Burks v. City of Licking , 1998 Mo. App. LEXIS 1906 ( 1998 )

MONTGOMERY, Judge.

This is an appeal from the entry of a summary judgment adverse to Dee Burks (Plaintiff), a resident and taxpayer of the City of Licking, Missouri. The Respondents are the City of Licking, a Fourth Class City in Texas County, Missouri, and Mark Rinne, the Mayor of the City of Licking. We refer to the Respondents collectively as “the City” or “Licking.”

Plaintiffs declaratory judgment action, filed September 4,1997, challenged the City’s authority to purchase real estate outside its city limits for the purpose of donating the property to the State of Missouri for the construction of a state penitentiary. The petition also challenged the City’s indebtedness to finance the purchase as being “in violation of [Article. VI] § 26(a) of the Constitution of Missouri in that it would cause the City to be indebted in an amount exceeding the revenue provided for 1997 plus any unencumbered balances from previous years.”

On May 5, 1998, the trial court sustained the City’s motion for summary judgment. The trial court gave no explanation for so ruling other than holding that “as a matter of law that there are no genuine issues of material fact that are real and substantial....”

Plaintiffs two points on appeal assert that the trial court erred in granting summary judgment to the City (1) “because the City of Licking had no statutory or constitutional authority to acquire real estate outside the city limits for the purpose of giving it to the State of Missouri so the State of Missouri could build a prison in that said project did not constitute a municipal public purpose,” and (2) “because the financial obligations assumed by the City in purchasing the land and selling the Certificates of Participation exceeded the limits set by Article VI, Section 26(a) of the Constitution of Missouri without a vote of the people and therefore the transactions were void.”¹

In considering an appeal from the entry of a summary judgment, an appellate court reviews the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The review is essentially de novo with the appellate court employing the same tests as should be employed by the trial court in deciding whether to grant the motion. Id. The propriety of a summary judgment is purely an issue of law. Id. “Summary judgment is granted only where no genuine issue of material fact exists, and judgment is proper as a matter of law.” Cash v. Benward, 873 S.W.2d 913, 915 (Mo.App.1994).

Licking’s Board of Alderman, at a March 4, 1997 meeting, considered a proposal booklet issued by the Department of Corrections of the State of Missouri concerning the location of a 1500 bed, high custody, male correctional facility. Part of the State’s proposal required any interested municipality to provide the land for the correctional facility at no cost to the State.

After considering the State’s site selection criteria, the Board of Aldermen then held open meetings for public discussion on whether Licking should submit a proposal to the State. On March IB, 1997, the Board of Aldermen passed the following resolution:

WHEREAS, the State of Missouri, through the Department of Corrections, has issued a request for proposals for location of a 1500 bed, high custody, male correctional facility; and

WHEREAS, the City of Licking is desirous of locating this facility in the Licking area, due primarily to its economic impact on the community; and WHEREAS, the impact of such a facility on the economy of the Licking area would be significant; and

WHEREAS, the request for proposals issued by the Department of Corrections requires a resolution indicating support from the local governing body for community incentives contained in the proposal for the location of such a facility,

NOW, THEREFORE, BE IT RESOLVED, by the Board of Aldermen of the City of Licking, Missouri, that the following community incentives for the location of a high custody, male correctional facility be included in the City of Licking’s proposal and that these incentives enjoy the full support of the Board of Aldermen:

(1) Land for the site to be provided to the State at no cost. Estimated value of the 201 acres included in the proposed site is $400,000.00.

(2) Extension of water services to the proposed site at no cost to the State. Estimated value of the extension of such facilities is $40,000.00.

(3) Extension of sanitary sewer service to the proposed site at no cost to the State. Estimated value of the extension of such facilities is $45,000.00.

(4) New industrial grade street from State Highway 32 to the proposed site at no cost to the State. Estimated value of the new road is $77,000.00

A motion was also approved authorizing Mayor Rinne to sign a Real Estate Option Contract as to the 201-aere tract.

In the fall of 1997, the State selected Licking for the site of the prison from the eighteen proposals presented to the State. Subsequently, Licking acquired ownership of the 201 acres and deeded the land to the State. The parties agree that the 201 acres lay “mostly” outside of Licking city limits. The record shows that approximately 15 acres is located within the city limits. Apparently, all the land lays within a single tract.

