State v. City of St. Louis

• Decision Date: 20 March 1912
• Citation: 145 S.W. 801
• Parties: STATE ex rel. BIXBY et al. v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

145 S.W. 801

STATE ex rel. BIXBY et al. v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 2.

March 20, 1912.

1. COURTS (§ 209)—SUPREME COURT—MANDAMUS —FAILURE TO DISCUSS PROPOSITIONS.

In an original proceeding in mandamus brought against a city in the Supreme Court, propositions not discussed in the respondent's brief will be deemed to have been admitted.

2. COURTS (§ 107)—CONSTRUCTION OF OPINION.

The language used in a judicial opinion should be interpreted in the light of the facts and issues.

3. COURTS (§ 92)—JUDICIAL OPINIONS—DOCTRINE OF STARE DECISIS.

The maxim of stare decisis only applies to the actual decision of the case, and not to the reasoning, illustrations, and references in the opinion.

4. STATUTES (§ 64) — VALIDITY — INVALIDITY IN PART.

Laws 1907, p. 94, is entitled "An act providing for the establishment, extension and regulation of museums of art, in cities of four hundred thousand inhabitants or more, or which may hereafter have four hundred thousand inhabitants or more, and authorizing taxation for the same, with emergency clause." Section 1 provides for a vote as to whether a one-fifth mill tax for an art museum shall be levied in cities of certain population, and requires the tax to be levied and collected upon a favorable vote. Section 2 prescribes the purposes of the museum. Section 3 provides that the mayor shall, with the approval of the legislative branch of the city government, appoint an administrative board of nine members to control the expenditure of the art museum fund "unless and except there shall be at the time already constituted and in existence * * * an administrative board endowed by city ordinance or other legal authority with power to occupy and administer public property devoted to the uses of an art museum, located in a public park or upon public property by virtue of municipal authority," in which case "such board and successors shall be the board of control for the art museum fund" having all the powers provided herein for such board. Section 4 provides for the term of office of the administrative board appointed by the mayor, for filling vacancies, etc. Section 5 authorizes by-laws. Section 6 makes the museum forever free to the inhabitants, so long as the art museum tax continues to be operative. Section 8 authorizes an ordinance imposing penalties for injuring the property. Section 9 provides for donations and loans of art works. And section 10 declares an emergency because of "the fact that many cities and towns * * * have no art museums." Held, that the invalidity of the quoted part of section 3 did not invalidate the whole act.

5. STATUTES (§ 64) — STATUTES INVALID IN PART.

The invalidity of a part of a statute invalidates the whole statute, if it only has one object which is invalid and the invalid part furnished the legislative inducement for the whole act, which would not have been enacted without it and would have been incapable of enforcement after the invalid part was eliminated.

6. CONSTITUTIONAL LAW (§ 48) — PRESUMPTION OF CONSTITUTIONALITY.

There is a strong presumption that a statute is constitutional, and, though part of it be invalid, the presumption still holds as to the other part.

7. STATUTES (§ 211) — CONSTRUCTION — TITLE.

The title of a statute may be looked to in construing it.

8. STATUTES (§ 207) — CONSTRUCTION—CONFLICTING PROVISIONS.

Where the part of a statute which is only permissive is incompatible with the part which prescribes, the latter provision controls.

Mandamus by the State, on the relation of William K. Bixby and others, against the City of St. Louis and another. Writ issued.

A. & J. F. Lee and C. M. Polk, for relators. Lambert E. Walther, for respondents.

LAMM, J.

Mandamus. Original proceeding. On final submission the cause stands on relators' motion for judgment on the pleadings.

