State ex rel. Chouteau v. Leffingwell

• Decision Date: 31 October 1873
• Citation: 54 Mo. 458
• Parties: STATE OF MISSOURI, ex rel., CHOUTEAU, et al., Relators, v. H. W. LEFFINGWELL, et al., Respondents.
• Court: Missouri Supreme Court

54 Mo. 458

STATE OF MISSOURI, ex rel., CHOUTEAU, et al., Relators,

v.H. W. LEFFINGWELL, et al., Respondents.

Supreme Court of Missouri.

October Term, 1873.

T. T. Gantt, for Relator.

I. The act establishing Forest Park is special, while its objects could have been accomplished by general law.

II. The act is in violation of §§ 4, 5, Art. VIII, of the State Constitution. Under these clauses, no corporation, except a city, can be erected by special legislation. A

corporation for municipal purposes and a municipal corporation are the same thing. The terms are convertible. (Dil. Mun. Corp., Ch. 2, 9; Ang. & Ames' Corp., §§ 14, 15.) But Forest Park is not, in any proper sense, a municipal corporation. The essence of such a corporation is that there be inhabitants of a particular locality, who are incorporated for the purpose of local government. Nothing of the sort is shown in this act. Forest Park is not an appendage of the city of St. Louis. It is “in St. Louis county, west of the city of St. Louis.”

III. This act authorizes the levy of a tax for the purposes of the proposed corporation outside of its limits. This cannot be done. (Wells vs. City of Weston, 22 Mo., 384.)

Glover & Shepley, for Relators.

I. The act creating the corporation of “The Commissioners of Forest Park,” attempts to create a corporation which the act declares to be for a municipal purpose outside of the city of St. Louis, at the same time declaring that the municipal purpose is solely connected with the city of St. Louis. The park was, at the passage of the act, about, at its nearest point, one and a half miles from the western limits of the city of St. Louis. As far as any constitutional question is concerned, it might as well have been established at Glencoe, twenty miles from the city of St. Louis.

II. The act on its face declaring that it is the creation of a corporation for municipal purposes, and not being the incorporation of a city, is in violation of §§ 4 and 5, Art. VIII, of the consti tution. It is clear from the context, that the municipal corporations allowed to be chartered by special law, were the same corporations and those only, which were excepted in the 4th clause, and which were more particularly pointed out and designated by the 5th section.

It is contended that the legislature can incorporate any corporation by special act, so that it is for a municipal purpose. It would be, on this theory, competent for the legislature to incorporate, by special act, a coal company, so that its object was, and was expressed to be, for the “municipal purpose” of furnishing the city of St. Louis with cheap coa; or if a gas well was discovered outside of the city of St. Louis, by special act, to incorporate a company for the purpose of utilizing it for the advantage of the citizens of the city of St. Louis.

Such a proposition would enable any corporation to be created by the legislature, so that it was claimed to be for “municipal purpose,” and every municipal purpose might be exercised by a separate corporation.

There is an express prohibition against the incorporation of any town under 5,000 permanent inhabitants, so that an incorporation of a town having only 4,500 people, would be void. But by the construction contended for, though such a legislative act would be void, it is entirely competent for the legislature, by special act, to incorporate persons to lay out, purchase and establish a park for the recreation and enjoyment of a town of 4,500 people, as that is “a municipal purpose of great importance to the town.”

In Horton vs. Mobile School Commissioners, 43 Ala., 598, there was no constitutional prohibition to be construed. The word municipal, as used in the constitution, is construed by the constitution itself. If you change the words in the 4th and 5th sections from “municipal” to “banking,”--to “insurance,”-- to “railroad,” will any one say that there was a different sense in the 4th section, when it speaks of “banking purposes,” &c., from that conveyed by the 5th section, when it speaks of banking corporations?

As to the incorporation of counties, which it is said, under our construction, there is no power in the legislature to institute, we reply that, the institution of counties is a political sub-division made by the State for the more convenient exercise of its sovereign power. It is not correctly a corporation, but a quasi corporation, as stated in Bush vs. Shipman, 4 Scammon, 190; Han. & St. Joe. R. Co. vs. Marion Co., 36 Mo., 294, also 555.