In order to finance the land purchase and certain improvements, the City issued $595,-000 worth of “Certificates of Participation.” The financial obligations assumed by the City are discussed under Plaintiffs second point.

Initially, Plaintiff claims the City (1) had no statutory authority to purchase the land outside the city limits and (2) had no authority to purchase land to donate to the State in view of Article X, Sections 1 and 3, of the Missouri Constitution.

As to (1), the powers of public subdivisions of the State are limited to those expressed or implied by statute, and any doubt is construed against the grant of power. State ex rel. St Louis Housing Authority v. Gaertner, 695 S.W.2d 460,462 (Mo. banc 1985). Municipalities are creatures of statute and only have the powers granted to them by the legislature. State ex rel. Mitchell v. City of Sikeston, 555 S.W.2d 281, 288 (Mo. banc 1977). Courts generally follow a strict rule of construction when determining the powers of municipalities. Id.

For its statutory authority to purchase the land, the City relies, in part, on § 79.010.² This statute provides, in pertinent part, that any fourth class city “may receive and hold property, both real and personal, within such city, and may purchase, receive and hold real estate within or without such city for the burial of the dead; and may purchase, hold, lease, sell or otherwise dispose of any property, real or personal, it now owns or may hereafter acquire_” (Emphasis added.)

Plaintiff argues that § 79.010 only gives the City authority to purchase land outside the City for burial of the dead. Certainly the statute so provides, but it also states that a fourth class city “may purchase ... any property, real or personal.... ” The latter grant of authority is not conditioned upon any stated purpose.

In Kennedy v. City of Nevada, 222 Mo. App. 459, 281 S.W. 56 (1926), a case cited by Plaintiff, the City of Nevada maintained a tourist camp within its city limits. Plaintiff sued the city for maintaining a nuisance and for damages. The city claimed it was not liable to plaintiff because it “had no power to purchase land for the maintenance of a tourist camp.” Id. at 57. The Court of Appeals “noted that the language of [the identically worded predecessor statute to § 79.010] is unusual” but conceded “that this section standing alone gives unlimited authority to such cities to purchase real estate...." Id. at 57-58. The court determined that operation of the tourist camp was not for municipal purposes and reversed the judgment in plaintiffs favor.

We agree with Kennedy that § 79.010 contains no limitation on the location of the property purchased so long as the purchase is for a valid municipal purpose. See State ex rel. Birk v. City of Jackson, 907 S.W.2d 181 (Mo.App.1995) (upholding purchase of land by fourth class city outside of city limits for landfill based upon implied authority of several statutes). We hold that under § 79.010, Licking had statutory authority to purchase the land if the purchase fulfilled a valid municipal purpose.

This Court discussed the municipal purpose concept in Siegel v. City of Branson, 952 S.W.2d 294 (Mo.App.1997). There, we said:

“What constitutes a public purpose is primarily a legislative decision which will not be overturned by the courts unless arbitrary and unreasonable.” Associated Electric Co-op. v. Springfield, 793 S.W.2d 517, 523 (Mo.App.1990). Missouri courts will defer to a city council when it declares a particular purpose to be a public one, and not interfere with a discretionary exercise of judgment unless it is clearly erroneous or unreasonable. J.C. Nichols Co. v. City of Kansas City, 639 S.W.2d 886, 891 (Mo. App.1982).

“No hard and fast rules exist for determining whether specific uses and purposes are public or private.” Cape Motor Lodge, Inc. v. City of Cape Girardeau, 706 S.W.2d 208, 213 (Mo. banc 1986). “A municipal purpose is one which comprehends all activities essential to the comfort, convenience, safety and happiness of the citizens of the municipality.” Id. at 214. The concept is elastic and keeps pace with changing conditions. J.C. Nichols Co., 639 S.W.2d at 891; Bowman, 233 S.W.2d at 32. Thus, a definition of public purpose will likely vary with the character of the case in which the term is employed. Bowman, 233 S.W.2d at 32.

Id. at 296-97.

