Board of Park Com'rs of City of Louisville v. Speed

• Decision Date: 25 June 1926
• Citation: 285 S.W. 212,215 Ky. 319
• Parties: BOARD OF PARK COM'RS OF CITY OF LOUISVILLE ET AL. v. SPEED ET AL.
• Court: Kentucky Court of Appeals

285 S.W. 212

215 Ky. 319

BOARD OF PARK COM'RS OF CITY OF LOUISVILLE ET AL. v. SPEED ET AL.

Court of Appeals of Kentucky.

June 25, 1926

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Suit by Hattie Bishop Speed and others against the Board of Park Commissioners of the City of Louisville and others. Decree for plaintiffs, and defendants appeal. Affirmed.

W. T Baskett, of Louisville, for appellant Board of Park Com'rs.

Peter Lee, Tabb & Krieger, Churchill Humphrey, and Arthur Peter all of Louisville, for appellant Louisville Memorial Commission.

Alex G Barret, Edmund F. Trabue, and James W. Stites, all of Louisville, for appellees.

THOMAS C.J.

Appellees, Hattie Bishop Speed and twenty-one other citizens and taxpayers of the city of Louisville, as plaintiffs below, filed this equity action in the Jefferson circuit court for and on behalf of themselves and the other citizens and taxpayers of the city against the board of park commissioners of the city, and the Louisville memorial commission, and the members of each as individuals, to enjoin the park board (to which we shall hereafter refer as the board) and its members, and to enjoin the Louisville memorial commission (to which we shall hereafter refer as the commission) and its members, from carrying out or executing a contract entered into between the board and the commission on June 19, 1925, whereby the former granted to the latter the right and privilege for it to construct a memorial auditorium in Central Park in the city of Louisville, and which park is located between Fourth and Sixth streets, and contains between 15 and 18 acres.

The grounds upon which the relief was sought were that the board, in granting the privilege contained in the contract to surrender its control over the large auditorium contemplated after its construction, violated the provisions of the statute creating it, and exceeded its authority as therein set forth by delegating to the commission the exclusive control of a substantial portion of the park when the Legislature gave it, and enjoined upon it, the exclusive control of all of it. It was also insisted in the petition that the auditorium and the purposes to which it was to be devoted under the terms of the statute under which the commission was created were not (or at least some of them) park purposes, and to permit the contract to be carried out would surrender a portion of the park to the commission to be perpetually used for other than park purposes. The commission was sought to be enjoined from carrying out the contract upon the ground that the statute creating it enjoined upon it the exclusive control and management of the auditorium which it should construct, and that under the contract between it and the board it obligated itself to surrender control over a portion of the auditorium to the board, and to that extent, at least, the contract, if carried out, would violate the terms of its creating statute, and thereby both as to it and the board the contract was ultra vires and void. The learned judge who presided below sustained the contentions of plaintiffs, and perpetually enjoined the board and the commission from executing the contract, and to reverse that judgment defendants prosecute this appeal.

A brief examination into the authority and duties of both the board and the commission is necessary and pertinent. The law creating the board and prescribing and limiting its powers and duties is contained in sections 2840-2859 of our present Statutes, being a part of charters of cities of the first class.

Section 2840 prescribes that all public parks in the city "shall be held, managed and controlled by a board." Following sections designate the powers and duties that it may and must exercise under its general power of management and control, including police powers. Section 2850 says, in part:

"The title to all property acquired for park purposes shall vest in the board of park commissioners, and the same, with all the improvements and equipments, shall be held in strict and inviolable trust for public park uses," etc.

Section 2858 defines what shall constitute "park property," the exclusive control and management of which is delegated to the board, and the title to which it holds in trust for the enumerated purposes, thus:

"The term 'park property' includes all parks, squares and areas of land within the management of said board; and all buildings, structures, improvements, seats, benches, fountains, walks, drives, roads, trees, plants, herbage, flowers and other things thereon, and inclosures of the same; * * * and all birds, animals or curiosities, or objects of interest or instruction placed in or on any of such inclosures, ways, parkways, roads or places; and said terms shall be liberally construed."

