May 8, 1959 —
June 2, 1959.
APPEAL from a judgment of the circuit court for Kenosha county: M. EUGENE BAKER, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Chester D. Richardson of Kenosha.
For the respondent city of Kenosha there was a brief and oral argument by K. Thomas Savage of Kenosha.
For the respondent Carthage College there was a brief by Cavanagh, Mittelstaed, Sheldon, Heide Hartley of Kenosha, and oral argument by Fred D. Hartley.
The plaintiff-appellant, on his own behalf and on behalf of all other taxpayers of the city of Kenosha, commenced this action against the defendants-respondents, city of Kenosha and Carthage College, to have declared null and void the sale of 68.84 acres of park property, known as Alford Park.
The allegations of the complaint material to this appeal are as follows: The city council of the city of Kenosha sold the north 68.84 acres of said Alford Park for $50,000 to Carthage College, a private corporation, and it proposes to erect on said lands a sectarian school, that the money used for the purchase of the property was raised among private citizens, that the sale of the property constituted a gross abuse of discretion on the part of the city council, that the sale by the city council did not meet the requirements of sec. 3a, art. XI, Const., that the sale of 68.84 acres of Alford Park property be declared null and void, and that the deed of conveyance be voided.
The answer of defendant, city of Kenosha, set forth that the original purchase of the park area on January 15, 1934, consisted of 114.63 acres, and that the purchase price was $74,254.33. The defendant further alleges that the number of acres conveyed to the defendant Carthage College is 66.84 acres, that the portion of Alford Park proposed to be conveyed to Carthage College was used on the average by less than one tenth of the population per year for picnic purposes during picnic seasons, and denied that the conveyance of the parcel of land to Carthage College destroyed or lessened the effective use of the remaining portion of Alford Park, denied that the conveyance of the parcel of land to Carthage College prohibited free access to the remaining portion of Alford Park. Defendant also alleges that prior to the conveyance of the land to the defendant Carthage College, the defendant city of Kenosha and the city council fully complied with and met all requirements of sec. 3a, art. XI of the state constitution, secs. 62.22 (1), 62.23 (5), 62.23 (17) (b), and 27.08 (2) (c) of the Wisconsin statutes. Defendant further set forth that the sale price of $50,000 represented a fair market value of the land conveyed to Carthage College, that the north 90 acres of Alford Park were appraised by the city assessor of Kenosha at $48,500 and by a competent licensed real-estate broker at $50,000, that in addition to the purchase price and as a further consideration for the conveyance, the defendant Carthage College agreed and committed itself, on penalty of forfeiting title, to: (a) Within six years from date of conveyance commence construction of college buildings; (b) use the premises solely for college purposes; (c) submit plans for college buildings to the city plan commission; and (d) permit the public to use the premises for park purposes until construction of buildings for a college is commenced. That the city of Kenosha considered both the economic and cultural value the college would have for its residents, and denied the sale constituted a gross abuse of discretion on the part of the city of Kenosha or the city council.
The answer of the defendant Carthage College stated it was a nonprofit corporation, organized under the laws of the state of Illinois, and that it is operated by the trustees of Carthage College, that the trustees presently operate a college at Carthage, Illinois, and that it is under the general control of the following synods of the United Lutheran Church in America: (1) Illinois Synod of the United Lutheran Church in America; (2) Iowa Synod of the United Lutheran Church in America; (3) Northwest Synod of the United Lutheran Church in America; and (4) Wartburg Synod of the United Lutheran Church in America. That the Carthage College operates a liberal-arts college open to students of all denominations and that there are no restrictions of any nature requiring that members of the board of trustees, members of the faculty, or students be of any particular or special denomination; and presently the members of board of trustees, members of the faculty, and the students are of 18 different denominations; that the college to be operated in Kenosha will be operated in exactly the same manner and both the faculty and the student body will be open to worthy persons and students of any denomination, race, creed, or color. That Carthage College did not pay any part of the sale price and that the same was paid for on behalf of Carthage College by interested citizens of the city of Kenosha, that the price paid for and on behalf of Carthage College for said property was entirely adequate and fair, that Carthage College intends to erect upon said 66.84 acres of land a liberal-arts college with an enrollment of 1,200 resident, and 300 commuting students, to expend for the erection of said school large sums of money, that the deed of said Carthage College was not absolute in nature and contained restrictions and reservations, and in the event any of said restrictions are violated, title to said property shall revert to the city of Kenosha.
