City of Asheville v. Herbert

• Decision Date: 16 December 1925
• Docket Number: 565.
• Citation: 130 S.E. 861,190 N.C. 732
• Parties: CITY OF ASHEVILLE v. HERBERT ET AL.
• Court: North Carolina Supreme Court

130 S.E. 861

190 N.C. 732

CITY OF ASHEVILLE v. HERBERT ET AL.

No. 565.

Supreme Court of North Carolina

December 16, 1925

Appeal from Superior Court, Buncombe County; Lane, Judge.

Action by the City of Asheville against W. P. Herbert and another. Judgment for the plaintiff, and defendants appeal. Reversed.

Repugnancy between general and special acts must be real to work pro tanto repeal.

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 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 section 2688 of the Consolidated Statutes, which provides that 'The mayor and commissioners of any town shall have 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 may 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 seisin and warranty free from incumbrances, 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.

Merrimon Adams & Adams, of Asheville, for appellants.

Frank Carter, of Asheville, amicus curiæ.

Jones, Williams & Jones, of Asheville, for appellee.

VARSER 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 C. S. § 2688, has not been complied with. The charter of plaintiff city is set out in Private Laws 1923, c. 16, and in section 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, sold or in any manner conveyed to it, and may invest, sell or dispose of same." This charter of the plaintiff is a re-enactment and a consolidation of its charters of Public Laws 1883, c. 143, and Private Laws 1883, c. 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 shall be deemed advisable by the proper authorities of the corporation."

The 1923 re-enactment 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 re-enactment, but was also mindful of the omissions from its former charter. Chapter 112, Public Laws 1872-73, 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, 125 N.C. 464, 34 S.E. 641), or such real estate as is devoted to governmental purposes ( Turner v. Com'rs, 127 N.C. 154, 37 S.E. 191; Carstarphen v. Plymouth, 180 N.C. 26, 103 S.E. 899), 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, 10 S.E. 689, 7 L. R. A. 548, 17 Am. St. Rep. 681; Church v. Dula, 148 N.C. 262, 61 S.E. 639; Moore v. Meroney, 154 N.C. 158, 69 S.E. 838. 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 A. 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 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, 190 N.C. 268, 129 S.E. 614. 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 (5th Ed.) § 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. Newbern, 70 N.C. 14, 16 Am. Rep. 766; State v. Webber, 107 N.C. 962, 965, 12 S.E. 598; State v. Eason, 114 N.C. 787, 791, 19 S.E. 88, 23 L. R. A. 520, 41 Am. St. Rep. 811; Love v. Raleigh, 116 N.C. 296, 307, 21 S.E. 503, 28 L. R. A. 192; State v. Higgs, 126 N.C. 1014, 1021, 35 S.E. 473, 48 L. R. A. 446; Elizabeth City v. Banks, 150 N.C. 407, 64 S.E. 189, 22 L. R. A. (N. S.) 925; Danville v. Shelton, 76 Va. 325; Blake v. Walker, 23 S.C. 517; Charleston v. Reed, 27 W.Va. 681, 55 Am. Rep. 336; Barnett v. Denison, 145 U.S. 135, 12 S.Ct. 819, 36 L.Ed. 652; Cleveland School Furniture Co. v. Greenville, 146 Ala. 559, 41 So. 862; Crofut v. Danbury, 65 Conn. 294, 32 A. 365; Jacksonville Electric L. Co. v. Jacksonville, 36 Fla. 229, 18 So. 677, 30 L. R. A. 540, 51 Am. St. Rep. 24; Foster v. Worcester, 164 Mass. 419, 41 N.E. 654; State v. Butler, 178 Mo. 272, 77 S.W. 560; Winchester v. Redmond, 93 Va. 711, 25 S.E. 1001, 57 Am. St.

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