Kennedy v. City of Nevada

• Decision Date: 01 February 1926
• Docket Number: No. 15519.,15519.
• Citation: 281 S.W. 56
• Parties: KENNEDY v. CITY OF NEVADA.
• Court: Missouri Court of Appeals

281 S.W. 56

KENNEDY v. CITY OF NEVADA.

No. 15519.

Kansas City Court of Appeals. Missouri.

February 1, 1926.

Rehearing Denied February 27, 1920.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

Suit by Kate Kennedy against the City of Nevada. From a judgment for plaintiff, defendant appeals. Reversed.

A. J. King and M. T. January, both of Nevada, Mo., for appellant.

C. E. Gilbert and W. H. Hallett, both of Nevada, Mo., for respondent.

BLAND, J.

This is a suit in two counts, based upon an alleged nuisance maintained by the city of Nevada. The first count is for damages caused by reason of the maintenance of the nuisance; the second count asks for injunctive relief to restrain the city from continuing the nuisance. The trial resulted in a judgment in favor of plaintiff on the first count in the sum of $175 and on the second count in perpetually enjoining defendant for continuing the nuisance. Defendant has appealed.

The facts show that defendant has been maintaining a tourist camp on a block of land within the city limits of Nevada, alleged to be owned by the city. On the tourist camp, grounds the city maintained four shower baths and two toilets, which were connected with a cesspool. There was a drain connected with the cesspool that led out into Walnut street, where it became an open ditch, or gutter. Plaintiff's property was located diagonally across from the block of land containing the tourist camp and on the opposite side of the street from the ditch. The water that was discharged upon Walnut street from the cesspool contained human feces, and gave forth vile and nauseating odors. Whether Walnut street is a public street is not shown.

The answer sets up as a defense, among other things, that the city had no right to acquire land for the purpose of conducting a tourist camp, a space merely for the accommodation of travelers, not residents of the city, who might pass through, as a place of rest and to cook their meals.

The evidence shows that various motions were made and carried in the city council to purchase the land in controversy for a tourist camp; that committees of the council were appointed to erect improvements; that these improvements consisted of toilets, shower baths, kitchen, etc., and were paid for by the city; that the committees made various reports, a caretaker of the park was appointed, the city paid the consideration recited in the deed for the purchase of the land, and the deed conveying it to the city was duly recorded. There was, however, no ordinance passed for the purchase of the ground or for the acceptance of the deed or for the using of the park or for fixing its dimensions.

Defendant insists that the city had no power to purchase land for the maintenance of a tourist camp, and therefore was not liable in this case. Plaintiff makes no claim of any express authority given cities of the third class, of which defendant is one to purchase land for a tourist camp. However, plaintiff contends that, by virtue of section 8206, Rev. St. 1919, "there is no limit of the power of a city to purchase and hold real estate. The only limitation would be whether or not such city had funds legally available for such purpose." If this is the law, third class cities of this state may purchase office buildings, hotels, department store structures, and the like, regardless as to whether they are fitted for municipal purposes. Section 8206 provides that cities of the third class, among other things * * * may receive and hold property, both real and personal, within such city, and may purchase, receive and hold real estate within or without such city for the burial of the dead; and may purchase, hold, lease, sell or otherwise dispose of any property, real or personal, it now owns or may hereafter acquire; may receive bequests, gifts and donations of all kinds of property; and may have and hold one common seal, and may break, change or alter the same at pleasure, and all courts of this state shall take judicial notice thereof."

It will be noted that the language of the statute is unusual, the only connection in which the word "purchase" is used is in reference to burial grounds, and to the disposal of property that the city may own. But, conceding that this section standing alone gives unlimited authority to such cities to purchase real estate, there are other provisions of the laws of the state restricting that right on the part of cities. We refer to sections 1, 3, and 10 of article 10 of the Constitution. Under the provisions of these sections cities have the power to levy and expend taxes for corporate or municipal purposes only. State ex rel. v. City of St. Louis, 115 S. W. 534, 216 Mo. 47, 90, 91; Houck v. Drainage Dist., 154 S. W. 739, 248 Mo. 373, 384. It is therefore apparent that the city may not devote public funds raised by taxation to the purchase of real estate for other than municipal purposes. The question to be determined then is whether or not the purchase of the land in question by the city for the purpose of using it as a tourist park was a purchase for a municipal purpose.

