#### J. H. TURNER, R. L. RASCOE, T. D. HOPKINS, W. H. WILKERSON, R. M. GILLIE, and W. R. BROWN, All Residents and Citizens of the CITY OF REIDSVILLE, Suing for Themselves and in Behalf of All Other Citizens and Taxpayers of Said City Similarly Situated Who Desire to Come in and Make Themselves Parties to This Action, v. CITY OF REIDSVILLE, DR. JOHN N. HESTER, Mayor; J. B. BALSLEY, HUNTER M. MOBLEY, W. A. TROTTER, and R. G. WRAY, Members of the City Council of the CITY OF REIDSVILLE.

(Filed 1 March, 1944.)

1. Taxation § 5—

It remains, in the final analysis, a question for the court to determine whether a particular expenditure of public funds or a proposed levy of taxes is for a public purpose, *taking into*consideration the pertinent factors of time and circumstance.

2. Same—

To justify a court in declaring a tax invalid on the ground that it was not imposed for the benefit of the public, the absence of a public interest must be so clear and palpable as to be immediately perceptible to every mind. Where there is doubt the act of the Legislature, approved by the people to be taxed, should prevail.

3. Municipal Corporations §§ 8, 30: Taxation § 5—

The construction and maintenance of a municipal airport for a city of more than ten thousand inhabitants, engaged in many industries and pursuits, is for a public purpose within the meaning of the constitutional limitation, and no right guaranteed by the 14th Amendment to the Federal Constitution will be injuriously affected thereby.

4. *Constitutional*Law §§ 3a, 6b—

The courts will not declare void an Act of the Legislature unless the question of its constitutionality is presently presented and it is found necessary to do so to protect rights guaranteed by the Constitution. The presumption is in favor of constitutionality, and the contrary must appear beyond a reasonable doubt.

5. Constitutional Law § 6b—

A private individual, to invoke the judicial power to determine the validity of executive or legislative action, must show that he has sustained, or is in immediate danger of sustaining a direct injury as a result of that action, and it is not sufficient that he has merely a general interest common to all members of the public.

Barnhill, J., dissenting.

Appeal by plaintiffs and defendants from Sink, *J.,*at Chambers, 5 November, 1943. From EoceiNGI-iam.

This was an action to enjoin the City of Eeidsville from issuing bonds and levying tax for the construction and maintenance of a municipal airport, and to restrain the prosecution of proceedings to condemn lands *43for tbis purpose. Tbe bearing below was on motion to sbow cause why restraining order should not issue.

Tbe facts found by tbe court were substantially as follows: Pursuant to an ordinance of tbe City Council of tbe City of Reidsville, declaring that it was necessary and in tbe public interest to construct a municipal airport and to issue bonds and levy a tax tberefor, a special election was called and tbe question submitted to a vote of tbe people. At tbe election a majority of tbe qualified voters approved, and thereafter anticipation notes -were issued, surveys made, certain property purchased and condemnation proceedings instituted for tbe condemnation of lands outside tbe City of Reidsville, for tbe purpose of constructing and maintaining a municipal airport. Tbe plaintiffs, who are seeking to restrain tbe defendants from further proceeding in tbe matter, are citizens and taxpayers of tbe City of Reidsville, but do not own, or have any interest in, any of tbe lands which tbe City is attempting to condemn.

It was concluded that tbe election approving tbe bond issue and tax levy for tbe airport was in all respects legal, and that tbe anticipation notes, and tbe bonds when issued, are and would be binding obligations of tbe City, and that tbe establishment and maintenance of tbe proposed municipal airport was for a public purpose.

However, it was held that eb. 186, Public Laws 1943, which purported to give additional power to tbe City in tbe condemnation of land with respect to dwellings and burying grounds, was unconstitutional and void, and therefore it was ordered that tbe defendants be forever restrained from entering upon or condemning such of tbe premises described in tbe condemnation petitions as may be used as cemetery, graveyard, residence occupied by owner, or other property withdrawn from condemnation by C. S., 1114.

From so much of tbe order as held tbe bonds and tax levy for a municipal airport valid and for a public purpose tbe plaintiffs appealed. From so much of tbe order as held tbe Act of 1943 unconstitutional, and enjoined defendants from proceeding with tbe condemnation of certain lands tbe defendants appealed.

*W. B. Dalton and O. L. Shuping for plaintiffs.*

*Susie Sharp and P. W. Glideivell, Jr., for defendants.*

PlaiNtiees’ Appeal.

DbviN, J.

It was not controverted that in tbe election called and held pursuant to an ordinance of tbe City Council of tbe City of Reidsville, and in accordance with tbe general statutes and city charter, a majority of tbe qualified voters approved tbe proposition to establish and maintain a municipal airport and to issue bonds and levy a tax tberefor, but tbe *44plaintiffs base their action to restrain further proceeding upon the ground that the expenditure of city funds for this purpose would violate the constitutional provision that “taxes shall be levied only for public purposes” (Art. V, sec. 3), and that the construction of a municipal airport by the City of Reidsville, such as is proposed, would not be for a public purpose within the meaning of the Constitution, and would result in a waste of public funds.

