Libby v. City of Dillingham

612 P.2d 33, 1980 Alas. LEXIS 572

• Court: Alaska Supreme Court
• Decided: May 23, 1980
• Docket: 3861
• Status: Published

Opinions

OPINION

BURKE, Justice.

This case originated as an action by three taxpayers of the City of Dillingham seeking to enjoin the City of Dillingham and Eng-strom Brothers Company from acting in accordance with an agreement to lease a cold storage facility on the grounds that the lease did not comply with the competitive bid requirements of Alaska Statutes and Dillingham Ordinances. All parties moved for summary judgment. The superior court granted the City’s motion and entered final judgment in favor of defendants. Plaintiffs have appealed that judgment. We conclude that the lease in question was subject to competitive bid requirements, and we therefore reverse the decision of the superior court.

I. Statement of the Facts¹

From 1969 through 1971, the Economic Development Administration (EDA) financed the construction of a cold storage plant for the City of Dillingham (City). Following its completion, the facility was leased to the Nushagak Fishermen’s Cooperative, Inc. (Nushagak). The Nushagak operation was unsuccessful and did not operate after the 1972 season. On July 15, 1974, the City served Nushagak with a Notice of Default.

In February 1974 Elton Engstrom, President of the seafood processing company, Engstrom Brothers Company, visited the Dillingham cold storage plant and later wrote a letter to Sam Coxson, Dillingham City Manager, expressing an interest in leasing the plant for the 1975 season. During the summer of 1974, Kemp and Paulucci Seafood, Inc., also expressed interest in operating the cold storage facility. On September 16, 1974, Louis Kemp presented a detailed lease proposal to the Dillingham City Council and shortly thereafter sent a letter to Mayor Roberts, further elaborating the proposal. On September 19, 1974, Engstrom Brothers Company submitted a proposal to Sam Coxson. On September 21, 1974, Coxson submitted a counterproposal to Kemp and Paulucci which Louis Kemp signed and returned to the City with minor modifications.

When Kemp received information that details of his proposal had been revealed to Engstrom Brothers Company, he contacted Alaska counsel, and upon being informed of competitive bid requirements, Kemp authorized his attorney to notify the City that he was demanding that the City comply with those requirements. On October 17, 1974, the attorney sent the City a telegram, citing the specific requirements of AS 29.48.-260.² On October 18, 1974, Coxson, in apparent response to the Kemp telegram, wrote a memorandum to the City Council, indicating that “the state requires sealed bid proposals versus the executive session negotiation method which the city used” and informed the Council that he was going to prepare bid specifications. This memorandum implies that a decision had already been made to award the lease to Engstrom Brothers Company: “Unfortunately, it does [affect] Mr. Engstrom in that he must come back in and bid by sealed bid for something that he already had.”

The City subsequently issued invitations for bids on three occasions, announcing scheduled bid openings on December 6, 1974, January 16, 1975, and January 29, 1976,³ respectively. During the period between the second and third bid invitations, EDA advanced more money to the City to cover the expenses of the vacant cold storage plant. EDA strongly urged the City to locate a lessee for the plant; and in a letter of November 12, 1975, EDA finally indicated that funds for the renovation of the plant would be made contingent on the execution of a lease.

During this period between the last two bid invitations, Kemp and Paulucci continued to express an interest in leasing the facility. In September, 1975, Kemp visited Joe McGill, the new city manager, in Dill-ingham and inquired about the status of the plans for the facility. In response to a notice from the City, Kemp sent his engineer, Walter Butler, to a design meeting with EDA officials in Anchorage on January 5, 1976. During this period, the City attempted several times to contact Kemp or Butler by telephone but was unable to locate them. There were, however, numerous contacts between the City and Engstrom Brothers Company during this period, in-eluding at least three telephone calls and six letters.

No bids were submitted in response to any of the three bid invitations apparently because the City’s terms were unduly restrictive.⁴ Following the third bid opening date, in a telephone conversation and by letter, Kemp and Paulucci proposed to the City that interested operators be invited to submit proposals to the City rather than having the City set up specifications, but Kemp and Paulucci received no response to this suggestion. During this period, however, McGill met with Elton Engstrom in Seattle and with Elton Engstrom’s attorney in Anchorage, and during these meetings the terms of a lease for the 1977 season were negotiated. The Engstrom lease was subsequently approved and accepted by the Dillingham City Council on February 16, 1976. The record reveals no negotiations with Kemp and Paulucci or any other processor during this period.

