State ex rel. Zoolog. Board v. City of St. Louis

• Citation: 1 S.W.2d 1021
• Decision Date: 18 January 1928
• Docket Number: No. 28361.,28361.
• Parties: THE STATE EX REL. ZOOLOGICAL BOARD OF CONTROL ET AL. v. CITY OF ST. LOUIS ET AL.
• Court: United States State Supreme Court of Missouri

1 S.W.2d 1021

THE STATE EX REL. ZOOLOGICAL BOARD OF CONTROL ET AL. v. CITY OF ST. LOUIS ET AL.

No. 28361.

Supreme Court of Missouri, in Banc.

Court en Banc, January 18, 1928.

Mandamus.

PEREMPTORY WRIT AWARDED.

Cobbs, Logan & Alexander for relators.

(1) Mandamus is the proper remedy to compel respondents to levy, collect and set aside the Zoological Park tax. (a) The Zoological Park Statute is mandatory. It provides that, after it is accepted by a favorable vote, the tax "shall be levied and collected in like manner with other general taxes;" that the money received "shall be deposited" — "shall be kept separate" — "shall be drawn upon." Secs. 9009 to 9016, R.S. 1919. (b) The duties of respondents are definite and ministerial. Mandamus will lie to compel performance of them. 38 C.J. 772; State ex rel. v. Mason, 153 Mo. 55. (c) A similar statute, the Art Museum Statute, was upheld and respondents were compelled, by mandamus, to levy, collect and set aside a similar tax. State ex rel. Bixby v. St. Louis, 241 Mo. 231. (d) Relators have sued as a board and as citizens and taxpayers, on behalf of themselves and the public, to enforce a public duty which respondents have refused to perform. Mandamus is their only remedy. Rutledge v. School Board, 131 Mo. 514; State ex rel. v. Railroad, 86 Mo. 16; State ex rel. v. Noonan, 59 Mo. 524. (2) The burden is respondents' to show that the Zoological Park Statute is unconstitutional. State ex rel. v. Sheehan, 190 S.W. 864; Washington Road Dist. v. Robinson, 262 S.W. 46. (3) The Zoological Park Statute is applicable to the city of St. Louis and is not unconstitutional or void. (a) It does not violate Section 1 or Section 10 of Article 10 of the Constitution. State ex rel. v. Mason, 153 Mo. 23. (b) It does not violate Sections 20 to 25 of Article 9 of the Constitution. State ex rel. v. Mo. & Kan. Tel. Co., 189 Mo. 83; State ex rel. v. Board of Education, 141 Mo. 45; St. Louis v. Meyer, 185 Mo. 583; State ex rel. v. Owsley, 122 Mo. 78; Ewing v. Hoblitzelle, 85 Mo. 64; Peterson v. Railroad, 265 Mo. 462. (c) It does not violate Section 11 of Article 10 of the Constitution. State ex rel. v. Van Every, 75 Mo. 530; Brooke v. Schultz, 178 Mo. 222; State ex rel. v. Weinrich, 291 Mo. 461. (d) It does not violate Section 47 of Article 4 or Section 6 of Article 9 of the Constitution. Jasper Co. Farm Bureau v. Jasper County, 286 S.W. 381; State ex rel. v. Chariton Drain. Dist., 252 Mo. 345; State ex rel. v. St. Louis, 241 Mo. 231. (e) It does 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. (f) It does not violate Section 53 of Article 4 of the Constitution. State ex rel. v. Miller, 100 Mo. 447; Hunt v. Bell, 190 Mo. 70; State ex rel. v. Hedrick, 294 Mo. 21; State ex rel. v. Southern, 265 Mo. 279; State v. Keating, 202 Mo. 197; State ex rel. v. Speed, 183 Mo. 186. (g) It does not violate Section 7 of Article 9 of the Constitution. State ex rel. v. Mason, 155 Mo. 501; Kansas City v. Stegmiller, 151 Mo. 189. (4) Respondents cannot excuse or justify their refusal. The Zoological Park Statute, being constitutional and having been accepted by a vote of the taxpayers of St. Louis, is binding on respondents. They cannot substitute their superior wisdom, as to how the taxpayers' money should be used, for the wisdom of the taxpayers themselves. No excuse will justify their refusal to comply with the statute. (5) The Zoological Park Statute does not require a separate or special levy. It makes the Zoological Park tax a part of the general taxes permitted under the Constitution and requires it to be levied and collected "in like manner with other general taxes." Respondents, having levied the full amount permitted by the Constitution (135c) for 1927, are presumed to have included the Zoological Park tax in that levy and should be required to set it aside in accordance with the statute.

Julius T. Muench and Charles J. Dolan for respondents; Lambert E. Walther of counsel.