Thus the controversy is reduced to a narrow compass.

While the statute (Public Laws 1929, ch. 87) authorizes cities and towns to establish municipal airports outside their corporate limits, and declares the acquisition of property therefor to be for a public purpose, and while the ordinance adopted by the City Council of the City of Reidsville declared that the construction of the proposed airport was in the public interest and for a public purpose, it remains in the final analysis a question for the Court to determine whether the particular expenditure of public funds or the proposed levy of taxes is for a public purpose, taking into consideration the pertinent factors of time and circumstance. As was said by *Seawell, J.,*in *Wells v. Housing Authority,*213 N. C., 744, 197 S. E., 693: “The Court will determine what is a ‘public purpose,’ looking to the end sought to be reached and to the means to be used, rather than to statutory declarations to aid its decision.” Similar statements of this principle were expressed in *Cozard v. Hardwood Co.,*139 N. C., 283 (295), 51 S. E., 932; *Yarborough v. Park Com.,*196 N. C., 284, 145 S. E., 563; *Deese v. Lumberton,*211 N. C., 31, 188 S. E., 857; *Reed v. Highway Com.,*209 N. C., 648, 184 S. E., 1; *Brown v. Comrs.,*223 N. C., 744; *Green v. Frazier,*253 U. S., 233 (240); *Milheim v. Moffat,*262 U. S., 710 (717).

The rule by which the courts should be governed in determining the question whether a proposed municipal expenditure is for a public purpose was stated in the opinion by *Stacy, C. J.,*in *Briggs v. Raleigh,*195 N. C., 223, 141 S. E., 597, as follows: “Where the question is doubtful, as it is here, and the Legislature has decided it one way and the people to be taxed have approved that decision, it is the general rule of construction that the will of the law-makers, thus expressed and approved, should be allowed to prevail over any mere doubt of the courts.” In support of this statement of the rule the *Chief Justice*quotes the following from *S. v. Cornell,*53 Neb., 556, 74 N. W., 59, 39 L. R. A., 513: “To justify a court in declaring a tax invalid on the ground that it was not imposed for the benefit of the public, the absence of a public interest in the purpose for which the money is raised by taxation must be so clear and palpable as to be immediately perceptible to every mind.” In *Hudson v. Greensboro,*185 N. C., 502, 117 S. E., 629, an issue of bonds to aid in the construction of a railroad passenger station, authorized by the *45Legislature and approved by a vote of tbe people, was beld not to violate any constitutional provision, and to be a matter of public policy for tbe local community.

Undoubtedly tbe consensus of judicial opinion is in full support of tbe view tbat tbe courts will not interfere witb tbe lawfully expressed will of tbe community, in tbe interpretation of its interests and prospective needs, unless tbe objects to be attained are clearly beyond tbe scope of corporate purposes and power, or in violation of some constitutional inbibition.

However, tbe plaintiffs point out tbat no public air line now makes' Eeidsville a stopping place for air traffic, nor are there definite assurances for tbe future, or apparent demands for facilities for public or private aircraft service, and they urge this in support of their contention tbat a municipal airport for Eeidsville is neither needed in tbe public interest nor prospectively advantageous for its citizens or industries, and tbat tbe construction and maintenance of tbe airport would entail a waste of public funds. It. is further contended tbat tbe amount authorized to be expended would be inadequate for tbe purpose. To this tbe defendants reply tbat transportation by air would never be available to tbe City without a suitable landing field, and tbat tbe reasonable expectation of obtaining tbe advantage of this means of transportation for persons and freight, now in general use tbe world over, for a city of more than ten thousand inhabitants, engaged in many industries and pursuits, renders necessary and advisable, in tbe public interest, tbat provisions be made now to accommodate this established and constantly expanding means of transportation. Tbe defendants also assert tbat tbe amount of tbe bond issue was in keeping witb tbe practical estimates of contractors and others experienced in work of this nature.

In *Hesse v. Rath,*249 N. Y., 436, 164 N. E., 342, decided in 1928, *Chief Justice Cardozo*expressed tbe Court’s recognition of tbe importance of municipal airports as follows: “Aviation is today an established method of transportation. Tbe future, even tbe near future, will make it still more general. Tbe city tbat is without tbe foresight to build tbe ports for tbe new traffic may soon be left behind in tbe race of competition.” And in *Gosivich v. Durham,*211 N. 0., 687, 191 S. E., 728, it was said: “Man’s constantly advancing progress in tbe conquest of tbe air as a medium for tbe transportation of commerce and for public and private use indicates tbe practical advantage and possible future necessity of adequate landing facilities.” In 135 A. L. E., 756; 83 A. L. E., 345; 69 A. L. E., 325; and 62 A. L. E., 777, will be found collected numerous decisions in other jurisdictions bolding tbat tbe use of public funds for tbe construction, maintenance and operation of a municipal airport is for a public purpose.