Three Dillingham taxpayers subsequently brought suit against the City and Engstrom Brothers Company, alleging that the lease agreement had been entered into in violation of the bid requirements of the Alaska Statutes and Dillingham Ordinances. In response to the parties’ motions for summary judgment, the superior court ruled (1) that the Dillingham cold storage facility was a “beneficial new industry” within the meaning of AS 29.48.260(e)⁵ and (2) that such new industries are exempt from the competitive bid requirements of Dillingham Ordinance No. 22, section III,⁶ and AS 29.-48.260(c).⁷

II. Is the Dillingham Cold Storage Plant a Beneficial New Industry?

AS 28.48.260(e) authorizes a municipality to lease real property to persons who agree to operate a “beneficial new industry.”⁸ Such a lease may be “upon the terms and conditions the assembly or council considers advantageous to the community.” AS 29.-48.260(e). The City contends that this section exempts leases to beneficial new industries from competitive bid requirements, The City further contends that the Dilling-ham cold storage plant is such a “beneficial new industry” and is therefore exempt from the competitive bid requirements,

The statute itself does not define “beneficial new industry,”⁹ and there are no Alaska cases construing the term.¹⁰ We therefore turn for guidance to cases from other jurisdictions which have construed similar terms. Most of these cases involve tax advantages that are available only to new industries.¹¹ A few involve statutes establishing eligibility for discount railroad rates or exemptions from restrictions on importation of foreign labor.¹² We have been unable to discover any cases discussing the term “new industry” in the context of a municipality’s authority to acquire or dispose of property, and none of the cases we have examined¹³ has involved facts precisely analogous to those of the case at bar.

The cases are nevertheless helpful. The tax exemption cases,¹⁴ for example, consistently refuse to find that a “new industry” exists where the business in question is merely an expansion or a continuation of an existing business, even if it has a new name or a new corporate form. See, e. g., Chronicle Publishers, Inc. v. South Carolina Tax Commission, 244 S.C. 192, 136 S.E.2d 261, 262 (1964) (special tax treatment not available to “a new corporation which has acquired and improved established businesses”). On the other hand, where an old corporation establishes a separate operation, entirely independent of its existing operation, the cases find that the new operation is a “new industry.” See, e. g., Arkwright Mills v. Murph, 219 S.C. 438, 65 S.E.2d 665, 668-69 (1951) (new textile plant constructed five miles from existing plant, which continued in operation, not a “mere addition” and therefore entitled to special tax treatment). The distinction was stated succinctly in City of Louisville v. Louisville Tin & Stove Co., 170 Ky. 557, 186 S.W. 124 (1916):

[I]f defendant’s plant . . . was, as a matter of fact, an entirely new man-ufactory which had not theretofore existed in the city, and it was induced to locate its plant in the city by the offered exemption, the property in question is exempt. On the other hand, if the new plant was a mere expansion of a manufacturing business theretofore conducted, the property is not exempt.

We find that the term “new industry,” as used in AS 29.48.260(e), refers to any newly organized business that is not a mere expansion or continuation of a business that has previously operated in the municipality. Since Engstrom Brothers Company was totally independent of the Nushagak Fishermen’s Cooperative, Inc., its operation of the cold storage plant was not a continuation of that business. It was a separate and therefore new business in Dill-ingham. It was also a new type of business, for although its type of business was one that had previously been conducted by Nushagak, there was apparently no other cold storage plant actually in operation in Dillingham at the time.¹⁵

We conclude that the term “new industry” contemplates a newly organized enterprise, which may or may not be a new type of business. We do not believe, however, that every new enterprise comes within the statute, for the statute specifies “beneficial new industry.” Thus, for example, if several cold storage plants were already doing business in Dillingham and were adequately fulfilling the needs of the community, it would probably not be proper for the city to lease land or facilities to an additional cold storage plant under AS 29.48.260(e). Even if it were a newly organized enterprise, so as to be a “new industry” within the meaning of AS 29.48.260(e), it would not be a “beneficial new industry,” since it would provide no apparent benefit to the community. On the other hand, if a cold storage facility were operating in Dillingham but it was not able to satisfy the needs of the community, it might be proper for the city to thus lease land or facilities to a second cold storage operation. Although the second plant would not be a new type of industry, as a new enterprise that would benefit the community it would be a “beneficial new industry” within the meaning of AS 29.48.260(e).

