Summary
In State ex rel. v. City of Cleveland, 125 Ohio St. 230, 181 N.E. 24, 86 A.L.R. 1172, the relator, as a mamber of the public, sought to require the municipally owned music hall to be leased to him for presenting a theatrical performance on the theory that it was public property.
Summary of this case from City of Columbus ex rel. Falter v. Columbus Metro. Hous. Auth.Opinion
No. 23529
Decided April 28, 1932.
Municipal corporations — Proprietary acts exercised same as by other like proprietors — Public hall or assembly room, not public utility — Rental, use and occupancy within control of municipal officers.
1. A municipality, in so far as it acts in a proprietary capacity, possesses the same rights and powers and is subject to the same restrictions and regulations as other like proprietors.
2. A public hall or assembly room owned by a municipality is in no sense a public utility, and the rental, use and occupancy thereof are within the power and control of the municipality acting through its public officers to whom such duties and powers have been duly delegated.
ERROR to the Court of Appeals of Cuyahoga county.
This action was instituted in the Court of Appeals of Cuyahoga county, by the relator, George White, who says that he is a resident and citizen of the state of New York, engaged in the business of originating, developing and presenting theatrical and musical performances for the amusement and entertainment of the public. The action is brought against the city of Cleveland, Ray T. Miller, mayor of said city, and Elmer E. Adams, commissioner of the Cleveland auditorium and stadium. The relator seeks a writ of mandamus commanding the defendants to execute a lease to the relator for the use of the public music hall of the city of Cleveland during a specified week, for the purpose of therein presenting the "George White's Scandals," on the terms and conditions generally required of lessees of said public hall, and further commanding the defendants to permit the relator to present said performance during the period specified "without hindrance and under their protection." The cause was submitted to the Court of Appeals upon a stipulation of fact.
The facts essential to a consideration of the legal question presented are as follows: Ray T. Miller is the duly elected, qualified and acting mayor of the city of Cleveland, and as its chief executive officer is charged, among other things, with the duty of administering the property belonging to said municipality and conducting the business incident thereto. Elmer E. Adams is the duly appointed and acting commissioner for the Cleveland auditorium and stadium, owned and operated by the city of Cleveland, and charged with the performance of duties as required by the ordinance of the city of Cleveland and the resolution of the Board of Control. The relator, George White, is a resident and citizen of the state of New York, engaged in the business of originating, developing and presenting theatrical performances. The Cleveland auditorium was erected with the public funds, and one of its sections is known as public music hall and is "equipped for theatrical, musical, orchestral, spectacular, concerts and other performances as well as being adapted to civic meetings, public gatherings and functions."
The relator submitted to said Elmer E. Adams a proposal offering to take a lease on said public music hall for a period of one week, beginning Sunday, May 1, and ending May 7, 1932, for the purpose of presenting the theatrical performance known as "George White's Scandals," a type of performance usually presented as a commercial enterprise in privately owned theatres in the city of Cleveland, and, although the public music hall was not then and is not now under lease for the period of time stated, the defendants refused to rent it to relator, and acting under a claimed right of discretion based their refusal on the fact that the public music hall was built by the citizens of Cleveland as a monument to the ideals of said city, and dedicated to social progress, industrial achievement and civic interest, and that in accordance with the policy adopted said public music hall should not be used in commercial competition with privately owned legitimate theater properties in the city of Cleveland. The Cleveland auditorium comprises various divisions including assembly rooms in addition to the so-called public music hall.
The Board of Control of the city of Cleveland, in accordance with the provisions of the Municipal Code of that city, has adopted a fixed schedule of rates for the various rooms and portions of the public auditorium which is set forth in the agreed statement of facts.
The Court of Appeals denied the writ and dismissed the petition of the relator, whereupon a petition in error was filed in this court in which relator seeks a reversal of the judgment of the Court of Appeals.
Mr. S.J. Kornhauser, for plaintiff in error.
Mr. W. George Kerr, director of law, and Mr. Anthony R. Fiorette, for defendants in error.
The relator in his demand for a lease of the public music hall of the Cleveland auditorium and in his application for a writ of mandamus to compel the execution of such lease proceeds upon the theory that it is the absolute right of any applicant who proposes to meet the general terms prescribed for the use of such hall to have a lease thereof for the period designated.
The question presented must be disposed of upon that theory. The relator, being a citizen of the state of New York, and neither a citizen nor a taxpayer of the city of Cleveland, cannot be heard to urge the cause of Cleveland taxpayers and demand the use of such hall upon the claim that the city officials in charge of the auditorium by their policy of management will cause the city to suffer a loss of revenue. The Cleveland auditorium was built by funds derived from bond issues authorized by vote of the electors of that city, and is under the complete control of the city, through its duly designated officers, to whom such duties are delegated. The city in this respect is acting in a proprietary capacity and has the same duties, obligations and responsibilities, and also the same rights and powers, as other like proprietors. Travelers Ins. Co. v. Village of Wadsworth, 109 Ohio St. 440, 142 N.E. 900, 33 A. L. R., 711.
Apparently conceding the proprietary capacity of the city in respect to ownership, control and operation of the public music hall as well as other portions of the auditorium, counsel for the relator asserts that such building is in the nature of a public utility, and that in its operation the city must accord to all who may apply therefor the use and service of said public music hall upon like terms and conditions, and that a denial of his application results in a discrimination or preference, which is unlawful. There is no substantial basis for this claim.
Counsel for relator argues that, where a railroad company establishes rates and commutation tickets, refusal to sell certain individuals tickets under the same circumstances and upon the same conditions as such tickets are sold to the rest of the public is an unjust discrimination for which mandamus will lie. This analogy, however, can only apply to tickets of admission to the public music hall. Undoubtedly a railroad company may control its buildings and is not required to execute leases for space therein to any and all applicants.
This public music hall is devoted to no governmental purpose, and is not employed in carrying on or maintaining any governmental function. The relator relies upon the provisions of Section 159-1 of an ordinance of the city of Cleveland, which provides that the Cleveland auditorium and stadium shall be administered and controlled by "the commissioner of the Cleveland Auditorium and Stadium." It provides that "he shall have power from time to time to enter into contracts with persons desiring to lease such Cleveland Auditorium * * * or parts of either, under such rules as may be established by the board of control." Relator seems to construe this provision as a requirement on the part of the commissioner to lease such auditorium or any part of it to whomsoever may apply. It clearly appears from the agreed statement of facts that a policy with reference to the leasing of this public music hall has been adopted which precludes the leasing thereof for theatrical performances such as are usually provided for by privately owned theatres in the city of Cleveland, and that is the basis of the refusal to permit the relator to have the use of the public music hall.
In our opinion there can be no question that the rental, use and occupancy of the auditorium and any part thereof, are within the power and control of the municipality, acting through its public officers to whom such duties and powers have been duly delegated.
The Court of Appeals properly refused the writ of mandamus, and its judgment is affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, DAY, ALLEN, KINKADE and STEPHENSON, JJ., concur.