State v. City of St. Louis

• Citation: 115 S.W. 534,216 Mo. 47
• Parties: STATE ex rel. BOARD OF CONTROL OF ST. LOUIS SCHOOL AND MUSEUM OF FINE ARTS v. CITY OF ST. LOUIS.
• Decision Date: 25 November 1908
• Court: Missouri Supreme Court

115 S.W. 534

216 Mo. 47

STATE ex rel. BOARD OF CONTROL OF ST. LOUIS SCHOOL AND MUSEUM OF FINE ARTS v. CITY OF ST. LOUIS.

Supreme Court of Missouri.

November 25, 1908.

Rehearing Denied January 5, 1909.

1. COLLEGES AND UNIVERSITIES (§ 7)—ORDINANCES —EFFECT.

An ordinance of a university corporation establishing a department of art, providing for a board of control to be appointed by the university board of directors, and to have charge of the department under such rules as it may make, subject to the ordinances and rules of the university board, etc., did not make the board of control a separate corporation, since the ordinance did not purport to do so, and since the university could not create another corporation.

2. MUNICIPAL CORPORATIONS (§ 177) — DEPARTMENTS —CREATION.

A municipal ordinance entitled "An ordinance authorizing the erection in a park of a building to be devoted to art education," and providing that the board of control of a museum of fine arts, "a department of Washington University," might erect the building, to become the property of the city for such use, under the direction of the board of control augmented by the mayor, comptroller, and park commissioner of the city, who are made ex-officio members of the board, does not change the board of control into a public municipal institution of the city and render it independent of the university, especially where no building was ever erected and the building occupied is held under a lease from a third party to which the city is not a party.

3. MUNICIPAL CORPORATIONS (§ 177) — DEPARTMENTS —CREATION.

Act March 7, 1907 (Laws 1907, p. 94), § 1, provides for the levy of taxes in cities of 400,000 population or more, to establish museums of art when authorized by the electors. Section 3 provides that, when it is decided to levy a tax, the mayor shall appoint an administrative board, except that, where there is already a board empowered by ordinance or other legal authority to administer public property used as an art museum, it shall constitute the board provided for in the act. In St. Louis, the only city of the required population, there is an art museum maintained as a department of a university, a private corporation, and managed by a board of control appointed by the university board. Held, that the act did not constitute such board a legal entity or corporate body and a public municipal institution of St. Louis, distinct from the university.

4. TAXATION (§ 38)—STATES (§ 114)—MUNICIPAL CORPORATIONS (§§ 72, 73, 860)—PRIVATE PURPOSES—CONSTITUTIONAL LAW.

So far as the act attempts to require the city of St. Louis and tax payers to donate the art museum tax to the support of the existing museum, it is unconstitutional under Const. art. 10, § 3 (Ann. St. 1906, p. 275), providing that taxes may be levied for public purposes only; section 1 providing that the taxing power may be exercised by the General Assembly for state purposes; section 10 prohibiting the Assembly from imposing taxes upon cities, etc.; article 4, § 46 (Ann. St. 1906, p. 195), prohibiting the Assembly to grant public money, etc., to individuals, etc.; article 4, § 47, prohibiting the Assembly to authorize any city to grant public money to individuals, etc.; and article 9, § 6 (Ann. St. 1906, p. 259), prohibiting cities to make any appropriation, etc., to any institution.

5. CONSTITUTIONAL LAW (§ 18)—CONSTRUCTION OF PROVISIONS—PRESUMPTIONS.

The constitutional convention of 1875 is presumed to have known of a previous construction given by the Supreme Court to provisions of the Constitution of 1865.

6. OFFICERS (§ 2)—APPOINTMENT—LEGISLATIVE AUTHORITY.

Const. art. 9, § 14 (Ann. St. 1906, p. 264), authorizing the General Assembly to provide for the election or appointment of such county, etc., officers, not provided for by the Constitution, as public convenience might require, authorizes the Assembly to prescribe the manner in which an appointment shall be made, but does not authorize it to make the appointment itself, nor to authorize any one unconnected with the government to do so.

7. COLLEGES AND UNIVERSITIES (§ 10)—CAPACITY TO SUE.

The board of control of an art museum constituting a department of a university, not being a legal entity or corporate body, has no capacity to sue.

Lamm and Graves, JJ., dissenting.

