Colwell v. City of Great Falls

• Decision Date: 23 March 1945
• Docket Number: 8500.
• Citation: 157 P.2d 1013,117 Mont. 126
• Parties: COLWELL v. CITY OF GREAT FALLS et al.
• Court: Montana Supreme Court

157 P.2d 1013

117 Mont. 126

COLWELL v. CITY OF GREAT FALLS et al.

No. 8500.

Supreme Court of Montana

March 23, 1945

Appeal from District Court, Eighth District, Cascade County; C. F Holt, Judge.

Action by G. R. Colwell against the City of Great Falls, Mont Edward L. Shields, Mayor thereof, and others, to obtain an injunction against the defendant enjoining the lease of the auditorium of the civic center building to the defendant E E. Harris. From a judgment for defendants, the plaintiff appeals.

Affirmed.

Murch & Wuerthner, of Great Falls, for appellant.

Albert H. Angstman, of Helena, and John L. Slattery, Warren Toole, and Leo C. Graybill, all of Great Falls, for respondent.

R. M HATTERSLEY, District Judge (sitting in place of Justice ERICKSON, disqualified).

The plaintiff brought this action against the City of Great Falls, its Mayor and City Council and one E. E. Harris to obtain an injunction against the defendants enjoining the leasing of the auditorium of the Civic Center Building, the property of the defendant City to the defendant E. E. Harris. The evidence is not before this court by Bill of Exceptions, and this court therefore is confined, except for implied findings, to the facts as specifically found as contained in the "Findings of Fact" of the trial judge. The case was tried before the court sitting without a jury and resulted in a judgment for the defendants. The trial court found the issues generally in favor of the defendants. The appeal is from the judgment.

From the "Findings of Fact" it appears that in the year 1938 following application to the Public Works Administration for an assisting grant, the taxpaying electors of the defendant city, under its Resolution No. 3080 calling an election, voted, and under its Resolution No. 3088 designating the form and providing for the sale of bonds, the defendant city advertised and sold a bond issue of $376,750 for the purpose of erecting a Civic Center. While the executory portion of Resolution No. 3080 referred only to "erecting a Civic Center to house the offices of the City Government," the following recitals preceded the same therein: "Whereas, there is need of a Civic Center to provide for conventions and other large public gatherings together with facilities for cultural and recreational activities; and Whereas, it is the plan of the City Council to erect a Civic Center Building to house the offices of the City officials and to provide for an auditorium suitable for Conventions and large public gatherings, together with facilities for Cultural and Recreational Activities;" while in Resolution No. 3088 both the executory portion thereof and the recitals therein as well as the notice of sale of bonds, refer merely to a civic center to house the offices of the city government and to provide for conventions and other large public gatherings. In neither the proceedings for sale of bonds, nor in the proceedings for federal grant is there any declaration that the enumerated purposes for which the building was to be erected were exclusive, or that following the erection of the building no part of the same should under any circumstances, or in any event, be leased. Insofar as the application for federal grant is concerned, the reference to the character of the building set forth in so-called Resolution No. 3077 purporting to authorize the application, is "a Civic Center Building to house the offices of the City Government and to provide facilities for civic, cultural and recreational activities," while a like statement appears in the application. In the data supporting the application, in answer to a standard form question, it was stated that the project contemplated would not compete with any existing facility.

Among the items listed in the detailed estimate of cost of the building, enclosed with the application, were 2,000 opera seats and $12,000 worth of stage equipment. In addition, the floor plan drawings accompanying the application showed: On the basement floor: Four office and storage rooms, two storage rooms, two shower rooms, a boiler room, a refrigeration room, and corridors and stairways; on the First Floor: A stadium (variously called the Sports Arena or Ice Arena, having a seating capacity of 4,000), a kitchen, toilets, offices for the City Engineer, Treasurer, Water Department, Recreation Department and Public Health, and an Auditorium, with entrances, corridors, and stairways; and on the Second Floor: Separate offices for the Mayor, City Attorney and City Clerk, a Council Chambers, Committee Room, an exhibition room, a large banquet room, rest room, corridors and stairways, as well as the auditorium which latter in height extended to the roof of the building; and these drawings, among other things, further portrayed as a part of the auditorium in addition to the main floor thereof, a balcony with a motion picture booth at the rear thereof, a stage and a ticket booth.