The defendants moved for summary judgment dismissing plaintiff's complaint and in support of such motion served and filed affidavits of the city attorney of the city of Kenosha, appraisal of the city assessor, appraisal of I. J. Bear Sons, Inc., affidavit of attorney for defendant Carthage College, affidavit of the director of finance of defendant city of Kenosha, resolution No. 5943 directing sale and conveyance of part of Alford Park for Carthage College, letter of R. H. Custer, city manager as board of park commissioners, letter of Fred Schlater, secretary, city plan commission, resolution No. 5986 relative to conveyance to Carthage College, affidavit of city plan engineer, land contract, and warranty deed dated December 27, 1957, from the city of Kenosha to Carthage College.
The plaintiff in support of his motion to dismiss defendants' motion for summary judgment, and in support of cross motion of the plaintiff filed an affidavit of Attorney Chester D. Richardson in behalf of the plaintiff, affidavit of the plaintiff in support of his cross motion for summary judgment, resolutions 1090 and 1091 pertaining to the purchase of the park land in question by the city of Kenosha from the Alfords and the Lances, copy of report of director of parks of city of Kenosha in regard to permits issued for use of picnic areas in Alford Park in 1957, certificate of director of parks as to increasing use being made of Alford Park, letter from R. E. Dokmo, chairman of the board of trustees of Carthage College to E. C. Fechner, president of city council of city of Kenosha, resolution No. 5986 amending conditions relative to conveyance to Carthage College.
The trial court filed a memorandum decision in which it found that the motions for summary judgment and the affidavits in support thereof presented only questions of law to be determined by the court and held that the plaintiff failed to show an abuse of discretion on the part of the city council.
Defendants' motion for summary judgment was granted, and judgment was accordingly entered under date of December 4, 1958, dismissing the plaintiff's complaint. From such judgment the plaintiff has appealed.
In the year 1928, approximately 124 acres of property were purchased by the city of Kenosha from Walter H. Alford and Gertrude M. Alford. The land contract and deed contained no restrictions or conditions. Since approximately 1939, the entire 124 acres have been used by the city of Kenosha as a park, known as Alford Park.
By conveyance dated December 27, 1957, the city of Kenosha conveyed 66 and a fraction acres, located in the north end of Alford Park, to Carthage College. This deed contained the following restrictions:
"(a) That on or before six (6) years from the date of conveyance construction shall be commenced of a building or buildings necessary for the establishment of a college, unless the United States should become engaged in extraordinary military activity making this impossible, in which case the running of the six (6) years is tolled until such military activity shall cease to exist. In the event construction of the initial building or buildings has not commenced within the period herein limited, the premises shall revert to the city of Kenosha.
"(b) That the above-described premises shall be used as a college devoted predominantly to the teaching of students of a learning higher than the common and high-school grade with necessary dormitories for their housing.
"(c) That prior to the approval of the initial plot plan and building construction plans for the above premises the grantee shall submit the same to the city plan commission for its advice.
"(d) That the grantor reserves the right of the use of said premises for public-park purposes until it shall receive notification in writing from the grantee that construction will be commenced."
The affidavits in support of the defendants' motion for summary judgment disclose that the following reports were considered by the city of Kenosha prior to the conveyance to Carthage College:
(1) An appraisal by Frank Harvell, C.A.E., the city assessor, filed with the city manager, in which he stated it was his opinion that the area to be conveyed, at that time 90 acres, had a fair market value of $48,500. Actually only 66 and a fraction acres of the 90-acre parcel were conveyed.
(2) An appraisal by Manford C. Bear, M.A.I., filed with the city manager of the city of Kenosha, of a 90-acre tract in Alford Park. Mr. Bear stated that in his opinion the 90 acres had a fair market value of $50,000.
(3) A report of the city plan commission adopted by said commission at a meeting held on May 16, 1957, and filed with the city council of the city of Kenosha, recommending the use of 68 acres of Alford Park for Carthage College. The report stated that the city of Kenosha had, at that time, more park area than the average of other cities of comparable population and further stated that the park was not receiving the use that it should according to national standards. The commission further recommended that the deed to Carthage College contain a covenant restricting the use of the land for college purposes.
(4) A report of R. H. Custer, city manager, acting as the board of park commissioners, filed with the city council of the city of Kenosha, recommending that part of Alford Park be conveyed to the college and declaring that such land was no longer required for park purposes.
Pursuant to such reports, the city council of the city of Kenosha voted to convey 66 and a fraction acres to Carthage College, the deed to contain the restrictions heretofore set forth. The city was paid $50,000 for this property, by interested citizens of the city of Kenosha on behalf of Carthage College.
Before a court will void the sale of municipal property authorized by a vote of the city council, the plaintiff taxpayer must establish: (1) Illegality, (2) fraud, or (3) a clear abuse of discretion on the part of the governing body of the municipality which has authorized the sale. Hermann v. Lake Mills (1957), 275 Wis. 537, 82 N.W.2d 167.
