public purpose; that it violated no provision of the State or Federal Constitution; and that it was in every respect a valid enactment. From the judgment denying plaintiff any relief and dismissing the action, plaintiff appealed.
This case, brought to test the constitutionality of the North Carolina Industrial Development Financing Act, does not call into question the actual operation of Authority nor does it involve the validity or tax status of any bond issue, for no bonds have been issued. As the Wisconsin court said in State v. Barczak, 34 Wis.2d 57, 148 N.W.2d 683, 687, "The case before us involves only a threshold expenditure. It does not go to the pith of the functions or the operations of an industrial development corporation." The question for decision is whether an initial appropriation of $37,062.00 of tax money from the State's Contingency and Emergency Fund may be made to enable Authority to organize and commence its operations.
N.C. Const. art. V, 3 provides: "The power of taxation shall be exercised in a just and equitable manner, for public purposes only, and shall never be surrendered, suspended, or contracted away." (Emphasis added.) This limitation of taxing power was contained in the Constitution of 1868 and reaffirmed by the vote of the people in 1962 when Article V, 3 of the Constitution was revised. The power to appropriate money from the public treasury is no greater than the power to levy the tax which put the money in the treasury. Both powers are subject to the constitutional proscription that tax revenues may not be used for private individuals or corporations, no matter how benevolent. Horner v. Chamber of Commerce, 231 N.C. 440, 57 S.E.2d 789. The crucial question, therefore, is whether Authority was created for a public purpose. If so, it may be activated by the questioned appropriation of tax funds; otherwise not. Britt v. Wilmington, 236 N.C. 446, 73 S.E.2d 289.
The initial responsibility for determining what is and what is not a public purpose rests with the legislature, and its findings with reference thereto are entitled to great weight. If, however, an enactment is in fact for a private purpose, and therefore unconstitutional, it cannot be saved by legislative declarations to the contrary. When a constitutional question is properly presented, it is the duty of the court to ascertain and declare the intent of the framers of the Constitution and to reject any legislative act which is in conflict therewith. State v. Felton, 239 N.C. 575, 80 S.E.2d 625; Nash v. Tarboro, 227 N.C. 283, 42 S.E.2d 209; 1 Strong, N.C. Index, Constitutional Law 10 (1957). The presumption, however, is in favor of constitutionality, and all doubts must be resolved in favor of the act. State v. Furmage, 250 N.C. 616, 109 S.E.2d 563; Wells v. Housing Authority, 213 N.C. 744, 197 S.E. 693. The State's Constitution is a restriction of powers; those powers not surrendered are reserved to the people to be exercised through their representatives in the General Assembly. Therefore, so long as an act is not forbidden, the wisdom of the enactment is exclusively a legislative decision. McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888; Yarborough v. Park Commission, 196 N.C. 284, 145 S.E. 563; Hudson v. Greensboro, 185 N.C. 502, 117 S.E. 629. If the use is public, the expediency or necessity for establishing it is exclusively for the legislature. Dennis v. Raleigh, 253 N.C. 400, 116 S.E.2d 923; Redevelopment Commission v. Bank 252 N.C. 595, 114 S.E.2d 688; Nash v. Tarboro, supra; Wells v. Housing Authority, supra; Yarborough v. Park Commission, supra.
A slide-rule definition to determine public purpose for all time cannot be formulated; the concept expands with the population, economy, scientific knowledge, and changing conditions. As people are brought closer together in congested areas, the public welfare requires governmental operation of facilities which were once considered exclusively private enterprises, Fawcett v. Mt. Airy, 134 N.C. 125, 45 S.E. 1029, and necessitates the expenditure of tax funds for purposes which, in an earlier day, were not classified as public. Keeter v. Lake Lure, 264 N.C. 252, 141 S.E.2d 634. Often public and private interests are so co-mingled that it is difficult to determine which predominates. It is clear, however, that for a use to be public its benefits must be in common and not for particular persons, interests, or estates; the ultimate net gain or advantage must be the public's as contradistinguished from that of an individual or private entity. Briggs v. Raleigh, 195 N.C. 223, 141 S.E. 597.
"It has been said that the term `public purpose' is merely a classification distinguishing objects for which the government is to provide from those which are left to private inclination, interest, or liberality. A private enterprise, on the other hand, is one which is ordinarily pursued by individuals in cultivating the soil, manufacturing articles for sale, dealing in merchandise, and the various and numerous other activities which enlist individual energy in a complex and advancing civilization. . . . The term `public purpose,' as used in a constitutional provision that taxes shall be levied for public purposes only, is synonymous with `governmental purpose' in the broad connotation given the latter term under the modern concept of government and the relation between government and society." 51 Am. Jur. Taxation 326 (1944).
