Opinion
No. 33280.
November 28, 1938.
1. MUNICIPAL CORPORATIONS.
An order reciting that municipal board after consideration of the need of better fire equipment ordered clerk to advertise for bids on a specified make of fire truck with pump attachments, and subsequent order reciting that after consideration of bids it was ordered that city purchase that brand of fire truck with pump attachments were insufficient to effectuate a valid sale.
2. MUNICIPAL CORPORATIONS.
Where there is no actual corruption, and transaction with city for purchase of machinery is within the objects authorized by law but contract is void for want of compliance with legal requirements in making thereof, alleged seller may recover the property as long as it is within reach of the processes of replevin or other appropriate action.
3. MUNICIPAL CORPORATIONS.
Where there is no actual corruption, and transaction involving alleged sale of machinery to city is within the objects authorized by law but contract is void for want of compliance with legal requirements in making thereof, alleged seller may recover a reasonable compensation for use of the machinery.
4. MUNICIPAL CORPORATIONS.
Unless a statute contains some express or implied restraint, a municipality has reasonable discretion in choice of means or methods for exercising powers given it by statute for a public purpose.
5. MUNICIPAL CORPORATIONS.
The alleged seller of fire truck and equipment to city was entitled to recover reasonable compensation for its use where contract of purchase was void for noncompliance with requirements in making thereof, notwithstanding alleged contract might be deemed an attempt to create an interest-bearing debt without authorization of electors at an election, since in absence of statutory prohibition city could be regarded as a lessee of the equipment, but city was entitled to credit on lease compensation for sums theretofore paid as purchase money (Code 1930, secs. 2391, 2428, 5978).
6. MUNICIPAL CORPORATIONS.
A statute giving a municipality broad power to purchase and hold real and personal property empowers the city to lease such property unless there is in the very nature of the use and control of the property an implied inhibition against a lease (Code 1930, sec. 2391).
APPEAL from the chancery court of Neshoba county; HON. J.D. GUYTON, Chancellor.
Wilbourn, Miller Wilbourn, of Meridian, for appellant.
Appellee cannot avail itself of any want of demand for the return of the fire equipment prior to suit for the following reasons: a. Until the suit was actually filed, appellee had not given notice of any claim that the sales contract was invalid, had not repudiated the purchase, nor itself offered to restore the property, but still held possession, declining to pay without assigning a reason. b. There was no express contract right to repossess without suit under the contract for mere default in payment of purchase price. True, the appellant had the right, assuming the contract were valid, to institute a replevin suit, or to sue for the debt, or to proceed in equity to foreclose the chattel mortgage, which in legal effect was the nature of that contract. The contract not having been repudiated, appellant had the right to proceed to foreclose its lien, as appellee retained possession, but refused to pay, and to do so without futher demand. Chancery Court has jurisdiction to foreclose liens.
Ross v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Alexander v. Houston, 31 So. 211.
Contracts such as Exhibit A are conditional sales contracts with reservation of title as security for price. As such, the contract here involved is a chattel mortgage.
Hunter v. Crook, 93 Miss. 810, 47 So. 431; Rodgers v. Whitehead, 89 So. 779, 127 Miss. 21; Rederich v. Wolfe, 68 Miss. 500, 9 So. 350; Duke v. Shackleford, 56 Miss. 552; Bankston v. Hill, 134 Miss. 288, 98 So. 689; Federal Credit Co. v. Boleware, 142 So. 1.
The debt being past due and payment thereof refused, the right to foreclosure had accrued. No demand was necessary.
11 C.J. 720, sec. 532; Dearing v. Ford, 13 S. M. 269; Sackler v. Slade, 148 Miss. 575, 114 So. 396; Newell v. Newell, 34 Miss. 385; Devane Chevrolet Co. v. Montgomery Ward, 165 Miss. 185.
