Aquamsi Land Co. v. City of Cape Girardeau

Citation142 S.W.2d 332,346 Mo. 524
Decision Date03 July 1940
Docket Number36343
PartiesAquamsi Land Company, a Corporation, Appellant, v. City of Cape Girardeau, a Muncipal Corporation and City of the Third Class, Charles G. Wilson, Mayor, Harry L. Coffman, L.H. Butler and Philip Steck, Commissioners and Councilmen
CourtUnited States State Supreme Court of Missouri

Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly Judge.

Affirmed.

Giboney Houck and Brandom Hope for appellant.

(1) Plaintiff was entitled to a judgment on the pleadings enjoining the city of Cape Girardeau and the other defendants from diverting the 50-acre public park property to the purposes of a fairgrounds and community center with a community building, stadium, athletic field, arena, band shell, plaza for outdoor meetings, exhibitions and concessions, race track and stables. The application of the city to the W. P. A. sponsored the project as a "Fairgrounds." The word "Park" nowhere appears in any of the communications between the city and the W. P. A. Defendants' answer stated that on October 19 1936, said application for $ 164,853 was approved by the President of the United States for a "Recreational and Community Center and Fairground." Defendants' answer admitted: "That thereafter said bonds were issued and sold on competitive bidding and the proceeds thereof amounting to $ 55,352.50, were placed in a special park improvement fund of said city; that thereafter approximately 50 acres of land were purchased by the city of Cape Girardeau from said special park improvement fund for a public park for said city; that defendants intend and propose to improve said lands for a public park by erecting and constructing thereon a community center building with facilities for holding public meetings and indoor games and athletic events, a stadium, race track and outdoor athletic field, etc; that defendants propose and intend to so improve said park out of the remainder of the proceeds of the special park improvement fund with the assistance of the grant of $ 164,853 from the Works Progress Administration above referred to." The Missouri Supreme Court has stated the rule as follows: "Through the receipt of the proceeds of the bonds the city incurred certain obligations, to be sure, but they were essentially those that rest upon the custodian of a trust fund. It was bound to see that the fund was applied to the purpose for which it was created and no other, and that in general was the extent of its obligation in the premises." Thompson v. St. Louis, 253 S.W. 972; Stephens v. Bragg City, 224 Mo.App. 471, 27 S.W.2d 1064; Sec. 2896, R. S. 1929. (2) It was error for the court to hold as it did, in effect, that the words "public park" and "fairgrounds and community center" are synonymons terms. A fairground is an enclosure where outdoor fairs, trotting races, etc., are held. Webster's New International Dictionary. A park is a pleasure ground in or near a city or town set apart for ornament and recreation for the public, to promote its health and enjoyment. Williams v. Gallatin, 229 N.Y. 248, 128 N.E. 121, 18 A. L. R. 1238; Goode v. St. Louis, 113 Mo. 257. (3) Plaintiff contends that it was error for the court not to enjoin the defendants from using the 50-acre park property for the purposes the city intends to use it, as admitted in defendants' answer and shown on the blue print plan for the Fairgrounds prepared by the city's architect, who, at the time defendants filed their answer, had already been paid $ 4400 of the $ 8500 the city contracted to pay him. Hal Lynch, the city's architect, testified as to some of the uses to be made of this park property. He testified as follows: "The arena building is designed with inside floor area of 86 by 126, planned for use for dances, indoor baseball, soccer, basketball; it has a large stage, 20 by 60, planned for municipal operas, all types of shows; an exhibit hall, 30 by 144, designed for use for automobile shows, flower shows, garden shows; a group of rooms that can be used for American Legion, boy scouts, women's clubs, garden clubs; has a kitchen and small dining room. This may be thrown together and the entire floor be used for banquets. "I don't know how many acres are in the race track. Although the preliminary plan calls for a paddock, there will be no paddock. There will be a stable, a grandstand constructed of concrete; the park will be surrounded by a fence if their money holds out. Though the plans do not call for a ticket office, I can readily see there will be one at the inner entrance." The defendants should be enjoined from making any such private use of the park property and from using any part whatever of the proceeds of the $ 55,000 bond issue for the purposes of a fairground, race track or for the erection of such a building as the architect testified the arena is to be or for the erection of a fence around the park with a ticket window at the entrance. The defendants should also be enjoined from charging an admission fee for the use of the park. Sec. 6, Art. IX, Const.; Secs. 1, 3, 10, Art. X, Const.; Kennedy v. Nevada, 222 Mo.App. 459, 281 S.W. 56; Board of Commrs. v. Peters, 253 Mo. 537; Williams v. Gallatin, 229 N.Y. 248, 128 N.E. 121; Nebraska City v. Nebraska City Fair Assn., 186 N.W. 374; Meigs' Appeal, 62 Pa. 28, 1 Am. Rep. 372; Carstens v. Wood River, 332 Ill. 400, 163 N.E. 816, 63 A. L. R. 471; Taylor v. Dimmitt, 78 S.W.2d 841. (4) As charged in plaintiff's points 4, 5, 6 and 7 of its assignments of error, the city had no power to enter into its said contract with the Works Progress Administration and obligate itself that all operations would be in accordance with regulations prescribed under the Emergency Relief Act of 1935 and administrative orders and instructions issued by the W. P. A., and that it would each year, at its own cost and expense, maintain the project in a manner satisfactory to said W. P. A. Thompson v. St. Louis, 253 S.W. 972; Arkansas-Missouri Power Co. v. Kennett, 78 F.2d 922; Warm v. Cincinnati, 11 N.E.2d 281; Interstate Power Co. v. Cushing, 12 F.Supp. 810; Federal Emergency Relief Act of 1935, 15 U.S.C. A., sec. 728. The city had no power to make this contract with the W. P. A. and to so delegate to the W. P. A. the city's governmental and legislative powers. The Missouri Supreme Court has held that: "Such a contract would not be binding on the City because it had no power to thus hamper the free exercise of its legislative discretion. The governing authority of a municipality is not permitted to abdicate through a contract any of its legislative powers and thereby preclude itself from meeting in a proper way the emergencies that may arise." Thompson v. St. Louis, 253 S.W. 972. (5) The court erred in not holding that the attempted ratification of the pretended contract with the architects by resolution, passed nearly three months after the pretended contract had been made and after $ 4400 had been paid, was illegal and void. Dearmont v. Mound City, 278 S.W. 802; Anderson v. County, 181 Mo. 46; County v. Morrow, 189 Mo. 610; Savage v. Springfield, 83 Mo.App. 323; Sec. 2962, R. S. 1929; King v. Maries County, 249 S.W. 420.

