Kern v. City Com'rs of City of Newton

• Decision Date: 06 April 1940
• Docket Number: 33151.
• Citation: 100 P.2d 709,151 Kan. 565
• Parties: KERN v. CITY COM'RS OF CITY OF NEWTON, et al.
• Court: Kansas Supreme Court

100 P.2d 709

151 Kan. 565

KERN v. CITY COM'RS OF CITY OF NEWTON, et al.

No. 33151.

Supreme Court of Kansas

April 6, 1940

Rehearing Denied May 10, 1940.

Syllabus by the Court.

The fact that city had leased city swimming pool to individual operator did not relieve city officials from obligation to cause the pool to be operated so that there would be no discrimination against members of the colored race. Gen.St.1935, 21-2424.

The statute providing for declaratory judgments can be invoked only when an actual controversy exists. Gen.St.1935, 60-3127.

In mandamus proceeding to compel city and lessee of city swimming pool to permit negro to use the pool, "actual controversy" within terms of declaratory judgment statute did not exist concerning validity of ordinance providing for segregation of races in event of construction of separate pool for negroes, in absence of showing that plaintiff would object to such ordinance if separate pool existed or that construction of separate pool was assured and hence court would not determine validity of such ordinance. Gen.St.1935, 21-2424, 60-3127.

As affecting right of negro to mandamus to compel city officials and lessee of city swimming pool to permit plaintiff to use the pool, city officials and lessee are vested with wide discretion in determining whether persons presenting themselves for admittance to the pool are proper persons to be admitted regardless of color or race. Gen.St.1935 21-2424.

In mandamus proceeding to compel city officials and lessee of city swimming pool to permit negro to use the pool, wherein defendants denied that plaintiff had presented himself and demanded to be admitted, and record did not show whether defendants had had opportunity to see plaintiff so as to pass on his qualifications other than race, judgment for plaintiff notwithstanding the answers was denied. Gen.St.1935, 21-2424.

1. In a proceeding for a writ of mandamus to compel city officials and the lessee of a swimming pool to permit plaintiff, a colored man, to use the pool, the fact that the city has leased the pool to one who is operating it does not relieve the city officials from the obligation to cause the pool to be operated so that there will be no discrimination against members of the colored race.

2. In a case such as that described in the foregoing paragraph of the syllabus, the city officials and lessee are vested with a wide discretion as to whether persons presenting themselves for admittance to the pool are proper persons to be admitted regardless of color or race.

3. In a case such as that described in the first paragraph of this syllabus, where defendants denied that the plaintiff had taken certain preliminary steps requisite to being admitted to this pool, the motion of plaintiff for judgment on the pleadings will be denied.

Original mandamus proceeding by D. E. Kern against the City Commissioners of the City of Newton, comprising McCulley Ashlock, mayor, and others, to compel defendants to admit plaintiff to privileges of a swimming pool. On plaintiff's motion for judgment notwithstanding the answers.

Motion denied.

Elisha Scott, of Topeka, for plaintiff.

Fred Ice, City Atty., Ezra Branine, Alden E. Branine, and Vernon A. Stroberg, all of Newton, for defendants.

SMITH Justice.

This is an original proceeding in mandamus whereby the plaintiff, a young citizen of African descent, seeks to compel the governing officials of the city of Newton and one Harold Hunt to admit him to the privileges of a swimming pool constructed with funds procured by a sale of municipal bonds voted by the electors of Newton in 1934.

This action was before this court once before. See Kern v Newton City Commissioners, 147 Kan. 471, 77 P.2d 954 960. In that action an alternative writ was issued, which counsel moved to quash on two grounds--that plaintiff had no legal capacity to maintain the action and that the application for the writ did not state sufficient facts to constitute a cause of action. The motion to quash was overruled and defendants were given thirty days to plead. In that case the plaintiff sought to litigate the right of himself and other members of his race to use the pool. With reference to this contention, this court said: "According to the petition, however, it is alleged that all colored citizens of Newton are similarly deprived of the privileges of the swimming pool. Whether their number be many or few the pleadings do not show. However, the situation stated in the application for the writ would undoubtedly warrant the institution of some sort of action, mandamus, quo warranto, or injunction, by the public prosecutor; and we are not prepared to say that plaintiff can maintain this action on behalf of the group for which he pleads. But we think it clear that in the interests of justice and equity plaintiff is entitled to maintain the action in his own behalf."

