Cline v. City of Hickory

BeogdeN, J. The following question of law is presented: Does the city of Hickory have power to make the lease described in the findings of fact? .The charter of the city of Hickory is chapter 68 of the Public Laws of 1913. It is provided “that this charter shall be deemed a public act and judicial notice shall be taken thereof in all courts and places whether or not the same has been pleaded or read in evidence.” Section 1 of the charter empowers the city of Hickory to “acquire and hold 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,” etc. Section 3 of Article 18 provides that “all questions arising in the administration of government of the city of Hickory and not provided for in this act shall be governed by the laws of the State in such cases made and provided.” The general laws of the State authorizing and regulating the sale of property owned by municipal corporations are contained in C. S., 2688, and C. S., 2787 (2). Both of said statutes authorize the sale of municipal property in proper cases, and C. S., 2787 (2) authorizes a municipal corporation to lease property. Construing C. S., 2688, in Asheville v. Herbert, 190 N. C., 732, 130 S. E., 861, this Court said: “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., 26), or such real estate as is devoted to governmental purposes (Turner v. Comrs., 127 N. C., 154; Carstarphen v. Plymouth, 180 N. C., 26), or to streets in reference to which adjoining property owners have acquired rights on account of the dedication thereof, and resulting improvements. . . . 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 *128 it bad not been complied witb.” Manifestly tbe philosophy of tbe Southport and Garstarphen cases is tbat a municipal corporation cannot sell itself out of its exclusively governmental borne, or cannot sell property held by it in trust without special authority. In tbe case at bar, when tbe auditorium was originally constructed, it “was equipped witb a stage, a picture machine booth, a ticket stand at which to sell tickets for shows that might be held therein, and a moving-picture machine was installed, and from time to time the said auditorium has been rented by the day and night, and for successive days and nights when asked for,” etc. Obviously this auditorium was neither dedicated to a governmental purpose in its original construction nor used for governmental purposes thereafter. The mere fact that it is under the same roof as the city police court, city jail and office of the mayor does not in itself impress it with governmental quality or function. Indeed, the eases of Asheville v. Herbert, 190 N. C., 732, and Harris v. Durham, 185 N. C., 572, 117 S. E., 801, in principle, answer the question of law involved in the affirmative. Reversed.