Board of County Com'rs of Tulsa County v. Mullins

• Citation: 217 P.2d 835,202 Okla. 628
• Decision Date: 18 April 1950
• Docket Number: No. 33669,33669
• Parties: BOARD OF COUNTY COM'RS OF TULSA COUNTY v. MULLINS et al.
• Court: Supreme Court of Oklahoma

Page 835

217 P.2d 835

202 Okla. 628

BOARD OF COUNTY COM'RS OF TULSA COUNTY v. MULLINS et al.

No. 33669.

Supreme Court of Oklahoma.

April 18, 1950.

Syllabus by the Court.

1. By Section 13 of the Fair Board Act of 1943, Title 2, Chapter 2, House Bill No. 97, S.L.1943, 2 O.S.Supp. § 156l, the Board of Directors of the Tulsa County Exposition and Fair had authority to lease or rent any of the property belonging to Tulsa County used for exposition and fair purposes, including the pavilion building, during such time as the same was not in use for exposition and fair purposes.

2. Property purchased by a municipal corporation for use by the corporation as an entity may be disposed of by the municipality at any time. But property purchased and held by such corporation for the public use of its citizens for recreation purposes, such as public park, may be disposed of by the municipality only when the public use thereof has been abandoned, or when such property has become unsuitable or inadequate for the purpose for which it was dedicated.

3. Sec. 13, Title 2, Chapter 2, S.L.1943, 2 O.S.Supp. § 156l, is not unconstitutional as authorizing the impairment of a contract.

4. Section 26, Article 10, of the State Constitution, does not apply to those liabilities which are not voluntarily incurred but are imposed upon the municipality by the Sovereign power as expressed in the constitution and the valid acts of the Legislature.

5. A lease of property owned by the County authorized by Title, 2, Chapter 2, Sec. 13, S.L.1943, 2 O.S.Supp. § 156l, is not against public policy.

Elmer W. Adams, County Attorney, Tulsa County, Hugh Webster, Assistant County Attorney, Tulsa, John H. Poe, Tulsa, of counsel, for plaintiff in error.

Frank Hickman, Tulsa, Moseley & Raynolds, Tulsa, for defendants in error.

O'NEAL, Justice.

This is an appeal from a judgment of the District Court of Tulsa County, Oklahoma, in favor of defendants, in an action commenced by the Board of County Commissioners of said County against John C. Mullins and L. O. Mitchell, d/b/a Arena Roller Rink, and Tulsa County Fair Board, Intervener, to cancel a five year lease given by the Tulsa County Fair Board to Mullins and Mitchell covering the 'pavilion building located on the Tulsa County Fair grounds.'

The land upon which the pavilion was constructed was acquired in 1925 by Tulsa County for fair purposes under the provisions of Chapter 85, S.L.1923-24. The pavilion was constructed from proceeds of a bond issue authorized by Chapter 26, S.L.1929, 2 O.S.1941 § 109 et seq. The Tulsa Fair Board had operated in prior years under Chapter 159, S.L.1925, as amended by Chapter 242, S.L.1929; Article 5, Chapter 38, S.L.1935 and Article 12, Chapter 38, S.L.1936-37, 2 O.S.1941 § 155 et seq. At the time this action was commenced it was operating under Chapter 2, Title 2, House Bill No. 97, S.L.1943, 2 O.S.Supp. § 156 et seq. When the lease in question was executed the management and operation of the exposition and fair was under a Board of Directors of seven members appointed under the provisions of Section 3 of House Bill No. 97, 1943 S.L. Purporting to act under the provisions of Section 13, House Bill 97, S.L.1943, the Board of Directors of the exposition and fair executed the lease here involved. The lease dated September 30, 1946, by its terms leases, lets, demises and rents to said defendants, John C. Mullins and L. O. Mitchell, the building located on said fair grounds known as the Fair Ground Pavilion, for a period of five years commencing September 30, 1946, for the purpose of operating a skating rink and other public entertainment. The lessees agreed to pay as rental for said pavilion, after deducting Federal and State taxes, 22 1/2% of the admission charges received for roller skating, in any event, not less than $150 per month. Lessees further agreed that in the event they should use said pavilion for attractions or purposes other than roller skating, to pay lessor as rental $100 for each twenty-four hours or fraction thereof the pavilion should be so used.