This Court has, on at least two occasions, quoted with approval the following creed: "`If there is any restriction implied and inherent in the spirit of the American Constitutions, it is that the government and its subdivisions shall confine themselves to the business of government. . . .' 38 Am. Jur., Municipal Corporations 395." Bobbitt, J., in Dennis v. Raleigh, supra at 403-04, 116 S.E.2d at 926; Denny, J. (later C.J.), in Nash v. Tarboro, supra at 285, 42 S.E.2d at 211. When we have approved this statement, however, we are back where we started. What is the business of government? To say that it is a proper function of the State to promote the health, safety, morals, and general welfare of the community is quite true, Fawcett v. Mt. Airy, supra, but it is not to decide a particular case. Is it today a proper function of government for the State to provide a site and equip a plant for a private industrial enterprise?
In the interstate competition for industry, an overwhelming majority of the states now authorize the use of industrial development bonds. Although the plans vary in detail, they are basically the same. Local governmental units, or some agency of the state created for this specific purpose, pay for a site and construct a plant with funds derived from the issuance of revenue bonds. The facility is then leased to a manufacturer whose rental payments are used to retire the bonds. When the bonds are paid, the industry, if it so desires, may exercise an option to buy the facility or it may continue to lease it, depending upon its agreement with the lessor. This arrangement enables the manufacturer to expand or relocate without a heavy investment of its own capital. For a history of the inception and growth of governmental aid financing, see Abbey, Municipal Industrial Development Bonds, 19 Vand. L. Rev. 25 (1965); Pinsky, Public Industrial Financing, 111 U. Pa. L. Rev. 265 (1963). See Notes, 59 Col. L. Rev. 619, 629 (1959) 14 Vand. L. Rev. 621 (1961); Bridges, State and Local Inducements for Industry, 18 Nat'l Tax J. 1 (1965).
At the time the General Assembly passed the Act, it declared in Resolution No. 52 that it considered the Act bad public policy. It explained that it felt compelled to authorize industrial revenue bonds in order to compete for industry with neighboring states which use them. As proof of its reluctance to join the industry-subsiding group of states, the General Assembly requested the President and the other forty-nine states to petition Congress to make the interest on all such bonds thereafter issued subject to all applicable income-tax laws.
"It is the Internal Revenue Code of 1954, not the public credit, which makes industrial development bonds work. . . . The issuing sources of the revenue bonds would be immaterial if the same federal tax benefits could otherwise be obtained." Note, Industrial Development Bonds: Judicial Construction vs. Plant Construction, 15 U. Fla. L. Rev. 262, 296 (1962). See also Herring Miller, Florida Public Bond Financing — Comments on the Constitutional Aspects, 21 U. Miami L. Rev. 1; 30 (1966).
Section 103 (a) (1) of the Internal Revenue Code of 1954 provides that gross income does not include interest on the obligations of a state, a territory, or a possession of the United States, or of any political subdivision of the foregoing. Under revenue rulings, income from revenue bonds which are obligations of a political subdivision is excluded "notwithstanding the fact that the bonds were issued to finance the construction of industrial plants for lease to private concerns," with payment to be made from the revenues of the lease rather than the general revenues of the municipality. Michie's Federal Tax Handbook 631 (1966); Revenue Ruling 54-106, 1954-1 CB 28; 1 Merton, Law of Federal Income Taxation 8.17 (1962). See also Revenue Ruling 57-187, 1957-1 CB 65; Revenue Ruling 63-20, 1963-1 CB 24.
Because the interest on revenue bonds of a state agency is excluded from federal and state income taxes, the rate is generally lower than that which private borrowers pay, and this saving is usually passed to the industry in the form of lower rentals. Furthermore, rental payments are deductible under both federal and state laws as an operating expense. By buying the bonds itself, it is possible for an industry to realize a net profit on its occupancy of the facility in consequence of a net tax savings resulting from rent deductions and receipt of non-taxable interest-income. For figures showing this accomplishment, see Note, 15 U. Fla. L. Rev. 262 at 269-270 (1962). See also Note, The "Public Purpose" of Municipal Financing for Industrial Development, 70 Yale L. J. 789 (1961).
Since the tax advantage is the primary appeal which these industrial bonds make to purchasers, the elimination of this status would curtail their use to finance private business expansion — as the General Assembly recognized in Resolution 52. The Supreme Court of Wyoming also noted this fact when it passed upon the constitutionality of the Wyoming Industrial Development Project Act in Uhls v. State, 429 P.2d 74. It said: "Such financing (industrial revenue bonds) has been resorted to because municipal bonds are exempt from Federal taxation, and small communities have been able to use this tax-exempt status to encourage local industrial development. No doubt it is only a matter of time until Congress will see fit to remove tax exemptions for municipal revenue bonds." Id. at 82. Bills to end the tax-exempt status of industrial aid bonds have been introduced in Congress. 5 Nation's Cities 29 (1967); Note, 20 Vand. L. Rev. 685 (1967).
