State ex rel. Carpenter v. St. Louis

• Decision Date: 18 January 1928
• Docket Number: No. 28285.,28285.
• Citation: 2 S.W.2d 713
• Parties: THE STATE EX REL. GEORGE O. CARPENTER ET AL. v. CITY OF ST. LOUIS ET AL.
• Court: Missouri Supreme Court

2 S.W.2d 713

THE STATE EX REL. GEORGE O. CARPENTER ET AL. v. CITY OF ST. LOUIS ET AL.

No. 28285.

Supreme Court of Missouri, Court en Banc.

January 18, 1928.

[2 S.W.2d 715]

Mandamus.

PEREMPTORY WRIT ORDERED.

Caulfield & Bartlett, Nagel & Kirby and Everett Paul Griffin for relators.

(1) The duties sought to be compelled herein are imposed by law, and are specific, ministerial and mandatory. Art. 19, chap. 91, R.S. 1899 (now Arts. 5, 6, chap. 60, R.S. 1919); State ex rel. Trustees v. Board of Finance, 53 N.J.L. 62. (2) Where a specific ministerial duty is imposed by law upon any officer, board or tribunal, with respect to the levy and assessment and appropriation of taxes, or the expenditure thereof, mandamus will lie to compel its performance. 38 C.J. 772; 26 Cyc. 320; State ex rel. v. Patton, 108 Mo. App. 31; State ex rel. v. Riley, 85 Mo. 156; State ex rel. v. Byers, 67 Mo. 706; State ex rel. v. Tracy, 94 Mo. 217; State ex rel. v. St. Louis, 241 Mo. 231; State ex rel. v. Mason, 153 Mo. 55. And mandamus will issue to compel a city council or other local legislative body to pass an ordinance levying a tax, where it is their duty to do so. 19 Am. & Eng. Ency. Law (2 Ed.) 864; Stevens v. Miller, 3 Kan. App. 192; Phelps v. Lodge, 60 Kan. 122; State ex rel. v. City Council, 22 Wis. 58; 38 C.J. 695; Huey v. Waldrop, 141 Ala. 318; People v. Board of Estimate, 150 N.Y. Supp. 12. (3) The statute here invoked has been in force since 1885 (Laws 1885, p. 192) and its validity has never before been questioned. A similar statute relating to art museums (Laws 1907, p. 94) was upheld, and the city was compelled by mandamus to levy and collect the art museum tax. State ex rel. Bixby v. St. Louis, 241 Mo. 231. (4) The library statutes are presumably constitutional, and their unconstitutionality must appear beyond reasonable doubt before they will be nullified as unconstitutional, and the burden of showing their invalidity is upon those attacking them. Washington Road Dist. v. Robbins, 262 S.W. 46; State ex rel. v. Sheehan, 190 S.W. 864. (5) No formal demand is necessary in this case, as a condition precedent to the issuance of the peremptory writ, because: (a) The respondents in their return admit that they have refused, and intend to continue to refuse, to levy the library tax or to perform any of the duties imposed by the statute, and this renders demand and further refusal unnecessary. 38 C.J. 774; People v. Kingston, 101 N.Y. 82; Berkey v. Pueblo County, 48 Colo. 104; Startup v. Harmon, 59 Utah, 329. (b) Where the duty is of a public nature, affecting the people at large, and there is no one especially empowered to demand performance, no demand is necessary. 38 C.J. 577. (c) No demand is necessary where, as here, the performance of a ministerial duty is imperatively required by law. 38 C.J. 577; State v. Stuckey, 78 Mo. App. 533. (6) The principle that the writ cannot be issued in anticipation of a breach of duty has no application where, as here, the respondents admit and declare that they have no purpose to act at any time. Berkey v. Pueblo County, 48 Colo. 104; Startup v. Harmon, 59 Utah, 329. (7) Where citizens and taxpayers, on behalf of the public as well as for themselves, seek, by mandamus, to enforce a public duty, they are not required to plead or prove any special or particular interest. State ex rel. v. Noonan, 59 Mo. App. 524; State ex rel. v. Railroad, 86 Mo. 13; Rutledge v. School Board, 131 Mo. 514; State ex rel. Block v. Wilson, 158 Mo. App. 105; State ex rel. v. St. Louis, 241 Mo. 231; State ex rel. v. Hoblitzelle, 85 Mo. 625. The relators are not only citizens and taxpayers of the city, and bring this action for themselves, and for all others who may care to join, but they constitute the Library Board, and as such, they have a special interest and public duty to compel the city authorities to levy the tax and set it aside for the use of said library board. State ex rel. Wolfe v. Bronson, 115 Mo. 271. (8) The library statutes do not violate Section 1 or Section 10 of Article 10 of the Constitution. They do not delegate legislative power nor vest the function of levying the tax elsewhere than in the corporate authorities of the city. State ex rel. v. Pond, 93 Mo. 621; State ex rel. v. Wilcox, 45 Mo. 458; State ex rel. v. Kreisman, 241 Mo. 231; State ex rel. v. Mason, 153 Mo. 23; Board of Commissioners v. Peter, 253 Mo. 520. (9) The library statutes do not violate Sections 20 to 25 of Article 9 of the Constitution. The establishment and maintenance of free public libraries is not a matter of purely local municipal concern; it is a matter of general state concern, in which the state has a sovereign interest. The charter, if inconsistent, must give way to the statutes. State ex rel. v. Tel. Co., 189 Mo. 83; State ex rel. v. Owsley, 122 Mo. 78; State ex rel. v. Board of Education, 