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The establishment and maintenance of an airport is a public purpose within the objects of municipal expenditure, and a city may appropriate funds therefor in proper instances.
The establishment and maintenance of an airport is not a necessary municipal expense and therefore a city may not incur debt or levy taxes therefor without submitting the question to a vote.
The Legislature has power to create a municipal authority to construct, maintain and operate an airport.
A county and cities located therein may lawfully join in the construction, maintenance and operation of an airport if each of them is benefited by it. G.S., 63-4.
Where the agreed facts contain a stipulation that the appropriations in question were made by defendant municipalities out of funds in their hands not derived from ad valorem taxes, but mainly from the sale of property, the Supreme Court on appeal is bound by the stipulation.
Our Constitution is a limitation and not a grant of legislative power, and all powers not withdrawn are reserved to the people to be exercised by their representatives.
Municipalities are creatures of the Legislature, and the Legislature in its discretion may create quasi-municipal corporations to perform ancillary municipal functions, and grant to such corporations even greater powers than those absolutely necessary to perform the particular function, and give the municipality only such control over the corporation as the Legislature may deem expedient.
A municipal corporation may appropriate funds to a quasi-municipal corporation created by the Legislature when such corporation is an agency of the municipality in the performance of a public function having a reasonable connection with the convenience and necessity of the contributing municipality.
In determining whether the purpose of a quasi-municipal corporation is a public purpose as a predicate for the appropriation of municipal funds in its aid, the terms of the creating act are not controlling, but the courts will ascertain whether its purpose in fact has a reasonable relationship to the convenience and necessity of the contributing municipality.
10. Same: Greensboro-High Point Airport Authority held agency of the municipalities for performance of public services.
Construing ch. 98, Public-Local Laws of 1941, as amended by ch. 601, Session Laws of 1943, in pari materia with ch. 206, Session Laws of 1945, it is held: that the Greensboro-High Point Airport Authority is an agency not only of Guilford County but also of the municipalities of Greensboro and High Point in the operation and maintenance of the airport, notwithstanding that the creating act does not so stipulate, since the Act of 1941 does specifically authorize the said cities to contract with the authority and provides that each of the municipalities appoint one member of the board of directors of the said authority, and ch. 206, Session Laws of 1945, gives complete and express recognition of the authority as an agency of Greensboro and High Point as well as of Guilford County, and it being apparent that in fact the authority does function to perform such public purpose for each of the municipalities and that the Legislature intended to constitute it their agency, the provisions of G.S., 63-4, permitting the three municipalities to act jointly in such undertaking not having been repealed or modified by the supplementary acts.
The treasurers of municipalities act in a ministerial capacity in the payment of appropriations lawfully made by their respective boards and governing bodies, and therefore mandamus will lie to compel such payment.
APPEAL by defendants from Sink, J., at Chambers in the courthouse in Greensboro, N.C. 19 October, 1945.
Thomas C. Hoyle for W.C. Johnson, Treasurer of Guilford County, appellant.
H.C. Wilson for Hargrove Bowles, Treasurer of City of Greensboro, appellant.
G. H. Jones for Lois Welborn, Treasurer of City of High Point, appellant.
D. Newton Farnell, Jr., for plaintiff, appellee.
BARNHILL, J., concurring in part and dissenting in part.
WINBORNE, J., joins in concurring opinion of Barnhill, J.
The three cases above entitled, because of their similarity in factual and legal features and interconnected interests, were consolidated for hearing, and by consent of all parties heard by Judge Hoyle Sink on agreed facts without a jury.
The actions are brought for writs of mandamus to compel defendants, treasurers of Guilford County, the City of Greensboro, and the City of High Point, respectively, to pay to the plaintiff appropriations made by their respective boards and governing bodies to plaintiff from funds now in their hands. It is conceded by the defendants that plaintiff is entitled to the writs if the appropriations were within the constitutional and lawful power of the individual and several boards to make.
Omitting purely formal matter, the statement of fact in appellants' brief, to which there is no objection, may be adopted as a concise summary of the pertinent facts. Where necessary, this will be supplemented from the stipulations of the parties.
"The plaintiff is a body politic and corporate of the State of North Carolina, created, organized and existing under and by virtue of Chapter 98, Public-Local and Private Laws of 1941, and amendments thereto, and is now the owner of and in possession of all of the property, real and personal, used in the operation of the Greensboro-High Point Airport and is now operating said airport.
"Guilford County is a body politic and corporate of the State of North Carolina, and prior to June 20, 1942, owned and operated the Greensboro-High Point Airport. The defendant, W. Clarence Johnson, is the duly elected qualified and acting Treasurer of Guilford County. On the 23rd day of June, 1945, the County Commissioners of Guilford County adopted an appropriation resolution for the fiscal year 1945-1946, which contained an appropriation of $20,000 for the Greensboro-High Point Airport, to be paid wholly and entirely from funds derived from sources other than ad valorem taxes. Plaintiff has made demand upon said W. Clarence Johnson, as Treasurer of Guilford County, for the payment of said appropriation to it which was refused by him because he had been advised that the County Commissioners of Guilford County could not lawfully make said appropriation, and that he as Treasurer, therefore, had no legal right to make such payment.
