(dissenting).
I hesitate to dissent in a case of this character, but I am impelled to do so. Basically, it is my opinion that neither the Constitution, the statutes, nor the Kansas City Charter authorize the City to cooperate with the School District in the use of parkway land for the erection and maintenance of a public library, which is strictly a school district function in that municipality. The School District has, for many, many years, built and operated all libraries in the City at its own expense by regular levies of school district taxes; the City has never attempted to acquire, erect or operate any library anywhere. The School District has recently built and is operating a new main downtown library at an enormous cost. The functions of the City and the School District in this regard have been and are entirely separated. It simply is not the function of Kansas City to operate a library;. possibly, it could do so under its general authority to “provide, operate and maintain. * * * educational * * * institutions”' [§ 1 (39) Kansas City Charter] if it acquired property for that purpose or even if it used property otherwise acquired for its-general purposes, but I do not believe that this section of the Charter, as limited by the specific provisions governing park and parkway properties, or § 66 (referred to-in the principal opinion) authorize a diversion of parkway property to a joint library enterprise; nor do I believe that the Charter would authorize the diversion of parkway property even to a library project operated by the City solely its own. Section 66 of the Charter is as follows: "Sec. 66. Structures within parks. Neither the council nor the board of park commissioners shall have authority, except as in this charter otherwise provided, to permit any person, association, firm or corporation to build or maintain any structure within any park, parkway or public ground under the control of the said board. No structure shall be erected or maintained in any such place except such as may be erected by the board for park uses, and such statues, monuments and works of art as may be approved by the art commission and erected by or under authority of the board, and except such public memorials, museums, art galleries and other public buildings as are authorized by this charter.” Considering that section as a whole, I do not construe it to authorize the erection or maintenance of any buildings on park or parkway property except for uses directly or indirectly associated with parks or parkways. The “public buildings” reference, under the rule of ejusdem generis, is limited by the presence of the preceding words, namely, “public memorials, museums, art galleries * * *.” Hence, the “public building” should be of that same character and type. In ordinary common sense, a library is not a *699park project, nor even a recreational project. It is an educational project, and in .Kansas City the School District is charged ■solely with providing and operating libraries.
This discussion, so far, has principally involved park property. This tract is a parkway. I shall not indulge in any fine ■distinctions but a parkway, as all seem to ■concede, partakes at least of the character of a street or roadway, even though it be beautified here and there; and there are •other distinctions in the Charter itself, as, for instance, the differing modes of acquisition and payment. This land was thus acquired for the purpose, in whole or in part, of the movement of traffic, and this particular tract is located in a position where such ■considerations have become most vital. Having been thus acquired, the City’s power to divert it is, in my opinion, much more restricted than if it had been acquired as a park. The City proposes now to put the tract to a use which would completely remove it from its original purpose and function and, for all practical purposes, to do so permanently, since there is no repossession provision. There is no time limit in this contract, and the erection of a very costly and permanent library on the site would naturally remove the tract forever from any possible use for street or traffic purposes. And, while this suggestion is not determinative in view of the Council’s discretion in such matters, the location is such that no one may, with any assurance, foretell how soon the area may be vitally needed for traffic or freeway connections, ramps, or other traffic devices; it lies at the very gateway to the highly commercialized Plaza District from the east and south.
Section 58 of the Charter provides that lands acquired for “park, parkway or boulevard purposes shall remain forever parks, parkways and boulevards for the use of all of the inhabitants of the city.” I do not rely, in any large part, on the somewhat sentimental argument of the City about “whittling away” the interests of posterity in Kansas City’s extensive park and parkway property, although this anticipated move may well alert the people to that danger. I simply would deny the City the right to contract for this use because of a total lack of authority to do so; and, to my mind, this contract for the right to use the property, in essence forever, is simply an attempted evasion of the City’s lack of power to deed the property outright to the School District.