Assuming, for the purpose of the argument, that it can be said from the pleadings, the allegations of which are admitted by the demurrer, that there was neither any express or implied contract binding upon the city, with reference to the purchase of the fire equipment, so that no recovery could be had for the balance of the purchase price of the equipment nor for the fair value of the equipment itself, still, under the allegations of the bill of complaint, the city received, retained and used for its benefit, for six or seven years, the property of the appellant, in the discharge of a function of city government, which it was fully authorized to perform, and in the performance of which it was fully authorized to acquire, and use in such manner, the property here involved, so that the city can and should be held to do justice with reference to such property, under the circumstances of this case, and should restore it with fair and just compensation for its use during the period that the city retained it and put it to beneficial use.
American-LaFrance Foamite Industries, Inc., v. Arlington County (Va.), 192 S.E. 758; Johnson County Savings Bank v. Creston, 84 A.L.R. 926; Mt. Jackson v. Nelson, 149 S.E. 632; Ensley v. Hollingsworth, 54 So. 95, Ann. Cas. 1912d 652; Travelers Ins. Co. v. Johnson City, 99 Fed. 663; Hitchcock v. Galveston, 24 L.Ed. 659; Chapman v. County of Douglass, 27 L.Ed. 378; Floydada v. American La-France Foamite Industries, Inc., 87 F.2d 820; Independent Paving Co. v. City of Bay St. Louis, 74 F.2d 961; Cameron Water Improvement District v. De La Vergne Engine Co., 93 F.2d 373.
There can be no doubt as to the lawfulness of the object of the city in acquiring and using the fire equipment here involved. The purpose was clearly a public one. The public received the benefit of it. There was nothing morally wrong in the city acquiring and using the property. In fact, it was the duty of the city to acquire like property and use it for the very purpose for which it did use it.
Sections 2391, 2393, 2406 and 2428, Code of 1930.
It is clear that the city had express authority to provide for the prevention and extinguishment of fires and to organize, establish, operate and maintain fire and hook and ladder companies, and to provide and maintain a fire department and system.
If the city did not make an enforceable contract with reference to the purchase of the property it might have done so by pursuing the statutory method and manner of so contracting. Consequently, even though the city may not be held liable as upon an express contract, nor even upon an implied contract, to pay the price of the particular property and to keep it, it is still liable to deal with the property which came into its possession in the manner herein set forth consistently with right and justice, which clearly means that it is the duty of the city to return it with fair compensation for the beneficial use to which it put the property.
Church v. Vicksburg, 50 Miss. 605; Gulfport Mfg. Co. v. Town of Bond, 49 So. 260, 95 Miss. 723; Sherman v. City of Grenada, 51 Miss. 186; Board of Education v. City of Aberdeen, 56 Miss. 518; Edwards House Co. v. City of Jackson, 103 So. 428, 138 Miss. 644; Crump v. Bd. of Suprs., Colfax Co., 52 Miss. 107.
The City of Philadelphia unquestionably had the power to contract for this equipment and to use it to prevent and extinguish fires. That being true, if it had come into possession of the property without any contract whatever and used it for six years for legitimate purposes within the powers of the city, it would unquestionably be required to return the property with fair and reasonable compensation for its use.
The doctrine of equitable estoppel is recognized in Mississippi and applies to municipalities.
Jackson v. Merchants Bank Trust Co., 122 Miss. 537, 73 So. 573; City of Mobile v. Sutherland, 129 Fed. (Fifth Circuit); Glade County, Fla. v. Detroit Fidelity Surety Co., 57 F.2d 449; Lumbermen's Trust Co. v. Towne, 50 F.2d 219; District of Columbia v. Cahill, 54 F.2d 453.
There is a distinction between a contract implied in fact and one implied in law. It has been well said: "A quasi contractual obligation is imposed by law for the purpose of bringing about justice without regard to the intention of the parties."
1 Williston on Contracts, sec. 3; 13 C.J. 244; Dillon on Municipal Corporations; Argenti v. San Francisco, 16 Cal. 255.
We think the fundamental basis of the doctrine is more accurately and aptly stated in the decisions of the Supreme Court of the United States and M.E. Church v. Vicksburg, supra, and to be just this: That a municipal corporation, like any other individual or private corporation, if it receives the money or property of another under such circumstances that the general law independent of express contract imposes the obligation upon the city to do justice with respect to same, can and should in equity be required to do what is right, just and fair with reference thereto.