According to an item in Newsweek, January 29, 1968, p. 59: "The Treasury Department and the Securities and Exchange Commission will campaign this year for a crackdown on the growing use of tax exempt industrial revenue bonds to finance private business expansion. During 1967, the worth of such bonds issued by state and local governments exceeded $1 billion." The National League of Cities and the North Carolina League of Municipalities say that tax-free revenue bonds pose a growing threat to the financial stability of city government; that they amount to a subsidy to "blue ribbon" industry; that they compete with general-purpose municipal bonds, thereby reducing the market and raising the interest rates on such bonds; and that they endanger the entire tax-exempt status accorded income from governmental bonds. Southern City, February 1967; 5 Nation's Cities 29 (Dec. 1967); Spiegel, Financing Private Ventures with Tax-Exempt Bonds: A developing "Truckhole" in the Tax Law, 17 Stan. L. Rev. 224 (1965).
Whatever may be the ultimate fate of governmental industrial revenue bonds, our research indicates that at least forty-two states (not counting North Carolina) have held that governmental financing for industrial development serves a public purpose. The courts of the twenty-one jurisdictions listed below have, without constitutional amendments, upheld the validity of legislation authorizing governmental industrial aid bonds or other types of financial assistance. They have either assumed the public purpose of such acts or reasoned as follows: An inadequate number of jobs means an oversupply of labor, which results in low wages. Unemployment and low wages lead to hunger, ill health, and crime. The continued existence of an established industry and the establishment of new industry provide jobs, measurably increase the resources of the community, promote the economy of the state, and thereby contribute to the welfare of its people. The stimulation of the economy is, therefore, an essential public and governmental purpose. The fact that a private interest incidentally benefits from such governmental aid is not fatal if substantial public benefits also result. See generally, Note, The "Public Purpose" of Municipal Financing for Industrial Development, 70 Yale L. J. 789 (1961); Note, 20 Vand. L. Rev. 685 (1967).
Alabama: Newberry v. City of Andalusia, 257 Ala. 49, 57 So.2d 629 (1952) (Public purpose assumed; two justices dissenting); Alaska: DeArmand v. Alaska State Development Corporation, 376 P.2d 717 (1962); Connecticut: Roan v. Connecticut Industrial Building Commission, 150 Conn. 333, 189 A.2d 399 (1963) (State Industrial Building Commission to insure mortgages on industrial projects); Delaware: In re Opinion of the Justices, 54 Del. 366, 177 A.2d 205 (1962) (Act held for a public purpose without reliance on Const. art. VIII, 4 allowing public money to be appropriated to private corporations upon vote of three-fourths of all members of the General Assembly); Iowa: Green v. City of Mt. Pleasant, 256 Iowa 1184, 131 N.W.2d 5 (1964); Kansas: State v. City of Pittsburg, 188 Kan. 612, 364 P.2d 71 (1961); Kentucky: Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80 (1950); see also Industrial Development Authority v. Eastern Kentucky Reg. pl. Comm. (Ky. C.A.), 332 S.W.2d 274 (1960); Maryland: City of Frostburg v. Jenkins, 215 Md. 9, 136 A.2d 852 (1957) (One Justice dissenting); Michigan: City of Gaylord v. Beckett, 378 Mich. 273, 144 N.W.2d 460 (1966) (One dissent); Mississippi: Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 115 A.L.R. 1436 (1938), appeal dismissed, 303 U.S. 627; New Hampshire: Opinion of the Justices, 106 N.H. 237, 209 A.2d 474 (1965); Opinion of the Justices, 103 N.H. 258, 169 A.2d 634 (1961); Cf. In re Opinion of the Justices, 99 N.H. 528, 114 A.2d 514 (1955); Opinion of the Justices, 106 N.H. 180, 207 A.2d 574 (1965); New Jersey: Roe v. Kervick, 42 N.J. 191, 199 A.2d 834 (1964); New Mexico: Village of Deming v. Hosdreg Co., 62 N.M. 18, 303 P.2d 920 (1956) (two justices dissenting); North Dakota: Gripentrog v. City of Wahpeton, 126 N.W.2d 230 (1964); Oklahoma: Harrison v. Claybrook, 372 P.2d 602 (1962). (Constitution permits the State to engage in any occupation or business for public purposes, except agriculture; see also, Application of Oklahoma Industrial Finance Authority, 360 P.2d 720 (1961) for constitutional provision authorizing limited pledge of State's credit for industrial development;) South Carolina: Elliott v. McNair, ___ S.C. ___, 156 S.E.2d 421 (1967); Tennessee: McConnell v. City of Lebanon, 203 Tenn. 498, 314 S.W.2d 12 (1958) (two Justices dissenting; proposition required to be affirmed by the voters); Holly v. City of Elizabethton, 193 Tenn. 46, 241 S.W.2d 1001 (1951); Virginia: Fairfax County Industrial Develop. Auth. v. Coyner, 207 Va. 351, 150 S.E.2d 87 (1966); West Virginia: State v. Bane, 148 W. Va. 392, 135 S.E.2d 349 (1964); State v. Demus, 148 W. Va. 398, 135 S.E.2d 352 (1964); Wisconsin: State v. Barczak, 34 Wis.2d 57, 148 N.W.2d 683 (1967) (Act held prima facie for a public purpose; court did not pass on actual operation of authority); Wyoming: Uhls v. State, 429 P.2d 74 (1967).
