City of Coral Gables v. Hepkins , 107 Fla. 778 ( 1932 )

Upon a reconsideration of this cause on petition for rehearing the writer is inclined to the view that we were in error in holding in the original opinion that the property in question could not be levied upon because it was purchased by the city with the proceeds of a bond issue floated for a municipal purpose. The test is the nature of the municipal purpose for which the property was acquired, and the use to which the property is put or the use or purpose for which it is in good faith being held. Whether a city purchases property with general funds on hand in its treasury, or whether it purchases property with money raised by a bond issue, is, I believe, immaterial to the question involved in this case. There are many ways in which a city may acquire property. 43 C. J. 1337. The method is not so important. It is the purpose which controls. I am inclined to concur in the special concurring opinion heretofore filed herein by MR. JUSTICE ELLIS in that regard. While it is true that a city cannot lawfully purchase any property for other than a municipal purpose of some sort, whether that purpose be private and proprietary or governmental and public, it may, within the limits of its charter powers, acquire property, and hold it, in either of these capacities. 43 C. J. 179-184, 1333-4. If it acquires and holds or uses property for governmental purposes, such property is not subject to levy and sale under execution, but as to property acquired, or held and used by it purely in its private or proprietary capacity, unconnected with any governmental or public use or function, such exemption from levy and sale to satisfy a judgment does not apply, regardless of the means used by the city to acquire the property, whether it be by bond issue or purchase for cash.

In 19 R. C. L. at page 1050 it is said:

"It is well settled that when a creditor has secured judgment against a municipal corporation, and taken out execution, he cannot levy upon property of the corporation which is devoted to public uses, such as public buildings, streets, squares, parks, promenades, wharves, landing places, fire engines, hose and hose carriages, engine houses, engineering instruments, and generally everything held for better known purposes or upon the general revenues of a corporation or upon funds devoted to any of the foregoing purposes. This rule is based upon obvious principles of public policy, and is not a peculiar or special privilege of municipal corporations, and consequently does not extend to property of a municipal corporation which is held by the corporation in its private or proprietary capacity and is not devoted to any public use."

In 23 C. J. 355, it is said:

"Where property of a municipal or other public corporation is sought to be subjected to execution to satisfy judgments recovered against such corporation, the question as to whether such property is leviable or not is to be determined by the usage and purposes for which it is held. The rule is that property held for public uses, such as public buildings, streets, squares, parks, promenades, wharves, landing places, fire engines, hose and hose carriages, engine house, public markets, hospitals, cemeteries, and generally everything held for governmental purposes, is not subject to levy and sale under execution against such corporation. The rule also applies to funds in the hands of a public officer. Likewise it has been held that taxes due to a municipal corporation or county cannot be seized under execution by a creditor of such corporation. But where a municipal corporation or county owns in its proprietary, as distinguished from its public or governmental capacity, property not useful or used for a public purpose but for quasi-private purposes, the general rule is that such property may be seized and sold under execution against the corporation, precisely as similar property of individuals is seized and sold. But property held for public purposes is not subject to execution merely because it is temporarily used for private purposes, although if the public use is wholly abandoned it becomes subject to execution."

See also Dillon on Municipal Corporation, Volume 2, page 572, and 20 American and English Encyclopedia of Law, 1190.

Even if it be admitted that the City of Coral Gables had the power under its charter to acquire by purchase from the Coral Gables Corporation the nine hole golf course and club house connected therewith, containing locker rooms, shower baths, and so forth, it appears that for some time prior to the levy of the execution, the club house had been leased out to a private individual for the purposes stated in the original opinion, and it also appears that the city had erected a small building for locker rooms on a part of the golf course itself, and that thereafter the premises in question in this case "were not used in connection with golf." (See agreed statement of facts, page 11 of transcript). If this were all that appeared in the record, the holding of the lower court that this particular property was at the time of the levy of the execution private property of the municipality, held for purposes of income unconnected with any governmental use or function, and was therefore subject to the execution, might be upheld. See Darlington vs. Mayor of New York, 31 N.Y. 164, 84 Am. Dec. 248; Beadles v. Fry (Okla.), 2 L.R.A. (N.S.) 855; Meriwether v. Garrett,102 U.S. 472, 26 Law. Ed. 197, 206; Murphree v. Mobile,108 Ala. 663, 18 So. 740.

I hardly think that this position is inconsistent with the opinion of MR. JUSTICE DAVIS in the case of Little River Bank Trust Company vs. Johnson, 105 Fla. 212, 141 So. 141, wherein it was said:

"The property of a public corporation acquired by it for public purposes, and in its capacity as a governmental agent, is held in trust for the public for the uses and purposes for which acquired. City of Alton v. Illinois Transp. Co., 12 Ill. 38, 52 Am. Dec. 479; City of Oakland v. Oakland Water Front Co., 118 Cal. 160, 50 P. 277; City of Salem v. Lane, 90 Ill. App. 560; Egerton v. Third Municipality, 1 La. Ann. 435; Carter v. State, 42 La. Ann. 927, 8 So. 836, 21 Am. So. Rep. 404; Darling v. Mayor, etc., of City of Baltimore, 51 Md. 1.

