Budd v. Budd

• Decision Date: 06 February 1894
• Docket Number: 1,872.
• Citation: 59 F. 735
• Parties: BUDD et al. v. BUDD et al.
• Court: U.S. District Court — Western District of Missouri

59 F. 735

BUDD et al. v. BUDD et al.

No. 1,872.

United States Circuit Court, W.D. Missouri, Western Division.

February 6, 1894

Statement by PHILIPS, District Judge:

In December, 1890, Azariah Budd died, testate, at the county of Jackson, state of Missouri, leaving the defendant S. A Cornell Budd his surviving widow. On the 15th day of December, 1890, his will was duly admitted to probate in said county. The second paragraph of the will is as follows '(2) I give and devise to Kansas City, Mo., for a public park, to be named 'Budd Park,' twenty-one acres of land, being in the northwest corner of the northwest quarter of the southeast quarter of section 35, township 50, range 33, subject to an annual payment of three thousand dollars to said S. A. Cornell Budd during her natural life. If said Kansas City shall not accept said land for such park under said conditions, then it is my will that said land and all other lands owned by me in said Jackson county be sold, and the interest of the proceeds be paid to the said S. A Cornell Budd during her natural life, and, at her death, the principal to be given to such benevolent purposes as may be productive of the most good.'

Kansas City, by ordinance, accepted the devise of said land, of date March 5, 1891, 'upon the terms and conditions named and provided for in said last will and testament,' and declared the land to be a public park, to be known as 'Budd Park,' and directing the annual payment to be made to said S. A. Cornell Budd upon the 15th day of December of each year, to begin on the 15th day of December, 1891; and the said S. A. Cornell Budd duly filed her acceptance of the provisions of said ordinance. The city, by ordinance, for each fiscal year, apportioning funds to the city, has since made two payments of said annuity out of the general fund of the city, and has, since the institution of this suit, made provision therefor. The said Azariah Budd left no children or father or mother surviving. The plaintiffs, who are brothers and sisters of the whole blood and half blood of said Azariah, bring this action to have said devise of said real estate declared ineffectual, for the reasons that the said city has no power to take and hold said land under said will and because the will is otherwise inoperative, by reason of the provision that, in case the said city shall not accept, the land be sold in case of the death of said S. A. Cornell Budd, the money arising from such sale to be given to such benevolent purposes as may be productive of the most good, the said provision being void for uncertainty. The cause is submitted to the court on the pleadings and proofs.

Johnson & Lucas, J. L. Grider, and A. M. Allen, for complainants.

C. O. Tichenor and Fyke & Hamilton, for respondents.

PHILIPS District Judge, (after stating the facts.)

The controlling question in this case is, did Kansas City possess legal capacity to take and hold this land under the provisions of said will? The charter of a municipality is the source of its powers. It can exercise no power which is not expressly conferred upon it, or such as arises by fair implication as essential or reasonably proper to give effect to powers expressly granted. Doubts as to the existence of such power are to be resolved against the corporation. This rule of construction is succinctly stated by the supreme court in Minturn v. Larue, 23 How. 436:

'It is a well-settled rule of construction of grants by the legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the act, or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public. This principle has been so often applied in the construction of corporate powers that we need not stop to refer to authorities.'

Under the city charter in force at the time of the taking effect of the devise, it is expressly declared in section 1, art. 1, that said Kansas City is empowered to----

'Acquire and hold by gift, devise, purchase or by condemnation proceedings, lands or other property for public use, either within the corporate boundaries of said city or beyond the limits of the city * * * for public parks, * * * and may also take, hold, use and improve any property, real, personal or mixed, either within or without the city limits, that may be acquired by gift, devise, bequest or otherwise, for any charitable use or educational or benevolent purposes whatsoever.'

Article 10 provides especially for the establishment of public parks. By section 1 it is made the duty of the common council to 'arrange for a system of parks,' and it directs the division of the city into park districts. Section 3, art. 10, declares that:

'It shall be the duty of the board of park commissioners to select or to select and purchase real estate for parks in the district for which a park shall have been ordered by the common council; provided, however, that before such election shall be valid it shall be approved by the board of public works.'

Section 4, art. 10, provides for the mode of payment of lands purchased for parks inside the city limits, which may be done by assessments on property within the district, and may be raised by installments.

Section 11, art. 10, declares that:

'The common council is authorized to provide by ordinance for the purchase, or otherwise obtaining, of real estate for such public park or public parks as it may deem necessary outside of the city limits. Payment therefor shall be made out of the general fund or by a direct tax levy upon the taxable property within the city limits; such levy to be made by the common council, subject to the constitution and laws of the state; in such manner and at such rate as may be prescribed by ordinance.'

Then follows section 12:

'The city is authorized to receive gifts, devises and bequests of any real or personal property for any public park, or for the public park of any district which may be by it created.' From all of which it is manifest that the city is fully empowered to take and hold lands for the use of public parks.

The principal objection urged against the city's title is predicated of section 30, art. 4, of the charter, which declares, inter alia, that:

'The common council shall not appropriate money for any purpose whatever in excess of the revenue of the fiscal year actually collected and in the treasury at the time of such appropriation and unappropriated. Neither the common council, nor any officer of the city, except the comptroller, in a single instance in this charter provided, shall have authority to make any contract, or to do any act binding Kansas City, or imposing upon said city any liability to pay money until a definite amount of money shall first have been appropriated for the liquidation of all pecuniary liability of said city under said contract, or in consequence of said act; and the amount of said appropriation shall be the maximum limit of the liability of the city under such contract, or in consequence of any such act, and said contract or act shall be ab initio null and void as to the city for any other or further liability.'

The argument is not only that no such appropriation was in fact provided for by ordinance, but from the very nature of the transaction no such ordinance could have been enacted, for the reason that, owing to the uncertainty of the duration of the life of Mrs. Budd, the amount of the appropriation in the aggregate was not ascertainable.

There are several valid answers to this objection. Said section has especial reference to contracts made by the common council, or acts done by it to bind the city, or imposing upon it a pecuniary liability springing therefrom; and, in the very reason and nature of things, it can only apply to such transactions by the common council as are susceptible of liquidation by an immediate appropriation. It must be construed in connection with the whole provisions of the charter, so as, if possible, to give harmony, force, and efficacy to every part thereof. Statutes in pari materia are to be construed so that they may all stand. Among the recognized canons for the interpretation of statutes are that the intention of the legislature may be gathered from a view of every part taken and compared together, and, when the true intention is ascertained, it will prevail over the literal sense of the terms; and the reason and intention of the lawgiver will control the strict letter when the latter would lead to palpable injustice, contradiction, or absurdity. And, where there is doubt whether a certain thing falls within the terms used in an act, it is proper to resort to other statutes to ascertain the mind of the legislature in enacting the general statute. A thing within the intention of the legislature in framing a statute is sometimes as much within the statute as if it were within the letter. In re Bomino's Estate, 83 Mo. 441.

In U.S. v. Kirby, 7 Wall. 483, Mr. Justice Field said:

'All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice,

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