Young v. Mayor and City Council of Cumberland
| Decision Date | 09 June 1936 |
| Docket Number | 31. |
| Citation | 185 A. 450,170 Md. 505 |
| Parties | YOUNG v. MAYOR AND CITY COUNCIL OF CUMBERLAND. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Allegany County; D. Lindley Sloan, Judge.
Suit by the Mayor and City Council of Cumberland against George G Young. Decree for complainants, and defendant appeals.
Affirmed.
Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.
Clarence Lippel and Matthew J. Mullaney, both of Cumberland, for appellant.
Lewis M. Wilson and Charles Z. Heskett, both of Cumberland, for appellees.
This suit, in equity, for specific performance of a contract to buy real estate, was brought to test the title to a lot of ground in Cumberland, bought by the city at a sale for county and state taxes and sold to the appellant. The case was submitted on bill and answer and an agreed statement of facts. The court held the title good and granted the relief and the defendant appeals. The questions argued are whether the city had power to purchase real estate at a sale for state and county taxes, and whether the notice of sale required by the statutes had been given.
A former owner, James L. Poling, on April 12, 1924, conveyed the property to Jacob E. Poling, of West Virginia, and Milton W. Wonn, of Cumberland, as trustees for the benefit of the creditors of James L. Poling. His wife did not join in the deed, and her interest on survival therefore did not pass with it. James L. Poling died on April 30, 1924, leaving a widow and children, none of whom are parties to the cause. The circuit court assumed jurisdiction of the trust. State and county taxes for the years 1927, 1928 1929, and 1930 being unpaid, the tax collector proceeded to sell the property, procuring leave of the court having jurisdiction of the trust, advertising the sale, and leaving a copy of the tax bills with Mr. Wonn, a trustee. The advertisement was inserted in a newspaper once, on May 14, 1932, and the sale to the mayor and city council of Cumberland took place on June 3, 1932, and was duly ratified by the circuit court. The purchase price was $1,880. On April 21, 1934, the mayor and city council sold the property to the appellant, George G. Young, for $2,400. Upon the advice of counsel, Mr. Young questioned the title, and the present bill was accordingly filed.
On the question of power in the city to buy at a tax collector's sale for delinquent state and county taxes, the city cites a general provision in its charter empowering it to "purchase and hold real * * * property or dispose of the same for the benefit of said city; provided, that the purchase or alienation of such real estate, when the value thereof shall exceed the sum of ten thousand dollars, shall be first submitted to the voters of the city." Code Pub.Loc.Laws, art. 1A, § 1. But it is denied that this provision is intended to authorize purchases at tax sales. This court seems never before to have had occasion to consider the question. In other jurisdictions, while there has been some difference of opinion, the greater number of decisions have held that, unless given it specifically by statute, a municipal corporation has no such power, that the general power to buy given by statutes similar to that quoted from the charter of Cumberland does not include it, and purchases without the more specific authority are void. Knox v. Peterson, 21 Wis. 247, 249; Sprague v. C nen, 30 Wis. 209; City of Champaign v. Harmon, 98 Ill. 491; O'Connell v. Sanford, 256 Ill. 62, 99 N.E. 885; City of Logansport v. Humphrey, 84 Ind. 467. And text-writers accept this as the prevailing rule. 2 Cooley, Taxation (4th Ed.) § 1448; 3 McQuillen, Municipal Corporations, § 1107; Black, Tax Titles, § 152. On the contrary, in Keller v. Wilson, 90 Ky. 350, 14 S.W. 332, the court concluded that, notwithstanding some of the decisions just cited, a purchase by a city to save its taxes, which was regarded as a public purpose, was within its powers. And in Berry v. Bickford, 63 N.H. 328, the existence of the power was assumed without comment. And see Ebert v. Woodville, 143 La. 874, 79 So. 521. While this court, as stated, has never before had the question argued, a practice of purchasing for the city at tax sales, existing in Baltimore city since near the middle of the last century, has passed without any expression of doubt of the city's power. See Textor v. Shipley, 77 Md. 473, 26 A. 1019; 28 A. 1060, and Id., 86 Md. 424, 38 A. 932. There was a Baltimore ordinance directing a particular city official to purchase, but the city did not, of course, derive any power from its own ordinance. The power was assumed to exist, and the ordinance was a method of exercising it.
We have not found the argument leading to the conclusion that prevails elsewhere stated with any fullness. It has been explained that a municipality has only the powers expressly granted to it, and that, if the legislative or charter provisions for enforcement of taxes contain no express grant of power to a city to buy, it does not possess it. Again it has been reasoned that a limitation of a city's property ownership to property for public use, or some public purpose precludes the purchase at tax sales, that a city is not intended to speculate in tax titles, or that it is against public policy for it to buy in. That these objections have not been regarded as practically prohibitive seems demonstrated by the enactment of enabling statutes in many jurisdictions, some of them authorizing municipalities to buy when there are no other bidders, some giving unrestricted power (see Denver v. Keeler, 48 Colo. 54, 108 P. 998; Keller v. Hawk, 19 Okl. 407, 91 P. 778; Ohlwine v. Bushnell, 32 S.D. 426, 143 N.W. 362; Thibodeaux v. Havens, 116 Miss. 476, 77 So. 313; Chadwick v. City of Cambridge, 230 Mass. 580, 119 N.E. 958); and it seems to this court impossible to assume that a municipality's purchase would not be for a public purpose but a speculation in the property. On the contrary, the probability would seem to be that no such purchase would ever be made except in the interest of the city, almost certainly to protect the recovery of the taxes overdue, which we regard as a public purpose. The chancellor in the present case supposed this to be the purpose of the purchase; and there is no evidence of any purpose that was not public. That the property should, in addition, be only for use by the city while title is in it we see no reason to hold. Taking these conclusions to be correct, we find no sufficient ground for restricting the authority given the city of Cumberland, under the local law quoted, to purchase and hold real estate. We hold that it had that authority, to buy in at tax sales, at...
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