Meyers v. Kansas City

• Decision Date: 29 June 1929
• Docket Number: 29815
• Parties: Emma J. Meyer v. Kansas City et al., Appellants
• Court: Missouri Supreme Court

18 S.W.2d 900

323 Mo. 200

Emma J. Meyer v. Kansas City et al., Appellants

No. 29815

Supreme Court of Missouri

June 29, 1929

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

John T Barker and J. C. Petherbridge for appellants.

(1) An ordinance which submits to the voters of the city, a proposition to vote bonds "for the construction improvement and equipment of municipal docks and wharves," carries with it implied authority to use a part of the money so obtained to purchase a suitable site upon which to construct such docks and wharves, or else the bond issue would fail of its purpose. Sheidley v. Lynch, 95 Mo. 487; State ex rel. Wahl v. Speer, 284 Mo. 45; Hudgins v. School District, 312 Mo. 1; Beauchamp v. School District, 297 Mo. 64; King v. Maries County, 297 Mo. 488; State ex rel. Bybee v. Hackman, 276 Mo. 110; Clark v. Brookfield, 81 Mo. 503; Yegen v. Yellowstone County, 85 P. 704; Territory ex rel. v. Baxter, 83 P. 709; Dyer v. Mayor of Baltimore, 140 F. 880; Anderson v. Thomas, 117 So. 573; Linn v. Omaha, 76 Nebr. 552, 107 N.W. 983; Maxcy v. Oshkosh, 144 Wis. 238, 128 N.W. 899. (2) What was said about the use of the proceeds of the bonds in the case of Horsefall v. School District, 143 Mo.App. 541, relied upon by respondent, was mere obiter dictum; it did not control there and is not necessarily controlling here.

Ashley & Gilbert for respondent.

No part of the money realized from the sale of the bonds voted "for the construction, improvement and equipment of municipal docks and wharves" can be used for the purchase of a site, and any attempt to so use said money is a breach of trust, which will be enjoined at the suit of a taxpayer. Horsefall v. School District, 143 Mo.App. 541; Thompson v. St. Louis, 253 S.W. 969; Crampton v. Zabriskie, 25 L.Ed. 1070; 4 Pomeroy's Equity Jurisprudence (4 Ed.) 4097, sec. 1767; Dillon on Mun. Corp. (4 Ed.) 110, sec. 914; Newmeyer v. Railroad Co., 52 Mo. 81; Wagner v. Meety, 69 Mo. 150.

Walker, J. All concur, except Atwood, J., not sitting.

OPINION

WALKER

This is a suit by injunction whereby the respondent seeks to prevent Kansas City and others, appellants, from using a portion of an appropriation made by the council of that city, for the payment of which bonds have been issued for "the construction, improvement and equipment of municipal docks and wharves," for the purchase of land along the Missouri River on which to construct municipal docks and wharves.

A demurrer was interposed to the petition filed herein, which was overruled by the circuit court. The appellants refused to plead further, stood upon the demurrer, and a decree was entered permanently enjoining the appellants from using any part of the proceeds arising from the sale of said bonds for the purpose stated. From this judgment the appellants perfected an appeal to this court.

The error assigned is the overruling of appellants' demurrer and the consequent entry of a judgment of permanent injunction against the appellants.

The issue is limited to the construction which should be given to the language of the ordinance adopted by the voters of Kansas City, authorizing the issuance of the bonds in question. Proposition Eight, of the ordinance, provides that such bonds may be issued "for the construction, improvement and equipment of municipal docks and wharves, Five Hundred Thousand Dollars."

When Ordinance No. 55585, in which the proposition here under review is incorporated, was submitted to and adopted by the people, eight distinct propositions were embodied therein; in three of these it was expressly provided that a portion of the amounts appropriated were to be applied to the purchase of a site for the establishment of the contemplated improvement. Those three propositions were for the establishment of an air port; the construction of a city hall; and a municipal auditorium. In each of these it is evident from the nature of the proposed improvement that it could not be established without a site therefor first having been procured. Despite this apparent fact and the consequent implied power of the city to purchase the sites, it was prescribed that a portion of each of the appropriations in the cases referred to should be used for such purpose.

No such use of the appropriation under the eighth proposition is authorized. The nature of the proposed improvement is not of such a character as to render an express provision for the purchase of a site necessary. While the record is silent on the subject the inference is permissible that the city possesses or controls the docks and wharves within its corporate limits. In the absence of such possession it is not reasonable that the approval of...