Licking claims its land purchase serves the public municipal purpose of economic development. According to Licking, § 79.110 gives fourth class cities a broad grant of authority to take such actions as “they deem expedient” to promote economic development by trade and commerce. Section 79.110 gives municipal officers the “power to enact and ordain any and all ordinances not repugnant to the constitution and laws of this state, and such as they shall deem expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce and the health of the inhabitants thereof_”

Licking purchased the land after passing an ordinance authorizing the purchase and issuance of the Certificates of Participation. The ordinance referred to the Resolution of March 13, 1997, as the basis for entering into the option for the purchase of real estate. Thus, Licking’s Board of Aldermen, by a resolution and ordinance, decided that the land purchase was for the municipal purpose of promoting the City’s economic development. Under these circumstances, we must not interfere with Licking’s determination as to municipal purpose unless it is “ ‘clearly erroneous and unreasonable.’ ” J.C. Nichols Co., 639 S.W.2d at 891(quoting Parking Systems, Inc. v. Kansas City Downtown Redevelopment Corp., 618 S.W.2d 11 (Mo.1974)). Here, Plaintiff does not assert that the Board of Aldermen acted in an erroneous or unreasonable manner. Thus, for that reason alone, we could uphold the validity of Licking’s land purchase. However, we are also convinced that the promotion of economic development serves a proper public purpose. Several Missouri cases so hold.

In State ex rel. Wagner v. St. Louis County Port Authority, 604 S.W.2d 592 (Mo. banc 1980), the Supreme Court rejected a constitutional challenge to the Missouri Port Authority Law, chapter 68, RSMo 1978. The Court said that the “Act serves a proper public purpose” and does not violate the Missouri Constitution, Article VI, Sections 28 and 25. Id. at 596. The Court held that the issuance of revenue bonds pursuant to the Act serves the “essential public purposes of improving employment and stimulating the economy.” Id. at 597.

In State ex rel. Jardon v. Industrial Dev. Auth. of Jasper County, 570 S.W.2d 666 (Mo. banc 1978), relator attacked the Industrial Development Corporations Act because it allowed the expenditure of public funds for other than a public purpose by authorizing the issuance of revenue bonds to finance facilities to be used by private corporations. Id. at 673. The Supreme Court rejected this argument holding that issuance of revenue bonds under the Act serves the essential public purposes of improving employment and stimulating the economy. Id. at 675. In reaching this result, the Court cited with approval the following language from City of Pipestone v. Madsen, 287 Minn. 357, 178 N.W.2d 594, 603 (1970):

“The citizens of Pipestone and the residents of this state will benefit substantially from the proposed transaction. Providing gainful employment for our people will increase their purchasing power, improve their living conditions, and relieve the demand for unemployment and welfare assistance. New or modernized buildings will add properties to the tax lists and increase the tax base. There is little doubt that the establishment of new and improved industry will measurably increase the resources of the community, promote the economy of the state, and thereby contribute to the welfare of its people. These benefits are clearly public in nature.”

Jardon, 570 S.W.2d at 674-75.

Finally, in Dysart v. City of St. Louis, 321 Mo. 514, 11 S.W.2d 1045 (banc 1928), the Supreme Court determined “that the acquisition and control of an airport is a city purpose within the purview of general constitutional law.” Id. at 1049. In support of this determination, the Court said:

“ ‘Perhaps the best test of rightful taxation is that the proceeds of the tax must be used for the support of the government or for some of the recognized objects of government, or directly to promote the welfare of the community. It may also be conceded that that is a public purpose from the attainment of which will flow some benefit or convenience to the public....’ 26 R.C.L. 46.”

Id. at 1047 (emphasis added).

Plaintiff’s constitutional attack in Point I rests on Article X, Sections 1 and 3, of the Missouri Constitution.³ Plaintiff claims these sections prohibit Licking from purchasing “land to give to the State for a state project.” Plaintiff relies on State ex rel. City of Jefferson v. Smith, 348 Mo. 554, 154 S.W.2d 101 (banc 1941), and Curchin v. Missouri Indus. Dev. Board, 722 S.W.2d 930 (Mo. banc 1987), in support of this proposition. Neither case aids Plaintiff.

