State v. The City of Hiawatha

• Decision Date: 08 December 1928
• Docket Number: 28,544
• Citation: 272 P. 113,127 Kan. 183
• Parties: THE STATE OF KANSAS, ex rel. WILLIAM A. SMITH, Attorney-general, Appellant, v. THE CITY OF HIAWATHA, A. P. HAAS, HARVEY KINZIE and WARD SALISBURY, Trustees of the Hiawatha Memorial Auditorium, Appellees
• Court: Kansas Supreme Court

272 P. 113

127 Kan. 183

THE STATE OF KANSAS, ex rel. WILLIAM A. SMITH, Attorney-general, Appellant, v. THE CITY OF HIAWATHA, A. P. HAAS, HARVEY KINZIE and WARD SALISBURY, Trustees of the Hiawatha Memorial Auditorium, Appellees

No. 28,544

Supreme Court of Kansas

December 8, 1928

Decided July, 1928.

Appeal from Brown district court; C. W. RYAN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. MUNICIPAL CORPORATIONS--Powers and Authority--Use of Military Memorial Auditorium. A city is without authority to conduct moving-picture and road shows for profit in a military memorial auditorium erected at public expense to commemorate the valorous achievements of American soldiers, in pursuance of the authority granted by the legislature in chapter 256 of the Laws of 1921.

2. SAME--Powers and Authority--Engaging in Commercial Enterprise. In the act named there is no express authority given to cities to engage in a commercial enterprise such as the moving-picture business, and nothing in the powers granted by the legislature warrants the implication that cities may use the memorial buildings to carry on private business for profit.

William A. Smith, attorney-general, W. F. Means and Walker F. Means both of Hiawatha, for the appellant.

W. E. Archer, of Hiawatha, for the appellees.

OPINION

JOHNSTON, C. J.:

This action was brought by the attorney-general to enjoin the city and the trustees of the Hiawatha memorial auditorium from carrying on the picture-show business in the memorial auditorium, which had been built and maintained at public expense. The court denied the injunction and plaintiff appeals.

The electors of the city voted bonds in the sum of $ 75,000 and used the proceeds in the erection of a military memorial in pursuance of the authority granted by the legislature in the Laws of 1921, chapter 256. Among other rooms the building included an assembly room fitted with a stage, which accommodated about 1,200 persons. Soon after the building was erected the trustees of the auditorium leased the assembly room to one Wm. L. Shenkelberger, to be used in showing moving pictures and also for road shows, at a rental of $ 7 for each night when picture shows were given, and for one-half of the gross receipts when road shows were given. The right of the trustees to rent the building for these purposes was challenged, and in an injunction proceeding that was brought the court held that the trustees were without right or authority to lease the auditorium for the show business and granted an injunction against the continuance of the business under the lease. Afterwards the trustees began the giving of shows in the auditorium every week night, except on a few occasions reserved for other purposes, charging an admission fee which is about ten cents less than is usually charged by other show houses. The trial court concluded that the statute gave the city and its trustees implied power to carry on the picture-show business, and it therefore denied the injunction. The statute under which the memorial building was erected provided--

"That the various counties and cities of the state of Kansas are hereby authorized and empowered to vote bonds or incur indebtedness in the manner hereinafter prescribed for the erection of such memorials as may be petitioned for as suitable and proper to commemorate the valorous achievements of the citizens of the respective cities or counties who as soldiers, sailors and marines entered the service of the United States during the war with Mexico, the Indian wars, the war of the rebellion, the Spanish-American war, and the great World War from 1914 to 1919, including therein those devoted women of the corps of the Red Cross nurses attached to the service of the United States; and also those citizens of the county or municipality who enlisted in the military, naval or Red Cross service during the great World War from 1914 to 1919. Such memorial so petitioned for may consist of a building, monument, arch, or other structure, or improved highway, park or boulevard." (R. S. 73-401.)

This statute has already received consideration in cases where cities undertook to lease memorial buildings erected and maintained at public expense to private parties for private purposes. It was held that no power had been conferred by the legislature to lease the whole or any part of the building. ( Darby v. Otterman, 122 Kan. 603, 252 P. 903; Electric Theater Co. v. Darby, 123 Kan. 225, 254 P. 1035; State, ex rel., v. City of Independence, 123 Kan. 766, 256 P. 799.) Since memorial buildings may not be leased to private parties to carry on private business, may they be used by the city or its trustees to carry on a commercial enterprise such as a picture show or theatrical business? It is conceded that there is no express authority in the act for the city to engage in the moving-picture business or any other commercial enterprise in the building. A moving-picture show is a well-recognized kind of private business, carried on by private parties in most of the cities, towns and community centers of the state. It is now almost as well recognized and common as the grocery and clothing businesses. A vast amount of money is invested in them, and a municipality engaged in the business will necessarily meet with sharp competition. Can it be said that the power exercised by the defendant in this commercial enterprise may be fairly implied from the powers granted? The legislature has conferred upon cities municipal powers and functions to be exercised for public purposes. In an early case it was held that--

"Municipal corporations are creations of law and can exercise only powers conferred by law and take none by implication." (City of Leavenworth v. Rankin, 2 Kan. 357.)

Powers expressly granted carry with them such powers as are incidental to them and are indispensable to the declared public purpose. (19 R. C. L. 768.) The statute which provides for the erection of military monuments or memorial buildings to commemorate the valorous achievements of American soldiers does not carry the implication that such monuments or buildings are to be used for commercial purposes, or that the cities might heat, maintain and otherwise keep them in repair by the profits gained from carrying on a private business in the buildings. Instead of providing that the expense of maintenance should be met by the profits earned in carrying on a commercial enterprise, the legislature provided that:

"The expense of...