The following eleven states have passed acts authorizing industrial revenue bonds under express constitutional authority:
Arkansas: In 1957, Arkansas amended its constitution to permit counties and cities of the first or second class, with the consent of a majority of the qualified voters of the unit, to issue bonds in the approved amount for the purpose of securing and developing industry. Amendment Number 49. An act of the legislature also permits the state to purchase the bonds issued by private, nonprofit development finance corporations chartered by the State Bank Commission. The Arkansas Supreme Court, in Andres v. First Arkansas Development Finance Corp., 230 Ark. 594, 324 S.W.2d 97 (1959), held that the State's purchase of these bonds was not a loan of the State's credit.
Georgia: The General Assembly may amend the constitution to establish County Development Authority. Bonds approved in Smith v. State, 217 Ga. 94, 121 S.E.2d 113 (1961); bonds disapproved in Smith v. State, 222 Ga. 552, 150 S.E.2d 868 (1966).
Louisiana: Art. 14, 14 of the constitution authorizes municipalities to issue industrial revenue bonds. Miller v. Police Jury of Washington Parish, 226 La. 8, 74 So.2d 394 (1954); Hebert v. Police Jury of West Baton Rouge Parish, ___ La. ___, 200 So.2d 877 (1967).
Maine: Constitution art. IX, 8, as amended in 1962, permits a municipality, when authorized by a majority of the registered voters, to issue bonds in order to construct facilities for lease or sale to industries, firms, or corporations. See Opinion of the Justices, 161 Me. 182, 210 A.2d 683 (1965). In addition, art. IX, 14-A permits the legislature to insure payment of mortgage loans on industrial real estate within the state. See Martin v. Maine Savings Bank, 154 Me. 259, 147 A.2d 131 (1958); Opinion of the Justices, 153 Me. 202, 136 A.2d 528 (1957).
Missouri: Art. VI, 23 (a) allows cities to issue general obligation bonds for industrial financing by 2/3 vote; art. VI, 27 allows city to issue revenue bonds for industrial financing of 4/7 vote.
Nebraska: Constitution art. XV, 16 authorizes local units to acquire and develop property for lease to industry and to issue revenue bonds for the same purposes. (See further discussion of this amendment post.) See State v. County of Lancaster, 173 Neb. 195, 113 N.W.2d 63 (1962).
New York: Effective January 1, 1967, an amendment to the constitution authorized the state to lend money "to a public corporation to be organized for the purpose of making loans to nonprofit corporations to finance the construction" of new or expanding industrial or manufacturing plants. N.Y. Const. art. VII, 8; art. XI, 7.
Ohio: Constitution art. VIII, 13, as amended in 1965, declares industrial development financing to be a public purpose and allows the issuance of bonds for financing industrial development. See State v. Greater Portsmouth Growth Corp., 7 Ohio St.2d 34, 218 N.E.2d 446 (1966).
Rhode Island: Constitution art. IV, 10, 14, permits the appropriation of public funds for private purposes with the assent of two-thirds of the members of the General Assembly. Opinion to the Governor, 79 R.I. 305, 88 A.2d 167 (1952); Opinion to the Governor, 88 R.I. 202, 145 A.2d 87 (1958).
Texas: The 1967 Legislature enacted the Texas Industrial Development Act, which would authorize municipalities and navigation districts to issue limited obligation bonds in aid of industry provided a proposed constitutional amendment is adopted by the electorate at the 1968 general election. The proposed amendment would add section 52a to Article III of the constitution and would grant the legislature the power to authorize local units to issue revenue bonds for industrial development. 1967 Acts of Texas, 60th Leg. S. J. R. No. 14.
Washington: In 1966, Washington amended art. VIII, 8 of its constitution so that it now allows the use of public funds by port districts for industrial development in such manner as may be prescribed by the legislature.
Five states, Arizona, California, Massachusetts, Oregon, and South Dakota, apparently have not authorized industrial revenue bonds. Our research has disclosed no cases which have passed upon the validity of the acts of the following states: Colorado, Hawaii, Indiana, Minnesota, Montana, Nevada, New York, Pennsylvania, Utah, and Vermont. (See Port Authority of City of Saint Paul v. Fisher, 275 Minn. 157, 145 N.W.2d 560 (1966) for decision upholding act authorizing use of industrial revenue bonds by St. Paul's Port Authority.) The present status of the Illinois Industrial Development Authority Act is unclear. See Bowes v. Howlett, 24 Ill.2d 545, 182 N.E.2d 191 (1962), in which the Supreme Court of Illinois held unconstitutional a continuing appropriation of $500,000.00 to the Authority from the general revenue fund.
