City of Coral Gables v. Hepkins

• Decision Date: 16 September 1932
• Citation: 144 So. 385,107 Fla. 778
• Parties: CITY OF CORAL GABLES v. HEPKINS.
• Court: Florida Supreme Court

144 So. 385

107 Fla. 778

CITY OF CORAL GABLES v. HEPKINS.

Florida Supreme Court, Division B.

September 16, 1932

Rehearing Denied Nov. 22, 1932.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Action by Ellen Hepkins against the City of Coral Gables, in which plaintiff recovered a judgment and had execution issued, and defendant filed a motion praying for a stay of execution and for suspension of all proceedings thereon against defendant. The motion was denied, and defendant brings error.

Affirmed and constitutional writ issued in aid of writ of error dissolved.

BROWN and ELLIS, JJ., dissenting.

On Petition for Rehearing.

COUNSEL Edward L. Semple, of Miami, for plaintiff in error.

Mitchell D. Price, Charles W. Zaring, and Robert S. Florence, all of Miami, for defendant in error.

OPINION

DAVIS J.

The principal question necessary to be determined on this writ of error is: Where the charter of a municipality expressly authorizes the acquisition and maintenance of a golf course and the municipal power conferred by the charter is exercised by the municipality, and a golf course, including a country club, are purchased with proceeds of a bond issue, authorized and sold by the municipality, the proceeds of which have been expended to pay the purchase price of such golf course and country club, does the property comprising the country club become property subject to execution for the debts of the municipality, when subsequently after its acquisition, the country club proves not profitable and a source of expense to the city, by reason of which fact the city leases the same temporarily to individuals to operate for their own private gain, for a certain consideration, the city reserving the right to resume operation in the future, and to make other and further leases of it, should circumstances render it advisable to do so?

In this case the circuit judge found from the evidence before him that certain real estate owned by the city of Coral Gables comprising the Coral Gables Country Club had been levied upon by the sheriff of Dade county under an execution issued on a judgment for $13,313.67 rendered against the city in favor of defendant in error, Ellen Hepkins. The property levied upon consisted of a lot and building known as Coral Gables Country Club, which for several years past had been, and was then under lease for hire to certain tenants of the municipality who operated same as a club, maintaining therein a dance floor and restaurant, charging an admission fee to the general public. This real estate was shown to have been purchased by the municipality with part of the proceeds of a bond issue, to be held and used by the city for municipal purposes under its charter. While so held and used by the city under charter authority in the first instance, for municipal purposes, said property as held and used at the time of the levy of the execution upon it was specifically found by the court not to be property essential to the existence of the city of Coral Gables, or necessary and useful to the exercise of its governmental powers, or the performance of its governmental duties, and therefore was adjudged by the court not to be property exempt from execution and sale.

Having so found the facts, and upon the authority of the circuit judge's construction of the opinion of this court in Little River Bank & Trust Company v. Johnson, 141 So. 141, the court denied a motion filed by the city of Coral Gables under section 4516, C. G. L., section 2829, R. G. S., praying for a stay of the execution and for suspension of all proceedings thereon against the defendant in execution, the city of Coral Gables.

A writ of error with bill of exceptions brings that judgment of the circuit court here for review, presenting for our determination the question of law we have hereinbefore stated as being the major point in the case.

The bill of exceptions shows that the property levied upon was originally owned by Coral Gables Corporation, a private institution, and was operated by it in conjunction with a nine hole golf course and country club. While owned and operated by the Coral Gables Corporation, locked rooms, showers, lounging rooms, etc., were maintained and provided by the corporation for the use of golfers and club members. A dining room, open to the public, was also operated, wherein food was served for a charge made therefor. In addition to the foregoing, there was also a dance patio provided and maintained in connection therewith, wherein persons desiring that form of entertainment could secure it upon payment of a like charge. All the while, the property was kept open to the general public, being subject only to the payment of charges for admission thereto.

In 1927 the golf course together with the country club property (consisting of the buildings) were purchased by the city of Coral Gables.

To accomplish this purchase, the city used the proceeds of a certain bond issue it had authorized, amounting to the sum of $1,750,000. For the purposes of the case now before the court no question is raised as to either the power of the city to make this purchase, nor of the propriety of its act in so doing. Therefore, for present purposes, it must be considered as established as a fact in the case that the city properly issued the bonds for a lawful municipal purpose in the first instance, and that the proceeds of such bonds were properly and legally invested by it in the purchase of the property in question. The proceeds of the bond issue are also to be considered as being now represented by the lands and buildings into which such bonds were converted by the purchase so made.

The operation of the golf course and country club properties did not prove to be profitable to the city. In consequence of this the country club premises were leased by the municipal authorities to one George C. Stembler.

Stembler bound himself by his lease to operate the property in his own name for a combined profit, if any, to himself and the city; a right of charge for the privileges furnished by himself being authorized to be made by the operator.

The Stembler lease was terminated at the end of two years. Thereafter the city leased the 'country club' premises to another individual, who appears to have been operating it for his own private gain since that time, under his contract of tenancy from the city, as a place of entertainment, combining dining room, dancing, and other amusement features, all available to the public, but upon the basis of a charge therefor as fixed by the lessee.

The fact that the city of Coral Gables holds the title to the property levied on is not disputed. Neither is it denied that the city has retained power under its lease to resume control over the leasehold and thereafter itself operate the property concerned, in accordance with the plan and purpose for which it was acquired. It is also conceded that, while at the time of the levy the city of Coral Gables was not itself operating the property levied upon, nor was it doing so at the time the judgment was rendered and the execution issued thereon, nevertheless such property continued to be held by the city as a part of the golf course and country club real estate bought by the city with the proceeds of the bond issue heretofore mentioned, to be thereafter held and used by the city for municipal and public, if not strictly and exclusively governmental purposes.

In Little River Bank & Trust Co. v. Johnson, supra, we held that trust property owned by a municipality and held for public purposes cannot be reached by process and sold to satisfy its debts, any more than can other trust property be sold to satisfy individual debts of any other trustee. The instant case falls within that rule.

While in that opinion we also made reference to the fact that the foregoing rule had been 'modified to some extent' by confining its application in general to property absolutely essential to the existence of the public corporation, or necessary and useful to the exercise and performance of governmental powers, or to the performance of governmental duties, the present case finds no place within the scope of that exception.

Here the special legislative charter of the city of Coral Gables expressly authorized that municipality to 'acquire, and maintain and operate and or assist in maintaining and or operating aviation fields, playgrounds, golf courses, swimming pools, stadiums, auditoriums, libraries, aquariums, art museums, cultural and educational institutions.' When the power so given to the city was exercised by it by the issuance of bonds and the investment of their proceeds in the golf course and country club property it later purchased, such property when acquired became charged with a fixed, definite, continuing, statutory trust on the part of the municipality to hold, maintain, and operate it for public municipal purposes of the character required by the charter enactment, subject to such future legislative control concerning its disposition as might be exercised by the lawmaking power with respect thereto.

While it has been well said that in every instance a city holds all the property which it owns as trustee for the public, there are certain classes of property which it may, by its express or implied charter powers, have become authorized to hold as representative of the public, as well as for the use of the public itself. ^[1]

Properties authorized by statute to be acquired by a city in the exercise of its municipal powers of taxation, for such now generally recognized common municipal purposes as aviation fields, playgrounds, golf courses, stadiums, auditoriums swimming pools, libraries, museums, and the like, are generally regarded as being so...