Henry v. Grainger Co.

^* As to power to lease of public buildings for private use, see annotation in 33 L.R.A. 118; 31 L.R.A. (N.S.) 580; 7 R.C.L. 948; 2 R.C.L. Supp. 480. The complainant's bill avers that he entered into a contract with Grainger county, whereby the county undertook to lease to him a certain lot in the town of Rutledge for the purpose of building and operating a filling station. The lease was to be for a term of five years with the privilege of renewal for a period of one year to twenty-five years additional at a rental of $100 per year, payable monthly. It is further alleged that the complainant made two or three monthly payments, but that the county delayed to execute a formal lease and finally repudiated the contract altogether. The bill prays for specific performance, or, in the alternative, for damages for breach of contract. A demurrer was interposed by the county which the Chancellor sustained and the complainant has appealed.

There were several grounds of demurrer but the Chancellor based his decree on the proposition that the contract was ultra vires — beyond the power of the county court of Grainger county. Since we think this conclusion of the Chancellor was correct, it is not necessary to consider other questions made by the demurrer.

While the bill is not so definite and full in its statements as might be desired, we gather therefrom that about twenty-five years ago Grainger county purchased a lot in the town of Rutledge as a site for the courthouse. It seems this lot is located on the main highway or street passing through the town; that the courthouse was erected thereupon; that all the lot has not been used as a courthouse yard. There is a fence enclosing part of the lot around the courthouse, but not all, and it is that portion of the lot not presently enclosed which the complainant proposed to lease. We infer from the bill that the entire lot was purchased for a courthouse yard, but so far not all of it has been so used. That portion outside the fence has been used as a hitching place for horses and a parking place for automobiles, and the county has derived no revenue therefrom.

Our county courts have only such powers as are vested in them or intrusted to them by Statute. Railway Co. v. WilsonCounty, 89 Tenn. 597; Re-Districting Cases, 111 Tenn. 234;State ex rel. v. True, 116 Tenn. 294; Shelby County v.Memphis Abstract Co., 140 Tenn. 74; State ex rel. v.Turnpike Co., 151 Tenn. 150.

It is urged by the complainant that section 496, Thompson's-Shannon's Code (Code of 1858, section 404), confers authority upon the various counties to enter into such contracts as the one here sought to be set up. This section of the Code is as follows:

"Each county may acquire and hold property for county purposes, and make all contracts necessary or expedient for the management, control, and improvement thereof, and for the better exercise of its civil and political powers; may make any order for the disposition of its property, and may do such other acts and exercise such other powers as may be allowed by law."

Other sections of the Code authorize the erection of courthouses, jails and other necessary county buildings by the several county courts, regulate the purchases of sites for such buildings, and the nature and custody of such buildings. Thompson's-Shannon's Code, sections 500-506 (Code of 1858, sections 408-413). By section 506, Thompson's-Shannon's Code (Code of 1858, section 414), provision is made for the sale of a courthouse or jail under certain circumstances and the purchase of another site and the erection of a new building. Section 6044, Thompson's-Shannon's Code (Code of 1858, section 4214), provides that the county court may "erect or control and dispose of public county buildings as provided in sections 500-506."

Does the license to make "any order for the disposition of its property," "for the better exercise of its civil and political powers," or "as may be allowed by law," justify a county court in undertaking to lease part of the courthouse yard for a filling station?

This is a fair test to be applied to the case before us. While the lot involved is not now enclosed as part of the courthouse yard, it was bought for that purpose, and immediately adjoins the enclosure. The bill intimates, and the court knows, that this section of the state is developing rapidly and it is practically certain, as the county of Grainger and town of Rutledge grow, a more extensive green will be required around the courthouse. No temporary and incidental lease is here proposed, but a contract by which property bought for a public use may be withheld from that use for a period of thirty years. In this particular the case is to be distinguished from cases in other jurisdictions relied on by complainant.

Shelby County v. Memphis Abstract Company, is really decisive of the controversy presented. In that case the court considered the right of Shelby county to rent to the Memphis Abstract Company space for the use of employees of that company in the Register's Office, and said:

"We fail to find any statutory power granted to the quarterly county court or to the county commissioners of Shelby county to lease any part of the space in the offices designated for the use of county officials, and we think it clear that no such authority exists. The power, if existent, on exercise would give the lessee the right to control the space leased to him or it to the exclusion of other members of the public, and the leases could be multiplied, resulting in the serious embarrassment of others whose rights to use the registry rooms and equipment cannot be denied. . . . County building and their equipment are public property, held by the county, but in trust for the public use. 7 R.C.L., 948; State v. Hart, 144 Ind. 107, 43 N.E. 7, 33 L.R.A. 118, and note; ___ v. DeKalb County,130 Ga. 488, 61 S.E. 23.

"Any rule other than the one we declare would lead to entanglements and abuses against which the public should be protected as a matter of public policy. As pointed out by the Court of Civil Appeals, the moment rent is charged and collected, special privileges arise, and, too, in a place where equal privilege must prevail."

The same rule should be applied to the disposition of the courthouse yard, in our opinion, as to the space within the courthouse. In this climate, for the greater part of the year, the yards around our courthouses are not less used nor less necessary than the interior of such buildings.

Speaking of the importance of preserving for the public use the park surrounding the courthouse a learned judge of a neighboring State said:

"Upon its green grass, under the shade of its trees, our people have thus met time out of mind and rested during the sessions of the courts. Suitors, jurors, witnesses, instead of being tied down to benches in the hot, crowded courtroom, repair there to await the crier's call. There, too the children play. It is a park for the poor who have not the rich man's lawn. And where shall be held, in the hot summer, those great meetings of the people in the political canvass to hear the orators? How valuable within the experience of all of us is the courthouse ground for this important purpose." Keatley et al. v. County Court ofSummers County et al., 70 W. Va. 267, Anno Cas., 1913E, 523.

In the case just cited the court sustained the sale of part of the courthouse yard to the United States Government for the erection of a Federal building. The quotation is from a dissenting opinion. Consideration of the majority opinion satisfies us that the West Virginia court would not have agreed to a lease of part of the courthouse yard for a filling station. One reason for locating court buildings in ample grounds is to remove them from the noise of the streets to the end that the deliberations of the courts may be less disturbed. For the county to sanction the location of a filling station on such premises seems to us an actual perversion of the uses for which the premises were acquired. It has been argued by counsel in this court on more than one occasion that a filling station is a nuisance in a residential section. It certainly is a noisy and odorous enterprise, and has no place on public property in immediate proximity to courts of justice in session.

The decree of the Chancellor is affirmed and the bill dismissed.