Appeal, No. 98, Jan. T., 1951, from decree of Court of Common Pleas No. 1 of Philadelphia County, June T., 1950, No. 1696, in case of Matilda F. Cohen et al. v. Bernard Samuel, Mayor, et al. Decree affirmed.
William Cohen, with him Maxwell S. Rosenfeld, for appellants.
James A. Montgomery, Jr. and Herbert A. Barton, with them G. Coe Farrier, for appellees.
Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
This case is so obviously ruled by the decision of this Court in Bernstein v. Pittsburgh, 366 Pa. 200, 77 A.2d 452, that comparatively little need be added to what was there said.
On November 10, 1949, the Commissioners of Fairmount Park in Philadelphia entered into a written agreement with Louis L. Rittenhouse, Inc., a Pennsylvania corporation, which holds a license under a patent for the operation of a structure and equipment for the playing of a form of golf. They leased to Rittenhouse a plot of ground approximately 13 acres in extent in the Park at 33rd and Oxford Streets, upon which Rittenhouse was to erect and operate a "compact" golf course,*fn* lay out and maintain a parking lot, and erect such suitable buildings for the purpose of the operation as should be approved by the Commissioners. The latter reserved the right to require the lessee to reduce any admission, playing or parking fees, or any prices charged for refreshments, if in their opinion such fees or prices were unduly high and not in the public interest. It was also provided that the lessee would not operate any concessions which, in the opinion of the Commissioners, were objectionable or not proper uses of park property. The rental was to be a prescribed percentage of the gross receipts. The term of the agreement was one year, but subject to extension from year to year; if the Commissioners elected to terminate it at the end of any of the first four years the lessee was to be paid certain graded percentages of the cost of constructing the golf course,
parking lot, buildings and improvements; at the end of the fifth year the Commissioners could terminate the lease without making any payment whatever and thereupon the golf course, and all buildings and improvements on the leased premises, were to become the sole and absolute property of the Commissioners and the patent license or franchise for the golf course was to be transferred to them.
Plaintiffs are taxpayers who own properties situate in the vicinity of 33rd and Oxford Streets. They filed a bill in equity to enjoin the Commissioners and Rittenhouse from operating the golf course on the 13 acres or erecting any buildings or structures thereon, and to have the lease declared invalid on the ground that the Commissioners had no authority to enter into it. Preliminary objections were filed by defendants, which the court below sustained and dismissed the bill.
Beautiful Fairmount Park, approximately 4000 acres in size, deservedly the pride and one of the glories of the City of Philadelphia, owes its origin to the Act of March 26, 1867, P.L. 547, which provided that the area of ground there described should be "vested in the city of Philadelphia, to be laid out and maintained forever as an open public place and park, for the health and enjoyment of the people of said city,..." There were established park commissioners who were empowered to adopt a plan for the improvement and maintenance of the park, and they were vested with the power and the duty of its care and management. By the Act of April 14, 1868, P.L. 1083, they were given exclusive power to lease from year to year all buildings within the park limits which might be let without prejudice to the ...