City of Daytona Beach v. Dygert
| Decision Date | 11 March 1941 |
| Parties | CITY OF DAYTONA BEACH v. DYGERT. |
| Court | Florida Supreme Court |
John R. Parkinson and Chas. W. Luther, both of Daytona Beach, for petitioner.
W. W Judge, of Daytona Beach, for respondent.
On July 23, 1940 the City of Daytona Beach, Florida, leased its airport for a period of two years to P. B. Dygert, and the material and pertinent portions of the lease are, viz.:
'One: The City of Daytona Beach does hereby give in charge, transfers and sets over unto the said P. B. Dygert the use and operation of its municipal airport located at the Western boundary of the territory comprising said City together with any and all of its buildings, hangars, equipment, facilities and appurtenances thereunto belonging, to be operated, controlled and managed by the said P. B. Dygert for a period of two (2) years from the date of these presents, during all of which time the said P. B. Dygert shall have the full right to take receive, collect, use and utilize any and all rentals of or from any of the buildings, hangars, facilities and/or equipment of, to or belonging to said municipal airport, and any and all income, charges, returns, rentals and other monetary emoluments of or from the operation of said airport including concessions of any and all kinds and descriptions and air-line company rents and rentals, to his own proper benefit and use and without decrease, deduction or charge by or from the City of Daytona Beach.
'Two: The said P. B. Dygert agrees to take and operate said municipal airport and to manage, operate and control the same as aforesaid and receive the proceeds and returns thereof as aforesaid for a period of two (2) years as aforesaid in a competent and business-like manner and in a manner conforming to the rule and regulations of the United States Civil Aeronautics Authority.
'Three: The City of Daytona Beach agrees to keep and maintain all of the physical assets of said municipal airport in a good and sufficient state of repair at its own expense and to furnish any and all materials and equipment necessarily and usually furnished and maintained in up-to-date municipal airports and to supply at its expense all power, water and other utility services necessarily required in and about efficiently operating said airport and its buildings, hangars, offices and equipment, during the life of this contract.
'Four: The said P. B. Dygert agrees to expand and develop at his own expense the housing and cage facilities for the wild animals and fowl contained in the zoological garden owned and operated by the said P. B. Dygert at said municipal airport from time to time so that the same will progress to a larger and more extensive attraction for the citizens and visitors of and to said City and to keep the same in a state of good repair and pleasing appearance at all times for the benefit of the public generally, Provided, however, that The City of Daytona Beach agrees to pay the sum of Seventy-five ($75.00) Dollars each and every month during the life of this contract as and for feed costs of the animals and fowl maintained in said zoological garden, and further furnish at the expense of The City of Daytona Beach one (1) employee or attendant whose sole duties, during the life of this contract, shall be to perform such work as the said P. B. Dygert shall direct at said airport and zoological garden.
'Five: It is mutually understood and agreed that the wild animals and fowl and other animals and fowl kept and maintained at said airport zoological garden together with the cages and other housing facilities supplied for them by the said P. B. Dygert shall be and remain the property of the said P. B. Dygert.
'Six: It is further mutually understood and agreed that the City of Daytona Beach shall have and continue to have, during the life of this agreement, full right and authority to go in, to or upon said municipal airport for the purpose of making any improvement or repairs necessary, expendient or proper at any time and that said City reserves the right to make any agreement and enter into any proper understanding with any department of the United States Government as to the use or occupation of said airport.
'Seven: It is further mutually understood and agreed by and between the parties hereto that each and every paragraph of this entire instrument shall be taken and considered as part and parcel of this agreement, and that this contract shall be binding upon the heirs, executors, administrators, successors and assigns of the respective parties hereto, and each of them, and that the said P. B. Dygert shall have full right and authority to assign this contract and the emoluments thereof by and with the consent of the said City.'
The Chancellor below, upon the complaint of P. B. Dygert, entered an order restraining the City of Daytona Beach from terminating the said lease or contract of employment and from interfering with plaintiff's possession of the airport, and entered orders (a) denying a motion to dissolve the temporary injunction; and (b) denying a motion to dismiss the bill of complaint. These orders are before the Court on petition for writ of certiorari under the provisions of Rule 34 of this Court.
Several questions are presented and argued by counsel, but the most important, as we see it, is viz: Does the City of Daytona Beach have any power or authority to lease its municipal airport? If the city had the power to enter into the lease, then the petition for a writ of certiorari must be denied. If the city had no power to make the lease, then the agreement supra at the most is a contract of employment and terminable by the city under certain provisions of its charter, and if this be true the petition for a writ of certiorari should be granted.
Chapter 17708, Acts of 1937, Laws of Florida, grants to the several counties of Florida the power to lease airports to private parties for a period or term not to exceed ten years. The Legislature granted this power to counties but failed or omitted to clothe the different municipalities of Florida with this power. Chapter 13569, Acts of 1929, Laws of Florida authorizes municipal corporations to purchase, establish, construct, maintain and operate municipal airports and to expend municipal money raised by...
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