Capen v. City of Portland

228 P. 105 | Or. | 1924

McBRIDE, C. J.

No question is raised here as to the authority of the city to make this purchase under its authority to provide parks, the sole question being whether a golf links is of such public importance as to constitute a public utility within the meaning of the law.

We find in the text-books no exact definition of a public utility; in fact, it would be very difficult to construct a definition that would fit every conceivable case. It has been frequently held that the words “public utility” are synonymous with “public use.” 6 Words & Phrases, 5830; Valley City Salt Co. v. Brown, 7 W. Va. 191; State ex rel. v. Barnes et al., 22 Okl. 191 (97 Pac. 997); Barnes v. Hill, 23 Okl. 207 (99 Pac. 927); City of Ardmore et al. v. State ex rel. Best, 24 Okl. 862 (104 Pac. 913). In 19 R. C. L., page 721, defining the powers of municipal corporations, the following language is used:

“Municipal corporations are not limited to providing for the material necessities of their citizens. Under legislative authority, they may minister to their comfort, health, pleasure, or education. They are not limited to policing the city, to paving the streets, to providing it with light, water, sewers, docks, and markets. The power of cities and towns to maintain institutions which educate and instruct as well as please and amuse their inhabitants, such as libraries and botanical and zoological gardens, is unquestioned. So also the public funds may be expended in providing an exhibit at a fair or exposition. The reasonable use of public money for memorial halls, monuments, statues, gates or arch-ways, celebrations, the publication of town histories, parks, roads leading to points of fine natural scenery, decorations upon public buildings, or other public ornaments or embellishments, designed merely to promote the general welfare, either by providing for fresh air or recreation, or by educating the public taste, or by inspiring sentiments of patriotism, or of respect for the memory of worthy individuals, has received such general sanction that there can be no doubt that muncipal corporations may be constitutionally authorized to expend money raised by taxation for such purposes. The trend of authority, in more recent years, has been in the direction of permitting municipalities a wider range in undertaking to promote the public welfare or enjoyment. Thus, the appropriation of money for public concerts has been held to be proper. So, too, the erection of an auditorium has been regarded as properly falling within the purposes for which a municipal corporation may provide. Generally speaking, anything calculated to promote the education, the recreation or the pleasure of the public is to be included within the legitimate domain of public purposes, and on this ground it has even been held that authority to erect and conduct an opera house may be conferred upon a municipal corporation.” [Section 29.]

It has been held that sewers, parks, street railway systems, fuel yards, auditoriums, and cemeteries are public utilities, and, following the general trend of later authorities, we are of the opinion that a golf links, while it is a comparatively new form of recreation here, comes within the reasoning of the decisions in the matters above referred to. The intention in the present case is to furnish a means of recreation for the public for which the city is in nowise liable, as it is provided in the contract that the bonds to be issued pursuant thereto shall be paid from the proceeds of fees to be collected from golf players and from no other fund. The same condition is prescribed in the form of bond which is stipulated in the contract.

Indeed, it may well be doubted whether the plaintiff in this case has any standing to bring this. suit. He shows that he is a taxpayer, but by the same complaint lie shows affirmatively that as a taxpayer he will not, under the contract with the Ladd Estate Company, he compelled to participate as a taxpayer in the purchase of this property, hut that only participants in the game of golf will be taxed, by way of fees, to pay the bonds. In view of the decision of the court in Sherman v. Bellows, 24 Or. 553 (94 Pac. 549), in the absence of any allegation showing that plaintiff will be injured in any way by the issue of the bonds in question, his right to bring this suit may well be questioned. But that proposition is immaterial to the decision of this case.

The decree of the Circuit Court is affirmed.

Affirmed,

McCourt, J., dissents.