The principal opinion is founded largely on § 16 of Art. 6 of the Constitution, which it construes most broadly. I note that the statute implementing that provision (§ 70.-220) expressly limits all such cooperative agreements to those subjects and purposes which are “within the scope of the powers of such municipality or political subdivision,” which I construe to mean the powers of each subdivision so entering into such a contract. I do not construe the constitutional provision itself to mean anything more. It certainly was not the intent of the framers of the Constitution to give to any municipality any power or authority by way of “cooperation” which it did not have initially. I, therefore, see no possible conflict between the Constitution and those charter provisions which restrict the usages of property to the function or sphere for which it was acquired. The principal opinion thus suggests a possible conflict where none exists. The Constitution does not require, nor do I think it authorizes, a diversion of property by a scheme of cooperation to uses for which it was never acquired or intended. The case of City of Oakland v. Williams, 15 Cal.2d 542, 549, 103 P.2d 168, cited in the principal opinion and decided under a statutory provision similar to § 16 of Art. 6, upheld a delegation of power, provided, however, that “each (city) independently could have exercised or performed” that function. It is my view here that the city of Kansas City could not legally have used parkway property for library purposes, directly or indirectly.
If the City has heretofore improperly permitted the erection of one or more small *700and inconsiderable structures (such as the fire alarm station) on parkway property,— there are two answers: (1) one or more past wrongs do not make a “right”; and (2), solely as a practical matter, none of the buildings suggested are of such substance as to interfere permanently with future traffic problems, nor are any of them in such a vital location as the present site is. Some are in actual use by the Park Department itself, for parkway and park purposes. The community centers mentioned are on park property, and these are, in my opinion, in a wholly different category from that of a library; moreover, they are operated by the City itself. Here, the City does not pretend that it would participate in any way in the operation of the proposed library.
I am compelled to the view that the discretion vested in the legislative bodies of the City (the Park Board and the Council) cannot be stretched so far as to furnish an immunity to the actual illegality of this action ; I am convinced that the contract is a violation of the wording and intent of the City Charter, that the Charter is not in conflict with the Constitution or the statute, and that the contract illegally proposes to divert (in essence forever) land acquired for parkway purposes to a use which would make it permanently unavailable for an essential part of the purpose for which it was originally acquired.
In the case of Kirkwood v. City of St. Louis, Mo., 351 S.W.2d 781, where park land was condemned for a trafficway (partially the reverse of our situation), the use to which the land was diverted was one admittedly within the scope of the City’s powers and functions, and there was no reliance upon any authority created through a “cooperation.” There the land was condemned; here we have a voluntary contract. There the traffic needs were stressed; here they are ignored.
In prior diversions of park or parkway land, the city of Kansas City has submitted the question to a vote of the electorate by proposed charter amendments. We see no legitimate reason why this proposal has not been, and should not be, handled in the same manner. It is highly significant that the School District owns in fee the site of the abandoned E. C. White School, of considerably greater area, just to the southeast across the intersection of Brookside Boulevard and Main Street; that tract comprises 4.11 acres as compared to 2.8 acres in the controverted tract. (We have referred, as invited by stipulation of the parties, to our files in the prior- mandamus proceeding filed by the School District against the City, No. 49 541, as well as to exhibits in the present case.) The present record contains no intimation as to what the School District proposes to do with that tract, nor is there anything to explain why it is not suitable for library purposes. While such decisions; as the present one are generally within the discretion of the respective legislative bodies, provided the result is legally permissible, it is usually preferable that the record should contain some factual basis for the exercise of the discretion, if for no-other reason than to justify a finding that the discretion has not been abused. The selection insisted upon here was apparently made upon the individual recommendation of Dr. Joseph L. Wheeler, an outside library expert, which, in turn, was based upon his; personal survey of the area in 1947.
I am mindful of the fact that liberal constructions of constitutions, statutes and' charters are often required in the interest of progress, and in order to avoid frustrations; of the real intent of the authors. But I am doubly conscious of the fact that we may not disregard or evade the real principles, announced in those documents, even though a particular result may seem, at the moment, to be highly desirable. In order to maintain a measure of stability in our governmental functions and structures, we should exercise care to the end that we are not led in the name of progress into decisions which may, in the future, eradicate those guidelines and restrictions which have been created by an earlier, and perhaps a wiser, generation.