467 S.E.2d 615 (1996) 342 N.C. 708

William F. MAREADY, Plaintiff
v.
The CITY OF WINSTON-SALEM; The Board of Aldermen of the City of Winston-Salem; Forsyth County; The Board of County Commissioners of Forsyth County; and Winston-Salem Business, Inc., Defendants, and
State of North Carolina ex rel. Michael F. Easley, Attorney General, Defendant-Intervenor.

No. 422PA95.

Supreme Court of North Carolina.

March 8, 1996.

*617 Robinson Maready Lawing & Comerford, L.L.P. by William F. Maready and Michael L. Robinson, Winston-Salem, for plaintiff-appellant and -appellee.

Womble Carlyle Sandridge & Rice, P.L.L.C. by Roddey M. Ligon, Jr., Winston-Salem, for City and County.

P. Eugene Price, Jr., Forsyth County Attorney; Ronald G. Seeber, Winston-Salem City Attorney; and Petree Stockton, L.L.P. by J. Robert Elster and Julia C. Archer, Winston-Salem, for Winston-Salem Business, Inc., defendant-appellants and -appellees.

*618 Michael F. Easley, Attorney General; John R. McArthur, Chief Counsel; Andrew A. Vanore, Jr., Chief Deputy Attorney General; and W. Wallace Finlator, Jr., and Jane T. Friedensen, Assistant Attorneys General, Raleigh, for defendant-intervenor-appellant and -appellee.

Andrew L. Romanet, Jr., General Counsel, and Gregory F. Schwitzgebel III, Assistant General Counsel, Raleigh, for the North Carolina League of Municipalities.

James B. Blackburn III, General Counsel, and Kimberly M. Grantham, Assistant General Counsel, Raleigh, for the North Carolina Association of County Commissioners, amici curiae.

Everett Gaskins Hancock & Stevens by Hugh Stevens and C. Amanda Martin, Raleigh, for Piedmont Publishing Company and The North Carolina Press Association, amici curiae.

Harry Pavilak & Associates by David C. Harr, Myrtle Beach, SC, for Southeastern Legal Foundation, amicus curiae.

The Sanford Law Firm, P.L.L.C. by Ernest C. Pearson, Robert M. Jessup, Jr., and Ellen D. Andrews, Raleigh, for The North Carolina Economic Developers Association, amicus curiae.

Poyner & Spruill, L.L.P. by S. Ellis Hankins, Raleigh, for ElectriCities of North Carolina, Inc., amicus curiae.

Stam, Fordham & Danchi, P.A. by Paul Stam, Jr., Apex, for John Locke Foundation, Inc., amicus curiae.

Kary L. Moss, Detroit, MI, for The Corporation for Enterprise Development, The Calumet Project for Industrial Jobs, Share the Wealth, The Grass Roots Policy Project, The Maurice and Jane Sugar Law Center for Economic and Social Justice, and The Federation for Industrial Retention and Renewal, amici curiae.

WHICHARD, Justice.

Plaintiff-appellant, William F. Maready, instituted this action against the City of Winston-Salem, its Board of Aldermen, Forsyth County, its Board of Commissioners, and Winston-Salem Business, Inc. Plaintiff contends that N.C.G.S. § 158-7.1, which authorizes local governments to make economic development incentive grants to private corporations, is unconstitutional because it violates the public purpose clause of the North Carolina Constitution and because it is impermissibly vague, ambiguous, and without reasonably objective standards. Plaintiff also argues that the local governing bodies violated the State's Open Meetings Law by voting on and deciding grant matters in closed sessions.

Following a three-day evidentiary hearing and oral argument, the trial court found N.C.G.S. § 158-7.1 unconstitutional, enjoined defendants from making further incentive grants or otherwise committing public funds pursuant to that statute, denied plaintiff's motion for a mandatory injunction to require the City and County to recover incentive grants from recipients thereof, and dismissed the claim that defendants violated the Open Meetings Law. All parties appealed, and on 2 November 1995 this Court granted defendant-appellants' petition for discretionary review prior to a determination by the Court of Appeals.

