St. Louis, Trustee Under Will of Bryan Mullanphy v. Wenneker

• Decision Date: 25 June 1898
• Citation: 47 S.W. 105,145 Mo. 230
• Parties: St. Louis, Trustee Under Will of Bryan Mullanphy, v. Wenneker, Collector, Appellant
• Court: Missouri Supreme Court

47 S.W. 105

145 Mo. 230

St. Louis, Trustee Under Will of Bryan Mullanphy, v. Wenneker, Collector, Appellant

Supreme Court of Missouri

June 25, 1898

Appeal from the St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

B Schnurmacher and Chas. Claflin Allen for appellant.

(1) The property, which is the subject of the taxbills sought to be canceled, is not property of the city of St. Louis as a municipal corporation, and is, and ever since Bryan Mullanphy's death in 1851 has been, liable to taxation. It is as much liable as if Mr. Mullanphy, instead of appointing the city to execute the trust created by his will had appointed some private individual as trustee. Art. X, secs. 6 and 7, Constitution; R. S. 1889, secs. 7503 and 7504; Joyce Surveying Co. v. St. Louis, 68 Mo.App. 189. (2) The fact that the property is used for charitable purposes does not exempt it from taxation, at least not more than one acre. R. S. 1889, sec. 7504. (3) The assessments and tax-bills levied and made out in the name of "Mullanphy Emigrant Relief Fund" and "Mullanphy E. R. Fund" are sufficient in form. State ex rel. v. Burr, 143 Mo. 209; Angell & Ames on Corp., sec. 645; 4 Am. & Eng. Ency. of Law, 204, notes 2 and 3, and 205, note 2; The Souhegan, etc., Factory v. McConihe, 7 N.H. 309; Patchin v. Ritter, 27 Barb. 34.

Geo. E. Smith and G. A. Finkelnburg for respondent.

(1) The property described in the tax-bills in controversy is, and ever since 1865 has been, expressly exempt from taxation in this State. The present Constitution provides that the property, real and personal, of this State, counties and other municipal corporations, shall be exempt from taxation. Constitution 1875, art. X, sec. 6; Constitution 1865, art. XI, sec. 6. The statutes provide that "lands and other property belonging to any city, county or other municipal corporation in this State" shall be exempt from taxation. R. S. 1889, sec. 7504, fourth subdivision; G. S. 1865, p. 95, sec. 2. (2) The title to the property in controversy is in the city of St. Louis. It holds the same in trust for a public use which has been declared by this court to be germane to the purposes for which the city of St. Louis was created, and that the public use expressed in the bequest promotes the objects for which the city was incorporated. Chambers v. St. Louis, 29 Mo. 453; 2 Dillon, Mun. Corp. [4 Ed.], sec. 773; West Hartford v. Board of Water Comm'rs, 44 Conn. 360; People v. Doe, 36 Cal. 220; Directors of the Poor v. School Directors, 42 Pa. St. 21; Chicago v. People ex rel., 80 Ill. 384; Buckley v. Osburn, 8 Ohio 180; Inhab. of Worcester v. Mayor, etc., 116 Mass. 193; People v. Brooklyn Assessors, 111 N.Y. 505; Water Comm'rs v. Gaffney, 34 N. J. Law, 133; Railroad v. Davenport, 51 Iowa 451; Railroad v. Taylor Co., 52 Wis. 37; Andrews v. Auditor, 28 Gratt. 115; Tulane Educa. Fund v. Board of Assessors, 38 La. Ann. 292; Bannon v. Burns, 39 F. 892; St. Louis v. Gorman, 29 Mo. 593. (2) The tax-bills in controversy are void because the property therein described has never been subjected to taxation by the General Assembly. Even when the Constitution permits taxation of certain classes of property it can not be assessed for taxation unless the General Assembly has actually subjected it to taxation. Valle v. Ziegler, 84 Mo. 214; State v. Railroad, 77 Mo. 202; Carondelet v. Picot, 38 Mo. 125; Railroad v. Apperson, 97 Mo. 300; McPike v. Pen, 51 Mo. 63; Dillon, Mun. Corp., sec. 773. (3) The tax-bills in question are void because the property therein described has not been assessed in the manner required by law. Our revenue laws require that all assessments should be made against the owner of the property. R. S. 1889, secs. 7569, 7553, 7555, 7608 and 7682; Hubbard v. Gilpin, 57 Mo. 441; Gains v. Fender, 82 Mo. 497; Gitchell v. Kreidler, 84 Mo. 476; Cowell v. Gray, 85 Mo. 169; Allen v. Ray, 96 Mo. 542; Crane v. Dameron, 98 Mo. 567; Hilton v. Smith, 134 Mo. 499.

