Curry v. City of Highland Park

• Decision Date: 04 June 1928
• Docket Number: No. 15.,15.
• Citation: 219 N.W. 745,242 Mich. 614
• Parties: CURRY v. CITY OF HIGHLAND PARK et al.
• Court: Michigan Supreme Court

242 Mich. 614

219 N.W. 745

CURRY

v.CITY OF HIGHLAND PARK et al.

No. 15.

Supreme Court of Michigan.

June 4, 1928.

Appeal from Circuit Court, Oakland County, in Chancery; Frank L. Covert, Judge.

Suit by George E. Curry against the City of Highland Park, a Michigan municipal corporation, and others, with Harry Conley intervening as defendant. From the decree, plaintiff appeals. Affirmed.

Argued before the Entire Bench. Butzel, Levin & Winston, of Detroit (A. J. Levin and I. Z. Acoff, both of Detroit, of counsel), for appellant.

Hatfield, Hall & Teague, of Detroit, for appellee Conley.

Claude H. Stevens, of Detroit, for other appellees.

FELLOWS, J.

Defendant city owned a piece of land in Oakland county consisting of a little over 21 acres, upon which was maintained a piggery used to dispose of its garbage. The land was also used by the city as a dumping ground. During the absence of the mayor a resolution was adopted authorizing its sale to plaintiff for $16,000, less the usual commission, which would amount to $800. The following morning notice of a motion for reconsideration was filed by one of the commissioners. Before the next meeting of the council the mayor returned and he and the commissioner who moved for reconsideration voted for the motion; the other three members declined to vote. At this meeting one offer of $25,000 for the land was made, another of $1,000 an acre was made, and the report of an appraisal by competent real estate men fixing its value at $30,000 was filed. At the next meeting the resolution to sell was rescinded, but it is admitted that under the rules this attempted action was ineffective. Plaintiff tendered compliance with the terms of the resolution, and upon the refusal of the city to go on with the deal filed this bill for specific performance. The following sections of the charter of the city enumerating its powers are deemed important in the consideration of the case:

‘45. To purchase, appropriate and own such real estate as may be necessary for public grounds, parks, boulevards, markets, public buildings, public works, and other purposes necessary or convenient for the public good, and for the execution of the powers conferred in this charter or by the statutes of this state; and such buildings and grounds, or any part thereof, may be sold at public sale, or leased, as occasion may require; provided, however, no property of the value in excess of ten cents per capita according to the last preceding United States census, nor any park, nor any real estate used in carrying on a public utility, or any part thereof, shall be sold, unless such sale be first approved by three-fifths of the electors voting thereon at any general or special election. * * *’

‘47. To acquire, own, erect, maintain, manage and control real estate, building, institutions and works without the corporate limits of the city, except where prohibited by this charter or the general laws of this state, and to enforce beyond the corporate limits of the city and over such lands, buildings, institutions as may be necessary for the care, protection, control and management thereof in the same manner and to the same extent as if they were located within the city.’

Several defenses were interposed to plaintiff's bill, one of which, that under the charter the lands could only be sold at public sale, was the basis of the decree dismissing the bill.

To reverse this decree we must accept two contentions advanced by plaintiff's counsel: (1) That the land in question was held by the city as a proprietor, and not in its governmental capacity; and (2) that the language of the charter, ‘may be sold at public sale,’ does not require a public sale of lands so held. It is sometimes stated that in the absence of restrictive provisions in its charter, a municipality has the right to sell property which it has the right to acquire. This statement is, however, too broad. Doubtless property owned by a city as a proprietor and not used or needed in the discharge of its governmental functions may, in the absence of restrictions in the charter, be sold by it, but property used by a city in the discharge of its governmental functions may not be sold by it in the absence of authority so to do in its charter; some states say it may be sold when it becomes inadequate or otherwise inappropriate for the public use. The latest work on municipal corporations (3 McQuillin on Municipal Corporations [2d Ed.] p. 749), after considering the subject somewhat, says:

‘These general expressions, however, are reducible to the proposition that all property of the municipal corporation of a private nature may be sold. But the chief authority for this point of view is the public interest. While it is a recognized rule of the common law that municipal corporations may, in so far as they possess private rights, dispose of their property without special authority from the state, this limitation exists: That property possessed and used by municipal corporations as public agencies of the state for the purpose of governmental administration cannot be alienated by them without special authorization. All property held by the city in fee simple, without limitation or restriction as to its alienation, may be disposed of by the city at any time before it is dedicated to a public use. In other words, the city has the right to sell or dispose of property, real or personal, to which it has the absolute title and which is not affected by a public trust, in substantially the same manner as an individual unless restrained by statute or charter; and this power is an incidental power inherent in all corporations, public or private.’

There is no express provision in the charter of defendant city, at least none has been called to our attention, authorizing the private sale of property needed by the city to discharge its governmental functions, or granting such authority by necessary implication. We should, therefore, proceed at once to the crucial question in the case of whether the property here involved was so used. The principal use to which the property here involved was devoted was the disposal of the garbage of the city, although it was also used in part as a dumping ground. The question of when a municipal corporation is discharging a governmental duty, a governmental function, has arisen most frequently in tort actions for negligence of city employees, and there is quite a wealth of decisions on the subject, a few of which will be considered in this opinion. Both counsel concede that the precise question here involved has not been settled by the former decisions of this court, but both contend that former decisions of this court are by analogy applicable. Before taking up our own decisions, we shall consider some of the decisions of other states, and first those urged upon us by plaintiff's counsel.

The New York cases (Kings County Fire Ins. Co. v. Stevens, 101 N. Y. 411, 5 N. E. 353;People ex rel. State Tax Com., 206 App. Div. 549, 202 N. Y. S. 310;Missano v. New York, 160 N. Y. 123, 54 N. E. 744;Quill v. New York, 36 App. Div. 476, 55 N. Y. S. 889) sustain plaintiff's contention. Three of the cases involved streets and one the disposal of garbage and ashes. It will be noted that in the street cases it is held that the municipality was not in the discharge of a governmental function in the care of its streets, a holding we could not follow, as we have expressly held to the contrary. Gunther v. County Road Commissioners, 225 Mich. 619, 196 N. W. 386.

In Atlas Life Ins. Co. v. Board of Education of City of Tulsa, 83 Okl. 12, 200 P. 171, it was held that the board had the power to lease for 99 years real estate held by it. But the site by reason of the development of the city had become unsuitable for school purposes. The same court held in the later case of City National Bank v. Town of Kiowa, 104 Okl. 161, 230 P. 894, 39 A. L. R. 206, that a city could not sell its waterworks and electric light plant, at least without the property being burdened with the duty of continual service. The Constitution of Oklahoma, however, permits municipalities to engage in any business, and it doubtless is not necessary to observe carefully the distinction between private and governmental rights and ownership under such a constitutional provision.

Ostrom v. City of San Antonio, 94 Tex. 523, 62 S. W. 909,Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329,39 L. R. A. (N. S.) 649, and Flannagan v. Bloomington, 156 Ill. App. 162, sustain plaintiff's contention that in disposing of its garbage a city does not discharge a governmental function. Baily v. Philadelphia, 184 Pa. 594, 39 A. 494, 39 L. R. A. 837, 63 Am. St. Rep. 812, involved the lease of a gas plant, and Carlisle Gas & Water Co. v. Carlisle Borough, 218 Pa. 554, 67 A. 844, the sale of waterworks. This court in common with nearly every court in the Union is in accord with the Pennsylvania court in holding that the municipality holds its lighting plant and waterworks as a proprietor and not as a...