City of Springfield ex rel. Board of Public Utilities v. Brechbuhler

895 S.W.2d 583, 1995 Mo. LEXIS 29, 1995 WL 124583
CourtSupreme Court of Missouri
DecidedMarch 21, 1995
DocketNo. 76920
StatusPublished
Cited by2 cases

This text of 895 S.W.2d 583 (City of Springfield ex rel. Board of Public Utilities v. Brechbuhler) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Springfield ex rel. Board of Public Utilities v. Brechbuhler, 895 S.W.2d 583, 1995 Mo. LEXIS 29, 1995 WL 124583 (Mo. 1995).

Opinion

THOMAS, Judge.

This is an appeal by the City of Springfield from the trial court’s dismissal of Springfield’s petition to condemn by eminent domain gas line easements outside of a county in which Springfield is located. We affirm.

I.

On January 28, 1993, Springfield’s Board of Public Utilities condemned easements on the respondents’ land in Lawrence County, Missouri, for the purpose of transporting natural gas to Springfield to produce electricity at the publicly owned power plant. On February 22, 1993, the city council passed an ordinance declaring the need to condemn these easements. In March, Springfield filed a petition with the Circuit Court of Lawrence County to condemn the easements. This petition was dismissed by the trial court on [584]*584the grounds that 1) section 82.2101 prevents condemning easements outside of the county in which the city is located, and 2)- section 91.210 does not incorporate the condemnation provisions of section 91.600, which allows for the condemnation of waterworks, as a method of acquiring gas plants. We affirm the trial court’s dismissal.

Springfield is a constitutional charter city, commonly known as a home rule city. Unlike non-home rule cities, which only have the powers expressly granted to them by the legislature or the constitution, home rule cities have “all powers that the general assembly has authority to confer upon any city,” provided not otherwise limited by the Missouri Constitution, by statute, or by the city’s charter itself. Mo. Const, art. VI, § 19(a). Springfield’s charter allows it all of the powers that the General Assembly could provide. For purposes of this ease, we assume, without deciding, that the provisions authorize Springfield to condemn property anywhere in Missouri unless limited by statute.

II.

Section 82.240, the primary statute regarding condemnation powers for home rule cities, provides as follows:

It shall be lawful for [a constitutional charter city] to make a provision in its charter, or by amendment thereof, to acquire and hold by gift, devise, purchase or by the exercise of the power of eminent domain by condemnation proceedings, lands for public use, either within the corporate boundaries of such city or outside of such corporate boundaries, and within the territorial limits of the county in which such city may be situated, for public parks, cemeteries, penal institutions, hospitals, rights-of-way for sewers, or for any other public purpose, and to provide for managing, controlling and policing the same. [Emphasis added.]

Springfield argues that section 82.240 does not limit the power of condemnation to counties in which portions of the City of Springfield are located. Under Springfield’s interpretation, because there is no restriction on Springfield as a constitutional charter city, it has the power to condemn land outside the county in which it is located under article VI, section 19(a).

The power of eminent domain is one of the most intrusive powers of government because it involves the power to take property from citizens against their will, albeit for fair consideration. Therefore in determining the power to condemn in a governmental body, statutes must be strictly construed.

In Missouri Cities Water Co. v. Hodge, 878 S.W.2d 819 (Mo. banc 1994), this Court considered the issue of whether a privately owned waterworks system already dedicated to public use can be condemned by a municipality for the same use. In reaching the conclusion that the city did not have the authority, the Court stated that statutes delegating the power to condemn must be strictly construed:

[T]he exercise of eminent domain is in derogation of the right of the citizen; that a statute delegating that power must be strictly construed,....

Id. at 821 (quoting Southwestern Bell Telephone Co. v. Newingham, 386 S.W.2d 663, 665 (Mo.App.1965)). The principle of strict construction applied generally to condemnation in Missouri Cities is equally applicable in this case.

Springfield relies principally on Cape Motor Lodge, Inc. v. City of Cape Girardeau, 706 S.W.2d 208 (Mo. banc 1986). In that case, the City of Cape Girardeau, also a constitutional charter city, proposed to contract with Southeast Missouri State University (SEMO) to build a “multi-use center.” The city’s portion was to be financed by a tax on hotel and restaurant receipts. A group of local hotel and restaurant owners who opposed the tax sought an injunction on the grounds that the city had no authority to enter into an agreement with SEMO. Article VI, section 16, of the Missouri Constitution provides:

[585]*585Cooperation by local governments with other governmental units. Any municipality or political subdivision of the state may contract and cooperate with other municipalities or political subdivisions thereof, or with other states or their municipalities or political subdivisions, or with the United States, for the planning, development, construction, acquisition or operation of any public improvement or facility, or for a common service, in the manner provided by law.

The enabling statute, section 70.220, provides:

Political subdivisions may cooperate with each other, with other states, the United States or private persons. — Any municipality or political subdivision of this state, as herein defined, may contract and cooperate with any other municipality or political subdivision, or with an elective or appointive official thereof, or with a duly authorized agency of the United States, or of this state, or with other states or their municipalities or political subdivisions, or with any private person, firm, association, or corporation, for the planning, development, construction, acquisition or operation of any public improvement or facility, or for a common service; _

This Court held that section 70.220 was not limiting and therefore the city could contract with SEMO.

The controlling issue in Cape Motor Lodge was whether the above-quoted provisions from the Constitution and the statute are “both authorizing and limiting” or “authorizing only.” More specifically, the issue was whether these provisions should be construed to authorize cooperation with the entities listed and to prohibit cooperation with any entity not listed, or whether they should be construed to only authorize those listed and to remain neutral with respect to those not listed. Although we did not label it as such, the respondents argued the rule of statutory construction known as expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). Black’s Law Dictionary 581 (6th ed. 1990). We decided against applying this rule of construction in the Cape Motor Lodge case, and the provisions being construed there were determined to be “authorizing only.” This Court stated:

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Related

State v. Simino
397 S.W.3d 11 (Missouri Court of Appeals, 2013)
State v. Williams
24 S.W.3d 101 (Missouri Court of Appeals, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
895 S.W.2d 583, 1995 Mo. LEXIS 29, 1995 WL 124583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-springfield-ex-rel-board-of-public-utilities-v-brechbuhler-mo-1995.