Williams, J. Gantt, C. J., and Sherwood, Burgess, Robinson and Brace, JJ., concur. Marshall, J., having been of counsel took no part in the decision.

OPINION

In Banc.

Williams J.

The city of St. Louis, as trustee under the will of Bryan Mullanphy, deceased, instituted this proceeding in equity to prevent the enforcement of, and to procure a decree canceling certain tax-bills against real estate, constituting part of the trust property.

Mullanphy died in said city on the fifteenth of June, 1851. He gave to the city of St. Louis by his will, one third of all his property, real, personal and mixed, "in trust to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis on their way bona fide to settle in the West." The city accepted the trust by an ordinance approved November 16, 1857. The real estate was partitioned, and plaintiff's share under the will set off by metes and bounds.

The petition alleges "that since the year 1865 all the property thus owned by the plaintiff was expressly exempted by the Constitution and laws of the State of Missouri from taxation. Yet, notwithstanding such exemption, the assessor of the city of St. Louis did pretend to assess said property for taxation from time to time for the years and in the manner hereinafter more fully shown, and did deliver the pretended tax-bills evidencing such pretended assessments to the defendant and his predecessors in office so that the same are now all held by the defendant as such collector, and the defendant threatens to enforce the same as liens against the property hereinafter described." The petition then states that said tax-bills are void for the following reasons: "That they are assessed against property which, by the Constitution and laws of the State, at the date of the assessment, was wholly exempt from taxation;" and "that they are assessed either against the 'Mullanphy Emigrant Relief Fund' or against the 'Mullanphy E. R. Fund,' whereas there is not and was not at the date of such assessment any person, natural or artificial, known by that name, but that the name of such pretended owner as contained in such tax-bills is a mere abstraction." A full description of the tax-bills is given, and the prayer is, that defendant be enjoined from enforcing them, and that they be canceled.

The defendant demurred on the ground that the petition failed to state facts sufficient to constitute a cause of action. This was overruled and a decree entered as prayed, and defendant has brought the case here.

I. The first question for decision arises out of the claim that this property is exempt from taxation. This involves a construction of the constitutional provisions on that subject.

Sections 6 and 7 of article X of the Constitution of this State adopted in 1875, are as follows:

"Sec. 6. Property exempt from taxation. -- The property, real and personal, of the State, counties and other municipal corporations, and cemeteries, shall be exempt from taxation. Lots in incorporated cities or towns, or within one mile of the limits of any such city or town, to the extent of one acre, and lots one mile or more distant from such cities or towns to the extent of five acres, with the buildings thereon, may be exempted from taxation, when the same are used exclusively for religious worship, for schools, or for purposes purely charitable; also, such property, real or personal, as may be used exclusively for agricultural or horticultural societies -- provided, that such exemptions shall be only by general law.

"Sec. 7. Other exemptions void. -- All laws exempting property from taxation, other than the property above enumerated, shall be void."

It is plain that the framers of the Constitution did not intend to permit property regardless of its amount to be relieved from taxation simply because of its use for charitable purposes. A restriction is placed upon the exemptions that may be made upon that ground. Lots in incorporated cities and towns, or within one mile of the limits thereof, to the extent of one acre, and lots one mile or more from such limits to the extent of five acres "when the same are used . . . . for purposes purely charitable" may be exempted by general law. There is an express prohibition against the exemption of any other property than that specifically enumerated. The real estate in question here greatly exceeds the limits above mentioned. It is not claimed, nor indeed can it be, that it can escape taxation under the constitutional provision set out above, because of the use to which it is devoted under the Mullanphy will.

Section 6, supra, in terms directs that property of the State and of counties and other municipal corporations, shall be non-taxable. Immunity is claimed for this real estate solely under that provision. It is said that it is the property of the city of St. Louis and hence is exempt.

The legal title is unquestionably in said city, but it remains to be determined whether it is the property of the city within the meaning of the above section of the Constitution. It is certainly not held by it in the same manner or in the same right as its general corporate property. The devise is to it as trustee. The gift is not to the city of St. Louis. A trust is created for the benefit of a particular class, and the testator selected the city to execute it. Any other trustee might with equal propriety have been chosen and, in carrying out the provisions of the will such trustee would not have been assuming any municipal function or interfering with the property of said city. A court of chancery might even yet, in a proper case, and, upon a proper showing, remove the trustee. "A court of chancery is vested with the same jurisdiction over corporate trusts which it ordinarily possesses and exercises over...