Erickson v. King

• Decision Date: 07 July 1944
• Docket Number: No. 33874.,33874.
• Citation: 15 N.W.2d 201,218 Minn. 98
• Parties: ERICKSON v. KING, State Auditor, et al.
• Court: Minnesota Supreme Court

15 N.W.2d 201

218 Minn. 98

ERICKSON v. KING, State Auditor, et al.

No. 33874.

Supreme Court of Minnesota.

July 7, 1944.

Appeal from District Court, Ramsey County; Gustavus Loevinger, Judge.

Taxpayer's suit by Elmer V. Erickson against Stafford King, as State Auditor of the State of Minnesota, and others, to restrain the State Auditor and the Governor from carrying out the provisions of Laws 1943, c. 500, authorizing the creation of a Metropolitan Airports Commission. From an order sustaining a demurrer to the complaint, the plaintiff appeals.

Order affirmed.

Cummins & Cummins, of St. Paul, for appellant.

J. A. A. Burnquist, Atty. Gen., and William C. Green., Asst. Atty. Gen., for respondents.

LORING, Chief Justice.

This is a taxpayer's suit to restrain the state auditor and the governor from carrying out the provisions of L.1943, c. 500, authorizing the creation of a Metropolitan Airports Commission, on the ground that it violates Minn.Const. art. 9, § 5, providing that "the state shall never contract any debts for works of internal improvements, or be a party in carrying on such works," and art. 4, § 33, and art. 9, § 1, in that it attempts to authorize public taxation for a private purpose, and lend the credit of the state in aid of a corporation in contravention of art. 9, § 10. The trial court sustained a demurrer to the complaint. The appeal is from that order.

Chapter 500 is entitled:

"An act relating to public airports, providing for the organization and administration of public corporations for acquiring, establishing, developing, maintaining, controlling, and operating such airports, and for financing the operations of such corporations, and those of other municipalities owning and operating airports, and appropriating moneys therefor."

It provides for the creation in and for any two contiguous cities of the first class of a public corporation to be known as the "Metropolitan Airports Commission" of those cities. The corporation is given jurisdiction over airports within contiguous cities of the first class, and authority to exercise control and jurisdiction over any other airport within 25 miles of the city hall of either city if it so determines. It is granted the power of eminent domain, of making rules, regulations, and ordinances, and the power to enforce them. An appropriation is made for the survey of existing airports in the cities involved and for the formulation of plans for the expansion and operation by the corporation of existing airports and the acquisition and construction of new airports.

Upon completion of its permanent plan of operation, the corporation is directed to take over the use, management, operation, regulation, policing, and control of any or all airports owned by either city and to exercise the powers granted to it by the act. The corporation, now known as the Minneapolis-St. Paul Metropolitan Airports Commission, is completely organized and engaged in carrying out the purposes of c. 500.

The corporation's operations are to be financed from income, by bonds, and from such parts of appropriations provided for in the act as may be allocated to it by the governor at its request, and by moneys paid to it by the cities involved in proportion to the assessed valuation of each. The corporation may compel the county auditors of the counties within which such cities lie to extend a levy of taxes for the support of the corporation in case the commissioners fail to certify to the county auditors the amount required to be raised by the cities. The corporation may issue bonds not to exceed $15,000,000 in amount, to be secured by the full faith, credit, and resources of the cities for which the corporation is created. In addition to the direct appropriation for the survey and preliminary plans, the act directs the state auditor to levy upon all taxable property of the state, taxes sufficient to produce the sum of $100,000 for each of ten taxable years, and, upon request of the governor, the state auditor is directed to sell certificates of indebtedness of the state as funds are needed for the purposes of the act, but not to exceed $1,000,000 in the aggregate.

The governor has requested the sale of certificates in the sum of $75,000. The proceeds of the authorized taxation and bonds are to be covered into a Minnesota Metropolitan Airports Fund established in the state treasury for the purposes of the act. Out of this fund, there is appropriated to the governor for the purposes of the act the sum of $1,000,000 for the biennium ending June 30, 1945. The act contains authority for the issuance of bonds, which shall be deemed and treated as instrumentalities of a public governmental agency and, as such, exempt from taxation, as is all property of the corporation. The state treasurer is ex officio the treasurer of the corporation. Provision is made for payments to the treasurers of Minnesota municipalities maintaining airports which further the objectives of the act.

The members and governing body of the corporation consist of the mayor of each of the cities, or a voter appointed by him; a member of the council of each such city appointed by the council; a member of the board of commissioners having jurisdiction at the time of the passage of the act of airports of each of the cities, appointed by such board; a nonofficeholding freeholder of each city who has resided therein at least ten years; and one voter of a noncontiguous county, who shall be appointed by the governor and shall be chairman of the corporation.

The act declares that its purposes are public and governmental; that the establishment of the airport systems thereby created will promote the public safety and welfare of the state; and that the acquisition, construction, development, extension, maintenance, and operation of such airport systems are essential to the development of air navigation and transportation in and through this state and to the national defense during the present war and in the prosecution thereof. The corporation is not organized for profit and its receipts may be used only for carrying on its activities and the payment of its bonds.

1. The principal challenge to the constitutionality of the act is that thereby the state contracts a debt for works of internal improvement and becomes a party to the carrying on of such works in contravention of Minn.Const. art. 9, § 5. This provision of the constitution has been consistently held by this court not to apply to works which are used by the state as a sovereign in the performance of its governmental functions. Rippe v. Becker, 56 Minn. 100, 57 N.W. 331, 22 L.R.A. 857; Berman v. Minnesota S. A. Society, 93 Minn. 125, 100 N.W. 732; State ex rel. Smith v. Van Reed, 125 Minn. 194, 199, 145 N.W. 967, 968; Lipinski v. Gould, 173 Minn. 559, 218 N.W. 123, 730.

2. We take judicial notice of the distinction between traffic by rail, highway, and canal and air traffic as it has developed, is developing, and is reasonably certain to develop within the foreseeable future. Smith v. New England Aircraft Co., 270 Mass. 511, 519, 170 N.E. 385, 388, 69 A.L.R. 300, 306.

3, 4. The position of the attorney general is that the corporation is but an instrumentality of the state created to carry on its sovereign governmental functions. The plaintiff, relying largely on Cooke v. Iverson, 108 Minn. 388, 122 N.W. 251, 52 L.R.A.,N.S., 415, which held that appropriation of state funds for the improvement of free public highways offended art. 9, § 5, contends that c. 500 is an exercise of the state's proprietary functions as distinguished from its sovereign governmental functions. We examine the enactment to discover in which capacity it functions. In our quest for light we are not much helped, either by our own previous decisions or by those of other states. For instance, Cooke v. Iverson, supra, considered a statute addressed solely to the physical improvement of highways. Had the appropriation there involved been for the purpose of the control and policing of traffic by highway, we apprehend that the court would have found little difficulty in sustaining it, even to the extent of establishing control stations or any other means of patrolling or policing traffic. Such would have been very obviously the exercise of the police power in the sovereign aspect of government.

A reading of the debates in the constitutional convention or conventions which framed our constitution leads us to believe that the evil sought to be prevented by that part of art. 9, § 5, now under consideration was that of the state's financing railroads, toll roads, or canals, all of which lend themselves readily to operation for profit by private corporations and are not well carried on by public officers. Ryerson v. Utley, 16 Mich. 269; People ex rel. Bay City v. State Treasurer, 23 Mich. 499. Were the question involved in Cooke v. Iverson up for decision today as a matter of first impression, it...