"City of Greensboro is a municipal corporation duly created and chartered by the General Assembly of the State of North Carolina, Chapter 37, Private Laws of 1923, and amendments thereto, and the defendant, Hargrove Bowles, is the duly appointed qualified and acting Treasurer of the City of Greensboro. The City Council of the City of Greensboro, on the 19th day of September, 1944, created a Capital Reserve Fund. On the 3rd day of July, 1945, the City Council of the City of Greensboro adopted an ordinance authorizing the withdrawal of $27,000 from said Capital Reserve Fund for the purpose of making improvements at the Greensboro-High Point Airport, said funds being from receipts from revenues derived from sources other than ad valorem taxes, which are not pledged or otherwise applicable by law to the payment of existing debt of the City of Greensboro. On the 4th day of September, 1945, the City Council of the City of Greensboro adopted a resolution, finding that the legal requirements for the withdrawal of said funds, including the approval of the Local Government Commission, had been met and appropriated said sum of $27,000 to the Greensboro-High Point Airport Authority. Plaintiff has made demand upon said Hargrove Bowles, as Treasurer of the City of Greensboro, for the payment of said appropriation to it which was refused by him because he had been advised that the City Council of the City of Greensboro could not lawfully make said appropriation, and that he, as Treasurer, therefore, had no legal right to make such payment.
"City of High Point is a municipal corporation duly created and chartered by the General Assembly of the State of North Carolina, Chapter 107 of the Private Laws of 1931, and amendments thereto, and the defendant, Lois Welborn, is the duly appointed, qualified and acting Treasurer of the City of High Point. The City Council of the City of High Point, on the 10th day of August, 1945, adopted a budget ordinance for the City of High Point for the fiscal year 1945-1946, which contained an appropriation for the Greensboro-High Point Airport Authority of $25,000 from funds derived from the sale of properties and unappropriated surplus revenues from sources other than the levy of ad valorem taxes which are not pledged or otherwise applicable by law to the payment of the existing debt of the City of High Point. Plaintiff has made demand upon said Lois Welborn, as Treasurer of the City of High Point for the payment of said appropriation to it which was refused by her because she had been advised that the City Council of the City of High Point could not lawfully make said appropriation, and that she as Treasurer, therefore, had no legal right to make such payment."
Certain statutes are cited in the stipulation as necessary to a determination of the controversy, which are here reproduced by direct quotation in part, or summarized. Portions considered in the argument as more important to decision are printed in italics. Numerals relate to sections and subsection.
Public-Local Laws 1941, chapter 98, as amended by 1943 Session Laws, chapter 601.
The act is captioned: "AN ACT ENABLING THE COUNTY OF GUILFORD TO ESTABLISH AN AIRPORT AUTHORITY FOR THE MAINTENANCE OF AIRPORT FACILITIES IN THE COUNTY OF GUILFORD FOR THE CITIZENS OF GREENSBORO, HIGH POINT, GUILFORD COUNTY AND VICINITY."
(1) It creates the "Greensboro-High Point Airport Authority" as a body corporate, with powers and jurisdiction enumerated; (2) to consist of five members, two of whom shall be resident voters of Greensboro, two resident voters of High Point, and one from Guilford County at large. One each of these is appointed by the City Council of Greensboro and the City Council of High Point, from resident members, and three are appointed by the Commissioners of Guilford County. Their terms are fixed, and they take oaths of office. (3) They constitute a board of directors and pass by-laws relating to management. (4) Power is given them to "purchase, acquire, establish, construct, own, control, lease, equip, improve, maintain, operate and regulate airports or landing fields" within Guilford County; and to "purchase, improve, own, hold, lease and/or operate real or personal property" — to borrow money, issue bonds secured by mortgages with the consent of Guilford County, upon any property held or to be held by it. To sue and be sued; to acquire by purchase lands for construction and maintenance and operation of airports anywhere in Guilford County; to make contracts and hold personal property, and acquire interest in any airport existing in Guilford County. ( 4-1) To make rules and regulations and adopt schedule of fees and charges not in conflict with State law or rules and regulations of the Civil Aeronautics Administration of the Federal Government. (4-2) To issue bonds, notes or securities upon approval of Guilford County Commissioners and Local Government Commission; (4-3) to dispose of property upon approval of the Commissioners of Guilford County; (4-4) to purchase insurance; (4-5) to authorize or deny or withdraw the right of any person, firm or corporation to construct, operate or maintain any airport or landing field within Guilford County.
"Sec. 5. The Airport Authority is hereby authorized and empowered to acquire from the County of Guilford, the Cities of Greensboro, and High Point, by agreement therewith, and such county and cities are hereby authorized and empowered to grant and convey either by gift or for such consideration as it may be deemed wise, or any real or personal property which it now owns or may hereafter be acquired, and which may be necessary for the construction, operation and maintenance of any airport located in the County of Guilford.
"Sec. 6. Any lands acquired, owned, controlled or occupied by the said Airport Authority shall, and are hereby declared to be acquired, owned, controlled and occupied for a public purpose."
Sec. 7 authorizes the acquisition of private property for airport purposes by purchase, gift, devise or exercise of the right of eminent domain.
Sec. 8 requires annual reports to Commissioners of Guilford County. "The said Airport Authority shall be regarded as the corporate instrumentality and agent for the County of Guilford for the purpose of developing airport facilities in the County of Guilford, but it shall have no power to pledge the credit of the County of Guilford, or any subdivision thereof, or to impose any obligation upon the County of Guilford or any subdivision thereof, except and when such power is expressly granted by statute or the consent of the County of Guilford.
"Sec. 9. All rights or powers given to the counties or municipalities by the statutes of North Carolina, which may now be in effect or be enacted in the future relating to the development, regulation and control of municipal airports and the regulations of aircraft are hereby vested in the said Airport Authority, and the County of Guilford may delegate its powers under the said acts to the Authority and the Authority shall have concurrent right with the County of Guilford to control, regulate and provide for the development of aviation in the County of Guilford."
