State ex rel. Taylor v. Anderson

• Decision Date: 10 September 1951
• Docket Number: No. 1,No. 42310,42310,1
• Citation: 242 S.W.2d 66,362 Mo. 513
• Parties: STATE ex rel. TAYLOR v. ANDERSON et al
• Court: Missouri Supreme Court

Page 66

242 S.W.2d 66

362 Mo. 513

STATE ex rel. TAYLOR v. ANDERSON et al.

No. 42310.

Supreme Court of Missouri, Division No. 1.

Sept. 10, 1951.

J. E. Tayor, Atty. Gen., Aubrey R. Hammett, Jr., Asst. Atty. Gen., for appellant.

William T. Powers, Piedmont, Henri Sursa, Fredericktown, for respondents.

DALTON, Judge.

Action in equity to enjoin defendants from using the state boat dock in Big Spring State Park in Carter County and from trespassing on state porperty in said park by carrying on and operating the business of transporting visitors on sight-seeing tours for hire on and across the park property, out into Current River and return to the park. After a hearing on the merits, the trial court found the issues for defendants, dissolved a temporary injunction theretofore issued, refused a permanent injunction and entered judgment for defendants. Plaintiff has appealed.

Plaintiff alleged that Big Spring State Park, therein described, was owned by the state and controlled by the State Park Board, which was vested with authority to regulate, maintain and preserve the park property; that defendants were continuously operating and carrying on a business in Big Spring State Park, to-wit, transporting visitors in said park on sight-seeing tours by boat from a dock belonging to the state and located in the park; that visitors were taken across state property and into Current River and returned across state property; that defendants had been ordered to discontinue the operation of their business in and upon the state property; and that they had refused to do so and continued to operate said business. It was further alleged that the State Park Board had a written contract with C. D. McKinney to operate a boating concession in Big Spring State Park; that the operation of defendants' business was in direct conflict with the interests of the state and C. D. McKinney; that the conduct of defendants in continuing to operate said business constituted a public nuisance and was causing great injury, irreparable damage and inconvenience; and that plaintiff had no adequate remedy at law.

Defendants admitted that, for the purposes of this suit, the plaintiff owned the real estate described in the petition; and that the State Park Board was created by legislative act and was 'vested with authority under the statutes of Missouri to make and promulgate all rules and regulations as it may deem necessary for the proper maintenance, improvement, acquisition and preservation of all state parks,' but denied that such authority was material in this case. They admitted that they 'were engaged in operating boats at Big Spring State Park on sight-seeing tours and transporting visitors to the State Park on said tours on and over the Big Spring branch or out-let and into and over Current River and that in such operations they used the boat dock owned by the State of Missouri and under the jurisdiction of the State Park Board.'

Defendants alleged 'that whatever operations in the way of boating, as aforesaid, they performed and transacted were and are with the full knowledge and consent of the Park Board of the State of Missouri, and all employees thereof; and that the present season of boating for the year 1950 was so begun and continued by them with such full consent of the Park Board; and these defendants deny that they were ever at any time legally and lawfully notified or ordered to cease and discontinue such operations, or that they are now refusing to cease or discontinue such operations by reason of any lawful authority legally discontinuing the arrangement under which they operated; and further deny that any act of the defendants performed in and on the State Park was and is unlawful and in violation of law; but aver that all their operations were at all times lawful and in compliance with all rules and regulations of the Park Board.'

Defendants further alleged 'that * * * at all times these defendants paid to the representatives of the State of Missouri and the State Park Board certain agreed commissions on the gross amount these defendants collected from the passengers that took all the boat rides * * * that they did not at any time expect that they would be hindered in said operation in the middle of the season this year but had every reason to believe that they would continue under the agreement under which they had previously for all the years operated * * * and these defendants state that they in good faith performed their part of the agreement under which they operated, and are ready and willing to continue to operate under said agreement.' Defendants further alleged that on June 7, 1940, they were advised in writing by the Director of the State Park Board that they might operate their boats on Big Spring State Park in park waters until such time as their license may be revoked because of violation of rules and regulations' and that their said permits and license and authority to operate was never revoked.