Merchants Bank Trust Co. v. Scott County, 145 So. 908, 165 Miss. 91; Choctaw County v. Tennison, 134 So. 900, 161 Miss. 66.
In none of the cases adverted to, nor in any other decisions of the Supreme Court of Mississippi, do we find that the case of Crump v. Colfax County, or Methodist Church v. Vicksburg have ever been overruled expressly.
Since the municipality was undoubtedly authorized to acquire and use this type of equipment for the purposes for which it was acquired and used, since that use was a public use, and since the property is the property of the appellant and has been so taken and used and undoubtedly damaged and deteriorated by such use for a period of years, it seems to us, and we also respectfully submit, that Section 17 of the Constitution of the State of Mississippi requires that the relief here prayed for in the amended bill of complaint should be granted.
Town of Magee v. Mallett, 174 So. 246, 178 Miss. 629.
Earl Richardson and James M. Mars, both of Philadelphia, for appellee.
There seems little doubt but that the contract relied upon by appellant in this cause is void, invalid and illegal, and as such inoperative and unenforceable against the appellee. The officers of a municipality can bind the city by the execution of a contract only if expressly authorized thereunto by law, or by an order of the governing board of the municipality duly entered upon the minutes of said board as required by law.
Section 2902, Code of 1930; Kidder v. McClanahan, 88 So. 508.
The contract is further void, invalid and illegal for the reason that it was entered into by the parties in disregard to the direct and express prohibition, or restriction, expressed in Sections 5978, 5979, Code of Mississippi, 1930.
If any doubt exists in the mind of the court as to the validity of the contract and promissory notes relied upon by appellant, or of the liability of the appellee thereunder, counsel most respectfully requests that the court refresh its familiarity with the principles laid down by this court in the following cases:
Kidder v. McClanahan, Mayor, 88 So. 508, 126 Miss. 179; Edwards House v. City of Jackson, 103 So. 428.
Appellee did not ratify the void and ultra vires contract relied upon by appellant by receiving the property, enjoying its use, and by partially paying the purported purchase price.
Amite County v. Mills, 102 So. 465, 138 Miss. 222; Smith v. Mangum, 89 So. 213; Russel v. Copiah County, 121 So. 133, 153 Miss. 459.
There can be no ratification of a void, ultra vires, or illegal contract by the governing board of a municipality, especially of a contract expressly prohibited by statute, as in this case.
Corinth to Gulf Highway v. Carothers and Co., 92 So. 696; LeFlore County v. Cannon, 33 So. 81; Benton County v. Patrick, 54 Miss. 240; Dixon v. Greene County, 25 So. 665.
The doctrine that a city is not estopped to deny the validity of an ultra vires contract is very definitely laid down in 19 R.C.L., page 1061, in these words: "While the power to contract is inherent in every municipal corporation with respect to any subject matter within its corporate powers, the doctrine of ultra vires has, with good reason, been applied with greater strictness to municipal bodies than to private corporations, and, in general, a municipality is not estopped from denying the validity of a contract made by its officers, when there has been no authority for making such contract. Since the powers of a municipal corporation are wholly statutory, every person who deals with such a body is bound to know the extent of its authority."
Edwards House Hotel City R.R. Co. v. City of Jackson, 51 So. 802; Newberry v. Fox, 37 Minn. 141; Rens v. Grand Rapids, 73 Mich. 237; Pettis v. Johnson, 56 Ind. 139; Bogart v. Lamoth Township, 79 Mich. 294.
Smith County v. Mangum and Amite County v. Mills, supra, conclusively hold that a county cannot be held on an implied contract to pay for the benefits received under an express contract which is void, and more especially on an express contract illegal by reason of being prohibited by statute.
Edwards House v. City of Jackson, 103 So. 428.
Counsel for appellees contends that the case of Church v. Vicksburg, 50 Miss. 605, is not controlling in this instance. We submit that the opinion in the Edwards House case, supra, either overruled the Church case, or, if not, makes the rule laid down in that case inapplicable to the situation here.