The Supreme Courts of at least six states — Florida, Idaho, Maine, Nebraska, Ohio, and Washington — have held acts such as the one we now consider not to be for a public purpose and therefore unconstitutional. After these decisions, Maine, Nebraska, Ohio, and Washington amended their constitutions to permit legislation authorizing industrial revenue bonds.
In 1952, the Town of North Miami, Florida, proposed to issue revenue bonds to purchase lands upon which to erect an aluminum plant for lease to a private industry for twenty years. The bonds were to be paid from the net rental derived from the property and were not an obligation of the town. In State v. Town of North Miami, 59 So.2d 779 (1952), the Supreme Court of Florida held the proposed issue unconstitutional. The court said that it had long been the policy of the State to advertise the advantages of Florida to induce new people and new capital to come there because such programs inured to the benefit of all the citizens of the governmental units affected and not a particular private entity. However, in none of the cases decided under Florida's present constitution, the court continued, had it "approved any special legislative acts which authorized any of the political subdivisions or governmental units of the State to acquire property and erect buildings thereon for the exclusive use of a private corporation for private gain and profit." Id. at 784.
"Every new business, manufacturing plant, or industrial plant which may be established in a municipality will be of some benefit to the municipality. A new super market, a new department store, a new meat market, a steel mill, a crate manufacturing plant, a pulp mill, or other establishments which could be named without end, may be of material benefit to the growth, progress, development and prosperity of a municipality. But these considerations do not make the acquisition of land and the erection of buildings, for such purposes, a municipal purpose.
"Our government was founded upon the firm foundation that private property cannot be taken except when it will serve a public purpose. . . . If private property may be purchased by the municipality for the use and benefit of a private corporation, then it may be acquired by the great power of eminent domain for such a purpose.
"Our organic law prohibits the expenditure of public money for a private purpose. It does not matter whether the money is derived by ad valorem taxes, by gift, or otherwise. It is public money and under our organic law public money cannot be appropriated for a private purpose or used for the purpose of acquiring property for the benefit of a private concern. It does not matter what such undertakings may be called or how worthwhile they may appear to be at the passing moment. The financing of private enterprises by means of public funds is entirely foreign to a proper concept of our constitutional system. Experience has shown that such encroachments will lead inevitably to the ultimate destruction of the private enterprise system." Id. at 784-85.
The Town of North Miami's proposed bond issue was without legislative authority, but the court made it quite clear that the basis of decision was not the absence of statutory authority because, it said, the legislature "cannot authorize a municipality to spend public money or lend or donate, directly or indirectly, public property for a purpose which is not public." Id. at 785. In State v. Clay County Development Authority, 140 So.2d 576 (1962), the court reaffirmed the ruling in State v. Town of Miami by invalidating a proposed issue of revenue bonds under legislative authority. See Note, 15 U. Fla. L. Rev. 262 (1962); see also, Tew, Industrial Bond Financing and the Florida Public Purpose Doctrine, 21 U. Miami L. Rev. 171 (1966).
The Supreme Court of Nebraska, saying that State v. Town of North Miami pointed the way to the correct conclusion, invalidated that state's industrial bond act in State v. City of York, 164 Neb. 223, 82 N.W.2d 269 (1957). The City of York had proposed to issue revenue bonds and, with the proceeds thereof, to purchase a cold storage and packing plant and to lease it back to the vendor as a packing plant for slaughtering hogs. The court, after considering the opinions in other states which had held that such bonds were issued for a public purpose, concluded that these decisions were based on "fundamental fallacies of reasoning."
Although conceding that the location of a packing company in the city might give employment to its citizens and tend to balance a restricted economy, the court said: "But general benefit to the economy of a community does not justify the use of public funds of the city unless it be for a public as distinguished from a private purpose. This is simply a case where the city is attempting to use the powers, credits, and public moneys of the city to purchase land and erect industrial buildings thereon for the use of a private corporation for private profit and private gain. It serves no public or municipal purpose. The Act purports to grant powers to cities which are beyond the authority of the Legislature to confer." Id. at 230, 82 N.W.2d at 274.
As a result of the decision in State v. City of York, supra, in 1960, Nebraska amended its constitution to authorize municipalities to aid industrial enterprises by means of revenue bonds, which shall not become obligations of the governmental subdivision issuing them. Inter alia, the amendment also provided: (1) All real or personal property so acquired by a government unit "shall be subject to taxation to the same extent as private property during the time it is leased to or held by private interests"; (2) "The acquiring, owning, developing, and leasing of such property shall be deemed for a public purpose, but the governmental subdivision shall not have the right to acquire such property by condemnation (Italics ours); (3) No governmental subdivision shall have the power to operate any such property as a business or in any manner except as the lessor thereof." Art. XV, 16.
