Kansas City v. School Dist. of Kansas City, 40157.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Van Osdol
• Citation: 201 S.W.2d 930
• Parties: KANSAS CITY, MISSOURI, Appellant, v. SCHOOL DISTRICT OF KANSAS CITY, MISSOURI.
• Docket Number: No. 40157.,40157.
• Decision Date: 21 April 1947

201 S.W.2d 930 KANSAS CITY, MISSOURI, Appellant,
v.
SCHOOL DISTRICT OF KANSAS CITY, MISSOURI. No. 40157. Supreme Court of Missouri. Division One, April 21, 1947. Rehearing Denied, May 12, 1947.

Appeal from Jackson Circuit Court. — Hon. James W. Broaddus, Judge.

[201 S.W.2d 931]

REVERSED AND REMANDED.

David M. Proctor, City Counselor, and John J. Cosgrove, Assistant City Counselor, for appellant.

(1) Police power to require safe appliance in public schools is lodged in the City and not in the School District. Pasadena School District v. City of Pasadena, 134 Pac. 985, 166 Cal. 7; Cook County v. Chicago, 311 Ill. 234, 142 N.E. 512, 31 A.L.R. 442; Ex parte Williams, 139 S.W. (2d) 485, 345 Mo. 1121; Turner v. Kansas City, 191 S.W. (2d) 612; Kansas City v. Fee, 174 Mo. App. 501, 160 S.W. 537. (2) The fee provided by the ordinance is not a tax. It is a necessary incident to defraying the expenses incurred in enforcing the police power. Hence, the exaction and payment of such a fee does not constitute a grant of public funds to the City. St. Louis v. Grafeman Dairy Co., 190 Mo. 492, 89 S.W. 617; Wilhoit v. City of Springfield, 171 S.W. (2d) 95, 237 Mo. App. 775.

Blatchford Downing and Caldwell, Downing, Noble & Garrity for respondent.

(1) Plaintiff, the City of Kansas City, is without power or authority to impose, solely by virtue of its charter and ordinances, upon the School District of Kansas City, an arm and agency of the state, the financial obligation of paying inspection fees to the City, in the absence of any statute authorizing or permitting the City so to do. The City's attempt to do so would constitute an invasion and usurpation of the powers of the General Assembly under Article XI, Section 1 of the Constitution of 1875 (Article III, Section 1, Constitution of 1945). Board of Education v. St. Louis, 267 Mo. 356, 184 S.W. 975; City of Edina v. School Dist. of Edina, 305 Mo. 452, 267 S.W. 112, 36 A.L.R. 1532; Normandy Consolidated School Dist. v. Wellston Sewer District, 77 S.W. (2d) 477; Kentucky Institution for Education of Blind v. City of Louisville, 123 Ky. 767, 97 S.W. 402, 8 L.R.A. (N.S.) 553; Salt Lake City v. Board of Education, 52 Utah, 540, 175 Pac. 654; State ex inf. Lowe v. Henderson, 145 Mo. 329, 46 S.W. 1076; State ex rel. v. Gordon, 231 Mo. 547, 133 S.W. 44. (2) To permit funds belonging to the state's agency, the School District, and derived from taxation for purposes of education, to be diverted to payment of fees or compensation to the City for inspections made for the benefit of the City, as such, would constitute a grant of public money of the state to a municipal corporation in violation of Article IV, Sections 46 and 47 of the Constitution of 1875 (Article III, Section 39, Constitution of 1945). State ex rel. Town of Kirkwood v. County Court of St. Louis County, 142 Mo. 575, 44 S.W. 734; Meadow Park Land Co. v. School Dist. of Kansas City, 301 Mo. 688, 257 S.W. 441, 31 A.L.R. 343; Mayo v. United States, 319 U.S. 441, 87 L. Ed. 1504, 63 S. Ct. 1137, 147 A.L.R. 761; State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 55 S.W. 627, 48 L.R.A. 265, 77 Am. St. Rep. 765; Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050. (3) Section 10337, R.S. 1939 (Laws 1915, p. 382), did not take away any police power from school boards in cities of 75,000 or more inhabitants, nor in any way impair the exclusive jurisdiction of school boards in such cities, governed by Article 18 of Chapter 72, R.S. 1939, over school finances and school facilities, vested in them by virtue of Sections 10669 and 10672, R.S. 1939. R.S. 1899, sec. 9763; Laws 1909, p. 784, sec. 28; R.S. 1909, sec. 10784; Laws 1915, p. 382; State ex rel. Long v. Marshall, 48 Mo. App. 560.

