Appeal, No. 210, March T., 1950, from order of Court of Common Pleas of Allegheny County, July T., 1950, No. 2688, in case of Ervin G. Bernstein et al. v. The City of Pittsburgh. Decree affirmed.
W. Denning Stewart, with him Ralph H. German, Harton S. Semple, L. Wesley Martin, Jr., and Rose, Eichenauer, Stewart & Rose, for appellants.
Anne X. Alpern, City Solicitor, with her Bennett Rodgers, First Assistant City Solicitor, and John M. Marshall, Assistant City Solicitor, for City of Pittsburgh, appellee.
Paul Kern Hirsch, with him William S. Moorhead, Jr., Carl E. Weise and Hirsch & Weise, for Trustees, appellees.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
We agree with the court below that the City of Pittsburgh may legally erect an open-air auditorium in Schenley Park and lease it during summer months to a private, nonprofit corporation for the presentation by the latter of light opera for which admission charges will be made.
In 1889 Mary E. Schenley conveyed to the City of Pittsburgh a tract of land containing approximately 300 acres "for the use of the people of Pittsburgh and the Public as a Public Park and for the use and purpose of establishing on said grounds a Public Park and place of free, attractive and healthful resort, and open air recreation for the people of Pittsburgh and the Public and perpetually keeping and maintaining the same for such uses and purposes and for no other use or purpose whatever." Subsequently the city acquired
additional tracts so that at present the park consists of 427 acres.
The city now proposes to accept from the Edgar J. Kaufmann Charitable Trust a gift of $500,000 for the erection of an amphitheatre, and to match this gift with an appropriation of $500,000 toward the cost of construction. The structure will be erected on a suitable site in Schenley Park, occupying an area of 4 1/2 acres with an additional 10 acres for automobile parking; the title will be and remain in the City of Pittsburgh. The plan contemplates a ten year leasing of the building for the period each year from June 1 to September 15, at a nominal rental, to the Civic Light Opera Association of Greater Pittsburgh, which is a nonprofit corporation chartered for the purpose of producing, "for the culture, education, enjoyment, and civic welfare of the people of Pittsburgh and the Tri-State Area, operas, concerts, recitals, pageants, theatricals and other types of cultural, recreational and educational entertainments". This Association will present musical and theatrical performances, charging reasonable prices for admission.
Two taxpayers of the city filed a bill in equity on their own behalf and on behalf of all other taxpayers who might join therein, asserting that the city was without authority to build such an outdoor theatre, that its location in Schenley Park would violate the restricted purposes for which Mary E. Schenley had deeded the land to the city, and that the ordinance of the city which provided for the carrying out of the project was illegal in that it involved the pledging of the city's credit for the maintenance of a private enterprise and the delegation of the control and supervision of municipal property to a special commission. The ...