
    Dr. C. A. ADAMS et al. Citizens and Taxpayers v. CITY OF DURHAM.
    (Filed 4 March, 1925.)
    Municipal Corporations — Cities and Towns — Public Buildings; — Public Purposes — Constitutional Law.
    The erection by a city of a public building with funds for the purpose on hand, for governmental offices, academy of music, public meetings, etc., if for a governmental purpose, and within the exercise of the discretionary powers conferred upon the governing body of the municipality, and where no further expense may be incurred such as to pledge the credit of the city, or therein impose an obligation upon it, there is no violation of our Constitution, Art. VII, sec. 7, C. S., 2673, 2786, 2787, (3), (4).
    Civil action to restrain tbe expenditure of certain moneys in tbe erection of a city auditorium, beard by consent and as on final bearing before Grammer, J., at Oxford, N. 0., 17 November, 1924.
    There was judgment dissolving tbe preliminary restraining order and dismissing tbe action, and plaintiffs excepted and appealed.
    
      JR. JBJ. Sylces for plaintiff.
    
    
      S. G. Chambers for defendant.
    
   Hoke, C. J.

From tbe facts properly presented at tbe bearing and deemed pertinent to tbe inquiry, it appears that tbe city of Durham has now on band a fund amounting to $250,000.00, tbe proceeds of tbe sale of a city lot on which was erected a building used for city governmental offices, an academy of music, etc. Tbe said fund consists of cash to tbe amount of $150,000.00 and tbe remainder of solvent and secured purchase-money notes payable in May, 1925. That tbe city owns a desirable lot, accessible and centrally located, on which they have constructed tbe governmental and administrative offices of tbe city, and on tbe remainder of said lot it is proposed and intended to erect with this $250,000.00 a public auditorium for tbe convenience of tbe city and its inhabitants and for tbe purpose of public meetings, school commencement exercises, lectures, and “incidentally for operas and dramatic performances, etc.” And on these facts we .can see no valid objection to tbe proposed expenditure.

Tbe power of tbe city authorities to make tbe sale of tbe former lot has been directly approved by this Court in Harris v. Durham, 185 N. C., p. 571. Tbe erection of a public auditorium, while it may not be a necessary expense, is to our minds undoubtedly a public purpose, and it has been so directly held in well considered cases on tbe subject. Wheelock v. City of Lowell, 196 Mass., p. 220; Denver v. Hallett, 34 Colo., p. 393. And tbe city authorities having funds already on band, clearly have tbe right to erect such a building in tbe exercise tbe powers eopferred upon them both by the general law and provisions of the charter applicable. C. S., secs. 2673, 2786 and 2787, subsecs. 3 and 4.

The only objection seriously urged against the proposed measure is that the same would be in violation of Article VII, sec. 7 of the Constitution, which provides that no county, city, town or other municipal corporation shall'contract any debt or loan its credit except for necessary expenses, unless sanctioned by the popular vote. But this provision, in our opinion, has no application to the facts of this record, where, as stated, the funds to be applied are already on hand and the proposed expenditure will impose no further liability on the municipality, nor involve the imposition of further taxation upon it. Brockenbrough v. Comrs., 134 N. C., p. 12; Gardner v. New Bern, 98 N. C., p. 231; Sackett v. New Albany, 88 Ind., p. 473.

In recognition of the Constitutional inhibition, however, any contract for the erection of the auditorium shall be so drawn that only the said fund of $250,000.00 may be used for the purpose and in no event shall further liability be imposed on the city and its inhabitants in favor of any builder, contractor, or others engaged in the work. So construed, the j’udgment of his Honor dissolving the restraining order and dismissing the action is

Affirmed.,  