262 S.W. 379 (Mo. 1924), 25263, Halbruegger v. City of St. Louis

Docket Nº25263
Citation262 S.W. 379, 302 Mo. 573
Opinion JudgeBLAIR
Party NameMAYNE G. HALBRUEGGER, Appellant, v. CITY OF ST. LOUIS et al
AttorneyLemen, Field & Flynn for appellant. George F. Haid and Oliver Senti for respondents; Charles & Rutherford of counsel.
Judge PanelJames T. Blair, J. All concur, except Walker, J., who dissents.
Case DateFebruary 28, 1924
CourtSupreme Court of Missouri

Page 379

262 S.W. 379 (Mo. 1924)

302 Mo. 573

MAYNE G. HALBRUEGGER, Appellant,

v.

CITY OF ST. LOUIS et al

No. 25263

Supreme Court of Missouri

February 28, 1924

Appeal from St. Louis City Circuit Court; Hon. Wm. H. Killoren, Judge.

Affirmed.

Lemen, Field & Flynn for appellant.

The proposition provides as follows: "Thirteen. Bonds numbered 57,751 to 62,750, both inclusive, five million dollars, and the proceeds from their sale, shall be used 'For the acquisition of a site and the erection thereon of a civic building to be known as the "Municipal Auditorium and Community Center Building," to be used for the holding of public meetings, gatherings and conventions for the discussion of public questions, including matters submitted to the people under the referendum or the initiative, and to provide suitable meeting places for educational, moral, musical, industrial, labor and other purposes.'" These other purposes quoted are private purposes. It is purposed to hold all kinds of private conventions in this building. A municipality has no right to tax its citizens for "private purposes." Since this feature appears from the face of the ordinance, complainants must act now or forever hold their peace. Kingman v. Brockton, 153 Mass. 225; C. E. Brooks v. Incorporated Town of Brooklyn, 124 N.W. 868.

George F. Haid and Oliver Senti for respondents; Charles & Rutherford of counsel.

(1) A municipal auditorium or other public hall to be used generally by the public is a public use or public purpose. 6 Corpus Juris, 863, 864; Clarke v. Town of Brookfield, 81 Mo. 503; State ex rel. v. Haynes, 72 Mo. 377; Denver v. Hallett, 34 Colo. 393; Greenbanks v. Boutwell, 43 Vt. 207; Ross v. Long Branch, 73 N. J. L. 292; Wheelock v. Lowell, 196 Mass. 220; Hightower v. Raleigh, 150 N.C. 560; Egan v. San Francisco, 165 Cal. 576; Los Angeles v. Dodge, 51 Cal.App. 492; Town of Beaver Dam v. Frings, 17 Wis. 398. (2) Inasmuch as a municipal auditorium sustains the same relation to a large city that a public hall or a general municipal building sustains to a small town, the case at bar falls within the principles declared by this court in the cases of State ex rel. v. Haynes, 72 Mo. 377, and Clarke v. Town of Brookfield, 81 Mo. 503. (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 a 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. R. Co., 160 U.S. 681. (4) The word "auditorium" is not used in the charter. But the power of the city to erect such a building is included within the power granted. Charter, Art. I, sec. 1, pars. 8, 15, 32, 33 and 35; Article I, sec. 2; Article 17, sec. 1; St. Louis v. Baskowitz, 273 Mo. 545. (a) 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, sec. 8656, 8659; State ex rel. v. Hackmann, 280 Mo. 586; 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. (5) 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) The General Assembly has conferred upon cities smaller than St. Louis the express authority to construct auditoriums, convention halls and memorial buildings (R. S. 1919, sec. 9089; Laws 1923, pp. 281, 282); and, in one or more of these statutes, has declared them (or some of them) to be public utilities. (b) When there has been a legislative declaration that a use or purpose is a public one, the judgment of the Legislature will be respected by the courts unless the use be palpably without reasonable foundation. Dillon on Munic. Corpns. (4 Ed.) sec. 600; United States v. Gettysburg El. R. Co., 160 U.S. 680. Especially if sanctioned by time and the acquiescence of the public. State ex rel. v. O'Rear, 277 Mo. 303, 320. (c) It would certainly be an anomaly if larger cities, such as St. Louis and Kansas City, did not possess a similar power. The conferring of express power upon smaller cities cannot be construed as a denial of power to the city of St. Louis; and the fact that in some instances special statutory authority has been obtained does not militate against the existence of a general power. Wheelock v. Lowell, 196 Mass. 224; Hightower v. Raleigh, 150 N.C. 569. (d) St. Louis is authorized by its Charter to issue bonds for any public utility, for any public building or for any public purpose. Charter, art. 17, sec. 1. (6) It cannot be assumed that a building adapted for public purposes is to be used for other purposes. Ross v. Long Branch, 73 N. J. L. 292, (a) Under the ejusdem generis rule, the words "other purposes" mean other public purposes. St. Louis v. Laughlin, 49 Mo. 559; Ex parte Joseph Neet, 157 Mo. 535; Williams v. Railroad, 233 Mo. 678. (7) When an instrument is susceptible of two constructions, one of which will render it invalid and the other of which will render it valid, the courts will adopt the latter construction. Hunter W. Finch & Co. v. Senith Furn., 146 Ill. 257, 277; Minn. Lum. Co. v. White Breast Coal Co., 160 Ill. 85; Ormes v. Dauchy, 82 N.Y. 443, 446; Curtis v. Gokey, 68 N.Y. 304; Crittenden v. French, 21 Ill. 598, 600; Cochran v. County of Vermilion, 113 Ill.App. 144; Natl. Hollow Brake Beam v. Interchangeable B. B. Co., 106 F. 715; O. H. Jewell Filter Co. v. Jackson, 140 F. 343.

