Smith v. Board of Ed. of City of St. Louis

• Decision Date: 13 June 1949
• Docket Number: 41298
• Citation: 221 S.W.2d 203,359 Mo. 264
• Parties: J. Earl Smith, Substituted for Joseph F. Bredeck, Deceased, (Plaintiff) Appellant, v. Board of Education of the City of St. Louis, a Corporation, Phillip J. Hickey, Superintendent of Instruction, Hilliard F. Mueller, Acting Commissioner of School Buildings, and A. K. Nushan, Supply Commissioner, (Defendants) Respondents
• Court: Missouri Supreme Court

221 S.W.2d 203

359 Mo. 264

J. Earl Smith, Substituted for Joseph F. Bredeck, Deceased, (Plaintiff) Appellant, v. Board of Education of the City of St. Louis, a Corporation, Phillip J. Hickey, Superintendent of Instruction, Hilliard F. Mueller, Acting Commissioner of School Buildings, and A. K. Nushan, Supply Commissioner, (Defendants) Respondents

No. 41298

Supreme Court of Missouri

June 13, 1949

Appeal from Circuit Court of City of St. Louis; Hon. F. E Williams, Judge.

Reversed and remanded (with directions).

SYLLABUS

The facts and holding of the case are adequately summarized by the headnote.

George L. Stemmler, City Counselor, and Thos. J. Neenan, Associate City Counselor, for appellant.

(1) Ordinance 43518 is a reasonable and valid exercise of the police power of the City of St. Louis and is clearly within the authority granted to the City by law. Constitution of 1875, Art. IX, Sec. 20; Constitution of 1945, Art. VI, Sec. 31; Charter, Art. I, Sec. I, Pars. 25, 26, 29, 33; Charter, Art. XIII, Sec. 14(a); Charter, Art. IV, Sec. 23; Ordinance 43518, Title; Ordinance 43518, Sec. 38. (2) The State has not expressly enjoined upon the defendant Board of Education the duty of adopting specific precautionary measures and utilizing particular types of appliances for public school restaurants. Secs. 10337, 10339, 10724, R.S. 1939; Kansas City v. School Dist. of Kansas City, 201 S.W.2d 930. (3) The State has delegated its police power to the City to be exercised for the welfare, safety and health of the public. The School Board has no police power and is subject to a reasonable exercise of this power by the municipality. Kansas City v. Fee, 174 Mo.App. 501, 160 S.W. 537; Kansas City v. School Dist. of Kansas City, 201 S.W.2d 930; State ex rel. Audrain County v. City of Mexico, 355 Mo. 612, 197 S.W.2d 301; 31 A.L.R. 442, and cases therein cited; Ex parte Williams, 139 S.W.2d 485, 345 Mo. 1121; Turner v. Kansas City, 191 S.W.2d 612.

Emmet T. Carter and Gerald K. Presberg for respondents.