Appellant cannot recover on an implied contract on the part of the city to pay for the benefits received under this void and illegal contract of purchase.
Attala County v. Miss. Tractor Equipment Co., 139 So. 628, 162 Miss. 564.
Appellant, seeing that it was precluded from recovery on either an express contract, or an implied contract on the part of appellee to pay on a quantum meruit basis, alternatively, by an amendment to its original bill, seeks to recover rents for the use of the property by appellee during the time the city had the property in its possession, irrespective of any contract whatsoever, either of purchase or of rent. In other words, the front door having been barred to appellant, it seeks ingress at the back door; it seeks to detour through the fields and woods to reach its destination and get around the barricade placed in the main highway by the decisions of the Supreme Court of this state. It asks for the return of its property and rents for the use thereof far in excess of the proposed purchase price.
Appellant bases its claim for rent principally on the decision in the Virginia case, cited in appellant's brief. We submit that the decisions of other states can avail nothing in this case in view of the fact that the rule is so markedly defined in this state by the authorities cited above. We submit that the decisions of the federal courts are not binding on the state courts on matters of general law.
To allow the appellant to recover rents in this case would in practical effect give force to the void and illegal contract of purchase. The protection to the taxpayers of this city given by Sections 5978, 5979, of the 1930 Code, would be equally nullified if the taxpayers were forced to pay rent, or pay the balance of the purchase price.
Appellee seriously contends that a municipality has no power or right directly given it by statute or by necessary implication to lease personal property or real property for the purpose of establishing or maintaining a fire department. The court is familiar with the Edwards House case, supra, which holds that a city cannot lease real property for the purpose of opening a street. We maintain that a city has not more power to lease personal property for the purpose of maintaining a fire department than it does to lease real property for street purposes.
Sections 2391, 2414, and 2426, Code of 1930.
In Steintenroth v. City of Jackson, 54 So. 955, the court says in part: "It is elementary law that municipalities have no powers, except such as are delegated to them by the state, either expressly or by necessary implication; and there is no distinction in this respect between governmental powers and those of a private or business nature. The powers of a municipality are granted to it, and must be exercised solely, for the benefits of the inhabitants thereof."
Crittenden v. Town of Booneville, 45 So. 723.
If the contract is void, invalid and illegal, then the contract was a nullity from its inception and the court may disregard it entirely. If the contract of purchase was illegal or void, then there never was any sale and the parties are in the same position as if a sale was never attempted.
Austin Western Road Machinery Co. v. Webster County, 154 So. 723, 170 Miss. 601; Merchants Bank Trust Co. v. Scott County, 145 So. 908; Toler v. Love, 154 So. 711.
Counsel most seriously insists that the pleadings of appellant show no grounds of equitable relief whatsoever. Counsel also seriously insists that the court cannot decree reasonable rents in this case when the city has no power, implied or otherwise, to make a rental contract involving the rental of the property involved in this cause.
We submit that since complainant's bill contains no equity in regard to recovery of rents, or in regard to the enforcement of the contract, and since the bill narrows down to one seeking the return, or surrender of the property to appellant, the case is now analogous to an action in replevin.
Devan Chevrolet Co. v. Montgomery Ward Co., 147 So. 335; Sackler v. Slade, 114 So. 396.
In this state, under the authority of Dearing v. Ford, 13 S. M. 269; Newell v. Newell, 34 Miss. 385; and George v. Hewlett, 12 So. 855, the rule is that where one is lawfully in possession of personal property, having a charge upon it or the like, a demand by the owner is necessary to perfect his right to maintain replevin; but, when sued, if the defendant stands his ground, and contests the right of property in the plaintiff, he cannot afterward change his position and rely upon the want of demand of other merely preliminary step, as a defense.
Argued orally by R.E. Wilbourn, for appellant.