Sections 10, 11 and 12 omitted as unessential.
1945 Session Laws, chapter 137, authorizes investment of funds in certain named securities, purchase of its outstanding bonds and authorizes the Authority to operate on any airport premises "restaurants, agricultural fairs, tracks, motion picture shows, and other amusements."
1945 Session Laws, chapter 206, captioned as follows: "AN ACT ENABLING GUILFORD COUNTY AND CERTAIN MUNICIPALITIES LOCATED THEREIN TO ISSUE BONDS AND LEVY AD VALOREM TAXES FOR AIRPORTS AND AIRPORT FACILITIES IN GUILFORD COUNTY" — purports to authorize Guilford County and the cities of Greensboro, High Point and Gibsonville to issue bonds, notes, and certificates of indebtedness, when authorized by popular vote in the respective county and municipalities, and levy ad valorem taxes "for the promotion, purchase, operation, repair, maintenance, expansion or construction of airports, airport facilities, and parking areas in Guilford County. It further provides that the act shall not repeal any of the provisions of chapter 98 of the Public-Local Laws of 1941, as amended by chapter 601 of the 1943 Session Laws of North Carolina, and shall not be construed as a limitation on powers possessed by the county or municipalities involved; but further provides that all laws and clauses of laws in conflict with the Act are repealed "notwithstanding any charter provision of any city or town or any public, local or private act."
Upon the hearing Judge Sink granted writs of mandamus as prayed for, and all of the defendants excepted and appealed.
(a) The establishment and maintenance of an airport is a public purpose within the objects of municipal expenditure. Goswick v. Durham, 211 N.C. 687, 191 S.E. 728; Turner v. Reidsville, 224 N.C. 42, 29 S.E.2d 211; City of Reidsville v. Slade, 224 N.C. 48, 29 S.E.2d 215.
(b) It is not a necessary expense, however, and debt may not be incurred or taxes levied for that purpose without a vote of the people. Sing v. Charlotte, 213 N.C. 60, 197 S.E. 151.
(c) Other conditions favorable, the municipality may appropriate for building and maintaining the facility out of funds on hand not obligated to other uses. Goswick v. Durham, supra; Adams v. Durham, 189 N.C. 232, 126 S.E. 611; Nash v. Monroe, 198 N.C. 306, 151 S.E. 634; Mewborn v. Kinston, 199 N.C. 72, 154 S.E. 76; Burleson v. Board of Aldermen, 200 N.C. 30, 156 S.E. 241.
(d) The municipal authority to construct, maintain and operate such airport may be confided to a municipal corporate authority created for that purpose by appropriate legislative action. Turner v. Reidsville, supra; City of Reidsville v. Commissioners, supra; Brockenbrough v. Commissioners, 134 N.C. 1, 17, 46 S.E. 28; Webb v. Port Commission, 205 N.C. 663, 172 S.E. 377; Wells v. Housing Authority, 213 N.C. 744, 197 S.E. 693; Cox v. City of Kinston, 217 N.C. 391, 8 S.E.2d 252; Mallard v. Housing Authority, 221 N.C. 334, 20 S.E.2d 281; Benjamin v. Housing Authority, 198 S.C. 79, 15 S.E.2d 737.
(e) The county and cities concerned may lawfully join in such an enterprise if each of them is benefited by it. G.S., 63-4.
It is within the stipulated facts that the several appropriations made to the plaintiff are out of funds now in their hands, in each case, not derived from ad valorem taxes, but mainly from the sale of property, and it is not disputed that the funds are free from other specified purpose or legal commitment. There is nothing in the record itself to indicate otherwise, and we are bound by the stipulation on which the court below acted. In this situation no question of credit or taxation in violation of Article VII, section 7, is involved, and the prohibition constituting the ratio decidendi in Sing v. Charlotte, supra, does not apply.
The main objections which have been urged are that the several acts of the Legislature mentioned in the statement have created in the plaintiff a municipal corporation, to all intents and purposes independent and distinct from the county or municipalities it is intended to serve, and have so insulated it as to deprive the municipalities of the legal right to contribute to it under the guise of appropriating money for a public purpose; that the statute fails to give to the municipalities an adequate control of the Airport Authority; and that there is no express language in the Act creating the Authority an agent of the cities of Greensboro and High Point.
These objections are similar in aspect, and the answer to each of them lies in the broad scope of legislative discretion in statutes dealing with towns and cities, and in the actual recognition given the plaintiff Airport Authority as an agency of these municipalities and the authority given to Guilford County, Greensboro and High Point to deal with it in the several pertinent statutes made a part of the agreed facts. Chapter 98, Public-Local Laws of 1941, as amended by chapter 601, Session Laws of 1943, secs. 1 and 2; chapter 206, Session Laws of 1945.
Our Constitution does not operate as a grant, but as a limitation on the legislative power; and all powers not withdrawn through its restrictions are reserved to the people to be exercised by their representatives in the Legislature. Yarborough v. N.C. Park Commission, 196 N.C. 284, 145 S.E. 563. Since the prohibition of Article VII, sec. 7, of the Constitution is concededly not applicable to the present case, and in the absence of other constitutional restrictions, the subjects dealt with in the statutes under review fall within these reserved powers. We have no power to review a statute with respect to its political propriety as long as it is within the legislative discretion and has a reasonable relation to the end sought to be accomplished.
