Dysart v. City of St. Louis

• Decision Date: 07 December 1928
• Docket Number: No. 29189.,29189.
• Citation: 11 S.W.2d 1045
• Parties: THOMAS N. DYSART, Appellant, v. CITY OF ST. LOUIS ET AL.
• Court: Missouri Supreme Court

11 S.W.2d 1045

THOMAS N. DYSART, Appellant, v. CITY OF ST. LOUIS ET AL.

No. 29189.

Supreme Court of Missouri. Court en Banc.

December 7, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.

AFFIRMED.

Cobbs, Logan & Alexander for appellant.

(1) The acquisition, improvement and development of an airport is not a "public purpose" within the meaning of Sec. 3, Art. 10, of the Constitution, because: (a) It is for the use, comfort and enjoyment of only a very small proportion of the inhabitants of the city, and largely for non-residents. Simonton, Municipal Bonds, sec. 36; Historical Pag. Assn. v. Philadelphia, 260 Pa. 447. (b) It does not require the exercise of any governmental function, and can best be, and should be, provided by private capital. It is not a corporate necessity. State ex rel. v. Orear, 210 S.W. 392; Opinion of the Justices, 182 Mass. 605; In Matter of Niagara Falls Railroad Co., 108 N.Y. 375; Smith v. Smythe, 197 N.Y. 457. (2) The requirement of the Constitution is that taxation must be for "public purposes" only; no provision of the city charter, however elastic, can, by inference, inclusion, omnibus clause or otherwise, enlarge the power of the city as against this constitutional limitation. Constitution, Art. 9, sec. 16; State ex rel. v. Orear, 210 S.W. 396; State ex rel. v. Stobie, 194 Mo. 14; State ex rel. v. Tel. Co., 189 Mo. 83; State ex rel. v. Peoples Commrs., 184 Mo. 189. (3) The right of a city to issue bonds must clearly appear by direct grant or necessary implication, and the rule of strict construction is applied. Brenham v. German Am. Bk., 144 U.S. 173; Valentine v. Robertson, 300 Fed. 521; Boise v. Boise Water Power, 186 Fed. 705; Omaha Elec. Co. v. City, 179 Fed. 455; Town of Newport v. Railway, 58 Ark. 270; Spengler v. Trowbridge, 62 Miss. 46. (4) Even if an airport should constitute a public benefit, and be of use to the public, and hence within that sense a "public purpose," it is not a purpose for which the inhabitants of the city can be taxed, or city funds expended. Mere stimulation of trade has never been held to be either a governmental or a municipal function of cities or towns. People ex rel. v. Salem, 20 Mich. 452; Meyers v. City of Jeffersonville, 145 Ind. 431; Jacksonport v. Watson, 33 Ark. 704. (5) The cases in which airports have been recently held to be "public utilities" or "public purposes" have been decided in the shadow of legislative policies as expressed in those particular states. This State has expressed no such policy. State ex rel. City of Lincoln v. Johnson, 220 N.W. 273; R.S. Neb. 1922, sec. 4607; City of Wichita v. Clapp, 263 Pac. 12; R.S. Kan. 1923, sec. 101 et seq.; State ex rel. Hile v. City of Cleveland, 160 N.E. 241; Ohio General Code, Sec. 3677, par. 15. (6) The effect of owning, operating and maintaining an airport will be to furnish facilities at the expense of the city for aerial transportation companies. It is contrary to the constitutional policy of this State to aid transportation companies. Constitution, Art. 9, sec. 6. (7) Statutes regulating special elections, particularly for those elections authorizing a taxation or increasing of indebtedness, must be absolutely complied with. Rich v. Mentz, 134 U.S. 632; German Sav. Bank v. Franklin Co., 128 U.S. 526; Goolsby v. Stephens, 155 Ga. 506.

Julius T. Muench, Oliver Senti and Richard S. Bull for respondents; Benjamin H. Charles and Carl Trauernicht of counsel.

