Norberg v. Hagna
| Decision Date | 18 October 1923 |
| Docket Number | 5299-5302. |
| Parties | NORBERG v. HAGNA et al. [*] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Codington County; W. N. Skinner, Judge.
Action by Carl H. Norberg against B. N. Hagna, the City of Watertown, and others. From orders sustaining demurrers plaintiff separately appeals. Reversed in part and affirmed in part, and remanded with directions.
McFarland & Kremer, of Watertown, for appellant.
A. L Sherin, of Watertown, for respondents.
This is an action for damages for personal injury, against the city of Watertown, its mayor, the members of its city council, and the members of its park board. Four demurrers were interposed to the complaint, one by all of the defendants, one by the mayor and members of the city council, one by the park board and one by the city. From orders sustaining each of said demurrers the plaintiff separately appealed. For convenience the appeals are here heard on one set of briefs.
It is alleged in the complaint that plaintiff, a nonresident of Watertown, was injured in June, 1921, by diving from a diving board negligently maintained by defendants in Lake Kampeska within a park owned and maintained by defendants outside the city limits of Watertown. The cause of the injury is alleged to be that the diving board was placed and maintained in very shallow water, to wit, about 3 1/2 feet in depth, so that when plaintiff dove therefrom he struck his head upon the lake bottom and was severely injured.
While the question whether the placing of a diving board in such a place constitutes negligence is a question of fact for a jury to determine, yet for the purposes of this appeal we must hold that the complaint states a cause of action in that behalf. Turlington v. Tampa Electric Co., 62 Fla. 398, 56 So. 696, 38 L. R. A. (N. S.) 72 Ann. Cas. 1913D, 1213.
It is the theory of appellant (1) that the city is liable for the injury for the reasons given in Walters v. City of Carthage, 36 S.D. 11, 153 N.W. 881; (2) that the park board and the city council had no authority to purchase land for a park outside the city limits, and had and have no authority to maintain a park so situated, and that they are liable for their ultra vires acts even if there is no liability on the part of the city. It is the theory of respondents that the city and said boards were acting under authority of law and under the governmental powers of the city as distinguished from its private, business, or proprietary powers and therefore that there is no liability on the part of any of the defendants because of such injury.
We will first consider the question of ultra vires.
Appellant's counsel call our attention to chapter 11 of part 8 of title 6 of Rev. Code 1919, viz. sections 6433-6523, which provides for three methods of park control: (1) By the governing body of any municipal corporation (section 6433); (2) in cities of the first class by a park board created by ordinance (sections 6434-6443); and (3) in cities of the first class by a park board created pursuant to the vote of the electors. They say that, because section 6440, chapter 274, Laws 1919, only purports to give a park board created by ordinance power over parks within the city, and since the park board, whose members are defendants herein, was so created, such board, in attempting to exercise control over the park in question, acted ultra vires. They contrast with section 6440 the provisions of section 6452, which purport to give the park board created pursuant to a vote of the electors authority over parks within or without the city limits. There would be much force to appellant's contention were it not for subdivision 10 of section 6169, Rev. Code 1919, which authorizes all municipal corporations to acquire and manage public parks, and provides:
"And any such public park partly or wholly without the limits of the municipality shall, for the purposes of improvement, preservation, regulation and government, be considered as if wholly within the limits thereof."
This section must be read and construed with section 6440 as amended, and when so read and construed it is entirely clear that it was the legislative intent that park boards created by ordinance should have the same authority over parks without as within the city limits. Said provision is in effect a general definition, and, if it had been the legislative intent that the definition should not apply to a later enactment, such later enactment should have negatived the applicability of the definition. We are therefore convinced that the city council and the park board did not act ultra vires.
Is the defendant city, then, liable for the negligence which caused the injury? In Walters v. City of Carthage, supra, this court said:
.
In that case the nonliability of the city was strongly urged because it was claimed that it was acting under its governmental powers as distinguished from its private, business, or proprietary powers, but this court then declined to adhere to that doctrine although the applicability of the doctrine as to school districts or...
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