Subsequent to the application and following the sale of bonds the government of the United States made an offer of grant to the City "to aid in the financing and construction of a civic center building," which offer was accepted by Resolution No. 3129, setting forth the offer.

In the meantime a taxpayer's suit was brought by one John Lloyd against the city, its mayor, its council and its Board of Park Commissioners to enjoin the erection of a Civic Center Building on lands deeded to the city for park purposes, it being the contention of the plaintiff therein that the city was without right to use such lands for any purposes other than for parks and that the plaintiff and other taxpayers had a vested right to the enjoyment and use of these lands for park purposes of which they could not be divested without their consent. Paragraph IV of the affirmative defense of the defendants therein which included the Board of Park Commissioners, contained this allegation: "That the proposed building, if erected, will house the offices of the Mayor; the ex-officio Chairman of the Board of Park Commissioners; the Superintendent of Parks; the Attorney, Engineer and Clerk of the Park Board; and will provide a meeting place for the said Board of Park Commissioners, and will in every respect provide facilities for carrying on the business and the work of maintaining and improving the park system of the City of Great Falls, Montana, and will provide cultural and recreational facilities for the citizens of Great Falls, Montana." The following denial is contained in the reply therein: "Replying to Paragraph IV of the affirmative defense set forth and contained in the defendants' answer, plaintiff admits that said proposed building, if erected, will house the offices of the mayor, city attorney, city engineer, and other offices of the city government, denies each and every other matter, fact and thing alleged and contained in said paragraph." This suit was disposed of on appeal by the Supreme Court affording the city an opportunity to obtain waivers of the purpose restrictions in the deeds to the land.

As to the building in question, the grant was made by the federal government, and of the grant, $300,000, together with the proceeds of the bonds, was used by the city in constructing and equipping the building and landscaping the grounds, which work was done under the supervision of the Emergency Administration of Public Works. Of this aggregate fund, approximately $300,000 was used in constructing and equipping the auditorium in the building, of which $13,000 was spent in purchasing and installing opera chairs in the auditorium and $9,000 for stage equipment. The project was completed in the Spring of 1940, and the building was constructed substantially as detailed in the drawings, and, as a part of the auditorium there was constructed and at all times since there has been therein, in addition to the main floor, a balcony with a motion picture projection booth at the rear thereof, a stage, 1882 seats, and a ticket booth, and the stage was among other things equipped with, and at all times since there has been therein, a large motion picture screen.

In addition to the facilities the auditorium provided, the building provided facilities for cultural and recreational activities as well as space and accommodations suitable for holding conventions and public gatherings both large and small, particularly the Exhibition Room (which was used as an Art Gallery up to the time it was used temporarily as a pilots' recreational room by the Seventh Ferrying Group of the Army Air Forces), the Banquet Room (which has a floor suitable for dancing, a small stage, a check room, and adjoining serving kitchen connected by dumbwaiters with the kitchen below, and portable tables and chairs sufficient to accommodate 500 persons), the Stadium (variously called the Sports Arena and Ice Arena), having a seating capacity of 4,000 persons, and a terrazzo floor equipped with refrigerating devices, which floor is suitable for dancing or skating, and the Council Chambers.

The building was opened for use on April 18, 1940. Three days prior thereto the then council passed and the then mayor approved an emergency Ordinance No. 811, designating the city clerk as "Manager of the Civic Center Building" and providing for the renting or portions of the building, including the auditorium, the banquet room and sports arena. Shortly thereafter by an emergency Ordinance No. 814, the rental charge of the auditorium for religious, educational or charitable lectures or fraternal or club meetings where no admission is charged, was reduced from $75 to $50 for one day or evening performance. From time to time the auditorium was rented by the day and night, and for successive days and nights when asked for, and the rental, if any, paid.

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