(dissenting).
I respectfully dissent from the conclusions reached on the issue of whether the authority to lease was before the court below and the supreme court on appeal.
Relator by its complaint asked that the defendants be enjoined from in any way using the auditorium involved as a motion picture show house and prayed for judgment:
*107“(1) That the purpose to which said Auditorium is put as a motion picture show house and theatre and merchandising place, and as described and alleged herein, is not a public or beneficient [sic] purpose within the meaning, intent, power and authority of the donors thereof, as expressed by the terms of the Last Will and Testament of said Theodore B. Sheldon, deceased.
“(2) That said City of Red Wing is without legal right, power or authority to accept and retain the gift of said real property, said Auditorium and said property used, and acquired for use in connection therewith, for use as a motion picture show house or theatre or merchandising place, as described and alleged herein and that its action and conduct in the past and at present in so doing is ultra vires.
“(3) That the Court make and enter its order herein perpetually enjoining and restraining said defendants and each of them, their successors in office and their respective agents, employees and representatives from operating, maintaining or in any way using said Auditorium as a motion picture show house or theatre, or otherwise than for some public and beneficient [sic] purpose.”
The complaint was not limited to the ultra vires issue alone or merely that the city’s action in operating a motion picture business in the Sheldon auditorium was wrongful. It is to be observed that a copy of the last will and testament of Theodore B. Sheldon; a copy of the Red Wing city ordinance accepting the proposal of the testator; and a copy of the trustees’ deed were attached to and made a part of the complaint. Reference was had to L. 1903, c. 22, which enabling act in § 3 provides: “Such property shall for all purposes and so long as the title thereto remains in such city be held to be property owned by such city and used exclusively for public purposes, and shall be exempt from taxation.”
The aforesaid deed provides that the T. B. Sheldon Auditorium Board shall have the full power and authority to act pursuant to the following provisions and restrictions:
“* * * Said Board shall for and in behalf of said City have the general charge of the said property, and full power and authority to let or lease the same for musical and theatrical entertainments, public *108meetings, lectures and such other purposes as in their judgment may contribute to the education, enjoyment, improvement or amusement of the people of Red Wing. Such Board shall also- have exclusive power to fix the rental of said building for such purposes; and may in their discretion grant the use of said Auditorium for any local public purpose or for entertainments of an unusually high character, or for memorial services of the Grand Army of the Republic or for similar societies, or for the exercises or entertainments of the public schools or other institutions of learning or of any literary, musical, social, charitable society of Red Wing, or of any political or fraternal organization free or at such reduced rates as they may deem proper.” (Italics supplied.)
The aforesaid statement as to the general powers of the board refers to their “full power and authority to let or lease the same for musical and theatrical entertainments,” and later in the context provides that “and may in their discretion grant the use of said Auditorium for any local public purpose or for entertainments of an unusually high character, * * (Italics supplied.)
Clearly these very provisions were a part of the pleadings in toto and were before the court in connection with the question of whether or not plaintiff was entitled to an injunction preventing the use of the auditorium as a movie theater, which can bear no other classification than a commercial or common business venture and which this court found to be an operation constituting unauthorized business on the part of the board under the Sheldon will, the enabling act L. 1903, c. 22, and the provisions and restrictions contained in the city’s ordinance and the trustees’ deed.
An examination of the foregoing documents clearly establishes that the auditorium should constitute tax-exempt property and should be used exclusively for some public or charitable or beneficent purpose and not for any sectarian purpose. Clearly the purposes for which the building might be let or leased do not lend themselves to- operate within it or to let or lease for operation within it the ordinary movie theater operated for profit constituting a commercial or common business venture, whether it is operated directly by the board, or leased by the board and operated therein by a lessee of the board.