"Public Purpose" as we conceive the term to imply, when used in connection with the expenditure of municipal funds from the public treasury, refers to such public purpose within the frame of governmental and proprietary power given to the particular municipality, to be exercised for the benefit, welfare and protection of its inhabitants and others coming within the municipal care. It involves reasonable connection with the convenience and necessity of the particular municipality whose aid is extended in its promotion.
If the appropriations made by the county and municipalities were indeed made, as a mere gift, to another political subdivision — another town or city of an independent governmental capacity, incapable of performing the public service which has become the felt need of the contributing municipality, the authority for such a donation might be questioned. But that situation is not before us. The plaintiff Airport Authority is neither a private corporation nor a political territorial subdivision. It is a quasi-municipal corporation of a type known since McCulloch v. Maryland, 4 Wheat., 316, and commonly used in this and other states to perform ancillary functions in government more easily and perfectly by devoting to them, because of their character, special personnel, skill and care. The legality of the appropriations to its support as involving a public purpose does not depend on the strict propriety of the terms of the creating act as a piece of ideal legislation, as much as it does upon the nearness or remoteness of the benefits enjoyed by the municipality through its operation with respect to the public service sought to be promoted. If the adjuvant corporation is invested with the power and is given the capacity to meet the demand, the legal requirements justifying aid from the public funds have been met. The fact that other and even greater powers have been given to the corporation than those absolutely necessary to the performance of the particular function is, as we have said, a matter within the legislative discretion. Furthermore, the reciprocal and functional relation between the Greensboro-High Point Airport Authority and the cities whose name it bears is outstanding. Proximity to these large communities, which are in key positions with respect to trade and transportation over a wide area, is as essential to the existence of the airport as the latter is to the progress and expansion of the cities themselves and the convenience of their inhabitants and those who communicate or deal with them.
In considering questions concerning the powers conferred on the quasi-municipal corporation and the control over it exercised by the municipality with which it is connected, it must be remembered that counties, cities and towns derive practically all their powers from the Legislature, through appropriate statutory law, rather than constitutional grants; and the Legislature, in implementing their functions or in creating a separate corporate agency to serve a particular governmental purpose, is not bound by the limitations of the general statute under which the municipalities are formed or the special charters and laws delimiting their authority. It may give to these specially created agencies such powers and call upon them to perform such functions as the Legislature may deem best. Brockenbrough v. Commissioners, supra.
If we give full faith and credit to this power of the Legislature over municipal government, it is clear that we must think in terms of agencies rather than of agents when we speak of ancillary corporations which have been given charge of particular municipal public functions. The powers given to such corporations are direct and legislative, and not conferred by municipal resolution unless the statute should so direct. They are, in fact, agents of the law. In so far as constitutional restrictions are concerned, the General Assembly may distribute the functions of a municipality as it may deem best, the only limitation being its own sound judgment in creating a unified and efficient government. By the exercise of the same sound judgment and legislative discretion, it may, as it has attempted here to do, create a more or less autonomous agency, giving to the municipality only such control as it may consider advisable where the particular functions to be performed involve great detail and complexity, and demand close attention and skilled personnel. Perhaps in no other way could continuity and efficiency in the service be secured against political changes and petty directives.
In the type of corporation we have here control is ordinarily given, as it is here, by a representative directorate chosen by the governing bodies concerned, with such other provisions in the Act as will insure to the municipality the integrity of the operations and their continued employment in aid of the public purpose being promoted. Webb v. Port Commission, supra; Wells v. Housing Authority, supra.
The public statute, G.S., 63-4, permitting the three municipalities concerned to act jointly is not repealed or modified, or its authority in any way affected by the supplementary acts under which the purpose and policy of the public statute are carried out in the creation of a single Airport Authority to serve all three municipalities — obviously the only way in which it could be done.
The record itself constitutes a refutation of the theory that the agency thus created is an independent corporation, incapable of performing the public service required of it with respect to Greensboro and High Point, or that it is not committed by the pertinent statutes to supply the public need or convenience thus conceded to be a public purpose, and to the accomplishment of which the municipalities are permitted to spend public money. The airport itself is conveniently located between these populous cities, and they are the immediate beneficiaries of its operation, in so far as the convenience of their citizens is concerned, with respect to mail, freight and passenger service, in all of which the record shows an amazing amount of "on" and "off" traffic flowing to and from these cities, and only remotely to others. In connection with the performance of these services Greensboro and High Point are given, with Guilford County, joint control of the directorate by proportional appointment of its members. In this situation the contention that the Airport Authority is not committed by law to this service and is not an agency of these two cities, and that their contributions are mere gifts to an independent corporation not charged with carrying out any public purpose or any municipal function in which they are directly interested, would hardly be accepted as sound.
In Briggs v. Raleigh, 195 N.C. 223, the only possible community or municipal benefit to the City of Raleigh discernible in the transaction whereby $75,000 to $100,000 was donated to the fair grounds enterprise, and approved by the Court, other than the satisfaction which comes from a benevolent action, was the fact that it increased the city's trade or put its inhabitants nearer the educational enterprise.
The appropriation which a municipality may make to an agency of this sort on the ground that it is a public purpose is not a loan and is not intended to be a lien on its assets. Webb v. Port Commission, supra; Wells v. Housing Authority, supra; Mallard v. Housing Authority, supra; Briggs v. Raleigh, supra, and cases cited infra. Disposition of its property upon liquidation, which is not expected to occur, is a legislative care when the necessity arises.
