State ex rel. Townsend v. Board of Park Commissioners

BROWN, J. Proceedings in mandamus to compel the board of park commissioners of the city of Minneapolis to resume the duties imposed upon it respecting the maintenance and management of the public parkway of that city known as Hennepin Boulevard. It appears from the pleadings, among other things, that the board of park commissioners of the city of Minneapolis was created and organized pursuant to chapter 281, p. 404, Sp. Laws 1883. That statute authorized, in general terms, the park board to acquire for park and parkway purposes lands adjacent to or within the city, either by purchase, donation, or condemnation proceedings, and thereafter to maintain the same for the purposes for which they were acquired, to levy assessments against lands benefited by the proposed park or parkway, and to exempt therefrom certain property owners who conveyed lands to the city for such purposes. It was also authorized to issue bonds of the city for the purpose of defraying expenses incurred in the purchase of lands, the amount of which was made a lien upon all parks — 152 — acquired by the board. The act further provided that lands which were obtained and devoted to park and parkway purposes should forever remain such for the free use of the inhabitants of the city, subject . to such rules and regulations as the board might from time to time prescribe. Under the authority thus conferred, the park board, with the consent of the city council, converted Hennepin avenue, an existing street, into a parkway. To enable the board to accomplish this, it became necessary to obtain from the owners of property abutting upon the avenue a strip of land eleven feet wide on either side of the same. This was obtained by deeds of conveyance from the various owners, including relator, all of which contained a provision to the effect that the transfer to the city was made at the instance -of the park board for parkway purposes, and upon the express agreement and understanding' that, in addition to the consideration therein expressed ($80), all other property then owned by the grantors should be thereafter exempt from all assessments appertaining to the improvement of the avenue as a parkway. These deeds conveyed, in addition to the eleven-foot strip just referred to, title to the center of the street. They were accepted by the board, and thereafter possession was taken and the strip im- • proved by sodding -and planting -ornamental trees therein, The park board continued in the control and supervision of the avenue so transformed into a parkway until 1905, when, acting under the authority conferred by chapter 304, p. 546, Sp. Taws 1885, a resolution was adopted by it vacating and abandoning the same as one of the parkways of the city, on the ground that it was impracticable to continue its maintenance for that purpose. Thereafter relator brought this proceeding to compel the board to resume control of the avenue and to maintain the same as a parkway. The facts are fully set forth in the writ and defendant’s answer. Relator appeals from an order of the court below overruling his demurrer to the answer. The proceeding is founded upon the contention that the transaction between the owners of abutting property along Hennepin avenue and the park board, by which the eleven-foot strip was conveyed to.the city at the instance of the board, constituted a contract between the parties, by which the park board bound itself perpetually to maintain — 153 — the avenue as a parkway, free of cost or expense by special assessment or otherwise to the adjacent property owners, who conveyed the strip of land mentioned upon that consideration; that the rights of the parties became unalterably fixed when the deeds were executed and de■livered to the city; and that the board could not thereafter either vacate or abandon the avenue as a parkway, but'was for all future time to maintain the same for the purposes contemplated by the parties. It is also contended that tbe power given the park board by chapter 304, p. 546, Sp. Laws 1885, to vacate and discontinue parks, parkways, and boulevards is inoperative as to the parkway here in'question, for the reason that the power to vacate was granted subsequent to the contract alleged to have been entered into, evidenced by the deeds to the' park board, the obligations of which, it is insisted, could not be impaired by subsequent legislative action. Hennepin avenue is, and has been at all times since the incorporation of the city, a public street, and a substantial view of the facts disclosed by the pleadings will not permit of a conclusion that its character as such, except to the extent to which