Hitchcock v. City of St. Louis

• Decision Date: 31 March 1872
• Citation: 49 Mo. 484
• Parties: HENRY HITCHCOCK, Respondent, v. CITY OF ST. LOUIS et al., Appellants.
• Court: Missouri Supreme Court

49 Mo. 484

HENRY HITCHCOCK, Respondent,

v.CITY OF ST. LOUIS et al., Appellants.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Garesche & Mead, for appellants.

I. The appropriation was within the scope of the charter (Sess. Acts 1867, art. I, pp. 51, 66, § 50.) The liberal interpretation given by the Supreme Court in Chambers v. City of St. Louis, 29 Mo. 579, to the words “for maintaining the peace, good government and welfare of the city,” leaves no doubt of the validity of this appropriation. Foundlings are human beings. When yet unborn, en ventre sa mere, fœtal life is by the law shielded from the abortionist, from the person who, without the intent to produce abortion, does violence to a pregnant woman. The law gives to the unborn child the same hereditary rights as if born alive, subject only to the condition that it be born alive. If such be the tender solicitude for life unborn, how much stronger the appeal to its protection for those who are the most helpless portion of the community--the foundling whose crime is the stain of the lust of which it is begotten. Surely such a class, possessed of immortal souls, deserve pity--are entitled to protection in a large and prosperous city like St. Louis. A hospital for this class, to protect their lives, is a necessity. As to the interpretation of municipal powers we cite Bentz v. City of St. Louis, 11 Mo. 61; Palmyra v. Morton, 25 Mo. 595; Independence v. Moore, 32 Mo. 396; Ruggles v. Collier, 43 Mo. 365; Fuller et al. v. Inhabitants of Groton, 11 Gray, Mass., 340; Mayor of Philadelphia v. Elliott, 3 Rawle, 170; Vidal v. Girard's Ex'rs, 2 How. 189; Collins v. City of Rochester, 12 Barb., S. C., 562; Beroujohn v. Mayor of Mobile, 27 Ala. 60; State of New York v. City of Buffalo, 2 Hill, N. Y., 434; Reynolds v. Albany, 8 Barb., S. C., 597; Mayor of New York v. Williams, 15 N. Y. 502; Miller v. Milwaukee, 14 Wis. 642; State v. Merrill, 37 Me. 332; Willard v. Newburyport, 12 Pick. 231; Spalding v. Lowell, 23 Pick. 75.

II. If the appropriation be of doubtful legality, injunction does not lie. (Reynolds v. Mayor of Albany, 8 Barb., S. C., 61; McCallis v. Chattanooga, 3 Head, Tenn., 321; Weber v. City of St. Louis, 44 Mo. 450.)

III. The word “donation” was an act of prudence to avoid what would otherwise be a liability under St. Louis Hospital Ass'n v. Williams, 15 Mo. 595. The answer disclosed that when the council first visited the institution they found fifty children in it, picked up out of the streets where they had been abandoned to destruction and carried to the asylum by the police, because the only receptacle for them. The city having no asylum of its own could thus secure the use of a private institution. (Aull v. City of Lexington, 18 Mo. 403; Dapenport v. Hallowell, 10 Me. 322.) In statutes, as in deeds, the real intention is to prevail over words. (Dwarr. Stat. 75, 176, 178; Siegrist v. City of St. Louis, 46 Mo. 594; Jackson v. Meredith, 47 Mo. 150; Jones v. City of St. Louis, id. 494; Franklin v. P. S. L. N., 30 Penn. 522; Davis v. New York, 1 Duer, 497.) To the objection that if sustained such appropriations may lead to abuse, we cite 29 Mo. 589.

H. Hitchcock, pro se.

I. A municipal corporation must strictly conform to the charter, a statute giving it power, or its acts will be void. (Ruggles v. Collier, 43 Mo. 353, and cases cited; 2 Kent's Com. 361; Brady v. New York, 7 Abb. Pr. 245; Lowber v. New York, id. 252; Hodges v. Buffalo, 2 Denio, 112; Hood v. Lynn, 1 Allen, 105.)

II. The charter of the city of St. Louis gave it no power to bestow “donations” on individuals. The money raised by taxation is still a trust fund in the hands of the authorities, who cannot apply it except as expressly authorized by law. (Brady v. New York, 7 Abb. Pr. 245; Lowber v. New York, id. 252.)

III. This was in terms a “donation,” and therefore unlawful and a breach of trust. But it could not be supported, even had a contract been made, the charter imposing no duty nor containing any express or implied authority for the city to support foundling hospitals. (Hood v. Lynn, 1 Allen, 105; New London v. Brainard, 22 Conn. 552; Hodges v. Buffalo, 2 Denio, 112.)

IV. Even had the charter required the city to take care of foundlings, the city cannot be made liable to a third person for discharging that duty except upon proof of prior notice to the city, and failure by it to fulfill the same. (Seagraves v. Alton, 13 Ill. 366, 371; Cincinnati v. Ogden, 5 Ham., Ohio, 27.)

V. The alleged power on the part of the city to use money raised by taxation for general purposes in “donations” or gratuities for private and wholly impossible charities, cannot be implied (as argued) from the decision of this court in reference to the Mullanphy trust fund (29 Mo. 579). Power to accept one trust does not imply power to abuse another. Nor does such consequence follow from the charter provisions authorizing the city to accept bequests, etc., for charitable purposes. Nor does the case of St. Louis Hospital, etc., v. St. Louis, 15 Mo. 592, apply here. That was under an express contract, and the question of power was not raised or decided. Here the question is of power to squander public moneys in mere gratuities. To admit such a claim would be to sap the foundations of public morality and safety. (Lowber v. New York, 7 Abb. Pr. 253; Brady v. New York, id. 245.)

VI. Corporate powers by implication are not favored, and will not be admitted unless really necessary or incidental to execution of powers expressly granted. (Reynolds v. Albany, 8 Barb., S. C., 597; 2 Kent's Com. 361; Ruggles v. Collier, 43 Mo. 353; City v. Clemens, id. 395, 404.)

VII. Any tax-payer may prevent such a breach of trust as here complained of, by injunction. (Hooper v. Ely, 46 Mo. 505; New London v. Brainard, 22 Conn. 552; Davis v. New York, 1 Duer, 498, 499.)

WAGNER, Judge, delivered the opinion of the court.

This suit was brought to test the validity of an ordinance passed by the city council of the city of St. Louis, by which the sum of $1,500 was appropriated out of the general revenue and ordered to be paid to the mother superior of St. Ann's Orphan Asylum and Widows' Home, as a donation from the city toward the maintenance and support of that institution. The court below decided that the ordinance was invalid, and that the council possessed no power to make the appropriation, and from that decision this appeal is prosecuted. The general grant of corporate powers contained in the charter incorporating the city gives it...