On August 27, 1929, appellant made a written proposal to appellee's mayor and board of aldermen to furnish to appellee an American-LaFrance Six Cylinder Buick Fire Truck with its accessories and equipment at the sum of $5,500 F. O B. Philadelphia, Mississippi, payments to be made $825 cash on delivery, and the remainder in five annual equal payments with six per cent interest per annum from date. Along with this proposal, and as a part thereof, there were elaborate specifications in detail of the machinery and equipment to be furnished, these specifications covering some twenty pages of the present transcript.
This proposal and the said specifications having been formally filed with the municipal board, the board, at its regular meeting on September 3, 1929, made and entered the following order:
"The matter of buying a fire truck and a Road Machine came on to be heard by the Board, and after careful consideration of the needs for better equipment for the purpose of abating and extinguishing fires and also the need of a better machine for the building and maintenance of the streets of the city, the Board by a unanimous vote ordered the clerk to advertise for bids on one American-LaFrance Six Cylinder Buick Fire Truck with pump attachments; and also one Austin Western Road Machine."
At the next meeting of the board on October 2, 1929, the following order was entered:
"The matter of receiving and opening all bids on fire trucks advertised for by the City came on to be heard and considered, and after a careful consideration of bids, on motion of B.M. White, seconded by E.S. Cole, it was ordered that the City purchase one American-LaFrance Six Cylinder Buick Fire Truck with pump attachments."
These are the only orders respecting the making of the contract which appear on the minutes of the mayor and board of aldermen, and were not sufficient to effectuate a valid sale, requisite elements having been omitted from the recitals of the minutes, as pointed out in Kidder v. McClanahan, 126 Miss. 179, 88 So. 508. Nevertheless the mayor in the name of the city signed the contract; the engine and equipment were delivered on or about November 1, 1929, were examined and were found in every respect to be according to the specifications; the cash payment was made, and the notes for the deferred payments were signed and delivered for the city by the mayor; and the city entered upon the use of the machinery and equipment, and has ever since continued so to use it.
The first two notes, principal and interest, were paid, and the interest on the third note. But the principal on that note and the principal and interest on the fourth and fifth notes have been, since their due dates, at all times in default. Repeated efforts by appellant to make collection in whole or in part were made, but without success, although throughout all the time thereof the city made no claim that there was any imperfection or illegality in the contract or that the machinery failed in any way to comply with the specifications aforesaid.
Finally on October 27, 1936, appellant filed its bill to foreclose its purchase money lien and later its amended bill, praying in the alternative that it have a decree for the repossession of the machinery and for a reasonable compensation for its use. To this bill the city interposed demurrers which were sustained and the suit was dismissed.
Inasmuch as no valid legal contract was ever consummated, the city is not indebted to appellant for a purchase money demand either for the amount stated in the proposed contract or upon a quantum valebant, and thus the remaining issues are those presented in the alternative. The real questions before the court are, therefore, these: When the alleged sale of machinery to the city is void for want of formal compliance with legal requirements, but the city retains and uses the property, may the alleged seller recover (1) the property, and (2) a reasonable compensation for its use?
Before proceeding further upon that specific inquiry, we must eliminate from the field of discussion the three following situations: First, because these are not before us under the present facts, and, second, because they are no longer to be considered as fairly debatable. These are: (a) Where there has been in the transaction actual moral corruption, both on the part of the seller and of the officers or agents of the municipality, or actual corruption on the part of one side with the knowledge and acquiescence of the other. In such a case the court, as a general rule, will extend no aid but will leave the situation as it is found. (b) Where the municipality is not authorized in any manner or at any time to make the pretended purchase, where the transaction is not within an object authorized by law under any circumstances, in which case the seller, in the absence of actual corruption, may repossess the property but nothing for its use. And (c) where the municipality is not authorized in any manner or at any time to lease the property in issue, in which case, in the absence of actual corruption, the lessee may repossess the property but nothing for its use. And in the three situations dealt with in this paragraph it is immaterial that the purported contract may have been executed with all the formalities and in the observance of every detail which would be required in a lawful contract. See, for instance, Edwards House Co. v. City of Jackson, 138 Miss. 644, 103 So. 428, 42 A.L.R. 625.