it may be used by the public, has ever been changed by any act of the park board or the city council. The park board took possession of it in 1884, with the consent of the city council, for the purpose of transforming it into a parkway, but with no intention that its character as a public thoroughfare of the city should be at all changed, save in a restriction of travel thereon. . There seems to have been some doubt of the authority of the board, under - the act creating it, to take possession of existing streets and transform them into parkways, and to remove this doubt chapter 304, p. 546, Sp. Taws 1885, was enacted. It was there provided that all parkways which had been theretofore, or which might thereafter be, acquired in or adjacent to the city should be subject to the control and government of the park board, provided that no street, alley, or public place should be made a parkway without the consent of the city council. So that whether, strictly speaking, the action of the park board in taking possession of this avenue and transforming it into a parkway was authorized or not, the action of the board was confirmed by the act of the legislature just referred to. It 'is probable that the authority of the board over this particular parkway was erroneously restricted by the decision in State v. Waddell, 49 Minn. 501, 52 N. W. 213, occa — 154 — sioned by a failure of counsel to call attention to a statute which seems to support the validity of the ordinance there before the court. But we are not concerned with that question at this time. For reasons presently to be stated we are bound to assume that the act of the board in vacating the parkway was based upon a consideration of public interests into the merits of which we are not permitted to inquire. The basis of this proceeding, from the standpoint of relator, as already observed, is the alleged contract right possessed by him to the continued existence and maintenance of this avenue as a parkway. It may be conceded for the purposes of the case that the transaction between the relator and the board constituted in a strict legal sense a 'contract between the parties, but it'is clear that it was ultra vires and not enforceable. It is elementary and fundamental that the power to lay out, open, widen, extend, vacate, or abandon public highways, public parks, parkways, or boulevards is legislative, pure and simple, to be exercised by the legislature itself, or by municipal boards to which it may be delegated. It is also elementary that a municipality, acting through its legislative body, has no power to enter into contracts which curtail or prohibit an exercise of its legislative or administrative authority over streets, highways, or public grounds, whenever the public good demands that it should act. Elliott, Roads and Streets, § 657; Long v. City of Duluth, 49 Minn. 280, 51 N. W. 913, 32 Am. St. 547; Louisville v. City, 8 Bush, 415; Milhau v. Sharp, 27 N. Y. 611, 84 Am. Dec. 314; American v. Hess, 125 N. Y. 641, 26 N. E. 919, 13 L. R. A. 454, 21 Am. St. 764; Davis v. Mayor, 14 N. Y. 506, 67 Am. Dec. 186; Goszler v. Corporation of Georgetown, 6 Wheat. 593, 5 L. Ed. 339; City v. Gleason, 91 Ind. 568; City v. Carpentier, 13 Cal. 540; Gale v. Village, 23 Mich. 344, 9 Am. 80; Belcher v. St. Louis, 82 Mo. 121; State v. Murphy, 134 Mo. 548, 31 S. W. 784, 34 S.‘ W. 51, 35 S. W. 1132, 34 L. R. A. 369, 56 Am. St. 515; City v. Girard, 21 Colo. 447, 42 Pac. 662; Snyder v. City, 176 Ill. 397, 52 N. E. 62, 44 L. R. A. 407; Wabash R. Co. v. Defiance, 167 U. S. 88, 17 Sup. Ct. 748, 42 L. Ed. 87; Penley v. City, 85 Me. 278, 27 Atl. 158, 21 L. R. A. 657. Though the facts involved in the cases cited are not identical with those in the case at bar, the decisions there made will be found to up — 155 — hold the general principle that municipal authorities have no power to contract away rights of the public which rest in legislative discretion. Contracts involving proprietary or business functions are upheld, but no well-considered case can be found wherein it is held that a contract relinquishing, or by which a municipality agrees to refrain from, the exercise of the police power, or other legislative duty to the public, is valid or enforceable. Elliott, Roads and Streets, § 742. The rule applies to the legislature itself, and prohibits that department of government from alienating or surrendering the right and duty to exercise appropriate police supervision of public affairs, when the welfare of the state requires its exercise. 