23 S.E. 331 | N.C. | 1895
The plaintiff's counsel prepared and submitted a painstaking and learned brief upon important legal questions raised in the court below, but which can be of no avail to their (470) client here. His Honor held that, "it appearing from the admissions in the pleadings that the sale under which the plaintiff claims was made 3 August, 1893, and so admitted by his counsel in open court, the same being outside of the limit of time prescribed by the act of the Legislature for making the sale, he would hold the sale to be void." Whether or not that ruling is correct is the only question for our decision.
Chapter 445 of Acts 1893 provides for a sale of the State's interest in the Caldwell Watauga Turnpike Company. Section 3 of the act fixes the time of such sale as follows: "That said commissioners shall on or before 1 July, 1893, cause to be advertised in the Lenoir Topic and The WataugaDemocrat, newspapers published at Lenoir and Boone, North Carolina, a notice setting forth that said commissioners will on a day fixed, not to be more than 30 days nor less than 20, sell for cash the State's interest in said company as herein provided." It is perfectly clear that the commissioners empowered to make the sale became functi officio after the last of July, 1893. There is not a line in the act that provides for a sale after that time under any circumstances or in any contingency. They had under the act four months in which to perform their duty, and no longer. "If the statute under which a license to sell is granted limits the operation of the license within a designated period, a sale outside of the prescribed limits is a nullity." Freeman Void Judicial Sales, sec. 30, and cases there cited. It was suggested here, as a reason why the act as to the time within which the sale was limited should be construed as directory simply, that the commissioners might be sick, or storms or floods might occur on the day advertised for the sale, and thereby the sale become *322
impossible. We cannot see how such conditions or mishaps (471) could restore a power which had ceased to exist under the act which gave life to the power. But we do think such possible contingencies should have put the commissioners on their guard and cautioned them against delaying the sale until near the last day of the four months allowed them by the statute. We do not see any analogy between the principle involved in this case and that in Greer v. Asheville,
Affirmed.
(472)