In Village of Moyie Springs, Idaho v. Aurora Mfg. Co., 82 Idaho 337, 353 P.2d 767 (1960), the Supreme Court of Idaho, following the reasoning of the courts of Florida and Nebraska, held unconstitutional an industrial revenue bond act similar to Nebraska's. In commenting upon the decisions which had held such acts constitutional, the court said: "Such decisions read like apologies to constitutional limitations, dictated by expediency." Id. at 345, 353 P.2d at 772. In denying the public purpose of such acts and the power of the legislature to exempt industrial revenue bonds and their income from taxation, the Idaho court said:
". . . An exemption which arbitrarily prefers one private enterprise operating by means of facilities provided by a municipality, over another engaged, or desiring to engage, in the same business in the same locality, is neither necessary nor just. . . . It is obvious that private enterprise, not so favored, could not compete with industries operating thereunder. If the state-favored industries were successfully managed, private enterprise would of necessity be forced out, and the state, through its municipalities, would increasingly become involved in promoting, sponsoring, regulating and controlling private business, and our free private enterprise economy would be replaced by socialism. The constitutions of both state and nation were founded upon a capitalistic private enterprise economy and were designed to protect and foster private property and private initiative.
"Moreover, the tax exemption granted to industries under the act, would result in casting an additional tax burden upon the other citizens and industries, not only of the municipalities directly participating, but of the entire state." Id. at 349-50, 353 P.2d at 775.
In 1959, the Supreme Court of Washington held that an act of the legislature which, inter alia, authorized the Port of Seattle to condemn private lands for the development and sale to private entities as industrial sites was unconstitutional as authorizing the condemnation of private property for the private use of others. Hogue v. Port of Seattle, 54 Wn.2d 799, 341 P.2d 171 (1959). A constitutional amendment followed in 1966.
The exposition in the preceding Florida, Nebraska, Idaho, and Washington cases paralleled the dissent of Anderson, J., in the case of Albritton v. Winona, 181 Miss. 75, 178 So. 799, 115 A.L.R. 1436 (1938). In that case, the Supreme Court of Mississippi upheld the constitutionality of that state's "Balance Agriculture with Industry Plan." This, the first of the municipal-industrial financing acts, was enacted "during, and presumably in response to, the depression." Notes, 70 Yale L. J. 789 (1961) and 20 Vand. L. Rev. 685 (1967); see Elliott v. McNair, ___ S.C. ___, 156 S.E.2d 421, 425 (1967). In his dissent, Anderson, J., said:
"The logic of the majority opinion leads to this: The Legislature, if it found necessary to relieve the unemployment, could authorize a municipality to take over, under the power of eminent domain, all property and all business of every kind within its corporate limits, and to manage and operate it as a public utility. And, of course, what the state could authorize municipalities to do, it could do itself." Id. at 118, 178 So. at 812, 115 A.L.R. at 1454-55.
In 1957, the legislature of the State of Maine considered a bill which would have authorized the City of Bangor to acquire by purchase, lease, or the right of eminent domain sites for the use of industrial development. In response to its request for an advisory opinion, the Supreme Court of Maine informed the legislature that the act would not be constitutional. The Justices said:
"We are unable to escape the conclusion that action under the Act would be for the direct benefit of private industry. An existing shoe factory or paper mill, let us say, within the proposed industrial area or park could not, for reasons clear to all, be authorized under our Constitution to acquire additional facilities by eminent domain. That such a course could well be of great value to the particular enterprise and so to the city or community would not affect the application of the law.
"The test of public use is not the advantage or great benefit to the public. `A public use must be for the general public, or some portion of it, who may have occasion to use it, not a use by or for particular individuals. It is not necessary that all of the public shall have occasion to use. It is necessary that every one, if he has occasion, shall have the right to use.' Paine v. Savage, 126 Me. 121, 126." Opinion of the Justices, 152 Me. 440, 446-47, 131 A.2d 904, 907 (1957).
In 1962, Maine amended its Constitution to permit a municipality, when authorized by a majority of its registered voters, to issue bonds in order to construct facilities for lease or sale to industries. Maine Const. art. IX, 8-A. Notwithstanding this constitutional provision, the Supreme Court of Maine has continued to hold that state financing of industrial facilities does not serve a public purpose. It advised its legislature that a statute which declared that industrial projects financed under its Municipal Industrial and Recreational Obligation Act "shall be deemed to be used for a public purpose and shall be exempt from taxation so long as title to the project shall remain in the name of the municipality" violated Article IX, 8 of the Maine Constitution. This section provides that "all taxes upon real and personal estate, assessed by authority of this State shall be apportioned and assessed equally, according to the first value thereof." The court said:
"The industrial and recreational projects envisioned by the proposed legislation are inescapably designed to serve private purposes in spite of legislative fiat to the contrary and a tax exemption obviously intended to be predicated upon the existence of a public purpose would, where no such purpose exists, violate constitutional prohibitions." Opinion of the Justices, 161 Me. 182, 207, 210 A.2d 683, 697-98 (1965).