141 Mo. 45; State ex rel. v. Field, 119 Mo. 614; St. Louis v. Meyer, 185 Mo. 583; State ex rel. v. Mason, 153 Mo. 50; State ex rel. v. Railroad, 117 Mo. 1; State ex rel. v. Bell, 119 Mo. 70; State ex rel. v. Mason, 155 Mo. 486; Ewing v. Hoblitzelle, 85 Mo. 64; Peterson v. Railroad, 265 Mo. 462; State ex rel. v. Koeln, 270 Mo. 174; Kansas City v. Field, 270 Mo. 500; Kansas City ex rel. v. Scarritt, 127 Mo. 642. (10) The library statutes do not violate Section 11 of Article 10 of the Constitution. That section confers no power on the city to levy any tax whatever; it operates exclusively as a restriction on the power of the city to levy and collect taxes. State ex rel. v. Van Every, 75 Mo. 537; St. Louis v. Bircher, 76 Mo. 431; Ewing v. Hoblitzelle, 15 Mo. App. 441; Halbruegger v. City, 262 S.W. 381; Brooks v. Schutz, 178 Mo. 222; State ex rel. v. Weinrich, 236 S.W. 872. (11) The library statutes do not violate Section 47 of Article 4, or Section 6 of Article 9, of the Constitution. They do not contemplate a donation or loan of credit prohibited by those sections of the Constitution. The St. Louis Public Library is a public institution, serving a public purpose, managed and directed by a board appointed by the mayor of the city and amenable to the municipal authorities. Jasper Co. Farm Bureau v. Jasper County, 286 S.W. 381; State ex rel. v. Drainage Dist., 252 Mo. 345; State ex rel. v. St. Louis, 216 Mo. 47; State ex rel. v. St. Louis, 241 Mo. 231; Laws 1907, p. 94; State ex rel. v. Taylor, 224 Mo. 393, 469. (12) Art. 6, Chap. 60, R.S. 1919, does not violate Section 7 of Article 9 of the Constitution. The language of this statute does not restrict its application to cities having a required population at the time of the passage of the act, but makes it applicable to all cities that might in the future attain such population. Ex parte Loving, 178 Mo. 194; State ex rel. v. County Court, 128 Mo. 427; State ex rel. v. Roach, 258 Mo. 557. Even if said Article VI were void, nevertheless, Article V is applicable to St. Louis and clearly and fully imposes upon respondents the duties sought to be enforced herein. (13) Art. 6, Chap. 60, R.S. 1919, is not a special or local law and does not violate Section 53 of Article 4 of the Constitution. It is applicable to all cities in the State that in the future may have the required population as well as those that had such a population at the time of the passage of the act. This classification is not arbitrary or unreasonable and hence it is a general and not a local or special law. State ex rel. v. Hedrick, 294 Mo. 21; State ex rel. v. Taylor, 224 Mo. 477; State ex rel. v. Southern, 265 Mo. 275; State v. Keating, 202 Mo. 197; State ex rel. v. Speed, 183 Mo. 186. Even though the classification adopted by said Article 6 is beyond all reasonable doubt arbitrary, unreasonable and, on that account invalid, nevertheless, that fact would not excuse respondents' refusal to levy, collect and set aside the library tax, Article 5 being full and sufficient authority for the establishment and maintenance of the St. Louis Public Library and requiring the respondents to perform all of the duties which relators by this proceeding seek to enforce. (14) The library statutes do not violate Section 19 of Article 10 of the Constitution. State ex rel. v. Mason, 153 Mo. 23; State ex rel. v. St. Louis, 241 Mo. 231; Jennings v. Kinsey, 271 S.W. 786. (15) Respondents cannot set up as a bar to this suit the claim that the Board of Aldermen has exhausted its taxing power under the Constitution by levying for the year 1927 a tax of $1.35 on the $100 valuation for municipal purposes. An incident of this sort by no means divests the power of this court to afford relief by mandamus. This court, by virtue of its power to issue the writ of mandamus, may compel the doing of an act which the officer or body to be mandamused has lost the power to do of his or its own volition. State ex rel. v. Gibson, 187 Mo. 550; State ex rel. v. Patterson, 207 Mo. 129. (16) The functions to be performed by the Board of Estimate and Apportionment and the Board of Aldermen with respect to the levy of the library tax are not "legislative," but are purely ministerial in character, and involve no discretion on the part of said boards; and hence the said boards may be mandamused to repeal Ordinance 36004 and to enact a new ordinance which shall include a levy of the library tax in compliance with the laws of this State. State ex rel. v. Meier, 72 Mo. App. 618; Marbury v. Madison, 1 Cranch. (U.S.) 137; State ex rel. v. Guinotte, 113 Mo. App. 405; State ex rel. v. Holtcamp, 277 S.W. 907; State ex rel. v. Hoffman, 274 S.W. 362; State ex rel. v. Thomas, 282 S.W. 34; State ex rel. v. St. Louis, 241 Mo. 231; State ex rel. v. Gordon, 217 Mo. 103; State ex rel. v. Miller, 285 S.W. 504; Veall v. Chariton County Court, 15 Mo. 288; State ex rel. v. Fraker, 166 Mo. 130; Sheridan v. Fleming, 93 Mo. 321; State ex rel. v. Patterson, 207 Mo. 129; State ex rel. v. Holt County Court, 135 Mo. 533; Wilson v. Berkstresser, 45 Mo. 283; State ex rel. v. McClanahan, 278...