Brown v. Longiotti

420 So. 2d 71
CourtSupreme Court of Alabama
DecidedOctober 1, 1982
StatusPublished
Cited by9 cases

This text of 420 So. 2d 71 (Brown v. Longiotti) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Longiotti, 420 So. 2d 71 (Ala. 1982).

Opinion

420 So.2d 71 (1982)

Carley A. BROWN, et al.
v.
Samuel M. LONGIOTTI, et al.

81-7.

Supreme Court of Alabama.

October 1, 1982.

Bill Fite and Jackie O. Isom, Hamilton, for appellants.

William H. Atkinson and James K. Davis of Fite, Davis & Atkinson, Hamilton, for appellees.

MADDOX, Justice.

The central issue in this appeal is whether the issuance of revenue bonds to finance the construction of a retail commercial establishment is authorized by amendment # 84 of the Alabama Constitution. We hold that amendment # 84 does not authorize the issuance of bonds to finance the construction of retail commercial establishments and, therefore, reverse the decision of the circuit court.

Appellants, a group of retail business owners in Marion County, brought suit against certain named parties and the city of Hamilton to challenge the city's plan to construct a retail shopping center and to issue industrial revenue bonds to finance its acquisition and construction. Under the terms of the plan, the land would be developed by the city and then leased to Samuel Longiotti who would in turn lease the property *72 to K-Mart. The bonds that the city proposes to issue are tax-exempt. From the circuit court's granting appellees' motion to dismiss and overruling of appellants' motion for new trial, the appellants pursue this appeal.

Appellants argue that amendment # 84 violates the due process and the equal protection clauses of the United States Constitution because it "fails to limit bond issues to projects furthering public purposes." Appellants contend further that "[e]ven if it could be assumed that amendment # 84 impliedly authorizes the issuance of revenue bonds only for public purposes, the evidence indicates that the instant project benefits only private parties." The constitutional argument which the appellants offer derives from a decision rendered by the Georgia Supreme Court concerning an amendment similar to amendment # 84. See Smith v. State, 222 Ga. 552, 150 S.E.2d 868 (1966). The decision of the Georgia court reads, in part:

"This amendment does not, as appellees argue, provide for the promotion and development of new industry in the county. New industry might be developed, but there is nothing in the Act which requires that the funds be used for development of new industry, or to relieve unemployment, or to provide new jobs so that its citizens may be furnished employment and not be forced to leave the county to find employment, or for any other public purpose."

150 S.E.2d at 871.

The Georgia Supreme Court concluded in Smith by ruling:

"Since the constitutional amendment authorizes issuance of the bonds for a private purpose, rather than a public purpose, the exemption of the private industry from taxes, while requiring plaintiffs and other private industries in the county to pay said taxes, would constitute taking of the property of plaintiffs and other taxpayers of Telfair County who are engaged in private business, without due process of law and would deny them equal protection of the law in violation of the federal Constitution. Thus, the constitutional amendment (Ga.L.1960, p. 1400) to Article VII, Section VII, Paragraph V (Code Ann. § 2-6005) is in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States."

150 S.E.2d at 872.[1]

The limitation that public money and credit can only be used for "public purposes" is a matter of due process and implicit in the Alabama Constitution. Board of Revenue and Comm'rs. v. Puckett, 227 Ala. 374, 377, 149 So. 850 (1933); Stone v. State, 251 Ala. 240, 243, 37 So.2d 111 (1948). Indeed, the premise that all appropriations or expenditures of public money by municipalities and indebtedness created by them must be for a public purpose as opposed to a private purpose is a widely recognized one. 15 McQuillin, Mun.Corp. § 39.19 (3d Ed.)

While there is no specific standard or test a court may use for distinguishing public purposes from private purposes, Note, Determining Permissible Municipal Expenditures: The Public Purpose Doctrine Revived, 7 U.Mich.J.L.Ref. 225, 226 (1973), the trend among modern courts is to give the term "public purpose" a broad expansive definition. Opinion of the Justices, 384 So.2d 1051, 1053 (Ala.1980). This is especially true of judicial review of industrial development bonding. Note, Industrial Development Bonds: A Proposal for Reform, 65 Minn.L.Rev. 961, 967 (1981); See generally, Note, The "Public Purpose" of Municipal Financing For Industrial Development, 70 Yale L.J. 789 (1961). Although industrial *73 development bonds were originally conceived as a way to stimulate manufacturing investment, some of the "less traditional" uses of these instruments now include:

"1. Commercial Real Estate Development.... shopping centers, ... corporate headquarters ... new branch bank offices ... office building and equipment purchases, including art work and stereophonic sound.
"2. Retail Stores .... department stores, drugstores, supermarkets, grocery stores, restaurants, ice cream parlors, fast food chains and automobile dealerships.
"3. Recreational Facilities .... including movie theaters, country clubs, skating rinks, bowling alleys, tennis and racquetball clubs, health clubs and golf courses.
"4. Tourist facilities .... hotels, motels, beach resorts, ski lodges.
"5. Health Facilities .... proprietary (for-profit) hospitals and nursing homes."

Congressional Budget Office, Preliminary Draft of Small Industrial Development Bonds 23-24 (October 1980); See generally, Pinsky, State Constitutional Limitations on Public Industrial Financing: An Historical and Economic Approach, 111 U.Pa.L.Rev. 265 (1963).

In reviewing amendment # 84, the entire amendment reads as follows:

"Any provision of the Constitution or laws of the state of Alabama to the contrary notwithstanding, any municipality in Marion county, or any one or more of them, shall have full and continuing power and authority, without any election or approval other than the approval of its governing body, to do any one or more of the following:
"1. To purchase, construct, lease, or otherwise acquire real property, plants, buildings, factories, works, facilities, machinery and equipment of any kind.
"2. To lease, sell for cash or on credit, exchange, or give and convey any such property described in subdivision 1 above, to any person, firm, association or corporation.
"3. To promote local industrial, commercial or agricultural development and the location of new industries or businesses therein.
"4. To become a stockholder in any corporation, association or company.
"5. To lend its credit or to grant public moneys and things of value in aid of, or to, any individual, firm, association, or corporation whatsoever.
"6.

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