In Banc. Mandamus by the State of Missouri, on the relation of the Board of Control of the St. Louis School and Museum of Fine Arts, against the City of St. Louis. Alternative writ quashed, and peremptory writ denied.

John F. Lee and Bond, Marshall & Bond, for relator. Charles W. Bates, Benjamin H. Charles, Charles P. Williams, and A. H. Rondebush, for respondent.

GANTT, C. J.

This is an original proceeding in this court to obtain a peremptory writ of mandamus directed to the city of St. Louis, commanding it and its proper officers and agents to draw proper warrants against what is termed the "Art Museum Fund," collected and to be collected under the act of the General Assembly of Missouri of March 7, 1907 (Laws 1907, p. 94), and now in the treasury of said city, upon vouchers of the relator, and to require said city, in fixing its tax rate in the future, to include therein an annual tax of one-fifth of a mill on the dollar for the benefit of relator. The return was made on the day fixed by this court, and a reply to that return was duly filed. Thereupon Hon. Theodore Brace was appointed to take the proofs and make return thereof to this court. In due time the commissioner took and filed his report of the evidence, and exceptions were filed.

Upon the pleadings and evidence the cause was argued and submitted upon full briefs. The petition of the relator is perhaps as succinct a statement of relator's claim as can be made.

It alleges, in substance: That the St. Louis School and Museum of Fine Arts was established about the year 1874, and had continuously been maintained and conducted as a voluntary association, supported by private contributions and endowments. That in the year 1879, Wayman Crow erected, at Nineteenth and Locust streets in said city, at his own cost, a museum building valued at $143,000, and conveyed the same in trust, with the right of relator to use the same upon condition that $25,000 be raised as an endowment fund. That said condition was complied with, and the income from said sum has been used for the support of "such institution." That other endowments have since been added, until on March 13, 1900, there was used and employed in and about said business and the educational features thereof property of the value of $1,250,000. That prior to March 13, 1900, said School and Museum of Fine Arts was largely conducted and operated as a public and free educational institution, and all of the revenues derived in any manner therefrom were used, devoted, and employed for the maintenance and support of said School and Museum of Fine Arts, and none of them were or are used for profit or gain. That on March 13, 1900, the respondent city passed Ordinance 19,969, entitled "An ordinance authorizing the erection in Forest Park of a building to be devoted to the purposes of art education." That section 1 of said ordinance provided that the Board of Control of said School and Museum of Fine Arts were authorized to erect within Forest Park a building which, together with the site upon which it is located, shall be devoted to the use of the institution forever, for the exhibition of pictures and sculpture, etc. That section 2 provided that the location of said building should be determined by said Board of Control. That section 3 provided that said building should be erected subject to the conditions and provisions that when completed the building should be the property of the city for the uses hereinafter provided, and no other. That "the building and its affairs shall be under the direction and jurisdiction of the Board of Control of the School and Museum of Fine Arts, augmented by the mayor, comptroller, and park commissioner of the city of St. Louis, who shall be ex-officio members of such Board of Control of said building." That there should be an exhibition of pictures and sculpture in said building Sunday afternoons from 1 o'clock to sundown, "and such exhibition shall be opened free to the public as much oftener as in the opinion of the board of control the financial condition of the institution will permit. That relator accepted the provisions of said ordinance and said Board of Control was thereafter organized as required by the ordinance, with the addition of the mayor, comptroller, and park commissioner. That the relator selected as the location a certain place in said park now known as "Art Hill," and that when relator was about to begin the erection of such building the respondent authorized the Louisiana Purchase Exposition Company to use a large part of Forest Park, including the site so selected by relator, for the St. Louis World's Fair. That a part of the arrangement between said exposition company and the respondent provided that after the fair the buildings erected therefor should be removed by the exposition company, and the park restored to its former condition. That among the buildings erected by the exposition company was what is commonly known as the "Art Building," which was erected upon the site selected by the relator for said museum building, and was constructed in a substantial, durable and fireproof manner, so as to safeguard the valuable works of art that were contributed, loaned, and used at said World's Fair. That said building, erected at a cost of between $750,000 and $1,000,000, is of great value and appropriate for use by relator as a school and museum of fine arts as contemplated by Ordinance 19,969. That pursuant to said arrangement with the city the exposition company has removed all of the buildings erected by it, except said Art Building, but that instead of removing it the exposition company, by and with...