Davis v. Iredell County , 9 N.C. App. 381 ( 1970 )

Campbell, J.

Plaintiffs assign as error the dismissal of the action by the trial judge under Rule 12 of the North Carolina Rules of Civil Procedure for failure to state a claim upon which relief can be granted. They allege that the defendant did not follow the proper statutory procedures in purchasing land and entering contracts in furtherance of a plan to move the Iredell County Courthouse, jail and other public buildings to a new site.

Plaintiff first argues that the defendant began the purchase of land in January 1970 in connection with the development of a new government center without first complying with G.S. 153-9(9), which reads as follows:

“(9) To Designate Site for County Buildings. — To remove or designate a new site for any county building; but the site of any county building already located shall not be changed, unless by a unanimous vote of all the members of the board at any regular monthly meeting, and unless upon notice of the proposed change, specifying the new site. Such notice shall be published in a newspaper printed in the county, if there is one, once in each of three calendar months, and posted in one or more public places in every township in the county for three months, next immediately preceding the monthly meeting at which the final vote on the proposed change is to be taken. Provided that where the notice is published in a newspaper printed in the county it shall not be necessary to post the notices in the townships. Such new site for the county courthouse shall not be more than one mile distant from the old, except upon the special approval of the General Assembly.”

However, the evidence presented at the hearing does not bear this contention out. In a resolution of 5 January 1970, the Board of County Commissioners contemplated the move of the courthouse and jail to the site of a proposed new government center. Following this resolution the machinery to provide notice and a final vote pursuant to the above statute was set in motion. At the time of the hearing two of the required monthly notices had been published. During the month of January 1970 three tracts of land were also purchased for the new government center under the authority of the 5- January 1970 resolution. However, neither the courthouse nor the jail nor any existing county building to which the statute applies, were planned for any of these three tracts, as it was shown at the hearing. Indeed, the evidence indicated that the County had entered into no binding contracts regarding the purchase of land for the erection of the courthouse or the jail, only non-obligatory options had been acquired. All of the evidence shows that the Board of County Commissioners is following the correct statutory procedure regarding the relocation of the courthouse and jail. They have set the proper statutory procedure in motion and have entered no obligations regarding the proposed move.

Plaintiffs next contend that the purchase of the three tracts of land for the proposed new government center is not a necessary expense under the Constitution of North Carolina and that the Board exceeded its authority when it purchased these tracts without first having it approved by a majority in an election. The relevant constitutional language is found in Article VII, sec. 6 of the North Carolina Constitution and provides as follows:

“. . . No county, city, town, or other municipal corporation shall contract any debt, pledge its faith or loan its credit, nor shall any tax be levied or collected by any officers of the same except for the necessary expenses thereof, unless approved by a majority of those who shall vote thereon in any election held for such purpose.”

A close reading of this provision indicates that it contemplates a contracting of an obligation to be paid at some future time. Here the land in question was purchased from funds already on hand in the form of surpluses in the capital improvement fund. This falls clearly within the rule laid down in Adams v. Durham, 189 N.C. 232, 126 S.E. 611, where the city wanted to build an auditorium with funds received from the sale of a lot and city building. The court found that this was not a necessary public purpose but was a public purpose. Referring to the constitutional provision, the court stated: “. . . But this provision, in our opinion, has no application to the facts of this record, where, as stated, the funds to be applied are already on hand and the proposed expenditure will impose no further liability on the municipality, nor involve the imposition of further taxation upon it. . . .” See also Goswick v. Durham, 211 N.C. 687, 191 S.E. 728, where the Court said: “. . . The acquisition of the land [for an airport] from surplus funds was not beyond the power of the city and it in no way offended the provisions of Article VII, sec. 7, [now sec. 6] of the Constitution. . . .” Under these principles, there is no merit in this contention of the plaintiffs.

Plaintiffs’ final contention is that the defendant failed to follow the statutory requirements for the accumulation of a capital reserve fund which is to be used for the development of the new government center. But on close examination of the record, there is no showing that a capital reserve fund was ever established. Without the establishment of a capital reserve fund, the requirements of G.S. 153-142.1 et seq. regarding the establishment and use of capital reserve funds never come into play.

The evidence shows that the defendant did not attempt to establish “capital reserve funds” pursuant to G.S. 153-142.1. Instead the Board of County Commissioners in the instant case proceeded under the general authority of G.S. 153-114 wherein it is provided “ [e] ach county shall maintain the following funds and such other funds as the board of county commissioners may require. . . .” (Emphasis added.) Pursuant to this authorization, the Board of County Commissioners did “set up and appropriate a fund for capital improvements for Iredell County.” “The budget resolution did not, itself, set forth the particulars of any capital reserve program. It set forth only the amount of the appropriation and the source of the funds.” On this evidence Judge Bowman found as a fact, “[t]hat present and past Boards of Iredell County Commissioners, in anticipation of the need for new county facilities, have, for at least seven years, allocated funds for capital improvements, to be used for providing new county facilities by budgeting for capital improvements, spending only those funds which were absolutely necessary, and accumulating the surplus, and budgeting the same from year to year.” There is no allegation that the Board of County Commissioners acted improperly under these statutory provisions. The interesting question as to whether this method of accumulating a capital improvement fund is valid is not presented under this record, and we have not passed on it.

The evidence supports the findings of fact, and the findings of fact support the conclusions of law.

We find

No Error.

Britt and Vaughn, JJ., concur.