Ennis v. Kansas City

• Decision Date: 07 December 1928
• Docket Number: No. 29188.,29188.
• Citation: 11 S.W.2d 1054
• Parties: H. ROBERT ENNIS, Appellant, v. KANSAS CITY, ALBERT I. BEACH ET AL.
• Court: Missouri Supreme Court

11 S.W.2d 1054

H. ROBERT ENNIS, Appellant, v. KANSAS CITY, ALBERT I. BEACH ET AL.

No. 29188.

Supreme Court of Missouri. Court en Banc.

December 7, 1928.

Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.

AFFIRMED.

Johnson, Lucas & Graves for appellant.

(1) A municipal corporation has only such powers as are clearly and unmistakably granted by constitution, statute or charter, or necessarily implied or incident to expressly granted powers; and any fair or reasonable doubt concerning the existence of the power is resolved against a municipality and the power denied. 9 R.C.L. 768 to 770, notes 7 and 8; St. Louis v. Tel. Co., 96 Mo. 628; St. Louis v. Dreisoerner, 243 Mo. 217; State ex rel. Kansas City v. Orear, 277 Mo. 303; City of St. Louis v. Evraiff, 301 Mo. 231; Kennedy v. City of Nevada, 281 S.W. 60. (2) "The establishment and equipment of a municipal airport and the acquisition and improvement of a site therefor" is not a "public purpose." State v. Loomis, 115 Mo. 320; State ex rel. v. St. Louis, 216 Mo. 47; State ex rel. Kansas City v. Orear, 277 Mo. 303; Kennedy v. City of Nevada, 281 S.W. 56; Strahan v. Malvern, 77 Iowa, 454; Eufala v. McNab, 67 Ala. 588; Cain v. Wyoming, 104 Ill. App. 538; Markley v. Mineral City, 58 Ohio St. 430; Burns v. Essling, 156 Minn. 171; McClintock v. Phoenix, 24 Ariz. 155; Schneck v. Jeffersonville, 152 Ind. 204; Pascagoula v. Delmas, 108 Miss. 91; State ex rel. v. Lynch, 88 Ohio St. 71. (3) "The establishment and equipment of a municipal airport and the acquisition and improvement of a site therefor" is not "public" within the meaning of Sec. 3, Art. 10, of the Constitution, nor a "city" or "municipal" purpose within the meaning of Sec. 11, Art. 10 of the Constitution, nor a "lawful," "public," or "municipal" purpose within the meaning of Article 1, Secs. 1 and 3, of the Charter of Kansas City. Deal v. Mississippi Co., 107 Mo. 464; State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. St. Louis, 216 Mo. 47; Houck v. Drainage District, 248 Mo. 373; State ex rel. v. Orear, 277 Mo. 303; Kennedy v. City of Nevada, 281 S.W. 56; Bradentown v. State, 88 Florida, 381. (4) The failure to hold a revision of the registration of the city for the bond election, as required by Section 40 of the Act of 1921, Laws 1921, page 356, invalidated the bonds, and deprived unregistered voters of the city of the right to register and vote against the bonds, as no revision of the registration was held after the bond election had been called by the city. 20 C.J. 82, sec. 53. (5) The bond election was not held in the way generally customary in the city, but was held in conjunction with, at the time as, in the same polling places, and with the same officials of, the general primary election, which was confusing to the voters. State ex inf. Attorney-General v. Maitland, 296 Mo. 338.

John T. Barker and William F. Allen for respondents; Benjamin H. Charles and Carl Trauernicht of counsel.

(1) The acquisition of land and its improvement for the establishment and equipment of a municipal airport 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. O'Rear, 277 Mo. 303; Schieffelin v. Hylan, 236 N.Y. 254; United States v. Gettysburg El Ry. 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) While the word "airport" is not used in the Kansas City Charter, the power of the city to provide and maintain an airport is included within the powers granted. Charter, Art. 1, sec. 1, pars. 4, 5, 8, 11, 17, 57, 61, 62, 63; Art. 1, sec. 3; State ex rel. v. Thomas, 278 Mo. 85. (5) 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, secs. 8656, 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. 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) Kansas City is authorized by its charter to issue bonds for any public utility or for any public purpose. Charter, Art. 1, secs. 1, 3. (b) A municipal airport is a "public utility" within the meaning of the Kansas City 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 adopted for public purposes is to be used for other purposes. State ex rel. v. Thomas, 278 Mo. 85; Halbruegger v. St. Louis, 302 Mo. 573; Ross v. Long Branch, 73 N.J.L. 292. (7) The intermediate registration of voters held preceding the state primary elections on August 7, 1928, rendered unnecessary the holding of any supplemental or additional intermediate registration for the bond election held on the same date as said primary election. (a) The intermediate registration of voters held preceding said primary elections sufficed for and constituted "a previous revision of the registration" as required preliminary to a bond election. Section 40, Act of March 14, 1921, Laws 1921, p. 356. (b) The omission to provide registration specially for the bond election, when general registration was being provided for the general primary, was at best a mere irregularity; and in the absence of fraud, no such irregularity will 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 County v. Gordon, 242 Mo. 623; State ex rel. Memphis v. Hackmann, 273 Mo. 670; State ex rel. Marshall v. Hackmann, 274 Mo. 551.

RAGLAND, J.

This case was argued and submitted with Dysart v. City of St. Louis et al., ante page 514. The facts and the questions raised in the two cases are parallel. The decision in the Dysart case is therefore determinative of all questions involved in this except the question of charter power; the language of the two charters with reference to the powers conferred is somewhat different.

Section 1, Article I, of the Kansas City Charter (adopted in 1925), with reference to the power granted the corporation, recites: "Subject only to the necessary extent of the limitations imposed by the constitutions and laws of the United States and the State of Missouri, it shall have power:"

Then follows an enumeration in 65 separately numbered paragraphs. In some of these the powers conferred are described in broad, general terms, while in others they are specified with great detail. Those having an immediate bearing on the question in hand are in whole, or in part, as follows:

"(8) To acquire, receive, hold, use, manage, maintain, control, improve, and to sell, lease, mortgage, pledge or otherwise dispose of property, real or personal, and any estate or interest therein, within or without the city or State, for any public or municipal use or purpose... .

"(17) To acquire, provide for, construct, regulate and maintain and do all things relating to...