Plaintiff is a citizen and resident of Winston-Salem and Forsyth County. He owns real and personal property upon which Winston-Salem and Forsyth County levy property taxes. Defendants are the City of Winston-Salem, its Board of Alderman, Forsyth County, and its Board of County Commissioners. Winston-Salem Business, Inc. ("WSBI"), also a defendant, is the name under which the Forsyth County Development Corporation does business. It is a not-for-profit corporation formed by private individuals in Forsyth County and is an arm of the Winston-Salem Chamber of Commerce. The State of North Carolina, ex rel. Michael F. Easley, Attorney General, is a party defendant by way of voluntary intervention as a matter of right pursuant to Rule 24(a)(1) of the North Carolina Rules of Civil Procedure and N.C.G.S. § 1-260, in that the action seeks to have an act of the General Assembly of the State of North Carolina declared unconstitutional.

This action challenges twenty-four economic development incentive projects entered *619 into by the City or County pursuant to N.C.G.S. § 158-7.1. The projected investment by the City and County in these projects totals approximately $13,200,000. The primary source of these funds has been taxes levied by the City and County on property owners in Winston-Salem and Forsyth County. City and County officials estimate an increase in the local tax base of $238,593,000 and a projected creation of over 5,500 new jobs as a result of these economic development incentive programs. They expect to recoup the full amount of their investment within three to seven years. The source of the return will be revenues generated by the additional property taxes paid by participating corporations. To date, all but one project has met or exceeded its goal.

The typical procedures the City and County observe in deciding to make an economic development incentive expenditure are as follows: A determination is made that participation by local government is necessary to cause a project to go forward in the community. Officials then apply a formula set out in written guidelines to determine the maximum amount of assistance that can be given to the receiving corporation. The amounts actually committed are usually much less than the maximum. The expenditures are in the form of reimbursement to the recipient for purposes such as on-the-job training, site preparation, facility upgrading, and parking. If a proposal satisfies the guidelines as well as community needs, it is submitted to the appropriate governing body for final approval at a regularly scheduled public meeting. If a project is formally approved, it is administered pursuant to a written contract and to the applicable provisions and limitations of N.C.G.S. § 158-7.1.

Article V, Section 2(1) of the North Carolina Constitution provides that "[t]he power of taxation shall be exercised in a just and equitable manner, for public purposes only." In Mitchell v. North Carolina Indus. Dev. Fin. Auth., 273 N.C. 137, 159 S.E.2d 745 (1968), Justice (later Chief Justice) Sharp, writing for a majority of this Court, stated:

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.

Id. at 143, 159 S.E.2d at 749-50.

In determining whether legislation serves a public purpose, the presumption favors constitutionality. State v. Furmage, 250 N.C. 616, 621, 109 S.E.2d 563, 567 (1959). Reasonable doubt must be resolved in favor of the validity of the act. Wells v. Housing Auth. of Wilmington, 213 N.C. 744, 749, 197 S.E. 693, 696 (1938). The Constitution restricts powers, and powers not surrendered inhere in the people to be exercised through their representatives in the General Assembly; therefore, so long as an act is not forbidden, its wisdom and expediency are for legislative, not judicial, decision. McIntyre v. Clarkson, 254 N.C. 510, 515, 119 S.E.2d 888, 891-92 (1961).

In exercising the State's police power, the General Assembly may legislate for the protection of the general health, safety, and welfare of the people. Martin v. North Carolina Hous. Corp., 277 N.C. 29, 45, 175 S.E.2d 665, 674 (1970). It may "experiment with new modes of dealing with old evils, except as prevented by the Constitution." Redevelopment Comm'n of Greensboro v. Security Nat'l Bank of Greensboro, 252 N.C. 595, 612, 114 S.E.2d 688, 700 (1960). The initial responsibility for determining what constitutes a public purpose rests with the legislature, and its determinations are entitled to great weight. In re Housing Bonds, 307 N.C. 52, 57, 296 S.E.2d 281, 285 (1982).

The enactment of N.C.G.S. § 158-7.1 leaves no doubt that the General Assembly considers expenditures of public funds for the promotion of local economic development to serve a public purpose. Under this statute,

[e]ach county and city in this State is authorized to make appropriations for the purposes of aiding and encouraging the location of manufacturing enterprises, making industrial surveys and locating industrial *620 and commercial plants in or near such city or in the county; encouraging the building of railroads or other purposes which, in the discretion of the governing body of the city or of the county commissioners of the county, will increase the population, taxable property, agricultural industries and business prospects of any city or county. These appropriations may be funded by the levy of property taxes pursuant to G.S. 153A-149 and 160A-209 and by the allocation of other revenues whose use is not otherwise restricted by law.

