Opinion
December 7, 1928.
1. TAXATION: Airport: Charter Power: Public Purpose. An airport falls within the category of both a public and municipal purpose, and the Charter of Kansas City (1925), by Sections 1 and 3 of its Article I, vests the city with power to acquire and maintain an airport, and to incur an indebtedness therefor through the issuance of bonds.
2. CHARTER POWER: Enumeration: Airport: Specification to Control. The specification of the power of the city "to regulate and control the location of aviation fields, hangars and air craft landing places; to regulate and control the uses of all air craft within or over the city," found in the Charter of Kansas City as one of the city's enumerated powers, does not operate to limit the power of the city to acquire and maintain an airport, where the charter also enumerates the general power to acquire, hold, maintain and improve real estate "for public or municipal purpose," and further says that "the enumeration of any particular power granted by this charter shall not be construed to limit or impair any general grant of power in this charter contained." Besides, the power to regulate and control the location of aviation fields and the uses of air craft within and over the city can be most effectively exercised through the ownership and control of an airport.
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 P. 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 P. 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.
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 all kinds of public buildings, structures, plants and institutions, for doing any public work or rendering any public service, markets, places, works and improvements, crematories, morgues and lighting systems.
"(36) . . . to regulate and control the location of aviation fields, hangars and air craft landing places; to regulate and control the use of all air craft within or over the city. . . .
"(61) To enact all needful ordinances for preserving order, securing persons or property from violence, danger and destruction, for protecting public and private property, for promoting the public health, safety, convenience, comfort, morals, prosperity and general interests and welfare, for insuring the good government of the city, and for the protection, regulation and orderly government of parks, public grounds and other public property of the city, both within and without the corporate limits of the city.
"(62) To exercise all powers heretofore granted to it or permitted, or which may be hereafter granted to it or permitted by law."
Section 3 of Article I provided:
"The enumeration of any particular power granted in this charter shall not be construed to limit or impair any general grant of power in this charter contained." A reading of the provisions quoted, in connection with the charter as a whole, indubitably shows that it was the purpose of the people of Kansas City to confer upon their municipality all of the powers that could possibly be delegated to a city, the limitations imposed by statutes and constitutions considered. The power to acquire and maintain an airport, being one which falls within the category of both a public and municipal purpose, as was held in Dysart v. St. Louis, supra, is therefore embraced within the general grant of power to Kansas City. The specification of the power, "to regulate and control the location of aviation fields, hangars and air craft landing places; to regulate and control the uses of all air craft within or over the city," does not under the rule of construction which the charter provides operate to limit the general power. Besides, the power to regulate and control the location of aviation fields and the uses of air craft within and over the city can no doubt be most effectively exercised through the ownership and control of an airport. We accordingly hold that Kansas City is authorized by its charter to acquire and maintain an airport, and that being so authorized it can incur an indebtedness therefor through the issuance of bonds.
As already stated, all other questions raised on this appeal were fully considered and ruled in Dysart v. City of St. Louis; and as they were decided adversely to appellant's contentions in this case it follows that the judgment below should be affirmed. It is so ordered. All concur; Walker, J., in the result.