*46The court found that the City Council acted in good faith in declaring the construction of a municipal airport to be in the public interest. There was evidence to support this finding and to negative the charge of abuse of discretion on the part of the council. *Storm v. Wrightsville Beach,*189 N. C., 679 (684), 128 S. E., 17; *Harris v. Durham,*185 N. C., 572 (577), 117 S-. E., 801. See also *Ketchie v. Hedrick,*186 N. 0., 392, 119 S. E., 767.

Whatever may be the future results of the planning to which the people of Reidsville by their votes have given approval, upon the finding of the court below on the evidence presented to him, we are constrained to uphold the ruling that the construction and maintenance of a municipal airport for Reidsville is for a public purpose within the meaning of the constitutional limitation, and that no right guaranteed by the 14th Amendment to the Federal Constitution will be injuriously affected.

DEFENDANTS’ APPEAL.

The defendants appealed from that portion of the order entered below in which ch. 186, Public Laws 1943, was held unconstitutional and void. Predicated upon that holding, the court restrained the defendants from proceeding with the condemnation of any lands coining within the exceptions set out in C. S., 1714 (now G-. S., 40-10). It appears, however, that none of the plaintiffs own any land or interest in any land sought to be condemned. Hence, no right to which they are entitled has been in any way invaded or threatened by any action of the defendants under or by virtue of the challenged statute. In that case they may not be permitted to use the mooted question of the validity of the statute as a weapon with which to strike down a proceeding in which they have no interest.

It is the established rule in this jurisdiction that the courts will not declare void an Act of the Legislature unless the question of its constitutionality is presently presented and it is found necessary to do so in order to protect rights guaranteed by the Constitution. The presumption is that an Act of the Legislature does not violate a constitutional prohibi-ion. The contrary must appear beyond a reasonable doubt. And the courts will not undertake to determine the constitutionality of a statute in advance of the necessity of doing so. *Wood v. Braswell,*192 N. C., 588, 135 S. E., 529; *Yarborough v. Bark Commission,*196 N. O., 284, 145 S. E., 563; *Madthews v. Blowing Bock,*207 N. 0., 451, 177 S. E., 429; *Newman v. Comrs. of Vance,*208 N. C., 675, 182 S. E., 453; *Sprunt v. Comrs. of New Hanover,*208 N. C., 695, 182 S. E., 655; *Hill v. Comrs. of Greene,*209 N. O., 4, 182 S. E., 709; *S. v. High,*222 N. C., 434, 23 S. E. (2d), 343.

*47“It is aiL established principle tbat to entitle a private individual to invoke tbe judicial power to determine tbe validity of executive or legislative action be must show tbat be bas sustained or is in immediate danger of sustaining a direct injury as tbe result of tbat action and it is not sufficient tbat be bas merely a general interest common to all members of tbe public.” *Ex Parte Levitt,*302 U. S., 633, 82 Law. Ed., 493. “A party wbo is not personally injured by a statute is not permitted to assail its validity.” *Yarborough v. Park Commission, supra.*

Tbe allegation tbat witbin tbe territory at present selected for tbe construction of tbe airport there may be some portions of public roads is not material to plaintiffs’ action or to tbe decision of this case. Tbat is a matter primarily for tbe State Highway and Public "Works Commission rather than for these plaintiffs.

We think tbe court was in error, in this case, in undertaking to determine tbe constitutionality of tbe Act of 1943, and in declaring it to be null and void, and thereupon restraining, at tbe instance of these plaintiffs, tbe prosecution of tbe proceedings for condemnation of tbe lands of others, now pending before tbe clerk. Tbe question of tbe validity and effect of this Act, debated in tbe briefs, is not presented on this record and is not herein decided.

On plaintiffs’ appeal: Affirmed.

On defendants’ appeal: Eeversed.

BaRNhill, J.,

dissenting: It was conceded here on tbe argument tbat presently there are no air lines or airships to be served by tbe proposed airport. Tbe defendants anticipate tbat at some time in tbe future, after tbe end of tbe war, there will be a great extension of tbe air transportation service of tbe country and they trust and hope tbat one or more 'air lines will pass so near tbat Eeidsville may be designated as a stopping point. They are willing to match their faith with their dollars and prepare for tbe day hoped for but not seen at any time in tbe near future.

For tbe time being, at least, tbe development cannot be self-supporting. It must, perforce, lie idle and unused for an indeterminate period of time — an airport in name only.

All tbe facts and attendant circumstances refute tbe finding or conclusion of tbe City Board tbat an airport is at this time necessary. Furthermore, in my opinion, tbe proposed development on tbe facts here disclosed is not an airport witbin tbe meaning and purpose of tbe statute. It is nothing more than a speculative venture defendants optimistically hope will some day develop into a profitable undertaking.

For tbe reasons stated, I vote to reverse on plaintiff’s appeal.