Massachusetts is also generally grouped with those jurisdictions which hold industrial revenue bonds to be invalid. The case relied upon, however, did not involve an industrial revenue bond act. In response to its request for an advisory opinion, the Supreme Judicial Court of Massachusetts informed the senate that a proposed act authorizing the city of Boston "to acquire by eminent domain or otherwise" a 28-acre abandoned railway yard within the city and sell it to a corporation to develop for both public and private uses, was unconstitutional. It was expected that adjacent areas and the city as a whole would profit from the development of the yard. Notwithstanding, the Massachusetts court said: "[O]ne proposition is thoroughly established practically everywhere, and so far as we are aware without substantial dissent, and that is that public money cannot be used for the primary purpose of acquiring either by eminent domain or by purchase private lands to be turned over or sold to private persons for private use." In Re Opinion of the Justice. 332 Mass. 769, 781-82, 126 N.E.2d 795, 802 (1955).
In St. v. Brand, 176 Ohio St. 44, 197 N.E.2d 328 (1964), the Supreme Court of Ohio invalidated that state's industrial bond act upon grounds other than the absence of public purpose. As a result of this case, the Constitution of Ohio was amended to authorize "the lending of aid and credit" by the state and governmental subdivisions to private industry to create new employment. State v. Greater Portsmouth Growth Corp., 7 Ohio St.2d 34, 218 N.E.2d 446 (1966).
The reasoning of the courts of Florida, Idaho, Maine, Massachusetts, Nebraska, and Washington has been that of this Court — and we still consider it sound. The financing of private enterprise with public funds contravenes the fundamental concept of North Carolina's Constitution.
Ours is still an expanding economy. According to the stipulations, in 1961, the Commissioner of Revenue collected 456.2 million dollars in taxes; in 1967, 801.3 million. In each of the intervening years there was an increase in collections. In 1963, new and expanded plant investments in North Carolina amounted to $386,929,000; in 1966, $613,581,000. For the first half of 1967, industrial investment, s amounted to $313,850,000. There is no suggestion in the record, and the Court judicially notices, that our social order is not threatened by widespread unemployment such as confronted the entire nation during the depression years, which began in 1929. No drastic "pumppriming" legislation is presently required to save the economy. The State is not losing population because of the lack of job opportunities. (See McConnell v. City of Lebanon, supra, where such critical conditions were used to justify municipal aid to industry.)
The rule in North Carolina is that it is not the function of government to engage in private business. Nash v. Tarboro, 227 N.C. 283, 42 S.E.2d 209 (1947), was an action to enjoin the Town of Tarboro from issuing bonds (which the legislature had authorized and the electorate had approved) for the construction of a hotel. The Town had no adequate hotel facilities. Notwithstanding, this Court held that the cost of constructing and maintaining a hotel was not a public purpose within the meaning of N.C. Const. art. V, 3, and that the act of the legislature authorizing the expenditure was unconstitutional. In writing the opinion, Denny, J. (later C.J.), said:
"It may be desirable for the Town of Tarboro to have additional hotel accommodations. Such facilities would, no doubt, serve a useful purpose and tend to enhance the value of property generally, as well as to promote the commercial life of the community, but ordinarily such benefits will be considered too incidental to justify the expenditure of public funds. . . . Every legitimate business in a community promotes the public good. . . . But `It may be safely stated that no decision can be found sustaining taxation by a municipality, where its principal object is to promote the trade and business interests of the municipality, and the benefit to the inhabitants is merely indirect and incidental. . . . Many objects may be public in the general sense that their attainment will confer a public benefit or promote the public convenience, but not be public in the sense that the taxing power of the State may be used to accomplish them.' . . ." Id. at 289-90, 42 S.E.2d at 214.
The opinion quoted with approval the following statement from Savings Loan Ass'n v. Topeka, 87 U.S. 655, 22 L.Ed. 455:
"`. . . If it be said that a benefit results to the local public of a town by establishing manufacturers, the same may be said of any other business or pursuit which employs capital or labor. The merchant, the mechanic, the innkeeper, the banker, the builder, the steamboat owner are equally promoters of the public good, and equally deserving the aid of the citizens by forced contributions. No line can be drawn in favor of the manufacturer which would not open the coffers of the public treasury to the importunities of two-thirds of the business men of the city or town."' Id. at 286, 42 S.E.2d at 211.
The Michigan court in Gaylord v. Beckett, 378 Mich. 273, 14 N.W.2d 460 (1966), cited Nash v. Tarboro as putting North Carolina among the jurisdictions representing "the minority view" that municipal industrial aid financing cannot be upheld.
The cases upon which appellees rely are not inconsistent with Nash v. Tarboro. In Ports Authority v. Trust Co., 242 N.C. 416, 88 S.E.2d 109 (1955), this Court approved the issuance of revenue bonds by the North Carolina State Ports Authority to construct a grain-handling facility upon the Authority's premises at its Morehead City Port. It also approved a 5-year lease of this property to a private corporation, which had successfully operated other such facilities. The rental would retire the bonds. These bonds were clearly for a public purpose. The lease, made for an adequate consideration, was a method of securing experienced and expert operators of an essential port facility. Hudson v. Greensboro, 185 N.C. 502, 117 S.E. 629 (1923), involved a municipal loan (authorized by legislation and approved by a vote of the people) to the Southern Railway Company, a public utility, to enable it to construct terminal facilities which were then urgently needed.
