Harris v. City of Durham

OlaeksoN, J., after stating the case: the only legal question presented by the appeal is the power of the city of Durham to sell property owned by the city and used for governmental purposes and a vacant lot. Briefly summing up the facts as found by the learned judge who tried this case: It is the intention of the city of Durham to sell certain municipally owned property, consisting of the old Municipal Building, in which are located certain offices of the city government, and the adjoining lot, and with the funds derived from such sale to: (a) Secure a new building and to renovate this building for use as a municipal building, which will take care of and accommodate all the offices and departments of the city government, furnish an auditorium, afford an armory for the military company, rooms for the American Legion and Boy Scouts, and other useful purposes. (b) To get a sufficient sum to make an addition to the high school building — to beautify the high school grounds, which consist of about fifteen acres of land — the contemplated improvement consisting of playgrounds, walkways, baseball park, and other attractive features. The intention of the governing body of the city, and those in authority elected by the people, is to have modern, up-to-date conveniences for its governmental agencies, and to improve the high school and carry out other laudable civic improvements for the social well-being of the community — a forward-looking, constructive program for the uplift and betterment of the city and its inhabitants. It appears from the facts found in this case that the governing body will have funds sufficient from the sale of the old Municipal Building and the adjacent lot to do all these things. Can this sale be legally consummated and the purchaser acquire a good title in fee simple is the sole question presented in this case. O. S., 2688. “Public sale by mayor and commissioners. The mayor and commissioners of any town shall have power at all times to sell at public outcry, after 30 days notice, to tbe highest bidder, any property, real'or personal, belonging to any such town, and apply tbe proceeds as they may think best.” Tbe above general law was in existence when tbe Legislature of 1921 (see Private Laws, cb. 142) granted practically a new charter to tbe city *576 of Durham. This new act is comprehensive, and seems to be a modern constructive charter to meet the new conditions of a thriving and prosperous city. Section 1 of said charter is as follows: “That the inhabitants of. the city of Dhirham shall be and continue as they have been a body politic and corporate, and henceforth the corporation shall continue to bear the name and style of the ‘city of Durham,’ and under such name and style is hereby vested with all the property and rights of property which now belong to the corporation, and by this ngme may’ acquire and hold for the purpose of its government, welfare, and improvement, all such estate as may be devised, bequeathed, conveyed to, or otherwise acquired by it, and may from time to time sell, dispose of, and invest the same, as shall be deemed advisable by the proper authorities of the corporation, and as shall be in conformity with the provisions of this charter.” Section 32. “The rights of the city of Durham in and to its streets, avenues, parks, bridges, cemeteries, markets, and other public places and buildings, and its waterworks, shall not be sold except by an ordinance passed by a recorded affirmative vote of at least seven of the members elected to the council, and under such other restrictions as may be imposed by law.” Section 48. “Among the powers hereby conferred upon the city, all of which-the city council shall be authorized to exercise unless otherwise provided by this charter, are the following: ... To acquire by purchase or condemnation, lay out, establish, and regulate parks and public playgrounds within or without the corporate limits of the city for the use of the inhabitants thereof. . . . To sell and cause to be sold publicly or privately any property, real or personal, belonging to the city, and all of its rights, title, and interest in and to all land used for street or other public purposes, but such sale shall be made in conformity with the provisions elsewhere set forth in this chapter.” The record in the case shows that all the requirements of the charter that provides for the sale of “other public places and buildings” have been fully complied with. The charter of the city of Durham is a special act. The provisions of the charter in the sections before mentioned confer full power and authority to sell the property in question 'and make title in fee simple. The sale under the express provisions of the charter can be made either publicly or privately by complying with the provisions of the charter requiring “an ordinance passed by a recorded affirmative vote of at least seven of the members elected to the council.” Allen v. Reidsville, 178 N. C., 513. The charter of the city of Durham has amply protected its taxpayers by providing that the property contemplated to be sold could not be done “except by an ordinance passed by a recorded affirmative vote of at least seven of the members elected to the council.” These men *577 are elected by tbe taxpayers and legal voters of the city of Durham. There seems to be a strong tendency on the part of the legislative branch of the Government to give all municipal corporations large powers for educational and social betterment. These powers should be used with caution for the common good, without extravagance or waste, but with economy and care. The governing body of the city of Durham seems to be carrying out this general policy, and, under its charter and law, it has a right to do so. On all the facts, his Honor was correct in dismissing the prayer of the plaintiffs for a restraining order, and refusing to enjoin the defendants. Affirmed.