While the City was authorized under the provisions of its Charter to acquire the Golf Course property and operate or assist in operating golf courses and did acquire property for such purposes by issuing bonds which were a city obligation, it does not follow that the lands and buildings so acquired for that purpose became exempt from sale under execution issued upon a judgment obtained against the city.
According to the facts as agreed to between the parties the City abandoned the management and operation of the golf course and leased it to a person who operated it for the joint profit of himself and the City. Upon the termination of that lease the City leased the premises to another who operates the golf course and uses the houses located upon it for his own private gain. It does not appear that the City obtains a rental therefor.
It thus appears that the City no longer holds the property for governmental purposes, even if it be conceded that a golf links may be regarded as a public utility and while maintained or operated by the City may be considered as property utilized in the exercise of a governmental function and not held in a proprietary capacity.
Subjecting the property in this case to the execution held by the defendant in error would in nowise suspend or impair the exercise of governmental functions by the City.
I do not agree to the theory held by the learned author of the majority opinion that the property of the golf course in the circumstances is held in trust for all the people of the municipality, which applies to such property only as is in daily use for the proper exercise of the governmental powers and functions of the City. *Page 792
I therefore think that the order of the Circuit Judge upon the motion to stay the execution should be affirmed.
ON PETITION FOR REHEARING.