Clarey v. Philadelphia,
| Decision Date | 20 March 1933 |
| Docket Number | 377 |
| Citation | 166 A. 237,311 Pa. 11 |
| Parties | Clarey, Appellant, v. Philadelphia, et al |
| Court | Pennsylvania Supreme Court |
Argued January 9, 1933
Appeal, No. 377, Jan. T., 1932, by plaintiff from decree of C.P. No. 3, Phila. Co., Dec. T., 1931, No. 4775, dismissing bill in equity, in case of John A. Clarey v. Philadelphia, J Hampton Moore, Mayor, et al. Affirmed.
Bill for injunction. Before MacNEILLE, J.
The opinion of the Supreme Court states the facts.
Bill dismissed. Plaintiff appealed.
Error assigned, inter alia, was decree, quoting record.
The decree of the court below is affirmed at the cost of appellant.
Robert T. McCracken, with him Ulric J. Mengert and Samuel A Goldberg, for appellant. -- The property in question is dedicated to public use for well defined public purposes: Trustees of Phila. Museums v. University of Penna., 251 Pa. 115.
The use of the Convention Hall as a sports arena is ultra vires: Bloomsburg Imp. Co. v. Bloomsburg, 215 Pa. 452; Lesly v. Kite, 192 Pa. 268; Sherlock v. Winnetka Village, 68 Ill. 530; State v. Hiawatha City, 127 Kan. 183.
Thomas B. K. Ringe, with him James Hall Prothero and Ernest Lowengrund, Assistant City Solicitors, and David J. Smyth, City Solicitor, for appellees, cited: Com. v. Boro., 201 Pa. 154; Laird v. Pbgh., 205 Pa. 1; Biltz v. Boro., 3 Pa. C.C.R. 412; Bailey v. Phila., 184 Pa. 594; Phila. v. Brabender, 201 Pa. 574; Com. v. Walton, 182 Pa. 373; Wentz v. Phila., 301 Pa. 261; and other cases.
Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
The City of Philadelphia, under an ordinance approved July 5, 1928, erected a convention hall on certain property owned by it, known as the "Museum Grounds." A taxpayer, John A. Clarey, filed this bill in equity against the city, and its officers and agents charged with the management of the hall, to restrain them from permitting its use for the exhibition of boxing, wrestling, or other sporting events conducted for private gain or profit. Preliminary objections were sustained, whereupon complainant filed an amended bill. To the bill as amended, defendants also filed preliminary objections, which were likewise sustained, with leave to amend within thirty days. No further amendments having been made, a decree was entered dismissing the bill, and complainant appealed.
The amended bill of complaint avers that the ground upon which the convention hall was erected is a part of the grounds known as the "Commercial Museum Grounds" in West Philadelphia; that the city, by ordinance approved July 6, 1883, formally set aside these grounds, "for the purpose of being improved for the health and public welfare of the citizens of Philadelphia"; that subsequently, by ordinances of June 27, 1895, and October 10, 1896, it was provided that this land "be forthwith opened to use as a public park forever," and that "the said grounds and the said museum building thereon to be erected shall be forever open to the free access of the public at all times"; that pursuant to these ordinances large sums of public money were expended for the laying out, grading and improving of the ground and in constructing and equipping buildings thereon, which were used by the public; that the city thereby created a public trust, perpetual and irrevocable, and by the aforementioned ordinances dedicated this land for public purposes, and is now without authority or power to revoke that trust and dedication; that the defendants have in the past, and intend in the future, to license, lease, or permit the use of the convention hall by promoters of professional boxing, wrestling, and other sporting events, to which spectators are charged admission; that the promotion of such sporting events and the leasing of buildings for such use is not a function of the city, but is a private business, commonly carried on for private gain or profit; and that such use of the convention hall by the city is ultra vires. The prayer of the bill asks that an injunction be issued restraining the defendants from permitting the use of the hall for such events conducted for private gain. The learned court below sustained the preliminary objections to the amended bill on the ground that the occasional renting of the convention hall to persons who made a private profit out of its use was not objectionable.
Complainant concedes that the erection of the hall was a proper use of the grounds in question, consonant with the purposes for which they were dedicated. His only objection is to the leasing of the hall for professional sporting events. He contends that the city may not permit such use of this building, erected upon property dedicated to the use of the public.
Unquestionably this hall, built with public funds upon property dedicated to public purposes, must be held to be devoted to public use. But there can be no sound reason why, when the hall is not required for public purposes, the city may not permit its use by private persons. From its very nature as a building designed to accommodate large groups of people, the hall cannot possibly be in demand for public gatherings for more than a small portion of the time, and necessarily must frequently be idle, yet with little diminution in the cost of maintenance. There can be no objection to the city's receiving a return from the use of the hall by private persons upon occasions when it would otherwise be idle. To say, under the facts of this case, that the city is engaging in private business -- that of promoting sporting events or leasing buildings -- is absurd. Complainant's contention is, in effect, that the hall must stand unused at all times when it is not in demand for strictly public use. Although he objects only to the use of the hall for professional sporting events, if his objection is sustained for the reasons he gives, or any reasons, the effect is to confine the use of the hall to purely public functions and thereby exclude its use for all private affairs, with the result that the city will be barred from receiving any revenue for its maintenance, and the entire cost thereof will have to be borne by the taxpayers. Such argument must be rejected. It is not sound in law or business practice. It would be folly to require this large and expensive public structure to be kept idle when it is not needed for public use, and when it might be used by private persons for a proper rental, to the mutual advantage of the taxpayers of the city and those permitted to use it.
So far as we know, the precise question here presented has never been determined by the...
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