Following that statement we now have the sole question of whether on the face of the pleadings plaintiff himself is entitled to use the swimming pool. The application for the writ sufficiently alleged that the bonds so voted were a charge upon all taxable property of the city, and that plaintiff was a taxpayer; that when the swimming pool was completed and opened this plaintiff provided himself with a bathing suit for the purpose of enjoying the privilege of the swimming pool, but in the meantime the city government leased the swimming pool to one Harold Hunt; and that the latter denied to plaintiff the right and privilege of using the pool because of his race and color. The petitioner further alleged that no arrangements had been made by defendants to furnish swimming facilities or privileges for plaintiff, and that neither he nor other citizens of African descent and color were admitted to the municipal swimming pool at any time. The petition continued "Plaintiff alleges that the action on the part of all the defendants and each of them was malicious, capricious, arbitrary and in violation of the civil rights law of the state of Kansas made and provided in such cases and also in direct violation of the federal and state constitutions in such cases made and provided. And, that he and all other people of African descent or color are discriminated against because of their race, and that the said defendants and each of them have arbitrarily and intentionally failed and refused to make any provision for their entertainment, amusement or enjoyment of said municipal swimming pool in the city of Newton, Kan., notwithstanding the fact that the plaintiff and people of this group pay their just proportion of the taxes, which will be applied to the liquidation of the indebtedness incurred by the defendants."

The petition concluded with a prayer for an alternative writ commanding defendants to admit plaintiff and other citizens of Newton of African descent and color to the privileges of the swimming pool, or to show cause why plaintiff and others similarly situated should be denied such privileges.

The answer of the city officials was first a general denial. The answer then admitted the official capacity of the defendant officials and that bonds were voted to build a swimming pool. The answer then alleged that the defendants did not know except by hearsay whether or not plaintiff presented himself during the first part of June, 1936, and demanded admittance to the pool, and the defendants specifically denied such fact. The answer further alleged that the city had entered into a written lease with Harold Hunt whereby he leased the pool; that the rental Hunt had agreed to pay would be more than sufficient to pay the expenses of the pool and the cost of construction of it; that Hunt was not an officer or agent of the city of Newton at the time plaintiff demanded admittance and the city of Newton was not responsible therefor. The answer further alleged that plaintiff had an adequate remedy at law and that on account of these facts there was a misjoinder of parties defendant. The answer further alleged that a resolution had been passed by the governing body of the city providing for the construction of a modern swimming pool for colored persons, upon obtaining the necessary funds therefor, which when constructed would have all the necessary equipment for the operation of such a pool, and would be of such size and dimensions to furnish colored persons facilities for swimming; that on May 3, 1938, the governing body adopted an ordinance segregating the different races using the swimming pool for colored people, and the defendants asked a determination of the validity of the ordinance, which was attached to the answer; that after the enactment of the above mentioned ordinance a lease was duly entered into with Harold Hunt by the governing body and that Harold Hunt was in control of the swimming pool under the terms of that lease. The prayer of the answer was that a peremptory writ of mandamus be not issued and there be a determination of the right of the governing body of the city to segregate the races for swimming purposes.

The answer of Harold Hunt was first a general denial. It then alleged that he had entered into the lease with the city for the swimming pool; that it was a valid lease and that he was not an official or an employee of the city of Newton and that the pool was leased by him for profit. The answer then contained the following allegation: "That said swimming pool is what is known as the circulatory type of pool and that the water thereof is only changed once during the swimming season, that the water is constantly entering said pool and leaving the same all of the time the pool is in operation; that if colored persons were permitted to swim in said pool, then the members of the white race would not...