Operation of the Dillingham cold storage plant by Engstrom Brothers Company was both a new enterprise and a new type of business, and it was apparently beneficial to the community.¹⁶ We therefore hold that it was a “beneficial new industry” within the meaning of AS 29.48.260(e), and we consequently affirm the decision of the superior court on this issue.

III. Is a Lease to a Beneficial New Industry Exempt from Competitive Bid Requirements?

The City contends that the disposition of property pursuant to AS 29.48.260(e) is not subject to the competitive bid requirements of AS 29.48.260(c).¹⁷ The City argues that, because a lease under AS 29.-48.260(e) may be “upon the terms and conditions the assembly or council considers advantageous to the community,” a municipality may negotiate such a lease rather than putting it out to bid.¹⁸ We disagree. We find that AS 29.48.260(e) merely sets forth a purpose for which municipalities are authorized to acquire and hold property; it does not affect the applicability of procedural requirements imposed by other parts of the statute.

We have not previously construed the statute in question, and we therefore start our analysis with the language of the statute itself.¹⁹ It is a basic principle of statutory interpretation that, when possible, effect should be given to all provisions of a statute so that no part of the statute is superfluous. See 2A C. Sands, Sutherland Statutory Construction § 46.06 (4th ed. 1973) (hereinafter Sutherland). We find that AS 29.48.260(e), even when construed so as not to create an exemption from the competitive bid requirements, still has considerable meaning and importance.

AS 29.48.010(9) grants to municipalities the general power “to acquire, manage, control, use and dispose of” property, but such action by the municipality must be “for a purpose authorized under . . . law . ,”²⁰ AS 29.48.030 sets forth some of the approved purposes. It authorizes municipalities to “exercise the powers necessary” to provide certain public facilities and services, and it specifically authorizes a municipality to provide “cold storage plants.”²¹ AS 29.48.260(e) is another provision which sets forth a purpose in pursuit of which municipalities may exercise their power under AS 29.48.010 to acquire or dispose of property — namely making “sites available for beneficial new industries.”

This specific authorization is important in two respects. First, the general rule is that municipalities may acquire and hold land only for a public purpose. See 2A C. Antieau, Municipal Corporation Law §§ 20.00 & 20.10 (1979) (citing “the great weight of authority”) (hereinafter Antieau); 10 E. McQuillan, The Law of Municipal Corporations §§ 28.11 & 28.12 (3d ed. F. Ellard 1966) (hereinafter McQuillan). AS 29.48.-260(e), however, authorizes a municipality to acquire land for a private, not a public, purpose, when the purpose is “to make sites available for beneficial new industries.”²² Second, the grant of power is important because municipalities generally must have specific authorization to acquire and hold land outside the territorial limits of the municipality. See 1 Antieau §§ 5.10 & 5.11; 2 McQuillan § 10.07. AS 29.48.260(e) provides (emphasis added): “A municipality, in order to make sites available for beneficial new industries, may acquire and hold real property, either inside or outside the corporate limits . . . .” This is one of several sections in title 29 which authorize extraterritorial activity of a municipality for specified purposes.²³

We do not believe that the legislature, in adopting AS 29.48.260(e), intended to create an exception to the procedural requirements of AS 28.48.260(c). AS 29.48.260(c) sets forth the formal procedure that a municipality must establish by ordinance for the “sale, lease or disposition of real property.” This section requires an appraisal of the property, public notice, public auction or opening of sealed bids; if the property or interest in the property is worth more than $25,000, the transaction must be ratified by the voters.²⁴

Two of the subsections of AS 29.48.260 authorizing particular types of property transactions contain explicit language exempting those transactions from the procedural requirements of subsection (c). Subsection (b), for example, authorizes the municipality to engage in certain transactions “[njotwithstanding the provisions of (c) of this section.” Subsection (d), authorizing land transactions with the state, similarly includes the phrase, “in which event the provisions of (c) of this section do not apply.” On the other hand, subsection (a) contains no language exempting transactions pursuant to that subsection from the requirements of subsection (c). Likewise, subsection (e), which is in question here, contains no explicit exemption. Since the legislature demonstrated its awareness of subsection (c) by explicitly exempting some types of transactions from its requirements, we must conclude that the legislature intended not to exempt transactions under subsections (a) and (e) from its requirements.²⁵ Where the legislature inserted an explicit exemption in some subsections and not in others, it would be inappropriate for us to find an “implied exemption” in a subsection where the legislature obviously chose not to insert an exemption.

