State v. The City of Dodge City

• Decision Date: 09 April 1927
• Docket Number: 27,298
• Citation: 123 Kan. 316,255 P. 387
• Parties: THE STATE OF KANSAS, ex rel. E. C. MINNER, County Attorney, Appellee, v. THE CITY OF DODGE CITY, Appellant
• Court: Kansas Supreme Court

255 P. 387

123 Kan. 316

THE STATE OF KANSAS, ex rel. E. C. MINNER, County Attorney, Appellee, v. THE CITY OF DODGE CITY, Appellant

No. 27,298

Supreme Court of Kansas

April 9, 1927

Decided January, 1927.

Appeal from Ford district court; ROSCOE H. WILSON, judge pro tem.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. MUNICIPAL CORPORATIONS--Authority to Maintain City Tourist Camps. A city may in its discretion maintain a municipal or city tourist camp, providing such buildings, facilities and conveniences and making such charge therefor as the governing body of such city may determine. (Substitute for house bill No. 27, Laws of 1927.)

2. SAME--Maintenance of Camp in City Park. And further, a city may, if it be deemed expedient, maintain such tourist camp in any park of the city.

3. SAME--Operation of Tourist Camp--Disposition of Receipts. Receipts from the operation of tourist camps shall be used to defray the expenses of such camps, and any surplus therefrom shall be paid into the general fund or park fund of the city as the governing body of such city may direct.

Carl Van Riper, of Dodge City, for the appellant.

A. L Moffat, of Kinsley, and E. C. Minner, of Dodge City, for the appellee.

Albert B. Martin, of Lawrence, as amicus curiae.

OPINION

HOPKINS, J.:

This action involves the question whether a city park dedicated for general park purposes may be used for operation of a tourist camp. The action was one in quo warranto to oust the city from maintaining and operating such a camp. Plaintiff prevailed and defendant appeals.

It is contended that the operation and maintenance of the tourist camp is a commercial enterprise in which the city has no power to engage, and that maintenance of the camp in the city park is a diversion and misuse of the park--therefore, unauthorized and illegal.

Briefly, the facts are these: Dodge City is a city of the second class. In the year 1900 certain tracts of land were deeded to it for general park purposes. The money necessary for the purchase of such land was raised by popular subscription except $ 500 which was contributed from the city treasury. Some money raised by popular subscription remaining after the purchase had been made, was used in clearing the land, laying out a race track, etc. In 1917 an automobile camp was laid out in the park and in 1923 various conveniences for the benefit of the traveling public having been constructed, a charge was made for the use of the automobile grounds. In the summer of 1925 the city constructed fifteen one-room cottages for the convenience of the tourists, costing approximately $ 1,835. Another cottage (cook house), costing about $ 650, was constructed at the same time. These cottages were not paid for by the city, but were built under an agreement whereby the camping receipts should be turned over to the builder until their cost had been paid for. The city made a charge of thirty-five cents per day for camping privileges and a charge of one dollar per day for the use of a cottage. A small grocery store is operated in the park under the management of the park custodian, who is also a commissioned police officer. The store of goods is his own and he pays no city license for the operation of the store. All moneys received from the tourist camp are turned over to the park commissioner to be placed in the park funds for the maintenance of the camp; whatever is left, if any, being used for general upkeep of the camp. There was evidence that two private tourist camps, located just outside the city limits, could amply care for the tourist traffic.

Numerous authorities, cited by plaintiff in support of the contention that in operating the tourist camp the city engaged in a commercial enterprise, need not be analyzed. A very similar question was considered in Bailey v. City of Topeka, 97 Kan. 327, 154 P. 1014, which involved the use of Gage park. It was there said:

" Clearly, it is not inconsistent with the conditions imposed by the donor of the property that visitors to the park should be afforded facilities for obtaining refreshments, for boating and for bathing. No reason exists why they should not pay a fair price for what they eat or drink, or for the boating or bathing equipment they use. The city might through its employees furnish these conveniences directly, collecting reasonable charges therefor. The fact that a profit resulted would not render the...