Jonesboro Area Athletic Ass'n, Inc. v. Dickson

• Decision Date: 22 April 1971
• Docket Number: No. 26378,26378
• Citation: 227 Ga. 513,181 S.E.2d 852
• Parties: JONESBORO AREA ATHLETIC ASSOCIATION, INC. v. D. Hugh DICKSON et al.
• Court: Georgia Supreme Court

Page 852

181 S.E.2d 852

227 Ga. 513

JONESBORO AREA ATHLETIC ASSOCIATION, INC. v. D. Hugh DICKSON et al.

No. 26378.

Supreme Court of Georgia.

April 22, 1971.

Syllabus by the Court

1. The complaint did not show as a matter of law that the lease of the defendant city's property to the plaintiff private corporation was unauthorized and invalid on either of the contended grounds, i.e., (a) that the property was dedicated to a public use at the time it was leased or (b) that the lease bound the then-existing city council or its successors so as to prevent free legislation in matters of municipal government (Code § 69-202).

2. If the lease was valid, its purported, allegedly unilateral, cancellation by the defendant city could be found to be unauthorized, hence void. The lessee's complaint stated a claim for injunctions prohibiting the cancellation of the lease, interference with the possession and use of the premises, and negotiating with or leasing the premises to any other party; therefore, the motion to dismiss was improperly sustained.

The plaintiff nonprofit corporation brought an action as lessee against the governing authorities of the City of Jonesboro, lessor, seeking temporary and permanent injunctions prohibiting the defendant city from canceling its 5-year lease (renewable for 5 additional years) of an athletic field situated in and owned by the said city, from interfering in any way with plaintiff's possession and use of the premises and from negotiating with or leasing the premises to any other party. The original complaint alleged that, in 1967 when the lease was executed, 'the property was in generally a run-down condition, containing only a lighted football field, a concrete grandstand; also rest rooms, and a ticket office which were not usable. At that time, there were no organized programs on this field except those of the Jonesboro Junior High School.' (Emphasis supplied.) By amendment, the latter sentence was stricken and replaced with the allegation that, at that time, 'the City of Jonesboro was not using the aforesaid property for any public purpose.' (Emphasis supplied.) The complaint as amended further alleged to the following effects: That the plaintiff operates a supervised, competitive, athletic recreational program, consisting of baseball, softball and football, which is open to all children in the Jonesboro area from ages six through fifteen years, regardless of race or national origin and in which some 644 children now participate; that the lease, which is attached as an exhibit, was for an annual rental of $1.00; that plaintiff had complied with the terms of the lease in every respect since its inception in 1967 (some 2 1/2 years) and had made substantial improvements, valued at over $25,000, to the property in reliance thereon; that, at a meeting of the plaintiff's board of directors on March 31, 1970, a motion to request the city to accept cancellation of the lease was defeated by a tie vote; that someone conveyed without authority the purported, yet unofficial, minutes of said meeting to the defendants, who thereafter called a meeting on April 24, 1970, at which they adopted a resolution 'to accept cancellation of said lease as requested by the Board of Directors' of the plaintiff corporation 'per letter dated March 16, 1970' (which letter is not in the record in this case); (the resolution, attached as an exhibit, shows that, immediately thereafter, the defendants voted to offer a lease to 'both groups,' which a letter in the record from the defendant mayor showed referred to the plaintiff and a rival organization, which allegedly desires to lease the said property and of which the three directors of plaintiff who voted in favor of the resolution to cancel the lease were members); that the lease contains no provision for, and plaintiff had not consented to, its cancellation; that the plaintiff's contended payment of the annual rental for the year 1969 is apparently contested by the defendants, but that plaintiff tendered this amount to the defendants prior to their passage of the resolution to cancel the lease, and continues said tender.

The trial court sustained the defendants' motion to dismiss, from which judgment the plaintiff appeals.

Wesley R. Asinof, A. Ed Wallace, Atlanta, for appellant.

Hutcheson, Kilpatrick, Watson, Crumbley & Brown, Joe C. Crumbley, Lee Hutcheson, Jonesboro, for appellees.

FELTON, Justice.