Coming then to the question before us, thus more precisely disclosed, to-wit, Where there is no actual corruption, and the transaction is within the objects authorized by law, but the contract is void for want of compliance with legal requirements in the making thereof, may the alleged seller recover (1) the property and (2) a reasonable compensation for its use? As to the recovery of the property in such a case, there seems to be no division among the authorities. The sales contract being invalid, the title has never passed from the seller, and he is permitted to recover that to which he has the title, so long as within the reach of the processes of replevin, or other appropriate action or suit.
It is upon the second feature of the stated question that the courts have widely differed and have ranged themselves and the rule to which they adhere into three groups, which may be approximately defined as follows:
I. Those that broadly hold to the doctrine of implied liability on the part of the municipality to do justice and to make a fair compensation for the use of property which it has received and used, under the same rules applicable as between private persons, whatever may be the extent of the invalidity of the contract, or even when there has been no contract of any kind at all. They say that the obligation to do justice rests alike upon all persons whether natural or artificial, and that it would no more be permissible that a municipality may accept or take the property of another and use it for a legitimate municipal purpose and benefit, and then contend it owed nothing for that use because of the absence of a valid, express contract, than it would be for a private person or private corporation to do the like.
II. Those that hold, to state it only approximately and so far as necessary to the purpose of this case, that when there has been an entire fairness in the dealings between the seller and the municipal officers and agents, and the transaction has throughout been conducted in the open, in such manner that any of the public within the municipality might at any time see, or upon inquiry may know, in truth, all that is or has been going on about it; when all those substantial steps have actually been taken, which are designed in their requirement to avert, so far as reasonably practicable, all opportunities for favoritism or extravagance or of temptations toward unlawful private profit, and when the only defects in the contract are in omissions in a technical aspect, as for instance, to make a perfect record of what has been done or is to be done, the seller may recover a reasonable compensation for the use of this property, — although he can recover nothing for the purchase price either as stipulated in the abortive contract or upon a quantum valebant, the reason for the latter being that the title has never passed.
III. Those that hold that when for any reason, whether substantial or merely technical, the contract is not legally valid, the seller may not recover for the use of the property, and, in any event, all that he can get is the repossession of the property. The courts which are within this group point out that the members of the public, as they go about their daily occupations, have not sufficient time to keep constant watch upon their municipal officers and agents, and that therefore everything done by them in relation to municipal contracts of purchase or sale shall be done openly not only, but that every step taken or necessary to be taken shall be definitely spread upon the municipal minutes, and in every essential detail, so that thereby there shall be reduced to the last possible minimum the aforementioned opportunities for favoritism or extravagance, or of temptations toward unlawful private profit; and that these considerations in the public interest outweigh the argument of an implied obligation to pay what the use of the property is justly worth.
If we were obliged to align ourselves either with the first or with the third of the aforesaid groups we would unhesitatingly choose the third group. But we think that those of the second group, in their holdings, have been sufficiently cognizant of the objects and purposes, and have required a reasonable measure of accomplishment thereinabout, for which the third group contends, and at the same time are enabled to give a permissible recognition to the principles of common justice which so strongly actuate the first group; and we therefore concur with the second of said groups.
And so we align ourselves not only as a result of an examination of the leading cases in other states, but also because it would seem that our court is already committed to that course by the decision in Crump v. Board of Sup'rs of Colfax County, 52 Miss. 107, 111. It is true that in that case the allowance of reasonable compensation was for the use of real estate, but we can perceive no basis for a difference as between real estate and personal property. And strange to say, although the precise question which we are herein deciding has arisen in numerous cases in other jurisdictions, the case, Crump v. Board of Sup'rs of Colfax County, supra, is the only one in point in this state. There have been many in this state, and particularly as against counties, where suit has been pressed for the purchase price, either as fixed in the abortive contract or on a quantum valebant, and as if title had passed, but none for a reasonable compensation for the use, other than the case last cited. The case, Edwards House Company v. City of Jackson, supra, was for rent of a strip of land for a street, under an express contract, but as already pointed out, that case went out of court on the ground that the city was not authorized to make a contract for the lease of a street under any circumstances or at any time, — it was not within the field of any allowable municipal lease contract.