It is pointed out that the Airport Act expressly declares the Authority to be an agent of Guilford County, but makes no such declaration as to Greensboro and High Point. The question of agency, however, must be determined from the entire Act and from the actual relation of the Airport Authority to the municipal functions of these two cities therein established, and the authority given the cities to deal with it, rather than from any declaration in the Act, especially one which is obviously not intended to be exclusive. Perusal of the Act leaves no doubt that the Legislature intended that the Airport Authority should perform for Greensboro and High Point all things necessary for the construction, maintenance and management of airport facilities, which they each might have done independently, but are by public statute (G.S., 63-4) permitted to do jointly. The Act, as we have seen, gives these two cities participation in the selection of members of the commission, or directors, and their replacement and succession — the right to be exercised by each city independently of any other authority, and makes frequent reference to the duties which the Airport Authority is to perform for these cities. In section 5 — and this should be decisive of the point raised — the Act, as amended, gives to Greensboro and High Point full authority to deal with the plaintiff Airport Authority in language which cannot be construed otherwise than an acceptance and recognition of the challenged agency; indeed, more than that, it does in intent and in effect establish that relationship by direct authority to these municipalities to give to the agency material and substantial support. See section 5, supra.
In this connection the whole legislation on the subject must be considered in pari materia, and the provisions of chapter 206, Session Laws of 1945, cannot be ignored. This chapter gives complete and express recognition of the plaintiff Authority as the agency of Greensboro and High Point, as well as of Guilford County; and the authority is given each municipality to deal with it, and upon a plebiscite to lend credit and to issue bonds and raise money for its support. The statutes creating the agency (chapter 98, Public-Local Laws of 1941, and chapter 601, Session Laws of 1943) are cited in chapter 206, supra, and their authority is there expressly preserved. The significance of this later statute lies in the fact that it does not in itself create the agency, but recognizes its creation under the former statutes and the purpose of its creation, and authorizes these municipalities to deal with it and give it aid. Since these cities are given authority to raise money by taxation and expend it in aid of plaintiff agency, the authority is adequate to appropriate for that purpose from surplus and uncommitted funds already on hand. Adams v. Durham, supra. It is true they are not proceeding under this statute to raise the funds, but that does not diminish the authority given to deal with the agency when they have the funds which may be applied.
Supplementing what has been said about the complete control of counties, cities and towns by the Legislature from which their powers are derived, we might refer to some of the "set-ups" which have met our approval and compare them with similar features of the act under review.
The Morehead Port Commission was created by chapter 75, Private Laws of 1933, and the act of creation was reviewed in Webb v. Port Commission, supra. Perusal of the Act — which is largely recapitulated in the case cited, will show that there is no control whatever of the Port Commission given to the governing body of Morehead City except that given through the appointment of members of the Commission; and yet the Court upheld the provision permitting financial aid to be given by Morehead City on the principle of its interest in the public purpose being served.
In other instances the Legislature has gone further and has completely committed municipal functions to a legislative board or corporation without any control of the governing body of the county, and yet the county is required to furnish the finances. Huneycutt v. Comrs., 182 N.C. 319, 109 S.E. 4, dealt with a situation of that kind and found abundant support for its approval in the cases cited on p. 321.
The municipalities represented here have attempted to appropriate funds to a public purpose served by a statutory agency in whose appointment they participate and whose benefits are laid upon their threshold. The technical objections to the form of the statute do not outweigh the presence of that reality which the law and the decided cases have always sought as the determining factor — the relation of the municipality to the public purpose to which it lends its support — the practical satisfaction of the municipal need felt by its inhabitants. If the statute creating the Airport Authority has defects which merit legislative or judicial attention, they are not before us on this appeal.
Unquestionably the immediate future of civil aviation will bring to us results undreamed of; transportation of mail, passengers and freight will reach proportions hitherto thought impossible. Already we have in this method of travel and transportation a rival of all other means now employed; and an opportunity which these cities, amongst our largest and most prosperous, can no more afford to lose than we can afford to deny to them except upon cogent reasons.
"A city acts for city purposes when it builds a dock or a bridge or a subway. . . . Its purpose is not different when it builds an airport. . . . Aviation is today an established method of transportation. The future, even the near future, will make it still more general. The city that is without the foresight to build the ports for the new traffic may soon be left behind in the race of competition. Chalcedon was called the city of the blind, because its founders rejected the nobler site of Byzantium lying at their feet. The need for vision of the future in the governance of cities has not lessened with the years. The dweller within the gates, even more than the stranger from afar, will pay the price of blindness."
We have been cited no provision of the Constitution, and we find nothing in the statutes, which would justify us in raising a judicial bar to the appropriations which the municipalities have sought to make for the accomplishment of this widely recognized public purpose, or justify reversal of the judgment entered in the Superior Court. The defendants are acting in a ministerial capacity and are amenable to the writs demanded.

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Check out the call for papers for an exciting Symposium on The Separation of Powers: A Global Constitutional Dialogue on May 22, 2017, at the University of Milan.
The topic is inspired by Professor Giovanni Bognetti's (U. Milan) book, La Separazione dei Poteri.
The conveners are Prof. Richard Albert (Boston College), Dr. Antonia Baraggia (U. Milan), Prof. Cristina Fasone (U. Rome), and Prof. Luca Pietro Vanoni (U. Milan).
The Call for Papers is here; proposals are due by January 15, 2017, to separationofpowersmay22@gmail.com. The full-day Symposium will be held entirely in English.
The Second Circuit ruled today that a class representative had standing to challenge a creditor's failure to disclose certain requirements under the Truth In Lending Act, but lacked standing to challenge other failures to disclose.
The ruling means that two of the plaintiff's claims are dismissed for lack of standing. The court dismissed the other two on the merits.