VAN OSDOL, C.

Plaintiff, City of Kansas City, instituted an action in 1943 to collect inspection fees from defendant, School District of Kansas City, which fees were allegedly for inspections of boilers, smokestacks, fuel-burning facilities and elevators pursuant to City's ordinances enacted under the police power vested in City. Defendant School District by its answer, and by its brief herein, questions the constitutionality of the exaction of payment of the inspection fees from defendant School District, it being alleged and contended the regulatory ordinances requiring the payment of the fees in so far as construed as applicable to inspections of the facilities of public school buildings constitute an unconstitutional usurpation of the powers of the General Assembly under Section 1, Article XI, Constitution of Missouri, 1875 (Section 1, Article IX, Constitution of Missouri, 1945); and it is further alleged and contended the exaction of the fees constitutes a grant of the State's public moneys to a municipality in violation of Sections 46 and 47. Article IV, Constitution of Missouri, 1875. A general demurrer was interposed to the answer. The trial court, acting under the procedure applicable prior to the effective date of the Civil Code of Missouri, Laws of Missouri, 1943, p. 353 et seq., overruled the demurrer. The plaintiff refused to further plead, and final judgment for defendant was rendered. Plaintiff has appealed.

It is the position of plaintiff-appellant City that the police power within the corporate limits of City of Kansas City is vested in City, not in School District; and the boilers, chimneys, fuel-burning facilities and elevators of public school buildings are subject to City's police power. City further says an inspection fee is a necessary incident to defraying the expense incurred in City's exercise of the power; and the exaction of such fee from School District constitutes neither a tax nor an unconstitutional grant of public funds to City.

(It is conceded by School District in its brief that the fees are reasonable in amount and are truly inspection fees, that is, the fees are not taxes in any sense.)

[1] As we understand defendant-respondent School District's position, it does not herein question the validity of City's regulatory measures in their general application; nor does School District object to City's inspections of School District's school building facilities or contest the City's right to inspect; nor does School District question City's right to invoke some appropriate remedy if School District's facilities upon inspection are seen to be dangerous and in noncompliance with City's regulatory measures. But it is argued the exaction of the payment of the fees for the inspections is unconstitutional, because, School District says, such fees are for City purposes and if collectible must be paid from public funds raised by taxation for School District's educational purpose. School District cites cases in which it has been held school property may not be subjected to the lien of special assessments for public improvements. See, for example, City of Edina to Use of Pioneer Trust Co. v. School Dist. of City of Edina, 305 Mo. 352, 267 S.W. 112, in which case no statute expressly (or by clear implication) authorized the issuance of the tax bills against public school property in payment of special assessments for the paving and curbing of the street upon which the school property was located. The court was of the opinion such a special assessment was invalid. Such an assessment is not countenanced unless expressly or by necessary implication imposed by statute. See now Normandy Consol. School Dist. of St. Louis County v. Wellston Sewer Dist. of St. Louis County, Mo. App., 77 S.W. 2d 477, wherein the St. Louis Court of Appeals treats with the same principle, and also holds

201 S.W.2d 932

Section 10338 R.S. 1939, Mo. R.S.A., enacted in 1931 ("Real estate owned by school district subject to ordinances — assessment of costs —") is not to be accorded a retrospective effect. However, there is a distinction between the taxing power which is strictly construed against the taxing authority and the police power, to which regulatory fees are justified as incidental to...