Trust property owned by a municipality and held for public purposes cannot be reached by process and sold to satisfy its debts any more than can any other trust property be sold to satisfy individual debts of any other trustee. Ransom v. Boal, 29 Iowa 68, 4 An. Rep. 195. A judgment against a municipality, therefore, in the absence of express statutory provisions, cannot be enforced by execution; neither is it a lien upon any of its property. Weaver v. Ogden City (C. C.) Ill. F. 323; Meriwether v. Garrett, 102 U.S. 472, 26 Law. Ed. 197. Nor can private property of the inhabitants of a municipality be seized under execution for its debts. City of Chicago v. Sansum, 87 Ill. 182; Emeric v. Gilman, 10 Cal. 404, 70 Am. Dec. 742; Lockard v. Board of Com'rs of Decatur County, 10 Kan. App. 316, 62 P. 547; Alter v. State, 62 Neb. 239, 86 N.W. 1080.

"This principle has been universally adopted on the grounds of public policy, since it is not considered permissible or advisable that the state or its governmental subdivisions should be hampered or prevented through a loss of its public property from exercising its public powers or carrying out its governmental functions. It has, however, been modified to some extent by confining its application to property absolutely essential to the existence of the public corporation, or necessary and useful to the exercise and performance of governmental powers, or the performance of governmental duties. City of New Orleans v. Home Mutual Life Ins. Co., 23 La. Ann. 61; Darlington v. City of New York, 31 N.Y. 164, 88 Am. Dec. 248; Mayor etc., of City of Birmingham v. Rumsay, 63 Ala. 352."

It is settled in this State that the Legislature may authorize municipalities to purchase and maintain golf courses in the interest of the local public, thereby declaring this to be a municipal purpose. City of Bradenton v. State, 102 So. 556, 88 Fla. 381. It was said in the opinion in that case that this might be done "to further a commendable policy in conserving the general welfare, of encouraging the development and use of the pleasure and health-giving attributes of the State that make Florida a blessing to residents and peculiarly attractive to those who live elsewhere." It would seem therefore, that in the acquirement and holding of property for the construction or maintenance of a golf course, and the building, equipment and conveniences which usually go with such properties, such as club houses, locker rooms, dining rooms, etc., a municipality is not engaged in a purely private or proprietary function or business, entirely unconnected with any public or governmental function. The exercise of this power is closely akin to the power of owning and maintaining public parks. However, I gather from the authorities that if property acquired by a city for legitimate municipal and public purpose is afterwards put to another and different use and the original public purpose for which the property was acquired is permanently abandoned and the property is held by the city purely in its proprietary and private corporate capacity, entirely disassociated from any governmental or public use, such property then becomes subject to the levy of an execution. However, a mere temporary use of the property for a purpose other than that for which it was acquired would not have this effect. As it was said in 20 C. J. 355, "But property held for public purposes is not subject to execution merely because it is temporarily used for private purposes, although if the public use is wholly abandoned it becomes subject to execution." See City of New Orleans vs. Werlein (La.) 24 So. 232; Klein vs. City of New Orleans, 99 U.S. 149, 25 Law. Ed. 430. In the last cited case it was held that the mere fact that land held by a municipal corporation for a public purpose was being rented out to private parties, the ground rents becoming meanwhile a part of the public revenues, would not render the land liable to be levied on and sold under execution.

Although it appears that the property levied on in this case, the lot on which the club house stood, was being leased by the city to a private individual for profit, it does not clearly appear from the record that it was the purpose or intention of the city to permanently abandon the use of such club house, or the ground on which it rested, as appurtenant to and in connection with the operation of the golf course, which was the original public purpose for which it was acquired. Indeed, the agreed statement of fact upon which the case was tried contains this statement: "Although the City of Coral Gables is not now operating said property, it may, if it deems it advisable, upon the termination of the present lease, make such other leases as it desires, or may itself operate said Club as it formerly did."

It is quite possible that during these past few years, when many of our municipalities have been financially embarrassed, they have had to resort to the temporary expedient of renting out for private use properties acquired and designed for legitimate public purposes, in order to replenish to some extent the depleted revenues of such distressed municipalities. They should not be penalized for this unless it is made to appear that the public use of the property has in fact been abandoned, not merely temporarily, but to all intents and purposes, permanently so.

For these reasons I concur in the judgment heretofore rendered by this court but I am inclined to think that our original opinion should, on this petition for rehearing, be amended and modified in the respects above pointed out, and upon such modification being made that the petition for rehearing should be denied.