Meinschein v. J. R. Short Milling Co.

• Decision Date: 19 July 1973
• Docket Number: No. 1--173A11,1--173A11
• Citation: 157 Ind.App. 53,298 N.E.2d 495,37 Ind.Dec. 504
• Parties: George MEINSCHEIN, Defendant-Appellant, v. J. R. SHORT MILLING CO., Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 495

298 N.E.2d 495

157 Ind.App. 53

George MEINSCHEIN, Defendant-Appellant, v. J. R. SHORT MILLING CO., Plaintiff-Appellee.

No. 1--173A11.

Court of Appeals of Indiana, First District.

July 19, 1973.

Gary L. Gerling, Rodney H. Grove, Ralph E. Moore, David O. Kelley, Gerling, Grove & Moore, Evansville, for defendant-appellant.

Harry P. Dees, Joseph A. Yocum, Thomas O. Magan, Kahn, Dees, Donovan & Kahn, Evansville, for plaintiff-appellee.

LOWDERMILK, Judge.

This action was commenced by a complaint in two legal Paragraphs naming the defendant-appellant, the City of Mt. Vernon, Indiana, together with the mayor and members of the Common Council thereof as defendants. The first Paragraph prayed that Ordinance No. 1301 of said city and a certain lease executed pursuant thereto be declared illegal, unlawful and void and that the defendants be enjoined from exercising any rights thereunder.

The prayer to the second legal Paragraph of complaint asked for the same relief.

The cause was submitted to the court and all defendant except defendant-appellant herein were called and defaulted. The cause was submitted to the court upon stipulation of facts and no other evidence was offered.

Prior to the submission plaintiff-appellee amended the prayer of Count 2 to include in the prayer that 'the Powers of Cities Act' be declared unconstitutional. The court entered its special findings of fact and conclusions of law and rendered judgment thereon for the plaintiff-appellee, holding therein that the lease by the city to the defendant was void on statutory grounds.

The evidence discloses that the City of Mt. Vernon, pursuant to a special ordinance, entered into a lease agreement with appellant, whereby appellant could use river front property for a marina operation; the city would close certain streets on certain specified days and also on other days at appellant's request.

The primary issue in this appeal is whether the city had statutory power to enter into the lease created by the ordinance. Powers of cities are created and limited by statute, with the prevailing law being Ind.Stat.Ann. § 48--1451 et seq. (Burns 1963 Replacement) IC 1971, 18--1--1.5--1 et seq. (Powers of Cities Act.)

Under the Powers of Cities Act, it would appear that a city might use (and, naturally, lease) its property as it sees fit.

'48--1452, IC 18--1--1.5--2 Corporate and procedural powers--A city shall have power to establish and operate a government for the purpose of carrying out its powers and functions. The power to establish, control and operate a government shall include, but not be limited to, the power to:

(d) Use, protect, maintain and dispose of interests in real or personal property owned by the city;

* * *'

Cities are granted residual powers to exercise their discretion as long as the power used or action taken is not specifically limited by statute, unlawful, or unconstitutional. (Burns § 48--1466, IC 1971, 18--1--1.5--16) The powers of cities are to be construed liberally with all doubts resolved in favor of the city. (Burns § 48--1473, IC 1971, 18--1--1.5--23)

Generally, no other law will pre-empt the Powers of Cities Act, with the following exception:

'48--1474, IC 18--1--1.5--24 Pre-emption rules.--

(b) Except as otherwise provided in this chapter ( §§ 48--1451--48--1480), no law of the general assembly approved before the effective date of this chapter shall be construed as indicating the intention of the general assembly to preempt the subject of such law or to occupy the field in which such act operates, so as to deny or supersede the power of any city of enact an ordinance or exercise a power dealing with the same subject matter, unless such law contains an express provision indicating such intention or unless the terms and provisions of such law are so comprehensive as to completely occupy the field of such subject matter, and clearly indicate the intention of the general assembly to preclude any action by a city relating to the same subject matter. Any state law whose provisions are mandatory and obligatory upon a city or upon any officers thereof shall be deemed to pre-empt the subject matter of such law and such law shall indicate the intent of the general assembly to occupy the field in which such law operates.'

The trial court found that the lease in question was prohibited by a statute which falls within the pre-emption rule above. The controlling statute reads as follows:

'48--6938, IC 18--5--29--1 Lease of unused city-owned real estate--Purpose.--Any city of the fifth class owning real estate which is no longer used for municipal purposes may lease all or part of the right, title and interest of any such city in any to such real property to any private not for profit corporation or organization located in any such city, for the purpose of conducting recreational activities and making improvements thereon for such purposes without obligation to the city and subject to approval by the common council of the city.'

It is appellant's position that Burns § 48--6938 is permissive in nature and not mandatory and only defines one possible leasing situation, while the Powers of Cities Act grants much broader powers to lease and is controlling in this case. Appellant in his brief cites many cases discussing statutory interpretation. However, it is necessary that this court interpret these statutes to determine if the trial judge's findings and conclusions are correct.

It is our opinion that § 48--6938 expresses a legislative intent to completely occupy the field of the subject matter and precludes any action by a city relating to that subject matter for the following reasons:

(1) The Powers of Cities Act, passed in 1971, did not specifically repeal § 48--6938, duly enacted into law just two years earlier in 1969;

(2) The Powers of Cities Act speaks generally of 'use' of land, while § 48--6938 deals specifically with the leasing of land;

(3) The Powers of Cities Act applies generally to all classes of cities, while § 48--6938 specifically refers to cities of the fifth class and is the only such class limitation in...