The issue in City of Jeffersonwas whether the city’s proposed municipal bonds were “invalid under Sec. 3, Art. X of the constitution.” The Supreme Court stated the rule on this issue in the following manner:

“The true distinction drawn in the authorities is this: If the primary object of a public expenditure is to subserve a public municipal purpose, the expenditure is legal, notwithstanding it also involves as an incident an expense, which, standing alone, would not be lawful. But if the primary object is not to subserve a public municipal purpose, but to promote some private end, the expenditure is illegal, even though it may incidentally serve some public purpose. * * * If a public purpose is set up as a mere pretext to conceal a private purpose, of course, the expenditure is illegal and fraudulent.” Bates v. Bassett, 60 Vt. 530, 531, 15 A. 200, 202, 1 L.R.A. 166.

Id. at 102.

When Missouri’s Unemployment Compensation Commission sought a location for its central offices, Jefferson City was one of the cities interested in housing the Commission. Eventually Jefferson City submitted to its voters the question of incurring an indebtedness to construct a building. The ballot language asked the voters for approval to increase the city’s debt “for the purpose of providing funds for the erection of a municipal office building ...”

Applying the stated rule, the Supreme Court determined that “the submission of the question of indebtedness to construct such a building must have been a subterfiige to obtain money to construct a building for the Unemployment Compensation Commission. Furthermore, the subterfuge is an admission that the construction of an office building for the Commission would not be for a municipal purpose.” Id. at 104. Therefore, the Supreme Court seemed to say that constructing a building for rental to the State was a private purpose in view of the people’s vote for constructing a municipal building.

Here, unlike Jefferson City, Licking did not disguise a non-municipal purpose as a municipal one. In a straightforward manner, Licking purchased the land to induce the State to build a prison for the economic good of the community. Unlike Jefferson City’s ballot, Licking’s resolution and ordinance both plainly stated a valid municipal purpose, i.e., the economic development of the community.

In Curchin, the issue was whether the Missouri Industrial Development Board could validly authorize in its industrial revenue bonds a provision allowing a state tax credit for the amount of any unpaid principal and interest in default as allowed by § 100.297, RSMo Supp.1985. The Supreme Court agreed with appellant’s argument that § 100.297 constitutes a grant of public money or property and a lending of public credit in violation of the Missouri Constitution, Article III, Section 38(a), which prohibits the grant of public money or property to a private person, association or corporation. Id. at 932. The Court rejected respondent’s argument that the tax credits are designed to promote the public purpose of general economic welfare. After citing the Jefferson City case, the court said:

Accordingly, in our application of Article III, Section 38(a) of the Missouri Constitution, we have held grants with a primarily private effect to be unconstitutional, despite the possible beneficial impact upon the economy of the locality and of the state.

Id. at 934.

Curchin determined that the tax credits led to a primarily private effect because providing them to only a select few companies “lends itself to abuse and is analogous to the railroad grants of yesteryear, which prompted the adoption of Article III, Section 38(a) of the Missouri Constitution.” Id. at 935.

Licking’s land purchase and donation of it to the State does not benefit a “select few” private individuals. The prison will provide employment for many people in the Licking community who will have increased purchasing power. Clearly, increased spending promotes the economy of Licking. As stated in the City of Pipestone, “These benefits are clearly public in nature.” 178 N.W.2d at 603. Point I lacks merit.

Plaintiffs last point complains that the financial obligations assumed by the City exceeded the limits set by Article VI, Section 26(a), of the Missouri Constitution without a vote of the people and, therefore, the transaction was void.

Plaintiff first seems to argue that Licking’s financing agreements with First National Bank of Columbia are improperly some sort of “creative financing.” We do not address this issue because it is not stated in Plaintiffs point relied on. This Court is obligated to determine only those questions stated in the points relied on. Mashburn v. Tri-State Motor Transit Co., 841 S.W.2d 249, 252 (Mo. App.1992). Issues alluded to only in the argument portion of the brief are not presented for review. Id.

We do address Plaintiffs argument that the financial obligations assumed by the City violate Article VI, Section 26(a). That section provides:

No county, city, incorporated town or village, school district or other political corporation or subdivision of the state shall become indebted in an amount exceeding in any year the income and revenue provided for such year plus any unencumbered balances from previous years, except as otherwise provided in this constitution.