Moreover, as pointed out in Justice Rabi-nowitz’ concurring opinion, the statutes which preceded the present AS 29.48.260(e) specifically exempted from voter ratification requirements those municipal property transactions which sought to establish new beneficial industries in the community. The exemption was achieved by expressly providing that such transactions were not within the category subject to the ratification requirement.²⁶ These specific exemptions show that the legislature was aware of the arguable need for such transactions to be free from the restraints imposed by the ratification requirement. We conclude that the legislature’s failure to include such a specific exemption in the present statute evidences an intent not to exempt transactions under subsection (e) from the requirements imposed by subsection (c).

We base our decision on this construction of the statute despite the apparent willingness of appellants’ counsel to concede that AS 29.48.260(e) does create an exception to the competitive bid requirements.²⁷ It would be within our power to find that appellants had waived this point by their failure to brief or argue it. See Fairview Development, Inc. v. City of Fairbanks, 475 P.2d 35, 36 (Alaska 1970). Competitive bid requirements for the letting of public contracts, however, are intended to protect the public and to insure that the government body in question obtains the most favorable terms possible in its contracts. 1A Antieau § 10.26 (1974); 10 McQuillan § 29.29. Where, as here, the public is the intended beneficiary of a statutory requirement, we do not believe it would be appropriate to recognize a waiver of that requirement. Cf. 2A Sutherland § 55.08 (“laws enacted for the protection of third persons should not be permitted to be waived since the third persons interested in the statute are not made parties to the waiver”). We conclude that AS 29.48.260(e) does not establish an exemption from the bid requirements of AS 29.48.260(c), and we therefore reverse the decision of the superior court on this issue.

IV. What Is the Effect of Dillingham Ordinance No. 22?

Since the effect of Dillingham Ordinance No. 22 may be pertinent on remand, we shall briefly address this question. Sections III and IV of Dillingham Ordinance No. 22²⁸ established essentially the same procedural requirements for municipal land transactions as are established in AS 29.48.-260(c),²⁹ and we find that these provisions of the ordinance are applicable to the transaction at issue in this case. Section VII of Ordinance No. 22, however, purported to exempt leases for new industry sites from the ratification requirement of section IV. Such an exemption would conflict directly with the requirements of AS 29.48.260(c), as we have construed it.

Dillingham is a general law municipality, not a home rule municipality.³⁰ As a general law municipality, it has only those legislative powers conferred by law. AS 29.08.-020. Since section VII of Ordinance No. 22 conflicts directly with the provisions of AS 29.48.260(c), it is invalid.³¹ As discussed in 1 Antieau § 5.14 (footnote omitted), “[w]here the mode of exercise of municipal power is prescribed by statute, this is the measure of the municipal power; such mode must be followed, and all other methods are excluded.” See also id. § 5.35; 2 McQuillan § 10.27.

V. Instructions on Remand

We remand this case to the superior court for a determination of whether the City complied with the statutory competitive bid requirements. If it did not comply with the bid requirements, the superior court should then decide whether the non-compliance was excused because of emergency or impracticability or any other legally cognizable excuse. On remand the superior court may base its determinations on the existing record if it concludes that the record is adequate. It may, however, take additional documentary evidence or proceed to trial, at its discretion. If the superior court on remand determines that the noncompliance, if any, was not excused, it may fashion such relief as it deems appropriate.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

1 . The briefs on appeal and the memoranda submitted to the court below contained many allegations of fact which were not cited to or supported by the record. We have held that “assertions of fact in unverified pleadings and memoranda” should not be relied on in ruling on a motion for summary judgment. Jennings v. State, 566 P.2d 1304, 1309-10 (Alaska 1977). In deciding this appeal we have considered only those facts contained in the affidavits, exhibits and depositions which were before the superior court.

2 . Set forth in note 5 infra.

3 . The third bid opening was originally scheduled for January 12, 1976, but it was postponed until January 29, after Elton Engstrom notified Joe McGill, the new Dillingham city manager, that he could not meet the January 12 bid deadline.

