130 S.E. 861 | N.C. | 1925
Action to compel defendants to perform specifically contract to purchase land. From a judgment in favor of plaintiff, defendants appealed. Reversed.
The agreed statement of facts shows the following:
The plaintiff and the defendants agreed that the plaintiff would sell and the defendants would purchase the Ryerson property situate in West Asheville, containing 90 acres, at the price of $50,000, at private sale, and plaintiff tendered to defendants a deed in due form purporting to convey the said lands in fee simple, according to the terms of contract to purchase. Defendants declined to accept plaintiff's deed therefor, on the following grounds:
"(a) That the city of Asheville had no authority to sell said lands and premises to the defendants, and (b) that even if the city of Asheville *733 had authority to so sell the land to the defendants, the sale to the defendants and the said deed was void, for that the commissioners of said city had failed to comply with the provision of C. S., 2688, which provides that "The mayor and commissioners of any town shall have full power at all times to sell at public outcry, after thirty days notice, to the highest bidder, any property, real or personal, belonging to any such town, and apply the proceeds as they think best"; no notice whatever being given or published of said sale, as required by said section, the said lands and premises, not having been sold at public outcry to the highest bidder, but by private sale, pursuant to the resolution hereinbefore set forth."
The defendants have, at all times, been ready, able and willing to comply with their contract to purchase said property. Appropriate resolutions were adopted by the city of Asheville, approving the tentative agreement entered into between plaintiff's mayor and the defendants, directing that a conveyance in its name with the usual covenants of seizin and warranty free from encumbrances be tendered to the defendants, and said deed was tendered in all respects in accordance with said resolution. The court below was of opinion that the deed so tendered was valid to convey to the defendants a good indefeasible title in fee simple to the said lands, and the defendants were directed to pay the purchase price in accordance with the contract. The controversy is restricted to the question whether the city of Asheville can make a valid private sale of this land. It is admitted that C. S., 2688, has not been complied with. The charter of plaintiff city is set out in Private Laws 1923, ch. 16, and in sec. 1 thereof, among its enumerated corporate powers is the power to acquire and hold "all such property, real and personal as may be devised, bequeathed or in any manner conveyed to it, and may invest, sell or dispose of same." This charter of the plaintiff is a reenactment and a consolidation of its charters of Public Laws 1883, ch. 143 and Private Laws 1883, ch. 111, and acts amendatory thereof. It appears to be a recasting of the entire group of legislative acts theretofore comprising its charter. Section 1, of chapter 111, Private Laws 1883, empowers the plaintiff to "purchase and hold for purposes of its government, welfare and improvement, all such estate, real and personal, as may be deemed necessary therefor, or as may be conveyed, devised or bequeathed to it, and the same may, from time to time, sell, dispose of and reinvest as *734 shall be deemed advisable by the proper authorities of the corporation." The 1923 reenactment causes the quoted excerpt to read as follows: "Acquire and hold all such property, real and personal, as may be devised, bequeathed, sold, or in any manner conveyed to it, and may invest, sell or dispose of same."
We are forced to conclude that the Legislature was mindful, not only of the terms contained in the 1923 reenactment, but was, also, mindful of the omissions from its former charter. Chapter 112, Public Laws 1872-3, now C. S., 2688, has remained intact since the time of its enactment. It provides that the mayor and commissioners of any town shall have power at all times to sell at public outcry, after 30 days notice, to the highest bidder, any property, real or personal, belonging to any such town, and apply the proceeds as they may think best. Of course, this section is held not to apply to such lands as are held in trust for the use of such town (Southport v. Stanly,
Shaver v. Salisbury,
The character of the property, that is whether it is trust property or held for governmental purposes, is not involved in this action, and that question is not considered, for we understand that it was conceded upon the argument that the "Ryerson property" is such as can be sold by the plaintiff, provided the method of sale required by law is followed. InNewbold v. Glenn,
In the instant case it is a question of power, under the law. Good faith on the part of the authorities of the city of Asheville, is clearly *735 apparent from the entire record and an excess over cost to the extent of $20,000 is in the sale price. The legal requirements, whatever they may be, must be followed. Murphy v. Greensboro, ante, 268. Good faith and apparently fair price cannot dispense with the law.
It is the accepted doctrine in this jurisdiction that the powers of a municipality, accurately described in Dillon on Municipal Corporations (5 ed.), sec. 237, as follows: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation — not simply convenient, but indispensable." Smith v. New Bern,
All acts beyond the scope of the powers granted to a municipality are void. Dillon on Municipal Corporations, supra; Somerville v. Dickerman,
This controversy is not as to whether the power of sale exists, because the power is conceded, but it is the method of exercising the power. We are advertent to the salutary rule that a general statute shall read as silently excluding from its operation the cases which have been provided for by a special statute (S. v. Johnson,
When the charter of a municipality contained a proviso prohibiting it from pledging its credit for over $10,000 without a vote, a subsequent act empowered the city to build a bridge and pledge its credit therefor, was held subject to the condition and limitation of the proviso in S. v.Election Comrs.,
In view of these rules so widely recognized and applied by the courts, we are minded to conclude that both the plaintiff's charter and the general law, grant the power to sell the land in controversy, and that C. S., 2688, must be complied with by plaintiff in order to make a valid sale thereof. In Harris v. Durham,
The reasons urged in the excellent brief of counsel for plaintiff against the rule herein declared, are reasons more properly addressed to the legislative branch than to the judicial. It is ours jus dicere and notjus dare. If inconvenience shall result, we feel that the public *737 advertisement and the sale at public auction makes the transfer of such property by a municipality so public and so open that every objector can have his proper remedy and all persons who assume the responsibilities of public office in municipalities must needs be beyond the domain of criticism. The contemplated sale, in the instant case, apparently could net the city a profit of $20,000 non constat that a public sale would not net the city a much larger profit, or, if not satisfactorily sold, the city has a right to reject any and all bids.
Let it be certified that the judgment appealed from is
Reversed.