Mississippi Advisory Opinions August 01, 1986: 19860801 (August 01, 1986)

Advisory Opinion Text

Jerry L. Mills, Esquire

City Attorney

City of Clinton

Post Office Box 23004

Jackson, Mississippi 39225-3004

Dear Mr. Mills:

Attorney General Pittman has received your request for an opinion and has assigned it to me for research and reply. Your request states:

“The City of Clinton is considering entering into an agreement with Mississippi College whereby a user fee would be paid by the City to the College for the use of certain recreational facilities. In return for these payments, Mississippi College would agree to maintain and improve certain of its facilities. These facilities would then be made available to the general public as a part of the Parks and Recreation Department of the City of Clinton.

“It is felt that such an agreement will be financially advantageous to the City. We request your opinion as to the legality of entering into such an agreement.”

Miss. Code Ann. § 21-17-5 (Supp. 1985) provides:

The governing authorities of every municipality of this state shall have the care, management and control of the municipal affairs of its property and finances, and shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances for which no provision has been made by general law and which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi, and shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances.

This section shall not authorize the governing authorities of a municipality to (a) levy taxes of any kind or increase the levy of any authorized tax, (b) issue bonds of any kind, (c) change the requirements, practices or procedures for municipal elections or establish any new elective office, (d) change the procedure for annexation of additional territory into the municipal boundaries, (e) change the structure or form of the municipal government, (f) permit the sale, manufacture, distribution, possession or transportation of alcoholic beverages, or (g) grant any donation; unless such actions are specifically authorized by another statute or law of the State of Mississippi.

As to providing recreation for the citizens of the municipality, Miss. Code Ann. § 21-37-43 (1972) provides:

The governing authorities of any municipality, including any municipality operating under a special charter which has created a park commission, are hereby authorized to levy and collect not more than two mills annually for the purpose of constructing, supporting and maintaining parks and playgrounds, and for recreational purposes in such municipalities . The funds so collected by said tax shall be used for no purpose except as provided in this section. (Emphasis added.)

The City of Clinton has a park commission established under the provisions of Miss. Code Ann. § 21-37-33 (Supp. 1985) . Miss. Code Ann. § 21-37-37, as amended by Senate Bill 2166, Chapter 438, Mississippi Laws, 1986, sets forth the powers and duties of said commission and provides in part:

The park commission shall have the authority to make such bylaws for the holding and conducting of their meetings and such other regulations as they may deem necessary for the safe, economic, and efficient management of such parks, playgrounds, and swimming pools, and for the providing of wholesome and healthful recreation to all the citizens of such municipality . (Emphasis added.)

In addition, Miss. Code Ann. § 21-37-39 (1972) provides:

The park commission of any such municipality shall devote all moneys derived by appropriation from the municipal governing authorities, by gift, by revenue, or form any other source, for the payment of all maintenance and operating expenses, the purchase of parks and playground equipment, the repair and replacement thereof, and for the extension of recreational facilities for the wholesome and healthful recreation of all citizens of such municipality . (Emphasis added.)

As to the construction of §§ 21-37-33 through 21-37-39, Miss. Code Ann . § 21-37-41 (1972) provides that said statutes shall be liberally construed “to the end that it may result in the improvement of the general health, entertainment and happiness of the citizens of such municipality.”

In view of the provisions of the above statutes, it is the opinion of this office tha the City of Clinton can lawfully enter into the agreement set forth and described in your opinion request.

Very truly yours,

Edwin Lloyd Pittman Attorney General