
69 S.E.2d 1 (1952)
235 N.C. 125
NORTH CAROLINA STATE ART SOC., Inc. et al.
v.
BRIDGES, State Auditor.
No. 449.
Supreme Court of North Carolina.
February 16, 1952.
*4 R. L. McMillan, R. Mayne Albright, Raleigh, for plaintiffs, appellees.
Atty. Gen. Harry McMullan and Asst. Attys. Gen. T. W. Bruton and Claude L. Love, for defendant, appellant.
DEVIN, Chief Justice.
There was no controversy as to the facts. There was no exception to any of the findings of fact upon which the court below rendered judgment. The refusal of the defendant State Auditor to issue warrants for the purchase of works of art selected by the State Art Commission and his defense to plaintiffs' action were based solely on the view that before any payments could lawfully be made the purchases must have been appraised by the director or chief curator of the National Art Gallery of Washington, D. C., and that the Act did not authorize the substitution of any person however well qualified in lieu of those holding the positions named. There was no other ground alleged for denying the expendability of the legislative appropriation.
Therefore, the single question presented for our determination is whether the validity of the appropriation conditionally made by the General Assembly at its 1947 Session, Chap. 1097, and reaffirmed and implemented in 1951, Chap. 1168, for the purposes declared in those Acts, depends upon the appraisal of selected works of art being made by the particular persons named in the 1951 Act, or whether, upon the refusal of such persons to act, the appraisals by another competent and qualified art critic chosen and approved by the State Art Commission and the directors of the State Art Society, shall be regarded as a substantial compliance with the purposes and intent of the General Assembly as expressed in the Acts of 1947 and 1951. In other words, is the proviso in the Act of 1951 naming the person to make the appraisals mandatory or directory?
It is apparent from an examination of the pertinent statutes in the light of the facts found, that it was the intent of the General Assembly that before payment should be made for the works of art selected for purchase by the State Art Commission appraisal of their value, fitness and desirability should be made by a competent and qualified art critic to prevent imposition and to guard against the purchase of the spurious. The provision in the statute to that extent was manifestly mandatory. But it does not follow that it was considered essential that the appraisals should be made by the particular person holding the position named in the Act, in the event it became impossible for him to serve. It would seem that the employment of an equally qualified art critic to make the appraisals would accord with the expressed purpose of *5 the Act. Whether a particular provision in a statute is to be regarded as mandatory or directory depends more upon the purpose of the statute than upon the particular language used. As expressed by the Apostle Paul in his Second Epistle to the Corinthians, "The letter killeth, but the spirit maketh alive." 2 Cor:3-6. It is a general rule of statutory construction that when literal compliance with a non-essential provision of a statute has become impossible, compliance as near as may be, conformable to the general purpose and intent of the act, will be permitted. 50 A.J. 36, et seq.; 59 C.J. 963; Black's Interpretation of Laws, 534; Deibert v. Rhodes, 291 Pa. 550, 140 A. 515. In such case a substantial compliance will be deemed sufficient. The legislature will be presumed not to have intended compliance with a provision incapable of performance. Dalzell v. Kane, 321 Pa. 120, 183 A. 782, 104 A.L.R. 619. In determining whether a particular provision in a statute is to be regarded as mandatory or directory the legislative intent must govern, and this is usually to be ascertained not only from the phraseology of the provision, but also from the nature and purpose, and the consequences which would follow its construction one way or the other. Smith v. Davis, 228 N.C. 172, 179, 45 S.E.2d 51, 174 A.L.R. 643; Champion Shoe Machinery Co. v. Sellers, 197 N.C. 30, 147 S.E. 674; Spruill v. Davenport, 178 N.C. 364, 368, 100 S.E. 527; State v. Earnhardt, 170 N.C. 725, 86 S.E. 960; 59 C.J. 1073. The heart of a statute is the intention of the lawmaking body. State v. Humphries, 210 N.C. 406, 186 S.E. 473. The legislative purpose in providing machinery to attain a definite object may not be defeated by the inability of an individual to perform an expected function incidental to that purpose. State exinf. McAllister, Atty. Gen. v. Bird, 295 Mo. 344, 244 S.W. 938. By analogy a court of equity will not permit a trust to fail for want of a trustee. Moore v. Quince, 109 N.C. 85, 13 S.E. 872. And when it is made to appear that the use of specific property for the accomplishment of the purposes of a trust has been rendered impracticable or impossible as result of changed conditions, courts of equity will sanction the substitution of one form of property in lieu of another. Johnson v. Wagner, 219 N.C. 235, 13 S.E.2d 419; Trustees of Watts Hospital v. Com'rs of Durham, 231 N.C. 604, 58 S.E. 2d 696. The substantial intention should not be defeated by some insufficiency in the manner of accomplishment. Brooks v. Duckworth, 234 N.C. 549, 67 S.E.2d 752.
We think the court below correctly ruled on the facts found, that the naming of the director or curator of the National Gallery of Art in Washington as the person to make the appraisal of the works of art selected by the State Art Commission should be regarded as directory only, that the person of the appraiser was not essential to the Act, and that the substitution by competent authority of Dr. Wm. R. Valentiner found to be an equally qualified art critic constituted a substantial compliance with the provision in the Act requiring technical appraisal of the paintings selected for purchase. The paintings having been properly appraised and approved, and all other conditions essential to validate expenditure of the appropriation having been complied with, judicial sanction of the substitution of Dr. Valentiner would be sufficient to authorize and empower the State Auditor to issue warrants for the payment of the paintings purchased by the State Art Commission.
In considering and deciding this case the Court has been concerned only with the legal question presented. The wisdom or unwisdom of the Legislature in enacting the statutes construed is not before us. The Legislature sets the standard of public policy and its control over taxation and the spending of public funds is restrained only by constitutional limitations. The question, whether the purpose of promoting cultural education and encouraging an appreciation of artistic productions as tending to develop spiritual elements for the benefit of all the people as recited in the Act has been wisely implemented by the manner, method, and to the extent prescribed, is not presented for our determination.
On the record before us the judgment of the court below is
Affirmed.