N.C.G.S. § 158-7.1(a) (1994) (emphasis added). When making amendments to chapter 158 and adding other provisions designed to promote economic development, the General Assembly mandated: "This act, being necessary for the prosperity and welfare of the State and its inhabitants, shall be liberally construed to effect these purposes." Act of July 23, 1993, ch. 497, sec. 25, 1993 N.C. Sess. Laws 1932, 1961 (amending the Constitution to permit cities and counties to issue bonds to finance the public portion of economic development projects and to authorize counties and cities to accept as consideration for a conveyance or lease of property to a private party the amount of increased tax revenue expected to be generated by the improvements to be constructed on the property). The General Assembly has further demonstrated its commitment to economic development by enacting several other statutes that permit local governments to appropriate and spend public funds for such purposes. These include, inter alia:

N.C.G.S. §§ 158-8 through -15, which establish regional economic development commissions and authorize local governments to create or join economic development commissions and to support them with their funds.

N.C.G.S. § 160A-209(c), which provides:

"Each city may levy property taxes for one or more of the following purposes ...: (10b) Economic Development—To provide for economic development as authorized by G.S. 158-12.... (17a) Industrial Development.—To provide for industrial development as authorized by G.S. 158-7.1."

N.C.G.S. § 153A-149(c), which provides:

"Each county may levy property taxes for one or more of the purposes listed in this subsection ...: (10b) Economic Development—To provide for economic development as authorized by G.S. 158-12.... (16a) Industrial Development—To provide for industrial development as authorized by G.S. 158-7.1."

These enactments clearly indicate that N.C.G.S. § 158-7.1 is part of a comprehensive scheme of legislation dealing with economic development whereby the General Assembly is attempting to authorize exercise of the power of taxation for the perceived public purpose of promoting the general economic welfare of the citizens of North Carolina.

While legislative declarations such as these are accorded great weight, ultimate responsibility for the public purpose determination rests with this Court. Madison Cablevision v. City of Morganton, 325 N.C. 634, 644-45, 386 S.E.2d 200, 206 (1989). If an enactment is for a private purpose and therefore inconsistent with the fundamental law, it cannot be saved by legislative declarations to the contrary. It is the duty of this Court to ascertain and declare the intent of the framers of the Constitution and to reject any act in conflict therewith. State v. Felton, 239 N.C. 575, 578, 80 S.E.2d 625, 628 (1954); Nash v. Town of Tarboro, 227 N.C. 283, 290, 42 S.E.2d 209, 214 (1947).

This Court has addressed what constitutes a public purpose on numerous occasions. It has not specifically defined "public purpose," however; rather, it has expressly declined to "confine public purpose by judicial definition[, leaving] `each case to be determined by its own peculiar circumstances as from time to time it arises.'" Stanley v. Department of Conservation & Dev., 284 N.C. 15, 33, 199 S.E.2d 641, 653 (1973) (quoting Keeter v. Town of Lake Lure, 264 N.C. 252, 264, 141 S.E.2d 634, 643 (1965)). As summarized by Justice Sharp in Mitchell:

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 *621 brought closer together in congested areas, the public welfare requires governmental operation of facilities which were once considered exclusively private enterprises, and necessitates the expenditure of tax funds for purposes which, in an earlier day, were not classified as public. 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.

Mitchell, 273 N.C. at 144, 159 S.E.2d at 750 (citations omitted).

Plaintiff requests that we take judicial notice of the 1993 proposed constitutional amendment regarding economic development financing bonds which was soundly defeated by the voters of North Carolina. Were we to do so, his argument concerning the constitutionality of N.C.G.S. § 158-7.1 would not be bolstered thereby. The proposed amendment would have authorized "any county, city, or town to define territorial areas in the county, city, or town, and borrow money, without need of voter approval, to be used to finance public activities associated with private economic development projects within territorial areas." Ch. 497, sec. 1, 1993 N.C. Sess. Laws at 1933. This amendment would have been conceptually different from N.C.G.S. § 158-7.1. Section 158-7.1 allows local governments to appropriate funds for the purpose of economic development. Such appropriations involve money the government already has or readily will have. The proposed amendment, by contrast, would have allowed local governments to borrow money in order to issue economic development financing bonds, thereby spending money not already obtained and incurring debt that must ultimately be repaid with interest. The bonds would not have been secured by the full faith and credit of the governing body; thus, the governing body would essentially have been borrowing and spending on unsecured credit. Any resulting deficit would have directly affected the taxpayers, who would not even have been entitled to vote on the projects. Unlike N.C.G.S. § 158-7.1, the proposed amendment had few internal safeguards and had the potential for adverse financial repercussions to the taxpayers. Thus, the public's rejection of the proposed amendment has no bearing on the constitutionality of N.C.G.S. § 158-7.1, which is the question before us.