4 . On November 22, 1974, while the first bid invitation was still open, Elton Engstrom had written to Sam Coxson, informing him that “the terms of your proposed lease are onerous in light of the situation of your plant, requiring extensive work to make it effective and operable.” Kemp has also stated that he did not bid because “in light of the deteriorated condition of the processing facility, the minimum requirements of the bid lease were simply too restrictive and too costly . . . Only minor changes were made in the terms of the second lease for which bid invitations were issued. During the January 5, 1976, design meeting in Anchorage, Walter Butler, the engineer who represented Kemp and Paulucci at the meeting, suggested to the Dillingham city attorney and to Joe McGill, the city manager, that the new bid specifications should “permit greater flexibility” than the previous proposals. The specifications in the third invitation, however, were substantially similar to those of the previous invitations, and no bids were received.

5 .AS 29.48.260 at the time in question provided (emphasis added):

Municipal properties, (a) A municipality may acquire and hold real and personal property or interest in property, and may sell, lease or otherwise dispose of property no longer required for municipal purposes.

(b) Notwithstanding the provisions of (c) of this section, a municipality may sell, lease, donate or exchange with the United States, the state, or a political subdivision real estate or other property, or interest in property, when in the judgment of the assembly or council it is advantageous to the municipality to do so.

(c) The assembly or council shall by ordinance establish a formal procedure for the sale, lease or disposition of real property or interest in real property. The ordinance shall require (1) an estimated value of the property by a qualified appraiser or the assessor; (2) a notice of sale published in a newspaper of general circulation distributed within the municipality at least 30 days before the date of the sale, lease, or disposition, or posted within that time in at least three public places in the municipality; (3) public auction or opening of sealed bids, if any; and (4) other terms and conditions fixed by the assembly or council. However, no ordinance for the sale, lease, or disposition of real property or interest in real property valued at $25,000 or more is valid unless ratified by a majority of the qualified voters voting at a regular or special election at which the question of the ratification of the ordinance is submitted. Thirty days notice shall be given of the election and during that period the assembly or council shall have published at least once a week in a newspaper of general circulation distributed within the municipality a notice stating the time of the election and the place of voting, describing the property to be sold, leased or disposed of, giving a brief statement of the terms and conditions of the sale and the consideration, if any, and stating the title and date of passage of the ordinance. Notice shall also be given by posting a copy of it in at least three public places in the municipality at least 30 days before the election. If no newspaper of general circulation is distributed within the municipality, the notice given by posting is sufficient for the purposes of this section.

(d) The assembly or council may by ordinance establish a formal procedure for acquisition from the state of land or rights in land and the disposal of the land or rights in land, in which event the provisions of (c) of this section do not apply.

(e) A municipality, in order to make sites available for beneñcial new industries, may acquire and hold real property, either inside or outside the corporate limits, and may sell, lease or dispose of it to persons who agree to operate a beneficial new industry upon the terms and conditions the assembly or council considers advantageous to the municipality.

6 . Dillingham Ordinance No. 22 provides in part (emphasis added):

AN ORDINANCE PERTAINING TO THE SELLING, LEASING, EXCHANGING, AND DONATING OF CITY PROPERTY, AND SU-PERCEDES ALL PREVIOUS ORDINANCES WHICH MAY BE IN CONFLICT WITH THE FOLLOWING:

SECTION I.

The Board of Trustees may acquire by purchase or otherwise real estate and other property, or any interest in property, and may sell, lease or dispose of its real estate and other property or interest in property, including property acquired or held for or devoted to a public use, when in the judgment of the Board of Trustees it is no longer required for municipal purposes.

SECTION II.

The Board of Trustees may sell, lease, donate or exchange with the United States, the State, or any political subdivision real estate or other property, or interest in property whenever in the judgment of the Board of Trustees it is advantageous to do so.

SECTION III.

Prior to the sale, lease or disposition of real property or interest in real property the City shall:

A. Obtain an estimated value of the property by a qualified appraiser or the assessor, or in the case of land, obtain the estimated value by determining the square feet assessed value of adjacent land;

B. Publish a notice of sale or lease in a newspaper of general circulation in the City at least 30 days before the date of the sale, lease or disposition and posted within that time in at least three public places in the City for 30 days;

C. In the absence of a newspaper of general circulation in the City notice of sale, lease or disposition shall be posted in at least three public places in the City for 30 days;

D. Require sealed bids with public opening or public auction at a time and place designated by the Board of Trustees, City Manager or his representative;

E. Shall determine the minimum acceptance bid;

F. Shall, at the time of sale or lease, require of the successful bidder a deposit in an amount equal to one-tenth of the purchase price;

1. The City shall immediately issue a receipt containing a description of the land or property purchased, the price bid, and the terms of the sale, which receipt shall be acknowledged by the bidder.

