Smith v. City of Newbern

• Decision Date: 31 January 1874
• Citation: 70 N.C. 14,16 Am.Rep. 766
• Court: North Carolina Supreme Court
• Parties: ANN L. SMITH, endorsee, v. CITY OF NEWBERN.

16 Am.Rep. 766

70 N.C. 14

ANN L. SMITH, endorsee,

v.CITY OF NEWBERN.

Supreme Court of North Carolina.

January Term, 1874.

The Board of Commissioners of the town of Newbern, under the Act of their incorporation, and the Acts amendatory thereof, have the power to build and repair a Market House.

CIVIL ACTION, tried before Watts, J, at the January (Special) Term, 1873, of the Superior Court of Craven county.

The plaintiff, who is the assignee of Smith & Dey, sues the defendant upon the following instrument, to-wit:

+-----------------------------------------+
                ¦“No. 3.¦OFFICE OF BOARD OF COMMISSIONERS,¦
                +-------+---------------------------------¦
                ¦       ¦Newbern, N. C., Jan. 31st, 1866. ¦
                +-----------------------------------------+
                

This is to certify that the town of Newbern is indebted to Smith & Dey in the sum of nine hundred and thirty dollars and fifty-eight cents, as per account, and approved by Mayor and Board of Commissioners.

+-------------------------------+
                ¦$930.38.¦J. T. HOUGH, Mayor.   ¦
                +-------------------------------+
                

Registered Feb. 1, page 1.

JOHN M. HARGET, City Clerk.”

The only question arising in the case is, whether under the charter and laws of the town of Newbern, the municipal officers had authority to contract for building a market house.

It was submitted to the jury who, finding in favor of the plaintiff, a judgment was rendered accordingly, and defendant appealed.

Seymour, for appellant , cited and relied on the following authorities:

I. The facts that the officers of the city of Newbern had audited the account and issued a voucher for it does not help the plaintiff: Weith v. Wilmington, 68 N. C. Rep. 24; Cooley's Constitutional Limitations, 196 ; Clark v. the City of Des Moines, 19 Iowa 201; and the cases cited: Storm v. Town of Geneva, 23 N. Y. 440; Gould v. Town of Sterling, Ibid; Swift v. Williamsburg, 24 Barb. 427 ; State v. Kirkleep, 29 Maryland 86.

II. The city of Newbern, independently of its charter, had no power to build a market house. See in regard to general powers of municipal corporations: Marshal v. Fulton County, 10 Wallace, 676; Angel on Corporations, chap. 1; Cooley Const. Lims. 194; Clark v. Des Moines, 19 Iowa 223; State v. Kirkley, 29 Maryland 86; Hodges v. Buffalo, 2 Denio. 12; Navigat'n Co. v. Commissioners of Newbern, 7 Jones' Law, 275.

III. The charter of the city of Newbern authorizes the city government to appoint market places and regulate the same. Chap. 28, Sec. 13, Laws 1779. This does not carry the right to build a market house. Definition of market--see Law Dictionaries. It is simply a locality. It does not even include the soil, much less a building upon it. See Statute 13 ; Edw. 1, ch. 5; Statute 5, Edw. 3, ch. 5; Bacon's Abridgment, 4, 158; Palm. 77; Mayor of Northampton v. Ward; 2 Strange 1238 ; 1 Wilson, 110.

Lehman, contra , submitted the following brief:

The defendant was authorized to make this contract by the express language of its charter: Charter, section 13, page 20: sec. 1, page 27: sec. 3, page 77; also section 3, page 2. The power to appoint, as used in the charter, implies to do whatever is necessary to make a complete market. The use of the word regulate immediately and in the same connection implied the previous power to establish, as implied in the word appoint. Appoint means to establish, fix, settle. For example, the use of the word in Proverbs: “When the foundations of the earth were appointed”--the word “appointed” carries with it the two-fold idea of ordinary and doing, of furnishing the materials and the workmen to do it with. We say the army and ships are well appointed. In both cases we mean to convey the idea that the army and the ships are furnished with everything necessary to answer the purpose of their creation. The power is implied by the fact of incorporation. Municipal corporations form a part of the State government: Boyle v. City of Newbern, 64 N. C. 664. They are created and exist for the public good, and whatever concerns the common welfare and interest of the municipality, and has reference to the comfort, convenience, safety and welfare of society. It is a part of the police regulations of a city to preserve public order, good morals, establish rules of good manners and good neighborhood, to prevent a conflict of rights; hence good order, good health, general improvement are the principal objects of local government, and whatever is necessary to promote these is necessarily implied in the original grant of power. Lord COKE puts it in a nutshell: “When the law granteth anything to any one, that also is granted, without which the thing itself cannot be.”

Corporations, to a limited extent, possess sovereign powers, and at common law may make by-laws to accomplish the design of the incorporation and may enter into contracts to effectuate the corporate purpose. Cooley on Con. Lim. 194-196; 29 Indiana Rep. 187; 2 Kent Com. 350, title, corporate powers. Alleghany City v. McClurkan, 2 Harris Penn. Rep. 81. In 1 Blackstone Com. 274, a market is defined to be a public time and an appointed place for selling goods, and as forming a part of economies or domestic polity. To abridge the right of building a market would be to take away one of the principal objects of the incorporation. The defense resting on the ultra vires doctrine exists only where the corporation is prohibited by law from entering into the contract. Bateman v. the Mayor, etc., of Ashton-under-Lyne, 3 H. and N. 572; Simpson v. Westminster Palace Hotel Co., Dom. Proc. 6 Inv. N. S. 985; South Yorkshire Rail Co. v. The Great Northern Rail Co., 9 Exch. 84-85; The Mayor of Norwich v. The Norfolk Rail Co., E. and B. 413-417 ; Payne v. The Mayor of Brecon, 3 H and N. 572. In Bateman v. The Mayor, etc., of Ashton-under Lyne 3 H. and N. 323 the Company was held liable on their contract to pay for certain work, on the ground that it did not appear that the Company was prohibited from entering into such contract.

BYNUM, J.

This is a civil action against the defendant, a municipal corporation, to recover the sum of $930.58, due by audited account for building a market house in and for the use of the city of Newbern. There was a verdict and judgment thereon for the plaintiff in the Court below and an appeal to this Court.

The case stated presents for our decision but one question, viz: Whether the city of Newbern had the power to build a market house under the laws of the corporation.

For the power, the plaintiff relies upon section 13 of chapter 25 of the acts of 1779, being an act for the regulation of the town of Newbern and for other purposes, which, after enumerating other powers conferred upon the commissioners not material to our case, proceeds thus: “And shall have power, from time to time, and for all times hereafter, under their common seal, to make such rules, orders, regulations and ordinances as to them shall seem meet, for repairing the streets, erecting public wharves, appointing market places and regulating the same, erecting public pumps and repairing the same, appointing town watches or patrols and making proper allowances for such services, and for all such other necessary ordinances, rules and orders which may...