City of Asheville v. Herbert

130 S.E. 861, 190 N.C. 732, 1925 N.C. LEXIS 158

• Court: Supreme Court of North Carolina
• Decided: December 16, 1925
• Status: Published

Opinion

Yaesee, J.

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 0. 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. Ill, 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 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 O. 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, 125 N. C., 464), or such real estate as is devoted to governmental purposes (Turner v. Comrs., 127 N. C., 154; Carstarphen v. Plymouth, 180 N. C., 26), or to streets in reference to which adjoining property owners have acquired rights on account of the dedication thereof, and resulting improvements. Southport v. Stanly, supra; Moose v. Carson, 104 N. C., 431; Church v. Dula, 148 N. C., 262; Moore v. Meroney, 154 N. C., 158. The record in Carstarphen v. Plymouth, supra, shows that the trial court put his decision on the double basis that C. S., 2688, did not give the authority to sell land held for governmental purposes, and that it had not been complied with.

Shaver v. Salisbury, 68 N. C., 291, apparently conflicts with the later authorities. Upon a careful examination of the charter of Salisbury, it is clear that wide and unusual powers were given the commissioners, and it was expressly committed to their discretion as to the manner and method of exercising these powers.

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. In Newbold v. Glenn, 67 Md., 489, 10 Atl., 242, the statute authorizing a,sale of property required notice to be published in a newspaper in Baltimore city, but the mayor and council did not comply therewith, but, in good faith, and for full value, sold the property at private sale, and its conveyance was upheld. We cannot accept the reasoning in this case.

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 apparent from the entire record and an excess ©ver 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, 70 N. C., 14; S. v. Webber, 107 N. C., 962, 965; S. v. Eason, 114 N. C., 787, 791; Love v. Raleigh, 116 N. C., 296, 307; S. v. Higgs, 126 N. C., 1014, 1021; Elizabeth City v. Banks, 150 N. C., 107; Danville v. Shelton, 76 Va., 325; Blake v. Walker, 23 S. C., 517; Charleston v. Reed, 27 W. Va., 681; Barnett v. Denison, 145 U. S., 135; Cleveland School Furniture Co. v. Greenville, 146 Ala., 559; Crofut v. Danbury, 65 Conn., 294; Jacksonville Electric Light Co. v. Jacksonville, 36 Fla., 229; Foster v. Worcester, 164 Mass., 419; S. v. Butler, 178 Mo., 272; Winchester v. Redmond, 93 Va., 711; R. R. v. Dameron, 95 Ya., 455; Donable v. Harrisonburg, 104 Va., 533.

' All acts beyond the scope of the powers granted to a municipality are void: Dillon on Municipal Corporations, supra; Somerville v. Dickerman, 127 Mass., 272; Harvard College v. Boston, 104 Mass., 470; S. v. Passaic, 41 N. J. L., 90; Heiskell v. Baltimore, 65 Md., 125; Christie v. Malden, 23 W. Va., 667. In construing the extent of the powers of municipalities; the fundamental and universal rule is, that while the construction is to be just, seeking first of all for the legislative intent in order to give it fair effect, yet any fair, reasonable or substantial doubt as to the extent of the power is to be determined in favor of the public and against the municipality. Dillon on Municipal Corporations, sec. 239. This grows out of the fact that the majority-will controls, and that minorities are bound by the acts of majorities, and that the public officers occupy a trust relation in which the inhabitants of the city are cestuis que trustent, and the officers are trustees. The power of sale' in the instant case exists both under the charter and under C. S., 2688. In the light of this rule of construction, we are forced to conclude that the Legislature intended, when it reenacted plaintiff’s charter in 1923, omitting therefrom the pertinent'language committing the method of sale to the discretion of plaintiff’s officers, to include within its terms the general law (C. S., 2688), which was an exclusive method- under the doctrine expressed in the maxim, “expressio unius est exclusio dlterms,” and that this general statute (C. S., 2688), should be, and was, the only method by which municipalities could sell, unless special provision was made. Therefore, its proper use of the power to sell in plaintiff’s charter carried with it the terms of C. S., 2688, as to the method of exercising the power of sale.

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, 170 N. C., 685; Felmet v. Comrs., 186 N. C., 252), and when there is repugnancy between the general statute and the special statute, and both are complete within themselves, and it is not practical to apply the doctrine of in pari materia, then the general statute gives way to the special statute in order to effectuate the legislative intent as far as may be. We conclude that there is no repugnancy between the charter and C. S'., 2688, and that they must be construed in pari materia.

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., 58 Cal., 561. Repugnancy between general and special acts must be real and not seeming in order to work a pro tanto repeal. Endlich on Interpretation of Statutes, sec. 226; Harrisburg v. Scheck, 104 Pa. St., 53. Repeals by implication will be avoided, if possible, and if two statutes can be read together they should be so read, to the end that both will be effective unless there is contradiction or repugnancy, or absurdity or unreasonableness. Lewis’ Sutherland on Statutory Construction, sec. 267; Regina v. Mews, 6 Q. B. Div., 47; Smith v. Speed., 50 Ala., 276. Difference is not sufficient to justify the inference of repeal, there must be contradiction. Kesler v. Smith, 66 N. C., 154; Landis v. Landis, 39 N. J. L., 274; Nixon v. Piffet, 16 La. Ann., 379.

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, 185 N. C., 572, is clearly demonstrated the ease with which the contrary intent could have expressed itself in plaintiff’s 1923 charter, by using the words “publicly or privately,” and thereby excluding all uncertainty.

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 not jus dare. If inconvenience shall result, we feel that the public adver tisement and tbe sale at public auction makes tbe transfer of sucb property by a municipality so public and so open that every objector can bave bis proper remedy and all persons wbo assume tbe responsibilities of public office in municipalities must needs be beyond tbe domain of criticism. Tbe contemplated sale, in tbe instant case, apparently could net tbe city a profit of $20,000 non constat tbat a public sale would not net tbe city a much larger profit, or, if not satisfactorily sold, tbe city bas a right to reject any and all bids.

Let it be certified tbat tbe judgment appealed from is

Reversed.