2. Terms of the contract of sale or lease agreement shall specify how the remainder of the purchase or lease shall be paid.

SECTION IV.

Sale, lease, or disposition of real property or interest in real property valued at $25,000 or more (or the amount specified in the Alaska Statutes) is invalid unless ratified by a majority of the qualified voters voting at a general or special election.

SECTION V.

The Board of Trustees retains the right to sell, lease or dispose of real property which has not been acquired, held or devoted to a public purpose. No ratification of sale of lands or the execution of deed is required under conditions of this section.

SECTION VI.

The Board of Trustees retains the right to abandon property when it is determined to be in the best public interest.

SECTION VII.

The Board of Trustees may sell or lease sites to operators of new industries or for new housing industries without the requirement for ratification by the voters.

SECTION VIII.

The successful bidder shall within two (2) working days after the bid opening or auction pay to this City the full cash value of the property to be purchased or leased. Failure to meet this requirement shall invalidate the sale and result in forfeiture of the ten percent (10%) deposit required by SECTION III F.

SECTION IX.

The successful bidder shall be required to be current on all City levied taxes within two (2) working days after the bid opening or auction. Failure to meet this requirement shall invalidate the sale and result in forfeiture of the ten percent (10%) deposit required by SECTION III F.

7 .Set forth in note 5 supra. The superior court’s order provided:

1. The Dillingham cold storage is a “beneficial new industry” within the meaning of AS 29.48.320(e).

2. The Dillingham cold storage is a “beneficial new industry” exempt from the competitive bid requirements of AS 29.48.320(c) and City of Dillingham Ordinance No. 22, Section VII.

The reference to “AS 29.48.320” is apparently an oversight, since the pertinent statute is obviously AS 29.48.260. The reference in the order to section VII of the ordinance, rather than to section III, is also apparently an oversight. While section VII does refer to “new industries,” it is section III that imposes the competitive bid requirements. See text of Ordinance No. 22 in note 6 supra.

8 . See text of AS 29.48.260 in note 5 supra.

9 . Definitions of several other terms used in title 29 are set forth in AS 29.78.010.

10 . In Seltenreich v. Town of Fairbanks, 103 F.Supp. 319 (D.Alaska 1952), aff'd, 211 F.2d 83 (9th Cir. 1954), the federal territorial court considered the twentieth subdivision of § 16-1-35, ACLA 1949, which was the predecessor statute to AS 29.48.260. The court held that the statute permitted a sale of municipal property for a subdivision without voter ratification of the sale, since “housing” was a “new industry” within the meaning of the statute. 103 F.Supp. at 335. The court cited authority to support its conclusion that housing was an “industry,” but the opinion includes no discussion of the basis for the conclusion that the industry was “new.”

11 . Most of the tax exemption cases conclude that the business in question is not a “new industry.” See, e. g., City of Louisville v. Louisville Tin & Stove Co., 170 Ky. 557, 186 S.W. 124 (1916); Mengel Box Co. v. Sea, 167 Ky. 193, 180 S.W. 347 (1915); B. F. McCormick Lumber Co. v. City of Winchester, 155 Ky. 494, 159 S.W. 997 (1913); City of Louisville v. New York Baking Co., 151 Ky. 758, 152 S.W. 980 (1913); Victor Cotton Oil Co. v. City of Louisville, 149 Ky. 149, 148 S.W. 10 (1912); Louisville & N.R. Co. v. City of Louisville, 143 Ky. 258, 136 S.W. 611 (1911); Continental Tobacco Co. v. City of Louisville, 123 Ky. 173, 94 S.W. 11 (1906); Morris v Riley, 135 Miss. 1, 99 So. 466 (1924); Robertson v. Mississippi Packing Co., 134 Miss. 837, 98 So. 539 (1924); Davis Mechanical Contractors, Inc. v. Wasson, 268 S.C. 26, 231 S.E.2d 300 (1977); C.W. Matthews Contracting Co. v. South Carolina Tax Comm’n, 267 S.C. 548, 230 S.E.2d 223 (1976); Chronicle Publishers, Inc. v. South Carolina Tax Comm’n, 244 S.C. 192, 136 S.E.2d 261 (1964).