Relators (hereinafter called plaintiffs) sue as residents and taxpayers of St. Louis in their own behalf and in behalf of all persons of like kind and situation desiring to join and share the expense. Complaining of respondents (hereinafter called defendants), they charge that the Forty-Fourth General Assembly enacted a law (approved March 7, 1907, Laws of 1907, p. 94) with the following title: "An act providing for the establishment, extension and regulation of museums of art, in cities of four hundred thousand inhabitants or more, or which may hereafter have four hundred thousand inhabitants or more, and authorizing taxation for the same, with emergency clause." Pleading the provisions of that act, they state that, as therein provided, an election was petitioned for, ordered, and held in St. Louis; that thereat, to wit, at the regular city election in April, 1907, the voters of the city (by a vote of 27,721 for, as against a vote of 7,606 against) voted a one-fifth mill tax for a public art museum; that subsequently plaintiffs requested and demanded of defendant city and its officials that they fix a rate for such art museum tax and make a levy thereof as authorized and provided in said act of 1907, and by the voters of the city at said election, keeping the total taxes within the constitutional limitation upon the taxing power; that the city and its officials failed and refused to accede to such demand and request; further, that plaintiffs made a demand and request at the same time that defendant mayor appoint and submit to the legislative branch of the municipal government for its approval, an administrative board of nine members to control the expenditure of the art museum fund and otherwise to perform the duties prescribed by the act for said board to perform, and that then and ever since defendant mayor failed and refused so to do; that plaintiffs, being otherwise remediless in the premises, pray an alternative writ of mandamus issue to defendants to show cause, if any they have, why such board should not be appointed and submitted for such approval and why said tax should not be levied. An alternative writ issued, narrating the allegations of the petition, and defendants were cited to show cause. Replying to that citation, defendants make return in effect confessing the allegations of the alternative writ, and for cause of their failure to appoint the board and levy the tax, plead that the act of 1907 is unconstitutional and void, that its unconstitutionality has been declared by this court in a cause determined here entitled "State ex rel. Board of Control of St. Louis School and Museum of Fine Arts v. City of St. Louis." Vide 216 Mo. 47, 115 S. W. 534.

Plaintiffs' counsel, doubtless on the maxim that abundant caution does no injury, and being without the gift of prophecy and therefore in the dark on the scope and tenor of defendants' ultimate position, file here a memorandum brief supporting their right to a writ. That memorandum brief has been carried forward as live matter in their printed brief on final submission. Among others, that brief asserts and cites authorities to sustain the following propositions: (a) Plaintiffs have a right to maintain this action. (b) The mayor has a discretion to say who shall be appointed, but not to say whether a board shall or shall not be appointed. (c) The mayor does not enjoy immunity from judicial control like the Governor of a state or the President of the United States, and the city can be compelled by mandamus to levy and collect the tax imposed by law (and the vote of the people). (d) No ordinance of the city is necessary to carry into effect the act of 1907, for that act is automatic.

By the brief of the learned chief law officer of the city, Mr. Walther, defendants raise no issue at all on propositions "a," "b," "c," and "d." Such form of submission in a controversy presented to a court must be taken as a conclusive confession that defendants admit propositions thus advanced and not controverted, and fall back on a flank attack by way of avoidance. The city and its mayor admit the passage of the law, the election, the result, the demands, and their failure, and that relief is due in the form prayed unless the law is worthless because of invalidity. The cause, then, may proceed with such confession assumed, and we shall waste neither time nor labor examining or ruling propositions not controverted. In fact, defendants, as was meet and proper under the circumstances, put all their eggs in one basket, as appears not only in their return but in their statement of the case; the latter summing up the whole controversy as hanging on a single thread, viz.: "The respondents contend that this act is unconstitutional and was so declared by the Supreme court of the state of Missouri in the case of State ex rel. Board of Control of the St. Louis School and Museum of Fine Arts v. City of St. Louis, reported in 216 Mo. 47 , and that therefore there is no authority for the doing of the acts commanded by the alternative writ. Relators say that only the proviso of section 3 of the act of March 7, 1907, was declared invalid by this court, and that the proviso is separable from the remainder of the act, and, if eliminated, that there is still left a complete constitutional enactment." The question then is: Is the act of 1907 constitutional? Plaintiffs affirm and defendants deny that it is. Defendants affirm and plaintiffs deny that the constitutionality of the act was passed upon in the mentioned case. Let us deal with the last issue first.

I. Of the decision in State ex rel. Board of Control of the St. Louis School and Museum of Fine Arts v. City of St. Louis, 216 Mo. 47, 115 S. W. 534:

(a) As leading up to a determination of the scope and effect of that decision, a foreword will not be unprofitable. There is a pronounced line of demarkation between what is said in an opinion and what is decided by it — between arguments, illustrations, and references on one side, and the judgment rendered on the other. The language used by a judge in his opinion is to be...