The State does not engage in a private enterprise when it undertakes a project of slum clearance. Wells v. Housing Authority, 213 N.C. 744, 197 S.E. 693 (1938). Slums are a serious menace to society; they breed both disease and crime. As Seawell, J., pointed out in Wells v. Housing Authority, supra, the State can combat these two evils in overcrowded areas only by "the removal of physical surroundings conducive to these conditions." Id. at 748, 197 S.E. at 696. The existence of a slum area proves the impotency or unwillingness of private enterprise to cope with the problem, and "where community initiative has failed and authority alone can prevail," government must deal with the emergency created. Id. at 748, 197 S.E. at 696. If slums are to be cleared, an Authority with the power of eminent domain is necessary to eliminate them. That power is greater than the power "which might be given by the Legislature in aid of any private enterprise." Id. at 750, 197 S.E. at 697.
In Dennis v. Raleigh, 253 N.C. 400, 116 S.E.2d 923 (1960), it was held that an appropriation of $2,500 by the City (made under statutory authority) to advertise the advantages of Raleigh was for a public purpose albeit not a necessary expense. As the opinion pointed out, the purpose of the contemplated advertising was to promote the public interest and general welfare of the City, not a private business or property interest. Appropriations for such advertising, therefore, could be made from any surplus funds not derived from taxation.
It is the public policy of this State (as it is in Florida) to advertise the advantages of North Carolina in an effort to attract tourists and to induce industry to locate here. "If there is a benefit it is one that, unlike direct financial supports to an industry, does not aid primarily one private organization but rather inures to the entire community." Note, 40 Minn. L. Rev. 681, 682 (1956). According to the stipulations, the North Carolina Department of Conservation and Development annually expends approximately $750,000 in advertising and industry hunting. However, such efforts by the State and its subdivision are to induce industries to locate here "on their own" — a far cry from providing a site and plant, built to specifications, to induce a particular industry to locate here.
In passing upon the validity of an act, this Court must consider the consequences of its decision. Were we to hold that Authority serves a public purpose when it acquires a site, constructs a manufacturing plant, and leases it to a private enterprise, we would thereby authorize the legislature to give Authority the power to condemn private property as a site for any project which it undertook. "For the most part the term `public purposes' is employed in the same sense in the law of taxation and in the law of eminent domain." 1 Cooley, Taxation 176 (4th Ed. 1924).
That the legislature may grant the power of eminent domain to any state agency which needs to acquire property for a public purpose or use was clearly enunciated by Parker, J. (now C.J.), in Redevelopment Commission v. Bank, 252 N.C. 595, 603, 114 S.E.2d 688, 694 (1960): "In the exercise of the power of eminent domain, private property can be taken only for a public purpose, or more properly speaking, a public use, and upon payment of just compensation." If, however, a project is for a public use, the grant of the power of eminent domain "is a clear and valid exercise of legislative power, for the power of eminent domain is merely the means to the end." Id. at 603, 114 S.E.2d at 694.
Prescott, Judge, dissenting in City of Frostburg v. Jenkins, 215 Md. 9, 136 A.2d 852, pointed out the possibilities inherent in holding an act such as the one we consider here to be for a public purpose:
". . . Suppose A owns a parcel of land in Frostburg and desires to erect thereon a manufactory to make shoes. B is interested in conducting a shirt manufactory, and the desirable location therefor is A's parcel of ground. Are there many persons who would consider that B's undertaking is such a `public purpose' as would entitle the City of Frostburg to condemn A's property in order to erect an establishment for B, paying both for the property and the erection of the building from the proceeds of the bonds issued in pursuance of the act being considered? I think not; yet the majority opinion holds that the bonds to be issued are for a `public purpose'." Id. at 27, 136 A.2d at 861.
That the power of eminent domain should or could ever be used in behalf of a private interest is a concept foreign to North Carolina, and it transcends our Constitution. If public purpose is now to include State or municipal ownership and operation of the means of production — even on an interim basis; if we are to bait corporations which refuse to become industrial citizens of North Carolina unless the State gives them a subsidy, the people themselves must so declare. Such fundamental departures from well established constitutional principles can be accomplished in this State only by a constitutional amendment.
We hold that Authority's primary function, to acquire sites and to construct and equip facilities for private industry, is not for a public use or purpose; that it may not expend the challenged appropriation of tax funds for its organization; and that the Act which purports to authorize the expenditure violates Article V, 3 of the Constitution. This ruling makes it unnecessary for us to consider the other questions debated in the briefs.
The judgment of the court below is reversed and the case remanded to the Superior Court for the entry of judgment in accordance with plaintiff's prayer for relief.
Reversed and remanded.
HUSKINS, J., took no part in the consideration or decision of this case.