22 Am. & Eng. Enc. (2d Ed.) 921. ■ The reasons for the rule are obvious, founded in the plainest principles of public policy, and require no discussion to support them. The alleged contract in the case at bar comes squarely within its prohibitions, and is invalid, even though the act creating the park board be construed ’as authorizing the board to enter into it. The act to this extent was an attempted alienation of the police power and void. It follows that relator has no valid contract or other vested right to the continued maintenance of the parkway in question, and we have only to inquire whether it was vacated by the resolution enacted by the board for that purpose. That the resolution effected a vacation, if the board had authority to take such action as respects this particular parkway, there can be no question. It is unnecessary to here set it out. It is sufficient to say that it distinctly designated the parkway and declared it vacated and abandoned as such. We are not permitted to inquire into the motive actuating the board, no fraud being charged. It is thoroughly settled law that a determination by proper legislative authority that public interests require or justify the vacation of streets or highways of any description is final and conclusive upon the courts, except when reviewed in the manner prescribed by law, or where fraud or collusion is shown. The action of the park board here under consideration comes within this rule and cannot be attacked in this collateral proceeding. Though we are required to apply the general rule of presumptive validity of official action, and assume that a consideration of public interests prompted the resolution vacating the parkway, it affirmatively appears that such was in fact — 156 — the foundation of the board’s action. It was found impracticable to maintain the avenue as a parkway. This action of the board is conclusive. New London v. Davis, 73 N. H. 72, 59 Atl. 369; Kakeldy v. Columbia, 37 Wash. 675, 80 Pac. 205; Tilly v. Mitchell, 121 Wis. 1, 98 N. W. 969; Knapp v. St. Louis, 156 Mo. 343, 56 S. W. 1102. It is also clear that chapter 304, p. 546, Sp. Laws 1885, under which the board acted, conferred authority upon it to vacate the parkway. It is suggested that the act should not be construed to authorize. the park board to vacate this particular parkway, not only because to do so would result in the impairment of relator’s alleged contract, but, further, because the legislature did not intend to vest in the park board authority to vacate parks and parkways previously laid out and established. There can be no serious doubt as to the scope of this statute. By section 1 all parkways established prior to the passage of the act, and all that might thereafter be established, were committed to the superintendence and control of the park board. By section 2 authority is expressly conferred upon the board to exercise all powers possessed by the city council respecting laying out, opening, vacating, or discontinuing streets. The several sections of this act are in pari materia and should be construed together. The authority to vacate extends to the parks and parkways which were by section 1 committed to the control of the board. This disposes of the case, and a consideration of other incidental' questions discussed in the briefs is unnecessary. We may say, however, in passing, that chapter 18, p. 454, Sp. Laws 1887, authorizing the park board to sell and dispose of lands obtained for parks and parkways, when no longer used for that purpose, can have no application to the facts here involved. At least, the sale therein authorized to be made must receive the sanction and approval of the distriét court, and it is fair to assume, even if it be conceded — a concession we do not make, however (Reed v. Park Board, infra, p. 167, 110 N. W. 1119) —that the city acquired an unqualified fee to> the strip of land in question, that a sale thereof, in view of its situation and the purpose for which it was conveyed to the city, would not be authorized or approved. The statute, as applied to this particular property, if construed unconditionally to authorize a sale of the strip, is of doubtful — 157 — validity. City of St. Paul v. Chicago, M. & St. P. Ry. Co., 63 Minn. 352, 63 N. W. 267, 65 N. W. 649, 68 N. W. 458, 34 L. R. A. 184. The case is similar, from the' standpoint of the legal rights of the parties, to Vanderburgh v. City of Minneapolis, 98 Minn. 329, 108 N. W. 480. The authority to vacate public parks, streets, and parkways being legislative, it' is beyond the power of the court to set aside the action of the board in vacating the parkway in question, and if, by reason of contractual rights or otherwise, relator has been damaged or injured T>y the vacation, an action for damages will afford him adequate relief ; and that is his exclusive remedy. Order affirmed.