Plaintiff's evidence tended to show that the State Park Board had on April 17, 1946 made and promulgated detailed rules and regulations for the management and control of the state parks. A copy of these regulations was filed with the Secretary of State on April 20, 1946. These regulations provide that the solicitation of any business or service is prohibited and that no person is permitted to offer or advertise merchandise or other goods for sale or hire; or to maintain any concession except by written permission of the State Park Board. On March 1, 1949 the State Park Board entered into a written concession contract with one C. D. McKinney by which contract the state granted him certain exclusive concessions, including a permit to operate the boating concession at Big Spring State Park for a period beginning March 1, 1949, and ending December 31, 1952, in consideration of his payment of a sum equal to five per cent of the gross receipts from operating the concessions. He was also employed as superintendent of the park for the duration of the contract at a salary of $100 per month.

The contract further provided: 'Complete accounts of all receipts shall be kept by the party of the second part on books furnished by the party of the first part for that purpose, said books to be open for inspection to the party of the first part at all times, and shall be audited once each month by a representative of the State Park Board. On the first day of each calendar month an itemized statement covering all sales, rentals and all other receipts from all said concessions, together with a remittance of the sum equal to five per cent (5%) of the gross receipts of said concessions for the preceding month, shall be delivered to the party of the first part by the party of the second part. * * * The party of the first part reserves the right to determine the prices to be charged for cabins, rooms, meals, merchandise, hire and facilities and services. * * * The party of the second part shall not assign, transfer, convey, sublet or otherwise dispose of this permit or of any right under this instrument without the previous consent in writing of the party of the first part.' First party, during the life of the contract agreed not to 'issue to any other person a permit to operate any of the concessions in said park.'

Prior to the time the State Park Board made its contract with McKinney, the defendants had been operating boats from the state boat dock in Big Spring State Park during the period from April to November of each year and McKinney permitted them to continue their operations after the contract was signed. Defendants fixed their own charges for their float trips out of the park, down Current River and for the return to the park. McKinney was paid 10 per cent of what they reported as their gross receipts and he remitted one-half of this amount or 5 per cent to the state under his contract. McKinney had been made superintendent in 1944 and the defendants were permitted to operate on this basis in 1944, 1945 and 1946. No written contractual arrangements were made with defendants either by McKinney or the State Park Board. The State Park Board at no time gave McKinney any written authority to subcontract or sublet the boating concession. In 1950 the State Park Board sent forms to McKinney and asked for daily reports on all float trips made from the park, the number of passengers carried, whether on a short or long trip and the amount collected on each trip. Under its contract with McKinney the State Park Board looked to him for compensation from the boating concession and demanded the reports. McKinney asked the defendants to keep daily records and report 'the amount of revenue and passengers and price schedule' and they informed him that they would not do it. They refused to fill out the forms or to comply with prices suggested and 'said they wasn't going to keep books for the Park Board.' The prices suggested by the board were forty cents single fare for adults and twenty-five cents for children under twelve years of age. Defendants charged forty cents regardless of age and said they would continue to do so. McKinney first talked to defendants on May 27, 1950 and later on June 6, 1950. The latter conversation was had in the presence of another employee of the State Park Board, who corroborated McKinney's testimony. When defendants told McKinney that they would not comply with the requested prices, nor make the reports he 'told them they were dismissed.' He said: 'You are through and you can get your boats out of here.' They advised him that 'they would go ahead and operate any way.' They did continue to operate and tendered McKinney certain amounts which they represented to be 10 per cent of their gross receipts, but he refused to accept the tenders.

After McKinney's conversation with defendants on June 6, 1650, defendants went to Jefferson City for a conference with Abner Gwinn, Chief of the State Park System. On June 7,...