The case arose when Abigail Strubel sued a credit-card issuer for failing to make four disclosures required by TILA: (1) that cardholders wishing to stop payment on an automatic payment plan had to satisfy certain obligations; (2) that the bank was statutorily obliged not only to acknowledge billing error claims within 30 days of receipt but also to advise of any corrections made during that time; (3) that certain identified rights pertained only to disputed credit card purchases for which full payment had not yet been made, and did not apply to cash advances or checks that accessed credit card accounts; and (4) that consumers dissatisfied with a credit card purchase had to contact the creditor in writing or electronically.
The court held that Strubel had standing to challenge 3 and 4, but not 1 and 2.
Thus, we understand Spokeo, and the cases cited therein, to instruct that an alleged procedural violation can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff's concrete interests and where the procedural violation presents a "risk of real harm" to that concrete interest. But even where Congress has accorded procedural rights to protect a concrete interest, a plaintiff may fail to demonstrate concrete injury where violation of the procedure at issue presents no material risk of harm to that underlying interest.
As to 3 and 4, the court said that Strubel sufficiently demonstrated a concrete interest in "avoid[ing] the uninformed use of credit," "a core object of TILA." It said that a "consumer not given notice of his obligations is likely not to satisfy them and, thereby, unwittingly to lose the very credit rights that the law affords to him." The court went on to dismiss these claims on the merits.
As to 1 and 2, the court said that Strubel didn't show a concrete interest, because (as to 1) the creditor had no automatic payment plan when Strubel had her card and (as to 2) Strubel never had any reason to report a billing error (which would have triggered the creditor's obligation to "advise of corrections." In other words, because the conditions for violating the underlying requirements were absent, the creditor's failure to notify Strubel of the requirements couldn't have caused any concrete harm. The court dismissed these claims for lack of standing.
The court noted that a different plaintiff could have standing to challenge 1 and 2, so long as the plaintiff could also show a concrete harm. The court also noted that the CFPB can enforce these provisions independently.
The Seventh Circuit today dismissed a state prisoner's First Amendment claim, but ruled that his Eighth Amendment claim can go forward.
Each part of the ruling is important: the free speech ruling creates a circuit split; and the Eighth Amendment ruling implicates questions of supervisor liability for civil rights violations and access to justice for victims--issues now before the Supreme Court (in a different context).
The case arose when state prisoner Seyon Haywood alleged that his auto mechanic teacher attacked him. Guards charged Haywood with making a false statement, and a disciplinary panel found him guilty and sentenced him to two-month's segregation and revoked one month of good-time credit.
Haywood filed a federal civil rights case against the warden, alleging that his punishment violated his free speech rights, and that his segregated confinement violated the Eighth Amendment.
The Seventh Circuit dismissed the First Amendment claim. The court ruled that under Heck v. Humphrey and Edwards v. Balisok, Haywood couldn't bring a Section 1983 case for relief that would necessarily imply the invalidity of his disciplinary sentence, at least until he successfully challenged that disciplinary sentence. The court rejected Haywood's argument that Heck and Edwards don't apply, because he disavowed any challenge to the duration of his confinement. Haywood's argument drew on a Second Circuit ruling, Peralta v. Vasquez, which said just that. The Seventh Circuit's rejection of Haywood's claim sets up a circuit split on the question whether a prisoner can bring a 1983 case without successfully challenging a sentence, if the prisoner waives that challenge.
As to the Eighth Amendment claim, the court held that Haywood produced sufficient evidence to show that the warden (the only defendant in the case) was deliberately indifferent to Haywood's conditions of confinement to satisfy Ashcroft v. Iqbal and Farmer v. Brennan for direct (not vicarious) liability.
Judge Easterbrook dissented on this latter point. He argued that Haywood only showed that the warden knew of the conditions of his confinement, and, under Iqbal, knowledge is not enough. Judge Easterbrook also noted that the Supreme Court will weigh in on this soon enough, in the consolidated Turkmen cases, testing whether former AG Ashcroft and FBI Director Mueller, among others, can be held liable for detention of alien detainees at the Metropolitan Detention Center in New York, soon after 9/11.
Prof. Robert Delahunty (St. Thomas) argues in his Cardozo De Novo piece that the Uniform Faithless Electors Act is unconstitutional. That Act, enacted in several states, says that a "faithless elector" ballot cannot be counted, and that a "faithless elector" immediately vacates the office of elector when he or she submits the "faithless" ballot. This creates a vacancy that the legislature can fill with a "faithful elector."
Delahunty argues that this runs afoul of Article II, Section 1, and the First Amendment. Read it to see why.
[I]f [electors should exercise independent judgment], it's hard to see how electors would be exercising their independent judgment by deferring to the popular vote. That's especially so because they would be deferring to the popular vote in other states that didn't even vote for them as electors.
. . . It's hard to have electors follow an ancient principle that gives them independent judgment and yet simultaneously follow a newer principle [one-person, one-vote] that takes their judgment away. The two ideas don't readily mix.
More broadly, I would think that any proposal for how electors should vote should be settled before an election rather than offered to resolve an election that already occurred.
The United States Supreme Court has held that flag burning as expressive speech is protected by the First Amendment and that loss of citizenship is not a constitutional punishment for a crime.
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . . In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it.. . . There is, moreover, no indication -- either in the text of the Constitution or in our cases interpreting it -- that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole -- such as the principle that discrimination on the basis of race is odious and destructive -- will go unquestioned in the marketplace of ideas. . . .
To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to bee applied is more speech, not enforced silence.
Whitney v. California(1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
Well, how do you pick out what to protect?