III. The statement in the third section of the Park act, that it is “impossible to make any provision by a general law to effect the desired object,” does not relieve the act from the prohibition contained in the 27th section of the 4th Art.

1. This section has nothing to do with corporations. This is apparent from the context.

2. If the provision was so general in its character as to include corporations, then Art. VIII declares what corporations can be created by special laws.

3. It is patent from the Act, that provision could have been made for creating parks in cities by general law.

4. The recital in the Act, that no law of a general nature could be passed to affect the object (even if Art. VIII had not fixed the matter as to corporations), is not to be taken as conclusive, but the question is to be judicially determined.

IV. It is not in the power of the legislature to tax persons and property not in the limits of a municipal corporation, for an object which in the act is declared to be for the benefit and advantage of the municipal corporation and its residents. (See Wells vs. City of Weston, 22 Mo., 384.)

V. If for any reason, the power of taxation in the act fails, the act must fall with it, for it is vital to the act, and without it the whole purposes of the act fail.

Sharp & Broadhead, for Respondents.

I. The plain reading of sections 4 and 5, of Art. VIII, of the constitution is: That Corporations may be created for municipal purposes by special act; but no municipal corporations except cities having a population of over 5,000 permanent inhabitants shall be created by special act. Hence, a county--a school district--a State University,--and such like quasi corporations established for municipal purposes, may be invested with corporate powers by special act. Unless a county is a corporation created for municipal purposes, and not strictly a municipal corporation, it cannot be established by special act. There is no express power in the constitution to create a county, and yet it is clearly contemplated that it may be done; (See Art. IV, § 21) and no one has doubted or disputed the power to do so by special act.

We must distinguish between those organizations, having a few functions of a corporate existence, and some of those of a municipal character; and a municipal corporation proper. “This distinction is usually drawn between such corporations, as towns and cities voluntarily organized under incorporating acts, and involuntary quasi corporations such as counties.” (Dillon on Municipal Corporations, p. 31, and note; Hamilton county vs. Wright, 7 Ohio State R., p. 109-118.) There are certain actions to which counties are not liable at the suit of private individuals, and to which cities are. In the case of cities, the inhabitants are regarded as having been clothed with municipal powers at their request, and for their peculiar and special advantage, and hence, to a certain extent, they are liable as private corporations; but not so in regard to counties, they are more peculiarly the agents of the State.

We must conclude then, that the term municipal corporation as used in the constitution, has a technical meaning, and that it is not synonymous with a corporation for municipal purposes. This was a wise distinction made by the framers of the constitution, and the language is used in the light of judicial decisions upon such questions.

That counties are corporations, see Bush vs. Shipman, 4 Scammon, 190; Bradley vs. Case, 3 Scammon, 603; see also, Hear vs. Curators of State University, 47 Mo., 225. As to the State University and its character as a public corporation, see also State ex rel. Police Commissioners vs. St. Louis County, 34 Mo., 570-572.

Municipal law is public law. (Bouvier's Law Dictionary, Tit. Municipal Law, Blackstone.) And so are municipal affairs public affairs, and municipal purposes are public purposes as contra-distinguished from private purposes.

And so the Constitution intends that corporations for public purposes may be created by special act, such as the Board of Water Commissioners, the Board of Police Commissioners, Board of Public Schools, counties, school districts, as agencies of the State to subserve the purposes of the public. And so the Legislature has declared in this act, (§ 3,) that the establishment of this Park is a municipal purpose.

A city, or purely municipal corporation, is a miniature government, having legislative, executive and judicial powers. It may pass laws, levy taxes, imprison for violation of law, authorize the issue of executions and the sale of property; but those quasi corporations, established for municipal purposes, have no such extended powers and are not intended from their very nature, to have them. They are mere agencies of the State to promote the convenience of the public at large.

II. As to the objection that the mode of taxation provided in the act operates unequally, and is unconstitutional, this cannot affect the question of the validity of the law establishing Forest Park, or the power of the Legislature to pass such a law under the provisions of the Constitution referred to. It will be time enough to meet those objections when an attempt is made to enforce those provisions of the law which are claimed to be unconstitutional. There is warrant enough for the Park Commissioners to act, and the court will not presume that they intend to enforce the unconstitutional provisions of the law, if there be any such.

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