(1) The taxing power vested in the city of St. Louis has been conferred upon it by the Constitution, and the General Assembly cannot confer any additional taxing power on said city, or vary, alter or limit the exercise of its taxing power unless the said city shall renounce its Charter and shall elect to become organized under a legislative charter. As the Zoological Park Act provides for the reduction of the taxing power of the city of St. Louis for general municipal purposes from $1.35 on the $100 assessed valuation to $1.33, it violates Sections 20 to 25 of Article 9 of the Constitution, as these provisions have been construed. St. Louis v. Sternberg, 4 Mo. App. 453; St. Louis v. Sternberg, 69 Mo. 289; St. Louis v. Bircher, 76 Mo. 431; Security Sav. Bank v. Hinton, 97 Cal. 214. Under the Charter of 1876 and the present charter, St. Louis was given full power to levy taxes for municipal purposes to the amount limited by Section 11, Article 10, of the Constitution, and persons contracting with the city do so upon the faith of that power of the city to levy taxes within the constitutional limit for meeting its contractual obligations incurred in the performance of municipal functions. The Zoological Park Act is void as restricting the power of taxation delegated to the city through its constitutional charter and upon the faith of which contracts had been made with it. Van Hoffman v. City, 4 Wall. 535; Wolf v. New Orleans, 103 U.S. 358. (2) The Zoological Park Act relates to a matter of purely local municipal concern and not a matter in which the city functions as the representative for and in the interest of the entire state. Board of Com. v. Peter, 253 Mo. 520; Kansas City v. Field, 194 S.W. 43; Mt. Hope Cemetery v. Boston, 158 Mass. 509; City of Tampa v. Prince, 63 Fla. 387; People v. Detroit, 28 Mich. 228; State ex rel. v. Des Moines, 103 Iowa, 76; 1 McQuillin, sec. 174. (a) That the cities in Missouri hold their parks in their proprietary as distinguished from their governmental capacity, and that the municipal parks are matters of purely local concern, is well established by the decisions of the courts of last resort. State ex rel. v. Schweickhardt, 109 Mo. 496; Kuenzel v. St. Louis, 278 Mo. 277; State ex rel. v. Field, 99 Mo. 352; State ex rel. v. Scarritt, 127 Mo. 642; Kansas City v. Bacon, 147 Mo. 259; Capp v. St. Louis, 251 Mo. 345; Carey v. Kansas City, 187 Mo. 715; State ex rel. Wabash Ry. v. Public Serv. Comm., 306 Mo. 178; 3 McQuillin, Mun. Corp., sec. 2678; Gartland v. New York Zoological Soc., 120 N.Y. Supp. 24. (b) The provisions of the Zoological Park Act, with respect to the organization of the zoological park boards and their powers, show that the legislators did not consider that the state outside of the city establishing a zoological park under authorization of the act had any interest in the zoological park or its management or control, for the appointment of the members of the board is left to the mayor of the city, the proceeds of the tax are to be deposited with the city treasurer and the board is required to make annual reports to the legislative branch of the municipal government. (3) The Zoological Park Act was never valid as applicable to St. Louis because the act was an attempt on the part of the state to legislate as to the local affairs of St. Louis and to amend the freeholders' charter of the city. Since, under the provisions of Sections 20 to 25 of Article 9 of the Constitution, the people of St. Louis are the sole source of legislative authority concerning matters of local self-government, the General Assembly is without authority to confer on it such power as is attempted to be conferred by said act. The Constitution provides that all such power shall be assumed by the city through the medium of its charter. The General Assembly is also without authority to divert to the voters of the city of St. Louis the taxing power which has been vested by the charter in the Board of Estimate and Apportionment and the Board of Aldermen. For the Legislature to attempt to divert the taxing power would be tantamount to attempting to amend the charter of the said city. Dorr v. St. Louis, 145 Mo. 466; Murnane v. St. Louis, 123 Mo. 475; State ex rel. McDaniel v. Schramm, 272 Mo. 541; Morrow v. Kansas City, 186 Mo. 675; Kansas City v. Field, 194 S.W. 39; State ex rel. v. Jost, 265 Mo. 51; Charter of City of St. Louis (1914), Article 16. (4) The Zoological Park Act is also invalid because violative of the provisions of the Constitution of Missouri, Section 7, Article 9, providing that the General Assembly shall provide by general laws for the organization and classification of cities, and that the number of classes shall not exceed four, in that said act is limited in its application to cities of 400,000 inhabitants, thereby subdividing cities of the first class into two classes, with different powers and subject to different restrictions, namely, cities of the first class authorized to establish zoological parks, and cities of the first class without such authorization. Murnane v. St. Louis, 123 Mo. 479; Dorr v. St. Louis, 145 Mo. 466; Kansas City v. Scarritt, 127 Mo. 642; State v. Anslinger, 171 Mo. 600; Harris v. Bond Co., 244 Mo. 665. (5) The Zoological Park Act violates the provisions of Section 47 of Article 4 and Section 6 of Article 9, prohibiting the General Assembly from authorizing any municipal corporation to grant public money to any association or corporation and prohibiting municipalities from making appropriations or donations in aid of any association or institution of learning, whether created for or to be controlled by the State or others, in that the act creates an association with power to control the zoological park and requires the municipal officers to turn over the funds collected for the zoological park tax to such association. State ex rel. v. St. Louis, 216 Mo. 47; State ex rel. v. Kimmel, 256...