The plaintiff and the two defendants moved for summary judgment and affidavits were presented by each side, together with certain exhibits. The rule is well established that on motion for summary judgment under sec. 270.635, Stats., the evidentiary facts set forth in an affidavit completely supplant any allegations or denials in the pleadings to the contrary. Home Savings Bank v. Bentley (1958), 5 Wis.2d 19, 92 N.W.2d 377, and Laughnan v. Griffiths (1955), 271 Wis. 247, 251, 73 N.W.2d 587.
The following facts are undisputed in this case: The lands in question were purchased for park purposes, and the deed to the city contained no restrictions or conditions governing the use of the land by the city. The city paid $66,754.33 in principal and $7,500 in interest for the parcel of land containing 114.63 acres, of this 66.84 acres were sold and conveyed to Carthage College in 1957, so less than 50 per cent of the park area known as Alford Park was sold and conveyed. The city caused the lands to be appraised prior to the agreement to sell and the fair market value as established by the city assessor for a 90-acre tract (out of which the city sold 66.84 acres) was $48,500, and by a licensed real-estate broker at $50,000. Subsequent to the appraisals and subsequent to the recommendation of the city plan commission and the report of the board of park commissioners under sec. 27.08 (2) (c), Stats., recommending the sale and conveyance to Carthage College and declaring the land no longer required for park purposes, the city council authorized and directed the sale of the 66.84 acres to Carthage College in consideration of a cash payment of $50,000 and in further consideration of the conditions set forth in the deed. The cash purchase price of $50,000 was paid to the city of Kenosha on behalf of Carthage College by interested citizens of the city of Kenosha. It was established by the affidavit and the exhibits of the city of Kenosha that a resolution was duly adopted finding that the property to be conveyed was not necessary or required for park purposes.
The city council of the city of Kenosha decided that the parcel of park land consisting of 66.84 acres was no longer needed for park purposes and, under secs. 62.22 (1) and 62.23 (17) (b), Stats., authorized the sale. These sections vest considerable discretionary power in the council and governing body in that there is no requirement for them to either solicit bids or sell to the highest bidder. Hermann v. Lake Mills, supra.
The plaintiff claims that there has been an abuse of discretion on the part of the city council in two respects: (1) The purchase price is grossly inadequate, and (2) the sale of the parcel to Carthage College makes the remainder of the park inaccessible by the public and hence deprives the public of its use.
As to the first point the plaintiff has offered no evidentiary proof of value and he has not controverted the city of Kenosha evaluation by evidentiary facts. The affidavits and appraisals establish that the fair market value of 90 acres at the highest is $50,000, and that the city has been paid $50,000 for 66.84 acres.
The plaintiff further contends that by the sale and conveyance of the particular tract to Carthage College, the balance becomes ineffectual for use as a park because it cannot be reached by the people who desire to use the park. The city has reserved the beach area and a strip of land between the highway and the western boundary of the Carthage College property, and there is no reason to suppose that the city will not prepare the necessary roads and paths to the remaining park area for the use of the public when the occasion demands it.
The next contention of the plaintiff is that sec. 3a, art. XI, Const., restricts the sale of park land.
Sec. 3a, art. XI, Const., provides:
"The state or any of its counties, cities, towns, or villages may acquire by . . . purchase. . . . for establishing, . . . and maintaining . . . parkways, . . . parks, . . . sites for public buildings . . .; and after the establishment, layout, and completion of such improvements, may convey any such real estate thus acquired and not necessary for such improvements, with reservations concerning the future use and occupation of such real estate, so as to protect such public works and . . . to preserve the view, appearance, light, air, and usefulness of such public works. . . ."
"There is in the provision no express restriction on the power of the state to convey land. It cannot be held by implication that the legislature is precluded from authorizing such sale. A restriction to such effect would necessarily have to be expressed in words. There is no such expression here.
"This constitutional provision came into being in the form of an amendment in 1912. It relates not only to the state, but also to cities. . . .
"Clearly there was in the adoption of this provision an attempt to broaden the public purpose for which the power of eminent domain might be exercised. . . .
"We are obliged to determine that the provision is a grant of power which broadened the authority of the state and cities in the matter of excess condemnation in relation to the rights of the state and cities which had existed in such respects previous to the adoption of the provision."
The city's conveyance of real estate in question to Carthage College does not contravene sec. 3a, art. XI, Const.
There is no allegation of fraud and no issue of fraud in this case, and no illegality in the manner in which the sale was conducted and consummated, and there being no showing on behalf of the plaintiff, either in his counteraffidavit or cross motion in support of his affidavit, that there has been any abuse of discretion on the part of the city council of the city of Kenosha, the summary judgment of the trial court is affirmed.
By the Court. — Judgment affirmed.
MARTIN, C.J., took no part.