Lessor agreed to keep the pavilion building in good repair insofar as the exterior of the building, or the plumbing therein, or any structural part of the building, is concerned, and lessees agreed to keep and maintain the building in as good state of repair as it was at the commencement of the lease, natural wear and tear and damages by the elements excepted, and to pay light, heat and water bills and any other expenses incidental to the use of said building incident to the occupancy of same by lessees. The lease in paragraph 5 thereof, further provides: '* * * It is understood that lessor retains the right of the use of said pavilion, free from the rights of lessees, for three events during each calendar year, namely, The Junior Live Stock Show in the month of March, the ten-day Johnnie Lee Wills Rodeo in the month of May, and The Tulsa County Fair & Exposition in the month of September, and of each calendar year during the term of this lease; and also the Tulsa Policemen's Circus for the month of March 17 to 23, 1947. Provided, however, that during the Junior Live Stock Show and sale each year, the lessor will cover the skating floor, or such portion thereof as is deemed necessary for use during said Live Stock Show and Sale, with sufficient thickness of lumber or floor covering as to adequately protect and preserve said skating floor for the lessees herein and in the same manner as the lessor has done in previous years during said Live Stock Show and Sale; and provided further, that during the events of the Johnny Lee Wills Rodeo and the Tulsa County Fair and Exposition that the lessees herein shall make the said pavilion available by removing at their own expense the portable sectional flooring maintained by them for roller skating purposes.'

Plaintiff seeks cancellation of the lease on the ground that the Fair Board in the execution of said lease as an agency of the County, was without power or authority of law to divest itself or Tulsa County of the possession, custody and control of said pavilion building for a period of five years or at all; that the Fair Board as constituted under Chapter 2, Sec. 2, S.L.1943, was without authority to grant a lease which in effect is to take the pavilion from the custody and control of the Board of County Commissioners; that Sec. 13, Title 2, Chapter 2, House Bill 97, S.L.1943, is invalid so far as it proposes to take control of county property out of the Board of County Commissioners and is invalid for the further reason that it is unconstitutional, ambiguous and incapable of sensible construction; that if said Sec. 13 is to be construed as granting such power to the Fair Board, then said section is unconstitutional and void as being contrary to Sec. 15, Article 2, of the State Constitution and Article 1, Sec. 10 of the Federal Constitution, which prohibit an enactment by the State of any law impairing the obligation of contracts; that the lease involved is against public policy; that the lease is invalid for the reason that it diverts the use of said building from agricultural and public purposes to private commercial purposes contrary to the purposes for which said building was constructed; that said lease is invalid for the reason that it permits the installation of a floor in said building and that by said installation and other material alterations the agricultural interests of Tulsa County have been ousted from the use of said building and that same has been rendered useless for the purposes for which it was constructed. Finally, it is alleged that the Fair Board by the execution of said lease obligated said County for the expenditure of funds and revenue beyond the fiscal year in which the contract was made, contrary to the provisions of Section 26, Article 10 of the Constitution.

The answer of defendant admits substantially all the preliminary allegations of the petition, and then alleges that prior to the enactment of House Bill No. 97, supra, the Fair Board acted under Senate Bill No. 479, 1937, S.L., c. 38 art. 12, and prior thereto the Tulsa County Fair was managed and operated under Board of Directors appointed under the authority of Senate Bill No. 290, 1935 S.L., c. 38, art. 5; during said time, a period of more than six years, defendants had been the lessees of said pavilion under various similar leases, and that the renting of said pavilion has been without interference with said pavilion for any public purposes connected with the holding of a public County Fair or Exposition. The answer, then, generally and specifically, denies all the allegations of the petition as to the alleged invalidity of said lease contract or the laws under which it was executed.

The Tulsa County Fair Board asked and obtained leave, over the objection of plaintiff, to intervene and filed their plea of intervention asserting, in substance, that the Board was acting under the authority of valid statutes of the State of Oklahoma in making the lease, and was within the law in executing said lease.

The issues thus joined were tried to the Court. The plaintiff submitted its evidence and defendants demurred thereto. The Court sustained their demurrer and entered judgment for the defendants and plaintiff appeals.

Plaintiff first contends that the lease is invalid for the reason that it excludes the public from County owned property for a period of years, and that Sec. 13 of the Fair Board Act, Title 2, Chapter 2, House Bill 97, S.L.1943, is unconstitutional to the extent that it permits such absolute and unrestricted conveyance. Said Sec. 13 provides: 'Section 13. All property heretofore acquired by any such county by virtue of the provisions of various legislative acts for Expositions and Free Fair purposes is hereby declared to be the property of any such county coming within the provisions of this Act, and is hereby placed under the custody and control of the Board...