I mean, you know, if I had to pick between the Constitution and the flag, I might well go with the Constitution.
use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.
The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.
Thus it seems that the president-elect's sentiment is at odds with our constitutional precedent.
A complaint alleging violations of the First and Fourth Amendments by North Dakota officials has been filed on behalf of "water protectors" at the Dakota Access Pipeline (DAPL) protest at Standing Rock. The plaintiffs in Dundon v. Kirchmeier have also filed a motion and memo for a Temporary Restraining Order "enjoining Defendants from curtailing their First and Fourth Amendment rights by using highly dangerous weaponry, including Specialty Impact Munitions (SIM, also known as Kinetic Impact Projectiles or KIP), explosive “blast” grenades, other chemical agent devices, and a water cannon and water hoses in freezing temperatures, to quell protests and prayer ceremonies associated with opposition to the Dakota Access Pipeline (DAPL).
As to the First Amendment, the plaintiffs allege that the defendants have sought to eliminate protected First Amendment activity in a public forum. Additionally, even if there were an "unlawful assembly" not protected by the First Amendment, the defendants violated the Fourth Amendment's prohibition of excessive force. Moreover, the plaintiffs claim that the activities of the government officials have become a custom warranting government liability.
The factual claims in the complaint and memo supporting the TRO are troubling; some of the accounts will be familiar from reporting, but the legal documents compare the use of force at Standing Rock to other situations.
The use of water cannons in riot control contexts also can lead to injury or death. Potential health effects include hypothermia and frostbite, particularly if appropriate medical and warming services are not easily accessible. High-pressure water can cause both direct and indirect injuries. Direct injuries may include trauma directly to the body or internal injuries from the force of the water stream. Eye damage resulting in blindness as well as facial bone fractures and serious head injuries have been documented. Ex. V at 59; Anna Feifenbaum, White-washing the water cannon: salesmen, scientific experts and human rights abuses, Open Democracy (Feb. 25, 2014); https://www.opendemocracy.net/opensecurity/anna-feigenbaum/white-washingwater-cannon-salesmen-scientific-experts-and-human-rights; https://web.archive.org/web/20070221053037/http://newzimbabwe.com/pages/mdc44.15976.html (fatalities reported in Zimbabwe in 2007, when water cannons were used on peaceful crowd, causing panic); http://www.hurriyetdailynews.com/Default.aspx?pageID=238&nid=49009 (fatalities reported in Turkey in 2013, when water cannon water was mixed with teargas); https://www.kyivpost.com/article/content/ukraine-politics/activist-watered-by-police-diedbecause-of-pneumonia-335885.html (fatality reported in Ukraine in 2014, when businessman Bogdan Kalynyak died from pneumonia after being sprayed by water cannon in freezing temperatures). There is no current caselaw on the use of water cannons against protesters in the United States because, along with attack dogs, such use effectively ended in the U.S. in the 1960s amidst national outcry over the use of these tactics on nonviolent civil rights protesters.
More information is available from the Water Protectors Legal Collective and National Lawyers Guild.
[I]f the electoral college is to control who becomes our president, we should take it seriously by understanding its purpose precisely. It is not meant to deny a reasonable judgment by the people. It is meant to be a circuit breaker--just in case the people go crazy.
In this election, the people did not go crazy. The winner, by far, of the popular vote is the most qualified candidate for president in more than a generation. Like her or not, no elector could have a good-faith reason to vote against her because of her job qualifications. Choosing her is thus plainly within the bounds of a reasonable judgment by the people.
Although you have stated publicly that you will hold Mr. Trump to the same standards as President Obama and Secretary Clinton, you have not responded to Ranking Member Cummings' letter, and you have not taken steps to conduct basic oversight of these unprecedented challenges.
The letter goes on to outline the many now-familiar conflicts between Trump's overseas and domestic business interests and his role and his family's roles through the transition and into his presidency.
If you're going to run and try to become the president of the United States, you're going to have to open up your kimono and show everything, your tax returns, your medical records. You are just going to have to do that. It's too important. . . . I promise you, I don't care who is in the White House. My job is not to be a cheerleader for the president. My job is to hold them accountable and to provide that oversight. That's what we do.
Can a School Board Ban Wearing Safety Pins?
"Recent events require us to remind our employees of their rights and responsibilities. As a staff member, you do not give up your first amendment right to free-speech on matters of public concern. However, your communication inside the classroom on school time is considered speech on behalf of the school district and there is a limitation on that speech.
The wearing of a safety pin as a political statement is the latest example of such political speech. Although wearing the safety pin as political speech is not the problem, any disruption the political statement causes in the classroom or school is a distraction in the education process. We ask staff members to refrain from wearing safety pins or other symbols of divisive and partisan political speech while on duty--unless such activity is specifically in conjunction with District curriculum.
Further, the use of district owned devices and accounts is strictly forbidden for anything other than District business. If you have questions regarding appropriate use, please see BOE policies IIBF and GAT.
The Kansas ACLU has sent a letter to the school district urging it to "reconsider the prohibition on the wearing of safety pins." The ACLU letter argues that the safety pin is not partisan political speech and is "highly vulnerable to legal challenge" under the classic case of Tinker v. Des Moines Independent Community School District (1969). In Tinker, involving students wearing black armbands to protest the Viet Nam war, the Court ruled that public schools could not curtail students' symbolic speech unless the speech would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," or infringe on the rights of others. The Supreme Court famously stated that "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and the Tinker standard has been applied to teachers as well as students.
