Extra Territorial Jurisdiction; Nondiscrimination Agreement

Subject:

Requested By: Charles H. Young Attorney for the Raleigh-Durham Airport Authority

Question: Is the City of Raleigh authorized to require the Raleigh-Durham Airport Authority to enter into a nondiscrimination agreement relating to the operation of the airport as a condition for receiving payments for direct operation of the airport pursuant to statutory authority setting up the airport authority?

Conclusion: No. The Airport Authority is governed by the members of the authority, and the City of Raleigh has no authority to determine the policies or control the airport except in the manner as provided by statute by appointing two of its members.

The Raleigh-Durham Airport Authority was established pursuant to Chapter 168 of the 1939 Session Laws, as amended. The laws authorize the cities of Raleigh and Durham and the counties of Wake and Durham each to appoint two members of the Airport Authority. The Authority is authorized to operate and make rules and regulations necessary for the operation of the airport. The local governments are authorized to appropriate money necessary for the operation of the airport authority.

The City of Raleigh made an appropriation of $12,500 to the Raleigh-Durham Airport Authority. A municipal ordinance makes such a grant or appropriation subject to a condition that the Raleigh-Durham Airport Authority execute a nondiscrimination agreement providing that the Authority will not discriminate in the operation of the airport. The attorney for the Raleigh-Durham Airport Authority advised the Authority that in his opinion the Authority cannot properly contract away the legal authority of the members of the Authority to control and direct the operation of the airport by entering into a separate agreement with the City of Raleigh. He advised that there is no specific statutory authority authorizing the Airport Authority to contract with anyone of the four governmental units with respect to the manner in which the airport shall be operated. He requested an opinion of this Office as to the propriety of the entering into the agreement.

The status of the Greensboro-High Point Airport Authority was discussed in the case of Airport Authority v. Johnson, 226 N.C. 1. As the purpose of the two authorities is the same and the statutes setting up the Raleigh-Durham Authority are similar, excerpts from that case are set out as we feel they are applicable to the present situation.

"The plaintiff Airport Authority is neither a private corporation nor a political territorial subdivision. It is 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." 226 N.C. at 9.

"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 drive 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." 226 N.C. at 9, 10.

"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 antonomous agency, giving to the municipality only such control as it may consider advisable

where the particular functions as 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." 226 N.C. at

10. (Emphasis added)

"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." 226 N.C. 16 10. (Emphasis added)

We have reviewed the Session Laws setting up the Raleigh-Durham Airport Authority and providing for its operation by the members of the Authority which are appointed by the four governmental units. These Session Laws make no provision for the control of the airport by the City of Raleigh except through the appointment of two members of the Authority.

We believe that the City of Raleigh has no authority to determine the policy of the Airport Authority by such an ordinance. A city or town in this State has no inherent police power. It may exercise only such powers as are expressly conferred upon it by the General Assembly or as are necessarily implied from those expressly so conferred. Town of Conover v. Jolly, 277 N.C. 439,

443. A municipal corporation, city or town, is an agency created by the State to assist in the civil government of a designated territory and the people embraced within these limits. Its charter is the legislative description of the power to be exercised and the boundaries within which these powers may be exercised. Neither city charter nor ordinance enacted pursuant thereto has extraterritorial effect unless authorized by legislative grant. Smith v. Winston-Salem, 247 N.C.

349, 354. In the absence of the grant of such power a city or town may not, by its ordinance, prohibit acts outside its territorial limits. State v. Furio, 267 N.C. 353, 356. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Smith v. Winston-Salem, 247 N.C. 349, 354.

No grant of authority has been brought to our attention for the City of Raleigh to control or set the policies of the Airport Authority except by the appointment of two directors, nor do we find any authority for the municipality to project beyond the territorial limits of the city the effect of such an ordinance as the one in question. Therefore, this Office is of the opinion that the Raleigh City Ordinance in question, if applied to the Raleigh-Durham Airport Authority, is not authorized. It is noted that the Federal-aid provisions, with which the Airport Authority is required to comply, appear to encompass the purpose sought to be accomplished by the Raleigh Municipal Ordinance…

Rufus L. Edmisten Attorney General

Eugene A. Smith Special Deputy Attorney General