R. P. Smith and B. Hugh Smith for respondent.

(1) Cities of the third class in this State may acquire property for public parks by purchase, within such cities or within one mile thereof and may establish, improve and maintain the same as public parks. R. S. 1929, secs. 6808, 6829. (2) Cities of the third class may receive gifts and donations of all kinds of property. R. S. 1929, sec. 6719; Kennedy v. Nevada, 222 Mo.App. 459, 281 S.W. 56; Vrooman v. St. Louis, 88 S.W.2d 193. (3) A "park" includes an enclosed pleasure ground in or near a city set apart for the recreation of the public. Universal Dictionary & Handbook (1929); Webster's New Modern Dictionary (1930); Black's Law Dictionary (2 Ed. 1910); Williams v. Hylan, 215 N.Y.S. 103, 127 Misc. 807; Dodge v. North End Imp. Assn., 189 Mich. 16, 155 N.W. 438; State ex rel. v. Schweickhardt, 109 Mo. 496, 19 S.W. 47; City Sewerage Utilization Co. v. Board of Health, 1 Leg. Gaz. 403; Brooklyn Park Commrs. v. Armstrong, 45 N.Y. 234; South Park Commrs. v. Montgomery Ward & Co., 248 Ill. 299, 93 N.E. 912; Central Parkway v. Schenectady, 251 N.Y.S. 580, 140 Misc. 727; Horn v. Minneapolis, 182 Minn. 172, 234 N.W. 291. (4) Performance of a contract for the acquisition and development of a park cannot be enjoined merely because there is a possibility or even a threat that some uses of the park when completed may be illegal. Lester Real Estate Co. v. St. Louis, 169 Mo. 227, 69 S.W. 300; Denning v. Graham, 227 Mo.App. 717, 59 S.W.2d 702; Putnam v. Coates, 220 Mo.App. 218, 283 S.W. 717; Halbruegger v. St. Louis, 302 Mo. 591, 262 S.W. 379. (5) Cooperation between a city and the Works Progress Administration is not illegal either as a delegation of city powers or otherwise. Baugham v. Willacy County Imp. Dist., 112 S.W.2d 318; School District No. 37 v. Isackson, 92 F.2d 768; Warm v. Cincinnati, 11 N.E.2d 281; Vrooman v. St. Louis, 88 S.W.2d 189. (6) A city of the third class has specific power to erect, maintain and operate a community building such as the one sought to be enjoined in this cause. R. S. 1929, sec. 7651.

OPINION

Ellison, P. J.

The appellant corporation, a freeholder and taxpayer in Cape Girardeau, a city of the third class operating under the commission form of government, brought this suit in March, 1937, to enjoin the city, its mayor and commissioners from expending the proceeds of a $ 55,000 bond issue voted by its citizens in January, 1937, in the construction of a recreational and community center, and for other purposes incident thereto. No temporary injunction was prayed. The project was to be constructed with the aid of an appropriation of $ 164,853 from...

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