The ACLU has the better argument here. As I've written in Dressing Constitutionally, the Tinker standard has been applied to teachers as well as students. Moreover, the school district's contention that teachers' expression "inside the classroom on school time is considered speech on behalf of the school district," is an overstatement (and is at odds with doctrine limiting government liability for teacher speech unless it is official policy). Importantly, the school's communication recognizes the "safety pin" as conveying a specific meaning - - - contrasted with cases involving teacher dress in which the expression is debatable (e.g., long hair or mustaches for male teachers) - - - and thus the First Amendment clearly applies to the safety pin as expression. As for disruption, the Tinker standard requires the school officials "had reason to anticipate" a substantial disruption rather than merely "an urgent wish to avoid the controversy which might result from the expression." There do not seem to be any facts indicating that there would be disruption - - - again, contrasted with cases in which there was a history of racial violence and student Confederate flag attire could be banned - - - and thus the Tinker standard is not satisfied.
The school board is on shaky First Amendment ground in its banning of safety pins as symbolic expression.
Judge Amos L. Mazzant (E.D. Tex.) granted a nationwide injunction today against the Obama Administration in enforcing its new overtime rules.
The ruling is a blow to President Obama's effort to update the overtime requirements through administrative rulemaking, and not legislation. The nationwide injunction seems extreme, but, as Judge Mazzant noted, this district-court-issuing-a-nationwide-injunction-thing seems to be a growing trend among district court judges striking President Obama's administrative initiatives.
At the same time, the new Trump Administration will almost surely undo these rules, anyway.
The government can appeal, but the conservative Fifth Circuit seems likely to affirm. And again: The Trump Administration will almost surely undo this, anyway.
Recall that DOL issued rules raising the "executive, administrative, and professional" exemption from the FLSA requirement that employers pay overtime to workers. In particular, DOL issued rules that said that employees who earn up to $47,892 per year (up from $23,660 per year) fell outside the exemption, and therefore qualified for mandatory overtime. The new rules also set an automatic update that adjusts the minimum salary level every three years.
States and business organizations sued, arguing that the rules violated the Administrative Procedures Act, because they weren't authorized by the FLSA. The state plaintiffs threw in a claim that the new rules and the entire FLSA violated the Tenth Amendment and federalism principles. Because this claim ran headlong into Garcia (which upheld the application of the FLSA to the states), the states, for good measure, went ahead and boldly argued that the court should overturn Garcia.
The court agreed with the APA claim, but disagreed about Garcia. As to the APA, the court said that the language of the FLSA--"executive, administrative, and professional" employees are exempt from the overtime mandate, and that DOL can promulgate regs to implement this exemption--required that the government consider employees' duties, and not just income, in determining whether an employee qualifies. Because the new regs only considered income, they violated the FLSA.
Or they were banking on a differently comprised Court entirely--one friendly to their anti-Garcia claim. And who knows? Now they might get it.
The House of Representatives last week filed a motion at the D.C. Circuit to delay the government's appeal of a district court ruling that the Obama Administration spent money on reimbursements to insurers under the Affordable Care Act without congressional authorization of funds. We posted on that ruling here.
The move seeks to halt the appeal and give President-Elect Trump and House Republicans time to figure out what to do next.
If the appeals court affirms the district court ruling, and if (as expected) Congress declines to fund the line-item for insurer reimbursement, insurers would have to dramatically increase rates or drop out of the exchange markets. On the other hand, the D.C. Circuit could rule that the House lacks standing, or it could rule for the Administration on the merits.
A halt to the appeal would allow the incoming administration some time to decide how to deal with the suit, insurer reimbursements, and Obamacare in general.
Check out the Constitutional Accountability Center's recently published report on access to the federal courts, The Keystone of the Arch: The Text and History of Article III and the Constitution's Promise of Access to the Courts. The report is the most recent addition to the CAC's excellent Narrative Series.
In it, David Gans, Director of the Human Rights, Civil Rights & Citizenship Program at the CAC, explainss how the Supreme Court has restricted access in the name of Article III "cases and controversies" and at the same time has expanded state sovereign immunity far beyond the text and history of the Eleventh Amendment. "The same cramped vision of the role of the federal courts in righting wrongs and in enforcing the Constitution and federal laws has been at the heart of numerous other Rehnquist and Roberts Court rulings that pervert statutes, court rules, and bodies of judge-made laws to limit access to the federal courts by those asserting federal claims."
What Might Jeff Sessions do as AG?
Many have criticized Trump's Sessions pick for AG based on his background, voting record, and prior statements. But, if confirmed, what might an AG Sessions actually do?
Roll back federal civil rights and voting-rights enforcement, tighten the screws on immigrants, increase surveillance, and enforce federal marijuana laws in states that have legalized marijuana, according to Politico; roll back civil rights, according to The Atlantic; seek harsh punishment for low-level crimes (among other things), according to the Brennan Center; and even "prosecute sanctuary cities," according to the Washington Times.
Sessions has his defenders. Hans von Spakovsky writes at Fox why "Jeff Sessions is the perfect pick for attorney general," in part because of his commitment to federalism (although this may be federalism of a selective sort--not applicable to marijuana and sanctuary cities, for example--we'll see). Mark Hemingway defends the pick at The Weekly Standard.
In Miami Herald Publishing Co. v. Tornillo (1974), a unanimous Supreme Court held that Florida's "right of reply" statute granting a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper violated the First Amendment.
the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a compulsion to publish that which "reason' tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated. . . . Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers.
Thus, while the President-Elect may simply be requesting "equal time" for "us," his widely reported tweet implicates serious constitutional concerns.

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