Licking is currently obligated to pay the Certificate of Participation holders the sum of $595,000 over a 15-year period. The certificates mature at different times. However, payments are only due once a year on each December 1st, beginning in 1998 and ending in 2012. The first debt payment of principal and interest, totaling $55,130.83, is due on December 1,1998.

According to Plaintiff, Licking is constitutionally required to show the entire $595,000 debt as an expenditure in its fiscal year of 1998. If this is true, the City would be in violation of Article VT, Section 26(a). On the other hand, if Licking is only required to show the first debt payment of $55,130.83 as a 1998 fiscal year expenditure, it is undisputed that Licking is not in violation of this constitutional provision.

Mercantile Bank of Illinois v. School Dist. of Osceola, 834 S.W.2d 737 (Mo. banc 1992), is the leading authority on Article VI, Section 26(a), and decides the issue Plaintiff raises. There, on August 24, 1987, the Osceola School District entered into a 60-month lease of two copy machines and agreed to pay $300 monthly. The lease agreement provided that all payments were accelerated on default. After the school district defaulted in August 1990, Plaintiff accelerated the lease payments and sued for the remaining payments of $8,569.20. The trial court sustained the school district’s motion for summary judgment which alleged that under Article VI, Section 26(a), it had no authority to enter into a multi-year lease and that any contract entered in violation of this constitutional provision was void. The Supreme Court disagreed.

Initially, the Court reviewed its earlier decisions construing Article VI, Section 26(a), and decided that a fresh consideration of that provision was warranted. Id. at 739. Accordingly, the Court determined that Article VI, Section 26(a), imposes the following two limitations:

Article VI, section 26(a), says first to a political subdivision: ‘You may not borrow to increase what you have to spend in any year beyond a total of what your taxes will bring in for that year, whatever other income you may have for that year, and what you have left over from previous years that is not already encumbered.”

Article VI, section 26(a), also acts as a limitation on expenditures. It also says to a political subdivision, ‘You cannot spend more than you have.”

Id. at 741.

Turning to the school district’s copier lease, the Court observed that so long as the payments were made, no more than $3600 was due in a given year. The Court then held:

Article VI, section 26(a), does not require the political subdivision, here the School District, to measure the entire lease obligation as a current expenditure. This is the import of the “in any year” and “for such year” language of section 26(a). Instead, rent payments are an expenditure for current expenses of the School District in the year-tight compartments in which those payments are due. Thus, only those payments due in a particular fiscal year are considered expenditures for determining whether the School District exceeded the expenditure limitation imposed by article VI, section 26(a).

Id. As a result, the Court determined the lease was not void but “is voidable upon a showing that the School District entered an agreement to pay more than its ‘income and revenue provided for such year plus any unencumbered balances from previous years.’ Art. VI, § 26(a).” Id.

Thus, Mercantile Bank teaches that Licking is not required to measure the entire $595,000 debt as a current expenditure. Only the $55,180.83 payment is an expenditure for the City’s 1998 fiscal year in determining whether the City exceeded the expenditure limitation under Article VI, Section 26(a). Therefore, by only considering the first year’s payment as an expenditure, it is clear that Licking did not exceed the expenditure limitation. Point II is denied.

The summary judgment is affirmed.

SHRUM, P. J., concurs and files concurring opinion. GAJRRISON, C.J., dissents and files dissenting opinion.

1 . Both of Plaintiff's points also assert that the trial court erroneously denied Plaintiff's motion for summary judgment. We decline to review this portion of Plaintiff's points because the denial of a motion for summary judgment does not present an appealable issue. Shelter Mut. Ins. Co. v. DeShazo, 955 S.W.2d 234, 238 (Mo.App. 1997).

2 . Statutory references are to RSMo 1994 unless otherwise indicated.

3 . Section 1 provides: "The taxing power may be exercised by the general assembly for state purposes, and by counties and other political subdivisions under power granted to them by the general assembly for county, municipal and other corporate purposes.” Section 3 provides, in pertinent part: "Taxes may be levied and collected for public purposes only_”