1. We must first determine whether or not the City of Jonesboro had lawful authority to enter into this lease contract. The contention of the defendants is that the act of the municipality was ultra vires, hence void, for the reasons that (a) it was an attempt to appropriate to private purposes property dedicated by the municipality for public purposes, and (b) it violated the prohibition of Code § 69-202, that 'One council may not by an ordinance bind itself or its successors so as to prevent free legislation in matters of municipal government.'

(a) 'There appears from the authorities to be a clear distinction between property purchased by a municipal corporation and held for use by it as an entity, or in its proprietary capacity, and property purchased by the city for the public use and benefit of its citizens. The title and power of disposition of property acquired for strictly corporate purposes and held in its proprietary capacity, are different from its title to property acquired for and dedicated to the public use of its inhabitants. As to the former, the power to dispose its unquestioned, but as to the latter, in the absence of express legislative authority, it is only where the public use has been abandoned or the property has become unsuitable or inadequate for the purpose to which it was dedicated that the city has power to dispose of such property.' (Emphasis supplied). Norton v. City of Gainesville, 211 Ga. 387, 390, 86 S.E.2d 234, 237, citing Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396. See also City Council of Augusta v. Newsome, 211 Ga. 899, 89 S.E.2d 485; Harper v. City Council of Augusta, 212 Ga. 605, 94 S.E.2d 690.

It must first be determined in what capacity, proprietary or governmental, the City of Jonesboro was holding the property at the time of the lease. The original complaint alleged that the property was being used at that time for recreational activities of the junior high school. While this was stricken by amendment and replaced by the allegation to the effect that it was no longer being used by the municipality for public purposes, it does indicate the possibility that the parties, under the new rules of pleading and practice, can prove whether or not the property had in fact been dedicated to a public use and also whether or not such use had been abandoned at the time of the lease or the property had become unsuitable or inadequate for the purpose to which it was dedicated. While the establishment of recreational systems by municipalities is not mandatory, Code Ann. § 69-612.2 (Ga.L.1963, pp. 553, 555), it is in the interest of the health and general welfare, Code Ann. § 69-312 (Ga.L.1962, pp. 140, 143). 'In the absence of charter authority to the contrary the maintenance of a park by a municipality is a governmental function * * *.' Stubbs v. City of Macon, 78 Ga.App. 237(2a), 50 S.E.2d 866. The trial court sustained the defendants' motion to dismiss, indicating that no evidence was heard on the interlocutory injunction hearing. The factual issue of the status of the property when leased must be determined by evidence adduced at a hearing in order for the merits of the plaintiff's claim to be adjudicated.

If it is subsequently proved that the City of Jonesboro had dedicated the property to the public's use, which use had not been abandoned, was there express legislative authority, in the form of statutory or charter power, to lease it to private individuals? It is significant that our General Assembly gave municipalities such power by Ga.L.1956, p. 22, but specifically repealed that Act by Ga.L.1958, p. 116. Section 1 of the defendant city's charter (Ga.L.1919, p. 1067) provides in part as follows: '* * * (T)he said City of Jonesboro created by this Act may * * * contract and be contracted with, * * * make and enact through its mayor and council, such * * * resolutions, for the transaction of the business and the welfare and proper government of said city as to the said city council may seem best, and which shall be consistent with the laws of the State of Georgia and of the United States, and said City of Jonesboro shall be able by law and is hereby authorized and empowered to purchase, hold, rent, lease, sell, exchange, possess and retain in perpetunity, or for any number of years, any estate or estates, real or personal, lands, tenements and hereditaments of all kinds whatever, within or without the limits of said city, for corporate purposes. They shall have special power in its corporate capacity to make all contracts which they may deem necessary for the welfare of the city or its citizens; * * *.' (Emphasis supplied). Under the above-quoted portion of the charter, 'the municipality, acting in its proprietary capacity, would be authorized to rent or lease real estate belonging to it, for any valid and sufficient consideration within the objects of its incorporation.' (Emphasis supplied.) Aven v. Steiner Cancer Hospital, 189 Ga. 126(3), 5 S.E.2d 356. The wording of the charter, however, falls short of authorizing such disposition of property held in its governmental capacity for the public use. Cf. McPherson v. City of Dawson 221 Ga. 861, 148 S.E.2d 298. We find no other statutory authority authorizing such disposition. Nor could the operation of the facility by the...