(1) The "acquisition, improvement and development of land for an airport with the necessary landing field, buildings, runways and other appurtenances and equipment used or which may be used in aviation," to be used generally by the public, is a public use or public purpose. City of Wichita v. Clapp (Kan.), 263 Pac. 12; State ex rel. City of Lincoln v. Johnson (Neb.), 220 N.W. 273: State ex rel. Hile v. City of Cleveland (Ohio), 160 N.E. 241; Fixel, Law of Aviation, p. 9. (2) A municipal airport sustains the same relation to and comes as legitimately within the scope of the municipality as do docks, harbor facilities or railway terminals. City of Wichita v. Clapp (Kan.), 263 Pac. 12. (3) It is no longer the law that when determining what is a public purpose a city must be controlled by absolute necessity or by narrow interpretation of the Constitution. Things which contribute to the comfort and happiness of citizens, as well as those occasioned by absolute necessity, are included within the term "public purpose." State ex rel. v. Orear, 277 Mo. 303; Schieffelin v. Hylan, 236 N.Y. 254; United States v. El. Railroad Co., 160 U.S. 681; People v. Town of Salem, 20 Mich. 452; Hubbard v. Taunton, 140 Mass. 467; Egan v. San Francisco, 165 Cal. 581. (4) The word "airport" is not used in the St. Louis Charter. But the power of the city to provide an airport is included within the powers granted. Charter, Art. 1, sec. 1, pars. 8, 15, 32, 33, 35; Art. 1, sec. 2; Art. 17, sec. 1; St. Louis v. Baskowitz, 273 Mo. 545; Halbruegger v. St. Louis, 302 Mo. 573. (a) It is not necessary that there be an express power to issue bonds for a certain purpose, provided there exists power to exercise the function on account of which the bonds are to be issued. R.S. 1919, sec. 8656; Sec. 8659, as amended, Laws 1927, p. 318; State ex rel. v. Hackmann, 280 Mo. 586; Haeussler v. St. Louis, 205 Mo. 656; Halbruegger v. St. Louis, 302 Mo. 573; Wheelock v. Lowell, 196 Mass. 220; Hightower v. Raleigh, 150 N.C. 569; Egan v. San Francisco, 165 Cal. 576; Los Angeles v. Dodge, 51 Cal. App. 496. (5) The words "public use" are in some jurisdictions held to be synonymous with the words "public utility." State v. Barnes, 22 Okla. 195; City of Belton v. Ellis, 254 S.W. 1023. (a) The city of St. Louis is authorized by its charter to issue bonds for any public utility or for any public purpose. Charter, Art. 17, sec. 1. (b) A municipal airport is a "public utility" within the meaning of the St. Louis Charter as much so as "street railroads," "railroads" and "terminals." State ex rel. City of Lincoln v. Johnson (Neb.), 220 N.W. 273. (6) It cannot be assumed that a public improvement or public utility adapted for public purposes is to be used for other purposes. Halbruegger v. St. Louis, 302 Mo. 573; Ross v. Long Branch, 73 N.J.L. 292. (7) The correct theory of registration is not that registration is designed to list those voters who may desire to vote on some certain proposition or at some certain election, but the registration provided for in Missouri is a continuing comprehensive thing, and each quadrennial registration remains in force for the entire four years subject to revision, as provided in this act. Laws 1921, p. 330. This statute does not cater especially to the citizen who votes only when his pocketbook is to be affected, and at other times cares nothing for his government. Nor is it the sole purpose of the notice of revision that such citizens may protect themselves against a proposed bond tax. Laws 1921, sec. 16, p. 339; Sec. 40, p. 356; Sec. 35, amended, 2 Ex. Sess. 1921, p. 34; Bray v. Florence, 62 S.C. 57. (8) Every citizen is held to knowledge of the law. After notice of general revision of registration had been published in St. Louis every citizen knew that bond proposals might be submitted after twenty-one days' notice, as provided in Sec. 8657, R.S. 1919, as well as that a general primary would be held on August 7th and that state and national officials would be voted for under Art. 5, Chap. 30, R.S. 1919. (9) In the absence of an unmistakable intention to the contrary, the general registration provided for general elections is sufficient for bond elections held at or about the same time. Bray v. Florence, 62 S.C. 57. (10) A bond election is indeed a special election if held separately at some time specially designated by municipal officials. But when held at the time of a general election or a general primary election it is not a separate election nor a "special election" within the meaning of Sec. 40, Laws 1921, p. 330. Laws 1921, sec. 61, pp. 365, 366; Secs. 4792, 5252, R.S. 1919. A special election is one held at a special time designated by municipal officials, and not at some time designated by law. State ex rel. v. Tausick, 64 Wash. 69; State ex rel. v. Howell, 59 Wash. 492; Kenfield v. Irwin, 52 Cal. 164; Words & Phrases, Title "Special Election." (11) The Missouri statutes nowhere require two separate notices of a bond election. (12) Simply because the election statute requires over seven weeks for all the pre-election proceedings, including revision of registration, it does not follow that city officials must run their bond election notices throughout this long period, when the statute requires only "at least twenty-one days." Sec. 8657, R.S. 1919; People ex rel. v. Ohio Grove Town, 51 Ill. 191. (13) The words "previous revision" in Sec. 40, Laws 1921, page 330, are not mandatory; at least not as requiring any revision especially for the benefit of persons voting on a bond proposition, when all voters have been accorded the privilege of registering, both for the general primary and for any bond propositions to be submitted on the same day. (a) Even if the Legislature could have intended that the submission of a bond proposition on the day of the general primary constituted a separate "special election," nevertheless, the omission to provide registration specially for such bond election, when a general registration was being provided for the general primary, was at best a mere irregularity and, in the absence of fraud, would not invalidate the election nor defeat the expressed will of the people. State ex rel. Town of Canton v. Allen, 178 Mo. 576; State ex rel. Mercer Co. v. Gordon, 242 Mo. 623; State ex rel. Memphis v. Hackmann, 273 Mo. 670; State ex rel. Marshall v. Hackmann, 274 Mo. 551. (14) The words "general election" cover the whole election, including the submission of any question or proposi...