There are, however, a few tax exemption cases in which the court found that a “new industry” existed. See, e. g., Mengel Box Co. v. City of Louisville, 117 Ky. 735, 79 S.W. 255 (1904) (subsequently overruled in Victor Cotton Oil Co. v. City of Louisville, 149 Ky. 149, 148 S.W. 10, 11 (1912)); Meador v. Mac-Smith Garment Co., 188 Miss. 98, 191 So. 129 (1939); Cherry Lane Farms of Mont. v. Carter, 153 Mont. 240, 456 P.2d 296 (1969); Arkwright Mills v. Murph, 219 S.C. 438, 65 S.E.2d 665 (1951); Duke Power Co. v. Bell, 156 S.C. 299, 152 S.E. 865 (1930).

12 . See, e. g., United States v. Bromiley, 58 F. 554 (E.D.Pa.1893) (lace manufacturing is a new industry in the United States, one that is “struggling for existence, experimenting, hoping,” and therefore is exempt from restrictions on importation of foreign labor); United States v. McCallum, 44 F. 745 (D.Mass.1891) (“manufacture of any distinctly new product” is exempt from restrictions on importation of foreign labor); Hawkeye Portland Cement Co. v. Chicago, R.I. & P. Ry., 198 Iowa 1250, 201 N.W. 16 (1924) (not a new industry for purpose of eligibility for lower railroad,freight rates).

13 . See cases cited in notes 11 & 12 supra.

14 . See cases cited in note 11 supra.

15 . Since the record includes no evidence to the contrary, we assume that there was no other cold storage facility in operation in Dillingham.

16 . Appellants do not contend that the cold storage plant would not benefit the community.

17 . Set forth in note 5 supra.

18 . In opposing this argument appellants contend merely that any exemption for “sites” should be construed narrowly to include only undeveloped real property. This argument, however, is not persuasive, since AS 29.48.-260(e) refers generally to “real property,” and the statute itself specifies that “ ‘real property’ means land and improvements.” AS 29.78.-010(13) (emphasis added).

19 . The statute in question has come before the courts on two previous occasions. In Seltenreich v. Town of Fairbanks, 103 F.Supp. 319 (D.Alaska 1952), aff'd, 211 F.2d 83 (9th Cir. 1954), the federal territorial court considered the twentieth subdivision of § 16-1-35, ACLA 1949, which was the predecessor statute to AS 29.48.260. In Seltenreich, the court held that the statute permitted a sale of municipal property for a subdivision without ratification by the voters since “housing” was a “new industry.” 103 F.Supp. at 335. See note 10 supra. That ruling, however, has no effect on the interpretation of the present statute since crucial wording in the two statutes is different. The statute at issue in Seltenreich required that the lease of property “held for any public use” be ratified by the voters but that new industry sites “shall not be deemed to be ‘property . held for any public use . . . ” 20th Sub-sec., § 16-1-35, ACLA 1949. That statute clearly included an explicit exemption for new industry sites from the ratification requirement and is therefore distinguishable from the current statute. The statutory construction of the Seltenreich court, for that reason, provides no guidance in the case at bar.

The other case involving AS 29.48.260 is Wright v. City of Palmer, 468 P.2d 326 (Alaska 1970), in which we cited AS 29.10.132(e), a predecessor to the present statute. 468 P.2d at 329. In Wright, however, we cited the statute in dictum merely as authority for a city’s power to lease industrial sites which benefit the municipality. Wright involved no question relating to the procedure to be followed in leasing such property and therefore provides no assistance on that issue.

20 . AS 29.48.010 provides in pertinent part: General powers. Municipalities have the following general powers, subject to other provisions of law:

(9) to acquire, manage, control, use and dispose of real and personal property for a purpose authorized under this title, federal law, or other law, or in accordance with such law, and irrespective of whether or not the property is situated within or outside the municipal boundaries

21 . AS 29.48.030 provides in pertinent part: “(a) A municipality may exercise the powers necessary to provide the following facilities and services: ... (8) cold storage plants[.]”