James T. Blair, J. All concur, except Walker, J., who dissents.

OPINION

BLAIR

Page 380

[302 Mo. 579] Appellant is a taxpaying citizen of the city of St. Louis and appeals from an adverse judgment in a suit she brought to enjoin the city, its mayor, comptroller and treasurer from issuing bonds voted to procure money to acquire a site and erect "a civic building to be known as the 'Municipal Auditorium and Community Center Building'" in the city of St. Louis.

The petition alleges the various steps taken preliminary to the holding of the bond election, the manner of holding the election and the casting of a decided majority of the votes for the bonds for the purpose mentioned, the several things done by the Board of Election Commissioners following the election and by the Board of Aldermen and the Board of Estimate and Improvement toward the issuance of bonds for the purpose in question, sets out the ordinance directing the bonds to be issued, wherein detailed provision is made to that end, alleges that certain bonds have been sold and others are about to be sold, and prays that the issuance and sale of bonds for the erection of the civic building named be forever enjoined, on the ground that the purpose for which their proceeds are to be used is not a public purpose within the meaning of Sections 3 and 11 of Article X of the State Constitution and of Section 1 of Article I and Section 1 of Article XVII of the Charter of the City of St. Louis. A demurrer to the petition was filed and sustained. Appellant refused to plead further. Judgment was rendered, and this appeal followed.

The proposition submitted and carried and here attacked was one of several separately submitted at the same election. Each proposal for bonds was part of a general and harmonious plan which included numerous improvements of various kinds. The proposal as submitted was as follows:

"For the acquisition of a site and the erection thereon of a civic building to be known as the 'Municipal Auditorium [302 Mo. 580] and Community Center Building,' to be used for the holding of public meetings, gatherings and conventions for the discussion of public questions, including matters submitted to the people under the referendum or the initiative, and to provide suitable meeting places for educational, moral, musical, industrial, labor and other purposes, five million dollars ($ 5,000,000)."

No part of the proceedings in preparation for the submission of the proposition, no feature of the election as held, and no matter or transaction subsequent to the election is attacked or criticised by appellant in any respect as the general invalidity of the whole is impliedly questioned by the insistence that the city has no lawful power to incur indebtedness for the purpose evidenced by the proposal in question. The argument in support of appellant's contention falls under two general heads: (1) That the purpose the proposal is designed to effectuate is not a public purpose, and (2) that, in any event, neither statute nor charter authorizes the city to vote and issue bonds for the erection of a building such as is described in the proposal.

I. It is earnestly contended that the purpose intended to be accomplished under the proposal submitted is not a public purpose, but a private one, within the meaning of Section 3 of Article X of the State Constitution, which, in so far as it is pertinent, reads: "Taxes may be levied and collected for public purposes only." This constitutional clause is but the formulation of a restrictive principle inherent in the nature of free government.

1. Appellant's argument is, to some extent, based upon her construction of the proposal she attacks. In this connection the word "auditorium" is given some prominence, the term "convention hall" is used, and the final words "and other purposes" are considerably emphasized. The proposal submitted, apart from the name chosen, separately defines the uses for which the contemplated structure is designed. It is obvious that in [302 Mo. 581] arriving at the purpose in mind the direct and express declaration thereof is not to be...

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