*109It has been stressed in the instant proceeding, following the filing of the decision herein November 28, 1958, that the only mention of leasing in that opinion is the recognition that the documents establishing the auditorium do grant authority to “let or lease” the premises and the recognition of certain case authority for leasing public buildings. It is clear, however, that whatever mention as to a grant of authority to' let or lease for stated purposes as contained in the documents attached to and made a part of the complaint were fully before the court below at the time summary judgment was granted in the district court and before this court on appeal by full presentation in the briefs and by oral argument before this court. The city of Red Wing places great reliance upon Longcor v. City of Red Wing, 206 Minn. 627, 289 N. W. 570, as authority for ruling out consideration by this court of what was meant by the words “let or lease” as applied to the action instituted by the court.
It is contended that this court in reversing the court below failed to fully pass upon the issue and decide whether a letting or a leasing of the auditorium for the purposes of commercially operating a movie theater would constitute an ultra vires act on the part of the board. Certainly the Longcor case has adjudicated nothing either directly or by implication that the use of the auditorium as a commercial moving picture operation, whether conducted directly by the board itself or leased in its own behalf as a private enterprise in competition with other private enterprises in the same city, was proper or improper. Whether or not the income derived from the use of the auditorium came from displaying motion pictures or from any other source did not in the Longcor case have any bearing on the issue which the court was therein called upon to decide. The question of ultra vires was not before the court. The issue in that case was whether the situation presented constituted a charitable trust or a gift on condition. Its determination, of course, brought before the court the right of the individual plaintiff to sue. The court reached the conclusion that the plaintiff had no right to sue because those funds were of a public character. The court was concerned with the disposition of the fund and not its source. Having arrived at the conclusion that this was a gift on condition, and that the funds were earmarked funds for a charitable purpose, the court con-*110eluded that whether it constituted a charitable trust or gift on condition, in view of our statutes, and under the circumstances, only the attorney general was in a position to maintain the action. The court said in the Longcor case (206 Minn. 634, 289 N. W. 574):
“Plaintiff alleges he sues in his own behalf and on behalf of all the beneficiaries of the ‘will and the charity.’ In additional allegations it is set forth that he is a citizen, resident, and taxpayer. From the complaint it at once appears that his interest is not any greater than any other taxpayer and citizen of Red Wing. For a variety of reasons, the contention of defendants that plaintiff has not legal capacity (in the sense of the right to maintain a direct action) to sue must be sustained.”
The court held that (206 Minn. 627, 289 N. W. 571):
“The attorney general is the proper party plaintiff to compel compliance with the conditions impressed upon a gift for a charitable purpose. A citizen, resident, and taxpayer who sues on his own behalf and on behalf of all the beneficiaries of the ‘will and the charity’ cannot maintain the action.”
The court in coming to that conclusion in the Longcor case, however, said (206 Minn. 636, 289 N. W. 575):
“* * * With the other cases relied upon by plaintiff, such as Regan v. Babcock, 188 Minn. 192, 247 N. W. 12, we do not regard the present opinion as in any way conflicting. Determination whether a particular person has a sufficient interest to justify suit at his instance depends to a large degree upon the facts and circumstances involved. For instance, compare Evens v. Anderson, 132 Minn. 59, 155 N. W. 1040, and the Regan case, supra. Naturally, in resolving plaintiff’s contention adversely, we are doing so in view of the facts here involved. We do-not regard the interest of plaintiff as adequate to justify suit by him since his interest as well as that of the other members of the community can be protected by the attorney general.”
John Wright and Associates, Inc., the plaintiff herein, did not sue on its own behalf and on behalf of all the beneficiaries of the will and the charity to enforce the provisions of the Sheldon trust. Plaintiff *111brought the suit in its own behalf as a taxpayer to redress its personal damage because of suffering an injury differing in kind, and in degree, from that suffered by the public generally. It is an action to redress a personal wrong to an individual taxpayer in the community, and a wrong which does not involve the public generally in the same degree. It is a private action which the plaintiff is entitled to bring and it is not restricted to the attorney general. It is not an action to> enforce a trust for the benefit of the public generally. The attorney general is therefore not a necessary party to bring the action or the only one to bring the action; in fact, the attorney general has no right or duty to seek relief for a private individual to vindicate his rights nor is it contemplated that state funds are expendable for that purpose. See, Schaeffer v. Newberry, 235 Minn. 282, 50 N. W. (2d) 477; Headley v. City of Northfield, 227 Minn. 458, 35 N. W. (2d) 606; Schultz v. Krosch, 204 Minn. 585, 284 N. W. 782; Burns v. Essling, 156 Minn. 171, 194 N. W. 404; Nerlien v. Village of Brooten, 94 Minn. 361, 102 N. W. 867.
