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A Study of the Park and Recreation Problem of the United States





Supplemental Foreword


Recreational Habits and Needs

Aspects of Recreational Planning

Present Public Outdoor Recreational Facilities




A Park and Recreational Land Plan

A Study of the Park and Recreation Problem of the United States
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Chapter VI: Legislation


According to the Totalitarian theory of government, people are created for the service of the State. The theory of Democracy is that Government is created for the service of the people. Our Government was founded upon the ideology expressed in the Declaration of Independence as follows:

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. . . all men are created equal . . . are endowed by their Creator with certain Inalienable Rights . . . among these are Life, Liberty and the pursuit of Happiness . . . to secure these rights, Governments are instituted among Men. . . .

This concept of Government was affirmed in the Preamble of the Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence promote the general Welfare, and secure the Blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

In Article I, Section 8, Congress was empowered to finance efforts in the interests of general welfare as follows:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general welfare of the United States (Italics supplied.)

James Madison said:

Good government implies two things: first, fidelity to the object of government, which is the happiness of the people, secondly, knowledge of the means by which that object can be attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple to assert, that in American governments too little attention has been paid to the last.

It was more than 100 years after Madison made that statement that American governments seriously addressed themselves to the problem of ascertaining the means by which the happiness of the people might be attained. Social legislation in the main was not given serious and consecutive attention until after 1900. From that date until 1917 advances were made in many public welfare fields. The World War interrupted this trend and only slight gains were made until 1932, when the rending of our economic fabric disclosed the terrific gap between preachment and practice and gave point again to James Madison's words. At that time of uncertainty the appalling awareness of our extreme interdependence upon one another, the feeling of our helplessness as individuals led to a great resurgence of social consciousness and an insistent urge that government muster the resources of the Nation for the happiness and security of the people. This led to a great expansion in the responsibilities and activities of government and a rather frantic seeking of means by which human happiness could be attained. Among other phases of human welfare, public recreation was recognized as one of the effective means.

For the first time the Federal Government entered into a working partnership with the States in a Nation-wide program in this field. This has resulted in an extension of the Federal system of recreational areas to serve a greater number of the citizens of the country, and the authorization of large sums of Federal emergency funds for recreational development and the conduct of recreational programs in all parts of the country. These funds are being spent not only on Federally administered areas but also upon areas under the jurisdiction of State and county, metropolitan and municipal governments.

The State governments, in framing their fundamental laws, likewise placed stress upon their responsibility to provide for a happy day-by-day life for their citizens; in fact the purposes of the pronouncements setting forth the raison d'etre of these governments are identical in meaning and closely follow the phraseology of the Federal Constitution. For instance, the Constitution of the Commonwealth of Virginia states:

That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety and is most effective against the danger of maladministration.

Declarations similar in meaning and strikingly familiar in language are found in other State constitutions.

Moreover, a number of State constitutions expressly provide for parks and recreation. For example, the Virginia constitution states—

. . . nor shall this State become a party to or become interested in any work of internal improvement, except public roads and public parks . . .

Another example is found in the Wisconsin constitution, which provides:

The State or any of its cities may acquire by gift, purchase, or condemnation, lands for establishing, laying out, widening, enlarging, and maintaining memorial grounds, streets, squares, parkways, boulevards, parks, playgrounds, sites for public buildings, and reservations in and about and along and leading to any or all of the same . . . and after the establishment, lay-out, 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 improvements, and their environs, and to preserve the view, appearance, light, air, and usefulness of such public works.

Parks and Recreation: Essential Governmental Functions. The provision of recreational areas and service by agencies of all levels of government has been recognized in legislation and by the courts as a necessary function of the various governmental units under the obligations assumed in the above pronouncements.

In a case in Kansas in 1927 involving the exercise of the power of eminent domain in acquiring the lands and buildings which comprise the Shawnee Mission as an historic park, and in which the owner of the property contested the action, the Court upheld the action of the State and in the course of the opinion made the following statement:

When life was simple, the power of eminent domain was expended in providing for simple necessities—public buildings, public ways, and other physically indispensable things. With the advancement of civilization new needs multiply. First comes that which is natural, and afterward, that which is spiritual, and cultural needs become just as cogent as the material needs of pioneer days were. The framers of the Constitution of Kansas understood this. The Constitution makes it mandatory upon the legislature to encourage the promotion of intellectual and moral improvement (Art. 6, par. 2). A specific method of encouragement is prescribed—establishment of a uniform system of common schools and schools of higher grade, embracing college and university departments. This method is not exclusive. The legislature must do that much, but it may resort to other methods perfected in the course of social progress. The end to be sub-served by state promotion of intellectual and moral improvement is better citizenship. (State v. Kemp, 124 Kansas, 716.)

