Gwyn v. . Coffey

Montgomery, J.: The plaintiff’s counsel prepared and submitted a painstaking and learned brief upon important legal questions raised in the court below, but which *470 can be of no avail to their client here. His Honor held that, “it appearing from the admissions in the pleadings that the sale under which plaintiff claims was made August 3, 1893, and so admitted by his counsel in open court, the saíne being outside of the limit of time prescribed by the Act of the legislature for making the sale, he would hold the sale to be void.” Whether or not that ruling is correct is the only question for our decision. Chapter 445 of the Acts 1893, provides for a sale of the State’s interest in the Caldwell & Watauga Turnpike Company. Section 3 of the Act fixes the time of such sale as follows: “That said commissioners shall on or before the first day of J uly, 1893, cause to be advertised in the Lenoir Topic and The Watauga Democrat, ne wspapers published at Lenoir and Boone, North Carolina, a notice setting forth that said commissioners will, on a day fixed not to be more than 30 days nor less than 20, sell for cash the State’s interest in said company as herein provided.” It is perfectly clear that the commissioners empowered to make the sale became funeti offieio after the last of July, 1893. There is not a line in the Act that provides for a sale after that time under any circumstances or in any contingency. They had under the Act four months in which to perform their duty, and no longer. “If the statute under which a license to sell is granted limits the operation of the license within a designated period, a sale outside of the prescribed limits is a nullity.” Ereeman, on Yoid Judicial Sales, Section 30 and cases there cited. It was suggested here as a reason why the Act as to the time within which the sale was limited should be construed as directory simply, that the commissioners might be sick, or storms or floods might occur on the da7 advertised for the sale, and thereby the sale become impossible. We cannot see how snob conditions or mishaps *471 could restore a power which had ceased to exist under the Act which gave life to the power. But we do think such possible contingencies should have put the commissioners on their guard and cautioned them against delaying the sale until near the last day of the four months allowed them by the statute. We do not see any analogy between the principle involved in this case and that in Greer v. Asheville, 114 N. C., 678. There, the city charter provided that the aldermen should appoint a marshall at their first meeting after their election. If the board failed to discharge its dirty at its first meeting, it did not relieve itself of the legal obligation to do so at the next meeting, for it owed the duty at all times during their term of office to furnish the city with a proper police head and thereby administer to the safety and well being of the city-. Affirmed.