(1) Where the State of Missouri in the exercise of its sovereign powers has expressly enjoined upon a school board the duty of adopting specific precautionary measures and utilizing particular types of appliances to accomplish an authorized function, which duty would otherwise be within the scope of the city's police power, the city cannot interfere with the performance of said duty by the school board. Board of Education of the City of St. Louis v. St. Louis, 267 Mo. 356, 184 S.W. 975; Kansas City v. School Dist. of Kansas City, 201 S.W.2d 930. (2) The scope and purpose of Ordinance No. 43518 is to prescribe standards of sanitation (in the form of precautionary measures and the requirement of particular types of appliances) to be observed in the operation of restaurants in the City of St. Louis. Ordinance No. 43518 of the City of St. Louis, passed March 1, 1946, approved by the Mayor of the City of St. Louis March 21, 1946. (3) The State of Missouri has expressly enjoined upon the Board of Education of the City of St. Louis the duty of adopting specific precautionary measures and utilizing particular types of appliances pertaining to sanitation within the public schools, and such duty, therefore, which otherwise would be within the scope of the city's police power is excluded therefrom and the city cannot interfere with the Board of Education in the performance of said duty. Constitution 1875, Sec. 23, Art. 9; Constitution 1945, Sec. 32, Art. 6; Constitution 1875, Sec. 1, Art. 11; Constitution 1945, Sec. 1, Art. 9; Secs. 10339, 10724, 10725, 10731, 10732, R.S. 1939; Board of Education of the City of St. Louis v. St. Louis, 267 Mo. 356, 184 S.W. 975; Kansas City v. School District of Kansas City, 201 S.W.2d 930; Opinion of the Attorney General of the State of Missouri to the Prosecuting Attorney of the City of St. Louis, dated September 18, 1939. (4) All consistent statutes which can stand together, relating to the same subject, although enacted at different dates, are construed prospectively and together as though they constituted one statute. State ex rel. Wagner v. Patterson, 207 Mo. 129, 105 S.W. 1048; State ex rel. Surety Ins. Corp. v. State Tax Commission, 348 Mo. 171, 153 S.W.2d 43; Curators of Central College v. Rose, 182 S.W.2d 145.

OPINION

Tipton, J.

This action is for a declaratory judgment and injunction instituted by Joseph F. Bredeck, Health Commissioner of the city of St. Louis, against the Board of Education of the city of St. Louis, a corporation, Phillip J. Hickey, Superintendent of Instruction, Hilliard F. Mueller, Acting Commissioner of School Buildings and A.K. Nushan, Supply Commissioner, to determine if Ordinance No. 43518 of the city of St. Louis which regulates the sanitary conditions of restaurants of that city applies to the 42 restaurants located in certain public school buildings and operated by the Board of Education. The respondents filed a motion to dismiss appellant's petition which was sustained by the trial court. The St. Louis Court of Appeals reversed the judgment of the trial court and ordered a judgment to be entered in accordance with the prayer of appellant's petition. (See 213 S.W. 2d 889.) Since the decision of the St. Louis Court of Appeals, the appellant has died and his successor in office, J. Earl Smith, has been substituted as appellant.

Ordinance 43518 of the city of St. Louis regulates sanitary conditions of restaurants in St. Louis. It provides that it shall be unlawful to operate a restaurant in the city without first obtaining a permit from the Board of Public Service to do so; that the application for such permit shall be made to the Health Commissioner who shall thereupon examine the premises described in such application and recommend to the Board of Public Service whether the restaurant comes within the standard set by the ordinance; and if so the Board shall grant the permit. The ordinance provides many regulations, among which are the examination of samples of food, drink and other related substances; the method of washing utensils used; the proper disposal of wastes and garbage; clean outer garments to be worn by all employees; and that no person who is affected with any communicable disease or who is a carrier of a communicable disease shall be employed.

With commendable frankness the respondents admit for the purposes of this case that the ordinance is a valid police regulation of the city of St. Louis applying to all restaurants operated in that city except those operated by the Board of Education. Respondents also admit that the State of Missouri has not delegated the police power to school districts. But respondents contend that the State has made a specific grant of power by statute to the Board of Education to prescribe, supervise and regulate the sanitary conditions of the school buildings, including these restaurants and, therefore, this specific grant of power excludes the exercise of such power by the city under its general police power.

To sustain their contention the respondents rely upon the following excerpts of applicable statutes governing the Board of Education of the city of St. Louis as found in Missouri Statutes Annotated:

Sec 10724. "Every city in this state now having or which may hereafter have five hundred thousand inhabitants or over, together with the territory now within its limits, or which may in the future be included by any change thereof, shall be and constitute a single school district, shall be a body corporate, and the supervision and government of public schools and public school property therein shall be vested in a board of twelve members, to be called and known as the 'board of education of ' (in which title the name of such city shall be inserted), and in a superintendent of instruction and a commissioner of school buildings. Such board of education shall, by and in said name, sue and be sued, purchase, receive, hold and sell property, do all things...