In United States v. Gettysburg Elec. R. Co. (160 U. S. 668) the Supreme Court had before it the question of the appropriation of private property for use by the United States in restoring, preserving, and marking the Gettysburg battlefield. In the opinion of the Court, sustaining the appropriation, it was said:

Can it be that the Government is without power to preserve the land, and properly mark out the various sites upon which this struggle took place? Can it not erect the monuments provided for by the acts of Congress, or even take possession of the field of battle in the name and for the benefit of all the citizens of the country for the present and the future? Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the Constitution for the purpose of protecting and preserving the whole country . . .

A ruling was made in Connecticut that "the control of public parks belongs primarily to the State, and municipalities in operating and managing them act as governmental agencies exercising an authority delegated to them by the State." (Epstein v. City of New Haven, 104 Conn. 283, 132 Atl. 467.) This is in keeping with the accepted principle that municipal corporations in their public and political aspect are not only creatures of the State, but are parts of the machinery by which the State conducts its governmental affairs. The following court decisions are in point:

In Indiana it has been held that a city, in establishing a playground within the city limits, and in determining the character of the equipment therefor, was exercising a duty purely governmental. (Indianapolis v. Baker, 72 Ind. App. 323, 125 N. E. 52.)

In Higginson v. Treasurer &c of Boston, Chief Justice Rugg (212, Mass. 589, 590, 1912) said:

Passing from a consideration of the authorities to the underlying principles, which in reason must govern, a park of the nature here in question appears to be for the general public rather than for the municipality in its proprietary capacity. The use of the park is in kind analogous to those confessedly public. It closely resembles roads and bridges. These are open to general public travel without reference to the residence of the traveler. The enjoyment of public parks hardly can be restricted to residents of a particular city or town. They can not be made a source of revenue as may a system of water-works or sewerage or gas, electric light, or markets. Their use by those most needing them might be prevented by any pecuniary charge. . . . Parks in the proper Sense to which the public are regularly admitted have been inseparably connected with a public agency. . . . Although the establishment of this park was permissive and not compulsory, this distinction is not decisive. It is the character of the use which stamps a given municipal venture as public or proprietary. (Tindley v. Salem, 137 Mass. 171, 176.) Adopting this as the test, the dominant aim in the establishment of public parks appears to be the common good of mankind rather than the special gain or private benefit of a particular city or town. The healthful and civilizing influence of parks in and near congested areas of population is of more than local interest and becomes a concern of the State under modern conditions. It relates not only to public health in its narrow sense, but to broader considerations of exercise, refreshment, and enjoyment. We should hesitate to say that the State would be powerless to exert compulsion if a city or town should be found so unmindful of the demands of humanity as to fail to provide itself with adequate public grounds. The municipal spirit which dictates an extensive park system is the same in kind as that which provides fine streets and avenues, beautiful bridges, and ample public schools of a high standard of efficiency, all distinctly public in their nature. The end subserved by these instrumentalities is essentially the same general public good.

In California it has been held that the maintenance of a park by a city for the sole benefit of the public, and not for any profit or benefit to the municipal corporation, is a governmental or public function. (Kellar v. Los Angeles, 179 Cal. 605, 178 P. 505.) The court further held that children's playgrounds and recreational centers established and maintained by a city for the general use of the children of the city do not substantially differ from a public park, stating:

It seems to us that the function in which the city was thus engaged (the conduct of a summer camp) was purely in the exercise of the governmental power and the discharge of the governmental duty of maintaining the health of the children of the city, and was therefore essentially governmental in nature. It will not be questioned that a city is charged with such a duty of sovereignty as that of maintaining the public health, and that in any measures it may adopt solely for that purpose, which are reasonably adopted to that end, it is acting strictly in a governmental capacity.

In Kentucky it has been said:

It may therefore be regarded as settled in this jurisdiction that public parks, maintained and managed without corporate or individual gain or profit, are not only exempt from taxation, but may be created and maintained by taxation. Hence they are essentially public places established for purely public purposes. The right of the city to support public parks by taxation is rested upon the ground that the municipal authorities are charged with the duty of maintaining the public health, and that parks where exercises and recreation can be indulged in, and pure and clean air breathed, contribute largely to the health of the community. Viewing the matter from this standpoint, the parks of the city occupy towards it and its inhabitants the same relation as do hospitals and other public institutions useful and necessary in the preservation of the health, safety and morals of the people. (Board of Park Com'rs v. Prniz, 127, Ky. 460, 105, S. W. 948.)

