McRobie v. Mayor and Commissioners of Westernport

Digges, J., delivered the opinion of the Court. We receive this appeal from the Circuit Court for Allegany County (Naughton, J.) upon the dismissal of a bill of complaint which sought to void a sale of land by the town of Westernport on the grounds that it was ultra vires and otherwise illegal. The appellant, Russell R. Mc-Robie, a local taxpayer, brought this action against the town’s mayor and commissioners as well as against the Hiram Lodge No. 103, A.F. & A.M., the purchaser. The seeds of this controversy were sown in March of 1965 when the mayor and commissioners of Westernport (incorporated in 1886) bought property on Main Street, near the town hall, for a parking lot or firehouse.

The total frontage of this land was 98.94 feet. The entire tract, having been blacktopped and equipped with parking meters, was utilized as a municipal parking facility until 1968. However, in October of that year the Allegany County Board of Library Trustees received by deed 70 feet of the property, upon which a public library was ⁴⁶⁶ later constructed. The remaining 28.94 foot portion was still being maintained for off-street parking at the time of trial.

In April 1969, the mayor and commissioners sold the balance of the property for $9,200 to the Hiram Lodge which planned to build a combination post office-meeting hall on this and an adjoining site. The appellant claims that without special legislative approval the town was not authorized to sell real estate such as this, which had been acquired, used and held for a public purpose. Westernport, as a municipal corporation, possesses only limited powers. In Montgomery Co. v. Met.

District, 202 Md. 293, 304 , 96 A. 2d 353 (1953), this Court, quoting with approval from I Dillon, Municipal Corporations, § 237 (5th ed.), said — “ ‘a municipal corporation . . . can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, — not simply convenient, but indispensable.’ ” It is with these limitations in mind that we must examine the powers given the town officials of Westernport. The town charter, codified as Art. 1, § 632, of the Public Local Laws of Maryland, provides that Westernport has among its corporate powers the authorization to “purchase and hold real estate and other property or dispose of the same for the use and benefit of the town.” 1 While this statutory language would appear to be broad enough to supply the necessary approval for this sale, our prior decisions have clearly indicated otherwise. In Messer ⁴⁶⁷ smith v. Riverdale, 223 Md. 323, 327 , 164 A. 2d 523 (1960), with an almost Identical charter provision, we said: “[t]he powers thus conferred . . . refer only to property in which the town holds absolute title, and not to property it holds as a public trust.” This view was reiterated and expounded in M. & C. C. v. Chesapeake, 233 Md. 559, 572 , 197 A. 2d 821 (1964), where we stated: “It is firmly established that land held by a municipality in its governmental capacity (as opposed to a proprietary or business capacity) and therefore held in trust for the public cannot be disposed of without special statutory authority. . . Montgomery Co. v. Met.

District, supra; Centreville v. Queen Anne’s County, 199 Md. 652 , 87 A. 2d 599 (1952) ; Worcester Elec. Co. v. Hancock, 151 Md. 670 , 135 A. 832 (1927). This view is in accord with the majority of our sister states as well as authoritative treatises, both of which have observed that property held or maintained in a proprietary capacity may be disposed of unless specifically restrained by charter or statute, while property held in a governmental capacity cannot be disposed of without express authority. 10 McQuillin, Municipal Corporations (3rd ed.), §§ 28.37-.38; 2 Yokley, Municipal Corporations, § 432. The town of Westernport did not have express authority either through its charter or through general or public local law to sell land which was used in a governmental capacity.

The real controversy in this case, therefore, is whether the property in question was held in a governmental as opposed to a proprietary capacity. We have adopted no strict formula to apply in making such a determination, although we have suggested certain general guidelines to consider. 10 McQuillin, Municipal Corporations (3rd ed.), § 28.-38, sets forth a general definition of property which is devoted to governmental use: “. . . all property is public which has been dedicated to public use, or which may ⁴⁶⁸ be affected by a public trust, either general or special. Municipal corporations hold all property in which the public is interested, such as streets, alleys, public squares, commons, parks and wharves, in trust for the use of the public. . . .” Accord, M. & C. C. v. Chesapeake, Messersmith v. Riverdale, and Montgomery Co. v. Met. District, all supra.

While there have been no cases in Maryland dealing with the issue of whether municipally owned parking lots are held in the exercise of a public function, various authorities have discussed this topic. 7