Appellee contends that another and the chief difficulty with appellant's case is that the alleged contract for the purchase of this fire engine and its equipment was an attempt to create or incur an interest-bearing debt without the authorization of the electors at an election called for that purpose, and appellee invokes the provisions of Section 5978, Code 1930, Chap. 325, Laws 1920. And it might be said that this omission was such a substantial defect, or want of such a vital step, as to take the case out of the second group to which we have hereinabove referred. Conceding that this record sufficiently shows that no election was held, and conceding that the debt here attempted was one within said Section 5978, and conceding that the stated omission would take the case out of the second group, if the only authority of the municipal board was to purchase the equipment, with no authority to lease, — these concessions to be taken for the sake of the discussion and not as decision, — we would still have the question whether the municipal board was authorized to lease this fire fighting equipment.
The general powers of municipalities in respect to fire fighting equipment is contained in Section 2428, Code 1930, brought forward from previous codes. The language of that section is broad and comprehensive. We fail to find any warrant within it which would justify us in holding that there the only power of performance is by outright purchase and that leases are excluded. So far as we know, it may have been deliberately deemed wise to allow the latitude of a lease or leases. The rule in such a situation is that, unless the statute contains some express or implied restraint, the municipality has a reasonable discretion in the choice of the means or methods for exercising the powers given it for a public purpose. 19 R.C.L., p. 770; 43 C.J., p. 249; 1 McQuillin Munic. Corp. (2 Ed.), pp. 964, 965. And since the only monetary liability to which we are holding the municipality here is one for a reasonable compensation for the use of the property until such time as it shall be delivered up to the seller, the status of the city is no more than as a lessee, — not a debtor in an interest-bearing debt, as contemplated by said Section 5978, Code 1930, — and it was not necessary to submit to the voters the question of making a lease of the equipment, or of allowing the municipality to be held to the obligations of a lessee. And at this point we will add, that there may be no misunderstanding, that the City will be entitled to credit, upon the lease compensation, for all sums which it has heretofore paid, even though paid as purchase money.
We have not overlooked the argument by appellee that if a municipality has no power to lease a street, as was held in Edwards House Co. v. City of Jackson, supra, it can have none to lease a fire engine; but the very nature of the requisite dominion of a municipality over its streets precludes an implication of power on its part to lease a street, while no such inhibition adheres in property such as a fire engine and its accessories and equipment. Section 2391, Code 1930, gives the broad power to a municipality to purchase and hold real estate and personal property. Under such a broad power, it is a general rule of interpretation that there is embraced and included the lesser power to lease, — see authorities and cases cited in City and County of San Francisco v. Boyle, 195 Cal. 426, 433, 233 P. 965, referred to as a leading case in 3 McQuillin on Munic. Corp. (2 Ed.), p. 714, and in 43 C.J., pp. 1329, 1330, — unless, of course, as already said, there is in the very nature of the use and control of the property an implied inhibition against a lease.
It sufficiently appears from what we have said, and we now directly so state, that, as the record now stands before us, we are of the opinion that the transaction falls within the second group of holdings of which we have hereinabove given an approximate outline, and that in consequence the demurrers should have been overruled. Reversed and remanded.
Ethridge, J., dubitante.
CONCURRING OPINION.
I concur in the above opinion, notwithstanding that it appears to me to be squarely in conflict with Amite County v. Mills, 138 Miss. 222, 102 So. 465, 737, and Smith County v. Mangum, 127 Miss. 192, 89 So. 913. I think it overrules those decisions, and that they ought to be overruled. My dissenting opinion in the Mills Case expressed my views. I have had no reason to change them. I cannot reconcile those cases with Crump v. Board of Sup'rs of Colfax Co., 52 Miss. 107. Here is the way our cases stand now; a valid lease contract may be made; the one made is void. Nevertheless, the municipality is liable for a reasonable rental. On the other hand, although a valid contract of purchase may be made, and the one made is void, there can be no recovery for the actual value.