107 Neb. 576 | Neb. | 1922
This action is brought by appellant, plaintiff below, to recover from appellees the possession and control of 30 acres of one of the public parks of appellant, containing 46 acres in all.
The appellee claims the right to the possession and control of the land in controversy by virtue of a certain agreement, made on or about December 21, 1908, by the board of park commissioners of the city of Nebraska City with the Nebraska City Speed & Fair Association, and by the city council of the city of Nebraska City by resolution ratified and confirmed. This agreement provided that, in consideration of appellee, Nebraska City Speed & Fair Association, constructing and maintaining a race track in said park, the board of park commissioners, for themselves as such board and for said city, did grant to said appellee for a term of 25 years the grounds designated upon a plat attached thereto as a race track, also ground upon which the amphitheater or grandstand was to be erected by the city, together with all the grounds south of “Second corso” (which road the county commissioners proposed to vacate; the location of which road is not shown in the record herein). The appellee Nebraska City Speed & Fair Association, by '.he terms of said agreement, was to have exclusive use and control of said ground so granted to it, for its race Gack, except the infield in said race track; also such
The only conclusion that can be drawn from the fore
If a race track, for holding race-meets, is a proper improvement for a public park, it must be under the control of the park, commissioners of the city. The city had the right to acquire the lands for a public park. When so acquired it nmst be used for a public park, and the public must be allowed access thereto, subject only to rules and regulations made by the board of park commissioners and ordinances of the city. Neither the park commissioners nor the city have authority to delegate to, or share with, appellees herein, or any person, the making of rules and regulations governing the control of its public park. Neither the park commissioners nor the city had the power to grant to appellee the exclusive use and control of said race track.
The appellee Nebraska City Speed & Fair Association contends that the city is estopped from denying that the said agreement with the city is valid, and from claiming that it is void for want of power in the city to grant to appellee the use of said premises, by reason of the fact that in pursuance of said agreement, with knowledge of said city, said appellee has made, and wás permitted
A city cannot be estopped from denying the validity of a contract which it has no power or authority to make. Citizens Bank v. City of Spencer, 126 Ia. 101.
Appellees contend that this rule does not apply where the city is not acting in its governmental capacity, but
•' The authority to maintain and control a public park is essentially a part of the machinery of governmént by.a city necessary to maintain the park for. the benefit of the public. ' It follows as a natural deduction that the agencies employed' in respect to the same are governmental in character. The act on the part of the .park commissioners in' granting to the Nebraska City Speed & Fair Association the greater part of said park was not an act of the city in its private or proprietary character. It was an act in its governmental capacity.- The signing of the contract may have been an act in its business capacity. But the contract itself provided .for governmental acts and control of the larger part .of said park by the Nebraska City Speed & Fair Association. This court has held in Caughlan v. City of Omaha, 103 Neb. 726, that a city in maintaining a.-public park performs a governmental function, as distinguished from, a proprietary or business enterprise. By that agreement with appellee the maintenance- and control of at least three-fifths of the area of said park was purported.to be granted and delegated to the Nebraska City Speed & Fair Association, to exercise the same as it saw fit. This was delegating to it a. governmental function. “The legislative power vested in municipal bodies cannot be bartered away in such manner as to disable them from the performance of their public functions.” Wabash R. Co. v. Defiance, 167 U. S. 88. Milhau v. Sharp, 27 N. Y. 611.
A municipality has-no power'to enter into contracts Avhich curtail or prohibit an exercise of its legislative or administrative authority. State v. Board of Park Commissioners, 100 Minn. 150.
Maintenance of a park by a city for the sole benefit of the public, and not for profit or benefit of the mu
The doctrine of. estoppel could only be applied on account of benefits received by the public by reason of the act the validity of which is questioned. The only benefit to the public by reason of the construction of this race track and buildings, in said park by said .appellee, when controlled as provided for by said agreement, is the entertainment provided for them, at the three' days’ annual race-meet held by appellee, for the enjoyment of which the public were required to pay an admission -fee. The remainder of the year, and in fact at all times, the public Avere excluded from enjoying said race track for a driveAvay through said park, and from the use thereof in any manner. They Avere also excluded by the acts of appellee from the use of tAvo acres of the land in controversy Avhich Avas suitable, by reason of its trees and grass, for park purposes. The city had no power to contract for the construction of a race track in its public park for the exclusive use of the Nebraska City Speed & Fair Association. It might, hoAvever, contract for the construction of driveways in the park for the use of the public and the race track therein constructed might be used for such driveway.
The city had poAver to grant to appellee a license or concession to hold in said park race-meets, for short periods of time, for the entertainment of the public, the same as it might grant a concession for providing refreshments or any other amusement for the public. While affording such entertainment and for a reasonable time prior thereto, for the purpose of putting the race track in proper condition therefor, appellee might be given control of the race track. While the meet is in progress, and an admission fee charged, it might be given control, subject to reasonable rules and regulations made by the board of park commissioners, for the purpose of said entertainment, of the entire grounds. It might also, as such licensee, be given exclusive control of
The said contract between appellant and said appellee Nebraska City Speed & Fair Association, so far as it grants to it the use and control of said race track and grounds, for the purpose of holding annual race-meets, may be valid as a license or concession for providing-such an entertainment for the public. But it is invalid and void so far as it attempts to give to said Nebraska City Speed & Fair Association the use and control of said race track and grounds of said park during the times the same are not used for the purpose of providing such entertainment. When not so used the supervision, maintenance and control of the same must be in the city by its proper officers. Upon ceasing to conduct such entertainment or termination by the city of said concession, appellee Nebraska City Speed & Fair Association would have the right to remove all buildings in said park owned by it, provided such removal did not injure the premises for the use by the public as a park. The race track, however, should remain uninjured for a public driveway in said park. The said acts of appellee in assuming and exercising the exclusive use, management and control of all that portion of said park south of Table creek
The judgment of the court is therefore reversed and this cause remanded for further proceedings in accordance with the opinion herein.
Reversed.