Plaintiff also argues, and the trial court apparently agreed, that this question falls squarely within the purview of Mitchell v. North Carolina Industrial Development Financing Authority. There we held unconstitutional the Industrial Facilities Financing Act, a statute that authorized issuance of industrial revenue bonds to finance the construction and equipping of facilities for private corporations. The suit was filed as a test case, before any bonds were issued, to enjoin the appropriation of $37,000 from the State Contingency and Emergency Fund for the purpose of enabling the Authority to organize and begin operations. We find Mitchell distinguishable.

One of the bases for the Mitchell decision was that the General Assembly had unenthusiastically passed the enacting legislation, declaring it to be bad policy. The opinion stated:

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-subsidizing 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.

Mitchell, 273 N.C. at 146, 159 S.E.2d at 751. The resolution recited that the General Assembly passed the act reluctantly, with reservations, and as a defensive measure. Id. at 141, 159 S.E.2d at 748. The Assembly's obvious apprehension over using public funds to benefit private entities in this manner clearly served to undermine the Court's confidence *622 in the constitutionality of the legislation. The converse is true here in that the Assembly has unequivocally embraced expenditures of public funds for the promotion of local economic development as advancing a public purpose.

Further, and more importantly, the holding in Mitchell clearly indicates that the Court considered private industry to be the primary benefactor of the legislation and considered any benefit to the public purely incidental. Notwithstanding its recognition that any lawful business in a community promotes the public good, the Court held that the "Authority's primary function, to acquire sites and to construct and equip facilities for private industry, is not for a public use or purpose." Id. at 159, 159 S.E.2d at 761. The Court rightly concluded that direct state aid to a private enterprise, with only limited benefit accruing to the public, contravenes fundamental constitutional precepts. In reiterating that it is not the function of the government to engage in private business, the opinion quoted with approval the following language from the Supreme Court of Idaho:

"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."

Id. at 153, 159 S.E.2d at 756 (quoting Village of Moyie Springs v. Aurora Mfg. Co., 82 Idaho 337, 349-50, 353 P.2d 767, 775 (1960)). Thus, the Court implicitly rejected the act because its primary object was private gain and its nature and purpose did not tend to yield public benefit.

These concerns also influenced the Court in Stanley v. Department of Conservation & Dev., 284 N.C. 15, 199 S.E.2d 641, which plaintiff also contends is binding precedent. In Stanley this Court was asked to determine the constitutionality of the Pollution Abatement and Industrial Facilities Financing Act, which allowed the creation of county authorities to finance pollution control or industrial facilities for private industry by the issuance of tax-exempt revenue bonds. The Court held the Act unconstitutional. The result in Stanley turned on the fact that the Act in question was "[p]atently ... designed to enable industrial polluters to finance, at the lowest interest rate obtainable, the pollution abatement and control facilities which the law is belatedly requiring of them." Id. at 32, 199 S.E.2d at 653. The Court noted that "[i]n determining what is a public purpose the courts look not only to the end sought to be attained but also `to the means to be used.'" Id. at 34, 199 S.E.2d at 653 (quoting Turner v. City of Reidsville, 224 N.C. 42, 44, 29 S.E.2d 211, 213 (1944)). As in Mitchell, the Court repeatedly asserted that direct assistance to a private concern by the use of tax-exempt revenue-bond financing could not be the means used to effect a public purpose. The Court concluded that "[p]ollution control facilities are single-purpose facilities, useful only to the industry for which they would be acquired." Id. at 39, 199 S.E.2d at 657. Therefore, "[t]he conclusion is inescapable that [the private corporation] is the only direct beneficiary of the tax-exempt revenue bonds which the ... Authorities propose to issue and that the benefit to the public is only incidental or secondary." Id. at 38, 199 S.E.2d at 656.