22 . AS 29.48.260 contains three other subsections which set forth purposes for which the municipality may engage in property transactions: AS 29.48.260(a) (“dispose of property no longer required for municipal purposes”); AS 29.48.260(b) (transactions with the United States, the state or political subdivision when “it is advantageous to the municipality to do so”); AS 29.48.260(d) (land transactions with the state). See text of AS 29.48.260 in note 5 supra.

23 . See, e. g., AS 29.48.037 (parks, roads, trails, playgrounds, cemeteries, airports); AS 29.48.-040 (utility services for adjacent areas).

24 . See text of AS 29.48.260 in note 5 supra. Subsection (e) permits the council to establish “terms and conditions” that are “advantageous to the municipality.” This language, however, still has meaning if competitive bids are required. In a sale by bid the council’s terms and conditions would merely be set forth in the bid specifications rather than developed in negotiations.

25 . See 2A Sutherland § 47.11 (footnotes omitted): “Especially where there is an express exception, it comprises the only limitation on the operation of the statute and no other exceptions will be implied. An enumeration of exceptions from the operation of a statute indicates that it should apply to all cases not specifically enumerated.”

26 . See ch. 27, § 1, SLA 1945 and former AS 29.10.132(e). Chapter 27, § 1, SLA 1945, provided, in part, as follows:

[T]he common council, in order to make available sites for the installation and operation thereon of new industries which will benefit the civic welfare of the municipality, may likewise acquire, own and hold such sites, including real property, either within or without the corporate limits and may sell, lease or dispose thereof upon such terms or conditions as may be deemed advantageous to the civic welfare of the municipality, to such persons, associations, co-partnerships or corporations as will agree to install, maintain and operate thereupon such new industry or industries, and such sites as well as any right, equity, claim or title now or hereafter acquired by the municipality in and to real property sold to it for delinquent taxes, shall not be deemed to be “property acquired, owned or held for any public use or devoted thereto” as used herein. [Emphasis added.]

Former AS 29.10.132(e) provides:

The council, in order to make sites available for new industries which will benefit the municipality, may likewise acquire, own and hold such sites, including real property, either inside or outside the corporate limits and may sell, lease or dispose of them upon the terms and conditions as it considers advantageous to the civic welfare of the city, to persons who will agree to install, maintain and operate a beneficial new industry. Sites acquired under this paragraph and any right, equity, claim or title acquired by the municipality to real property sold to it for delinquent taxes are not “property acquired, owned or held for or devoted to a public use" as used herein. [Emphasis added.]

27 .The following exchange took place at oral argument before this court:

Counsel for Appellants: I think [subsection (e)] should be given a very narrow reading in light of the fact that it is an exception to the generally favorable policy of having competitiveness and the generally favorable policy of requiring bidding in order to prevent any possibility of favoritism or fraud or corruption.

Justice Boochever: Are you conceding that subsection (e) eliminates those requirements? Counsel for Appellants: Yes, your honor, I am conceding that, if subsection (e) applies, if it’s a new industry, then it eliminates those requirements to the extent that a municipality adopts an ordinance stating what terms and conditions they want to apply. . Justice Boochever: Couldn’t it be construed more favorably to you that this is authorizing municipalities to prepare sites and make them available for new industries, but it doesn’t have anything to do with the [bid] requirements of subsection (c)? Counsel for Appellants: That certainly is more favorable to my position, your honor. It does, however, . . . provide that the local council can establish terms and conditions .... Our position, your honor, is that ... the City of Dillingham failed to provide any terms and conditions in its ordinance which exempted the sale of such real property for new industries from the bid process and the notice requirements.

28 . Set forth in note 6 supra.

29 . Set forth in note 5 supra. See text accompanying note 24 supra.

30 . See Dillingham Municipal Code § 1.04.-030(c). If Dillingham were a home rule city, the requirements of AS 29.48.260 would not be applicable. See Lien v. City of Ketchikan, 383 P.2d 721, 723 (Alaska 1963) (AS 29.10.132(a), predecessor of AS 29.48.260(a), not applicable to home rule city).

31 . Appellee Engstrom Brothers Company contends on appeal that Ordinance No. 22 is invalid in its entirety. We do not address this question, however, since we find no indication in the record that this issue was presented to or ruled on by the superior court. See Moran v. Holman, 501 P.2d 769, 770 n.1 (Alaska 1972).