City of Bessemer v. Huey

• Decision Date: 17 May 1945
• Docket Number: 6 Div. 338.
• Citation: 22 So.2d 325,247 Ala. 12
• Parties: CITY OF BESSEMER et al. v. HUEY.
• Court: Alabama Supreme Court

22 So.2d 325

247 Ala. 12

CITY OF BESSEMER et al. v. HUEY.

6 Div. 338.

Supreme Court of Alabama

May 17, 1945

H H. Sullinger, of Bessemer, for appellants.

Huey, Welch & Stone, of Bessemer, for appellee.

STAKELY Justice.

This is an appeal from a decree overruling a demurrer to a bill of complaint in equity. The bill of complaint was filed by T. T Huey (appellee) against the City of Bessemer, a municipal corporation, and Fred T. McClendon (appellants) to nullify and enjoin the performance of a lease made by the City of Bessemer to Fred T. McClendon of the City Hall Auditorium for use as a theatre.

The allegations of the bill of complaint in substance show the following: The complainant is a resident citizen and taxpayer of the City of Bessemer. The City of Bessemer has a City Hall in which is located the municipal offices and departments of the city. The City Hall building was constructed partly at one time and partly at another. The first portion of the City Hall was completed prior to 1940. Construction of the last portion, in which is located the City Hall Auditorium, began during 1940 and was completed in 1944. The two portions of the City Hall however, make up a single unit known as the City Hall, and it is a public building constructed for and used for municipal purposes.

In the construction of the last portion of the City Hall the materials and equipment used in the construction of the building were paid for with public funds of the city and the labor was furnished by the United States of America through the Works Projects Administration. The bill of complaint contains the following allegation: 'That the City Hall Auditorium was built for public and municipal purposes and for the use and enjoyment of the citizens and taxpayers of said City of Bessemer as a place of public assemblage and for various and sundry other public and municipal functions and affairs, and has been and is being used for such purposes.'

On December 19, 1944, the City Council of Bessemer adopted a resolution pursuant to which the mayor and clerk of the city executed a lease, dated December 20, 1944, a copy of which is attached as an exhibit to the bill of complaint and made a part thereof. According to the lease, the City of Bessemer has rented the City Hall Auditorium to the respondent, Fred T. McClendon, for a term of five years for exclusive use as a theatre for the entertainment of the white race only and for no other purpose. The amount of the rental is ten percent of gross receipts, exclusive of federal, state and city taxes, with a minimum rent of $250 per month. The lessee is also given the right to renew the lease for another term of five years on the same terms. The bill of complaint also contains the following averments: 'That under the terms of said lease your Complainant, a citizen of, a resident in, and a taxpayer in said City of Bessemer, and all other citizens, residents and taxpayers in said City would be excluded from the use and enjoyment of said City Hall Auditorium as such which was the purpose for which it was constructed, used and maintained.'

Without doubt the complainant, as a resident and taxpayer of the City of Bessemer, has the right to maintain the bill of complaint. Inge v. Board of Public Works of Mobile, 135 Ala. 187, 33 So. 678, 93 Am.St.Rep. 20; Coleman v. Town of Eutaw, 157 Ala. 327, 47 So. 703; Alabama Power Co. v. City of Scottsboro, 238 Ala. 230, 190 So. 412.

The question presented by the bill and demurrer thereto may be simply stated. Can the City of Bessemer, without specific statutory authority, lease the City Auditorium to an individual for private business, viz., a theatre, when it was built with public funds for public and municipal purposes, and while it is being devoted to such uses? Our answer is that this cannot be done.

In order to understand the reasoning by which this conclusion is reached, it is well first to note the statutory authority which governs the municipality, with respect to the property which it owns.

In Title 37, § 1, Code of Alabama 1940, the authority of a municipal corporation in this respect is set out as follows: '* * * shall sue and be sued, contract and be contracted with, acquire property by purchase, gift, devise, or appropriation for any municipal purpose herein authorized; and the same shall be held, managed, and controlled by the said municipal corporations under the provisions of law herein contained, and all rules, regulations, resolutions and ordinances that may be required to carry out any or all of the provisions of this title, shall be adopted by the several councils thereof. Such municipal corporations shall be invested with the full powers, duties and authority herein granted.'

And in Title 37, § 429, Code of Alabama 1940, the following provision is made for the management and control of the property belonging to cities:

'All legislative powers and other powers granted to cities and towns shall be exercised by the council, except those powers conferred on some officers by law or ordinance. They shall perform the duties required in this title, including the following:

* * *

* * *

'11. Except as otherwise provided herein, they shall have the management and control of the finances and all of the property, real and personal, belonging to the city or town.'

It is clear from the foregoing that there is no express authority given to a city to sell or lease its real property. This court has said that 'it is a general and undisputed proposition of law that a municipal corporation possesses and 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...