There is some intimation in plaintiff's brief that a tourist camp is a public park. We think that it is quite evident that it is not. The record shows that this camp was maintained for the accommodation of people who traveled through the country in automobiles; that no one used it except people so traveling; that there was a charge made in connection with its use by the traveler if he stayed more than three days. It would appear that it was a place to stop and rest, to cook meals, and to spend the night; provision for these being furnished. There were also furnished shower baths and toilets. It can hardly be said that ground devoted to such purposes and for the exclusive use of transients and nonresidents of the city is a public park.

"A park is variously defined to be `a pleasure ground in or near a city set apart for the recreation of the public'; `a piece of ground inclosed for purposes of pleasure, exercise, amusement or ornament.' Perrin v. Railroad, 36 N. Y. 120; `a place for the resort of the public for recreation, air, and light; * * * a place open for every one.' Price v. Inhabitants, 40 N. J. Law, 613." State ex rel. v. Schweickardt , 109 Mo. 496, 510.

"* * * A park in a city means to the sense of every person a place open to every one. It carries no idea of restriction to any part of the public or to any specific number of persons. Restrictions as to time of entrance or behavior of those entering are conceivable, but the idea that any class of the community is to be excluded would not be entertained primarily by any person in connection with the idea of a park within the limits of a city." Sanborn v. City of Amarillo, 93 S. W. 473, 474, 42 Tex. Civ. App. 115.

The purchase of this land by the city must therefore be justified on some other ground than for park purposes. We fail to see on what ground this camp can be said to be maintained for municipal purposes. It was purely for the accommodation of guests of the city, transients passing through and using the accommodations provided by the city as a mere convenience.

It has been held that a municipality has no power to expend its funds to provide entertainment and extend hospitality or to furnish social pleasures either to its citizens or invited guests. Hodges v. City of Buffalo, 2 Denio (N. Y.) 110; Tash et al. v. Adams, 10 Cush. (64 Mass.) 252; Austin v. Coggeshall, 12 R. I. 329, 34 Am. Rep. 648.

"The general rule that a public corporation cannot make a contract to provide an entertainment for its citizens or guests is freely conceded; also that it is not within the power of cities of the third class to make appropriations for expenses incurred in providing refreshments, entertainments and dinners for delegates . to a convention; or for entertaining guests at a supper or ball; or, indeed, for the purpose of extending hospitality or furnishing social pleasures either to citizens or invited guests." Stegmaier v. Goeringer, 67 A. 782, 218 Pa. 499, 11 Ann. Cas. 973, 974.

In Hodges v. City of Buffalo, the statute authorized the common council to manage the finances and the corporate property, and to make by-laws for certain specific purposes ;. also to make and change such ordinances, by-laws, and police regulations "for the good government and order of the said city, and the trade and commerce thereof as may be necessary to carry into effect the powers given to said council." It was held that the council had no power to provide entertainment and a ball at a hotel for the citizens and certain military guests commemorating an anniversary of our national independence.

Commonwealth ex rel. v. Gingrich, 21 Pa. Super. Ct. 286, was an action in mandamus to compel the city comptroller to approve bills and warrants "for expense incurred for refreshments and entertainment of guests of the city" and "invited residents of the city and for expense of giving them a fish dinner on the peninsula." The entertainment was for delegates to a convention of the League of Third Cities. This league was formed for the purpose of advancing various interests of such cities, and to promote remedial legislation therefor, and for discussion and exchange of views upon any and all topics pertaining to the welfare and conduct of the same. The Legislature empowered the city to make ordinances, bylaws, regulations "* * * `as may be expedient or necessary * * * for the proper management, care and control of the city and its finances, and the maintenance of the peace, good government and welfare of the city, and its trade, commerce and manufactures.'"

The court, in passing upon the case, stated (loc. cit. 290):

...