The act creating and defining the powers and duties of the commission is chapter 23, Acts of 1922, p. 79, and its purpose was to authorize the citizens of the city of Louisville in the manner therein prescribed to erect an appropriate memorial to the soldiers furnished by the city and the county of Jefferson to the army and navy of the United States in the World War, and prescribed that a portion of the fund necessary for the purpose might be raised by a bond issue by the city in the manner therein provided for, and such fund should be supplemented by an additional amount of $500,000 raised otherwise than by taxation. That amount was raised by voluntary subscriptions, and plaintiffs were liberal donators, and the bonds of the city were voted by an election duly and regularly called, which, with the donation, made a fund of $1,250,000 to be expended by the commission in carrying out the purposes of the act. Section 6 of the act provided, among other things, that--

"Said commission may acquire by gift, purchase, lease or by condemnation, any land or property situated wholly within such city or county, or any interest, franchise, easement, right or privilege, in said city or county, or any buildings, tools, machinery, materials, or supplies, which may be required for the purpose of constructing, furnishing, maintaining or operating such memorial. * * * All property acquired by the commission shall be held, used, owned and controlled by it, for the purposes named in this act."

And section 23 says:

"All of the funds realized from the sale of the aforesaid bonds, if voted, together with the aforesaid gifts or donations or funds, aggregating not less than five hundred thousand dollars ($500,000.00) additional, shall be expended by the commission for the acquirement of necessary grounds and for the construction and equipment of said memorial, as provided for in this act; and the title to all such property, however acquired, shall vest in said commission, and shall be held and used in strict and inviolable trust for the purposes contemplated by this act."

The contract assailed stipulates that the board "gives and grants to the Louisville memorial commission, its successors and assigns, the right to erect and maintain a memorial structure upon that portion of Central Park in the city of Louisville shown upon the plat attached," etc. It is further provided and stipulated that "it is hereby mutually agreed that, upon the completion of the memorial, the (park) board shall have complete custody, control, and management of that portion of the said structures designed to replace and increase the facilities contained in the existing buildings in Central Park, such portion being inclosed within a red line of the floor plans filed herewith as part hereof (about one-fourth of the basement) marked for identification 'Exhibit A,' and that the (memorial) commission shall have the complete custody, control, and management of the remainder of said memorial structure," and that "the (memorial) commission and the (park) board each agree to maintain order in and to accept full responsibility for the preservation of that part of the structure under their respective management." The plaintiffs contend that the board exceeded its rights when it attempted in the contract to surrender its management and control of the building to be erected by the commission, since under the statutory definition, supra, the park property placed under its exclusive management and control includes all building upon the park grounds, and that the commission likewise surrendered its enjoined control over that portion of the proposed memorial structure wherein it surrendered control to the board, and those contentions present the first question for consideration on the merits. If it should be answered in favor of plaintiffs, there will be no necessity in discussing or determining the other question on the merits, i. e., whether the building and its uses as contemplated may be classified as "park purposes"; it being contended by plaintiffs that it would not, and that to do so would be a devoting of a portion of the park to other than park purposes, which, it is conceded by defendants, cannot be done under the present condition of the law on the subject, if the structure and its uses are not "park purposes."

Before considering the first question on the merits, a preliminary one is presented, which is, that plaintiffs show no right in themselves to maintain this action, and which in effect is that there is a defect of parties plaintiffs. Section 92 of our Civil Code of Practice says:

"A special demurrer is an objection to a pleading which shows-- * * * That there is a defect of parties, plaintiff or defendant."

The facts upon which it was claimed the plaintiffs had the right to maintain the action were all set forth in the petition. Each of them were and are sui juris, and had legal capacity to sue, provided they sustained...