Thus, as in Mitchell, the outcome flowed inexorably from the fundamental concept underlying the public purpose doctrine, viz, that the ultimate gain must be the public's, not that of an individual or private entity. Significantly, the direct holdings of these cases—that industrial revenue bond financing is unconstitutional—were overturned by a specific constitutional amendment. In 1973 *623 the North Carolina Constitution was amended to add Article V, Section 9, which allows counties to create authorities to issue revenue bonds for industrial and pollution control facilities. While this amendment was narrowly tailored to address a specific situation, it nonetheless diminishes the significance of Mitchell and Stanley in the context presented here.

Moreover, the Court's focal concern in Mitchell and Stanley, the means used to achieve economic growth, has also been removed by constitutional amendment. In 1973 Article V, Section 2(7) was added to the North Carolina Constitution, specifically allowing direct appropriation to private entities for public purposes. This section provides:

The General Assembly may enact laws whereby the State, any county, city or town, and any other public corporation may contract with and appropriate money to any person, association, or corporation for the accomplishment of public purposes only.

N.C. Const. art. V, § 2(7). "[U]nder subsection (7) direct disbursement of public funds to private entities is a constitutionally permissible means of accomplishing a public purpose provided there is statutory authority to make such appropriation." Hughey v. Cloninger, 297 N.C. 86, 95, 253 S.E.2d 898, 904 (1979). Hence, the constitutional problem under the public purpose doctrine that the Court perceived in Mitchell and Stanley no longer exists.

While Mitchell and its progeny remain pivotal in the development of the doctrine, they do not purport to establish a permanent test for determining the existence of a public purpose. The majority in Mitchell posed the question: "Is it today a proper function of government for the State to provide a site and equip a plant for private industrial enterprise?" Mitchell, 273 N.C. at 145, 159 S.E.2d at 751 (emphasis added). This explicit recognition of the importance of contemporary circumstances in assessing the public purpose of governmental endeavors highlights the essential fluidity of the concept. While the Mitchell majority answered the question in the negative, the passage of time and accompanying societal changes now suggest a positive response.

This Court is no stranger to the question of what activities are and are not for a public purpose. The following cases demonstrate the great variety of facilities, authorities, and activities which have been deemed to be public purposes. Aid to Establish a Teachers Training School: Cox v. Commissioners of Pitt Co., 146 N.C. 584, 60 S.E. 516 (1908); Aid to Railroad: Wood v. Commissioners of Oxford, 97 N.C. 227, 2 S.E. 653 (1887); Airport Facilities: Greensboro-High Point Airport Auth. v. Johnson, 226 N.C. 1, 36 S.E.2d 803 (1946) (regional airport); Turner v. City of Reidsville, 224 N.C. 42, 29 S.E.2d 211 (municipal airport); Goswick v. City of Durham, 211 N.C. 687, 191 S.E. 728 (1937) (municipal airport); Education Generally: State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970) (a state revenue bond issue for loans to residents of slender means to facilitate their post-secondary education); Green v. Kitchin, 229 N.C. 450, 50 S.E.2d 545 (1948) (expenditure of tax revenues for a policeman to attend a training course); Grain Handling Facility Financed by Revenue Bonds and to be Leased to a Private Concern: North Carolina State Ports Auth. v. First-Citizens Bank & Trust Co., 242 N.C. 416, 88 S.E.2d 109 (1955); Moderate Income Housing: In re Housing Bonds, 307 N.C. 52, 296 S.E.2d 281; Municipal Appropriation of Non-tax Revenues to the Chamber of Commerce to Advertise the Advantages of Raleigh: Dennis v. City of Raleigh, 253 N.C. 400, 116 S.E.2d 923 (1960); Municipal Hospital: Trustees of Rex Hosp. v. Board of Comm'rs of Wake Co., 239 N.C. 312, 79 S.E.2d 892 (1954); Burleson v. Board of Aldermen of Spruce Pines, 200 N.C. 30, 156 S.E. 241 (1930); North Carolina Housing Corporation, Low-Income Housing: Martin v. North Carolina Hous. Corp., 277 N.C. 29, 175 S.E.2d 665; Off-Street Parking Under Certain Circumstances: Henderson v. City of New Bern, 241 N.C. 52, 84 S.E.2d 283 (1954); Port Terminal Facilities: Webb v. Port Comm'n of Morehead City, 205 N.C. 663, 172 S.E. 377 (1934); Public Auditorium: Adams v. City of Durham, 189 N.C. 232, 126 S.E. 611 (1925); Public Housing Authority Under Federal Housing Acts: Mallard v. *624 Eastern Carolina Regional Hous. Auth.,