In In re Estate of Quinlan, 233 Minn. 35, 44, 45 N. W. (2d) 807, 812, the court had under consideration a charitable trust, and it was held in that case, and properly so, that:
“* * * if an attempt ever is made to deviate from a purely charitable purpose, the public interest will be protected, in that the attorney general has not only the right but the duty to enforce charitable trusts by proper court proceedings.”
The holdings in the Longcor and Quinlan cases with reference to the duty of the attorney general to enforce charitable trusts by proper court proceedings have no bearing whatsoever upon the rights of the plaintiff, John Wright and Associates, Inc., to maintain its private action as a taxpayer under the circumstances alleged. The Longcor and Quin-lan cases simply follow the rule referred to in 3 Dunnell, Dig. (3 ed.) § 1423c.
It has been suggested that in order to prevent the purposes of the trust from failing entirely and to secure a benefit to the community through the leasing proposed herein there should be a reversal or a modification of the use of the property and that this problem should *112be left to the district court under M. S. A. 501.12, subd. 3. However, § 501.12, subd. 4, states specifically that nothing in that section shall in any manner impair, limit, or abridge the operation and efficacy of the whole or any part of any existing statute authorizing the creation of corporations for charitable purposes or permitting municipal corporations to act as trustee for any public or charitable purpose under any existing statute and that nothing in that section shall apply to any gift, bequest, devise, or trust made, created, or arising by or under the provisions of the will of any person whose decease occurred before that section became effective. The decedent herein leaving property in trust to the city of Red Wing died in the year 1900. Section 501.12 became effective by legislative enactment of L. 1927, c. 180. There is hardly such uncertainty as to object and beneficiary in the Sheldon trust and the supporting documents as to call into play the doctrine of cy pres.
The plaintiff in its prayer for relief asks the court for its judgment and decree to the effect that defendants, including the members of the board and each of them and their successors in office and their respective agents, employees, and representatives be enjoined from operating, maintaining, or in any way using the auditorium as a motion picture show house or theater, or otherwise than as provided for some public and beneficent purpose. Any and all authority to lease and let was before the court when the matter was heard and decided below and before this court on appeal in pleadings, briefs, and oral argument. Furthermore, this court said on that appeal, John Wright & Associates, Inc. v. City of Red Wing, 254 Minn. 1, 8, 93 N. W. (2d) 660, 665, that “The operation of a private business upon the premises was never contemplated by the testator nor authorized by the legislature. The business was unauthorized from its inception.” This court further said (254 Minn. 9, 93 N. W. [2d] 666) “We hold that the plaintiff * * * whose business is injured by the activity conducted by the city, is entitled to an injunction preventing the continued unauthorized business.”
Not only the pleadings and the exhibits attached and made a part thereof but also the briefs and the oral argument made before this court indicate that the plaintiff dwelt upon two points especially; that the “testator’s intent as expressed in his will must be respected” and *113that the “use of the property must be within the conditions of the gift.” Neither the provisions of the will, nor the contents of the other exhibits made a part of the plaintiff’s complaint, nor L. 1903, c. 22, permit here the commercial operation of .a motion picture business under the guise of a public and beneficent purpose. The operation of a moving picture theater, whether by this board or its lessee, being a well-recognized competitive business comparable to other everyday businesses carried on up and down the streets of our cities clearly constitutes the operation of a private business venture upon the premises which was never contemplated by the testator nor authorized by the legislature nor by any of the documents made a part of the pleadings herein or the record before this court on appeal.
I am of the opinion that the writ of mandamus should issue as applied for.