In Maryland the view is taken that to hold the operation of parks as a proprietary function would be against public policy, "because it would retard the expansion and development of park systems in and around our growing cities, and stifle a gratuitous activity vitally necessary to the health, contentment, and happiness of their inhabitants;" and that "in these days of advanced civilization, in a period when the unfortunate tendency is to abandon the countryside—the haunts of their own youth—and thereby add to the already over-congested metropolitan area, public city parks are almost as necessary for the preservation of the public health as is pure water." (Baltimore v. State, 168 Md. 619, 179 Atl. 169.)

In an opinion rendered by the Supreme Court of Michigan, public parks and recreation are clearly recognized as governmental functions at all levels of government.

Michigan, through its legislature, has recognized the acquisition, improvement and maintenance of free public parks as a governmental function by itself acquiring, improving, and maintaining at State expense, under its appointed board, the Mackinac Island State Park, and independent of the legislature, the people of the State, by adopting the present Constitution, have authorized any city or village to acquire and maintain parks, even without their corporate limits, grouping them with works which involve public health and safety. The Federal Government is also in "the park business" as a governmental function, and whether they be Federal, State, or municipal parks, the beneficial public purpose intended and served by such free recreation grounds for the people and the resultant benefits which justify their free maintenance at public expense as a governmental activity are the same except it be in degree; and in that particular a comparison of the beneficial results to the greatest number of people at large throughout this commonwealth from the free use and enjoyment of Belle Isle City Park and Mackinac Island State Park might indicate the degree is not necessarily in favor of the larger governmental unit.

While, like public schools for education, public parks are primarily provided for the recreation, pleasure, and betterment of the people within the limits of the governmental organizations which maintain them, they are not by legal restraint or custom or in fact solely for the benefits gratuitously offered. Along the lines of facilities which parks afford, playgrounds for healthy exercise, swimming pools, baths, appliances for manual training, and other equipment for balanced physical and mental development, with instructors as to proper use and methods, are now recognized and frequently adopted in the curriculum of our public schools as essentials of education and sanitation, both acknowledged subjects of state concern and governmental activity . . . The constitutionally authorized function this municipality was exercising was without private gain to the corporation or to individuals, for purposes essentially public and of a beneficial character in furtherance of the common welfare in harmony with the general policy of the state, and was in its nature a governmental activity, whether it be put upon the ground of health, education, charity, social betterment by furnishing the people at large free advantages for wholesome recreation and entertainment, or all of them. (Heino v. City of Grand Rapids, 202 Mich. 263, 168 N. W. 512.)

In Rhode Island it has been held that the maintenance of a public park is a discharge of a governmental function—

engaged in the performance of a public service in which it has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law, for the general welfare of the inhabitants of the community. (Blair v. Granger, 24 R. I. 17, 51 Atl. 1042.)

In Utah it has been held that the maintenance of a public park and the presentation therein of a pageant

are clearly matters of public service for the general and common good, designed exclusively for the social advantages, entertainment, and pleasure of the general public. (Alder v. Salt Lake City, 64 Utah 568, 321 P. 1102.)

In 1936 there was presented to the Supreme Court of North Carolina the question whether, without submitting the question to the voters, a city could issue its bonds for public park purposes without impinging the constitutional provision that—

no county, city, or town or other municipal corporation shall contract any debt, pledge its faith, or loan its credit, nor shall any tax be levied or collected by any officers of the same except for necessary expenses thereof, unless by a vote of the majority of the qualified voters therein.

The court held that an ordinance authorizing a bond issue for development and equipment of parks and playgrounds was a valid exercise of the police power, and that the bonds were for "necessary expenses" within the constitution, thus obviating the necessity for the voters' approval. The court said:

It has been said that "Health is wealth." These parks and playgrounds at all times, and especially in the heat of summer, are a benediction . . . to all the inhabitants of the city. Nothing is more conducive to health and good morals than these recreational places in a thickly settled city. (Atkins et al. v. City of Durham, 210 N. C. 295, 186 S. E. 330.)

Many other decisions could be cited which support the same premise of these decisions, namely, that the provision of recreational service is an essential governmental function, but their effect would be merely cumulative. Decisions holding parks to be proprietary functions have been rendered in Delaware, Missouri, New York, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, West Virginia, and Wyoming. Despite these decisions to the contrary, it is evident that there is general recognition of recreation as a public function of government.

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