The State ex rel. City of St. Louis v. Seibert

• Decision Date: 25 June 1894
• Citation: 24 S.W. 750,123 Mo. 424
• Parties: The State ex rel. City of St. Louis v. Seibert, State Auditor
• Court: Missouri Supreme Court

24 S.W. 750

123 Mo. 424

The State ex rel. City of St. Louis v. Seibert, State Auditor

Supreme Court of Missouri

June 25, 1894

Peremptory writ awarded.

W. C Marshall for relator.

(1) The appropriation in the form in which it was made was a legislative determination that the appropriation was necessary; that there were insane persons in the St. Louis insane asylum who belonged to the state outside of the city of St. Louis, and for whose support it was proper for the state to provide. The legislature did not appropriate money for the support of the St. Louis insane asylum. As the appropriation was not for the support of the insane asylum section 46, article 4, of the constitution has no application. The appropriation vetoed by Governor Phelps purported to be to the St. Louis insane asylum. (2) Inasmuch as St. Louis has an asylum of its own, it is required by section 518, Revised Statutes, 1889, to bring back all its own indigent insane in any of the asylums of the state, and to keep all of its own insane hereafter. Taking this section into connection with the appropriation in this case, it is clear that the general assembly did not intend that any of the money thus appropriated should be used for the support of any of the indigent insane who belong to the city. But that the general assembly intended only to provide for such indigent insane, in the St. Louis asylum, as do not belong to the city, and have no more claim upon the city than they have upon any other county in the state. The general assembly determined, as it had a right to determine, under section 43 of article 4, that there were such persons in the St. Louis insane asylum, and that they were public wards, and should be supported out of general revenue, because, manifestly, from their condition, it could not be ascertained to what locality they belonged and ought to be sent.

R. F Walker, Attorney General, for the state.

(1) The taxing power may be exercised by the general assembly for "state purposes." Sec. 1, art. 10, Const. Mo. Taxes may be levied and collected for "public purposes only." Sec. 3, art. 10, Const. Mo. (2) An appropriation made by the general assembly is simply a statutory declaration as to the manner in which money raised by taxation is to be expended. See "Appropriation," Century Dictionary, and Winfield's Adjudged Words and Phrases; Ristine v. State, 20 Ind. 338; Curtis, Adm'r, v. Whipple, 24 Wis. 350. (3) The state constitution directs the manner in which all moneys collected by taxation shall be expended or appropriated. Sec. 43, art. 4, Const. Mo. These directions clearly define appropriations to "state" or "public purposes." See subdivisions 1, 2, 3, 4, 5, 6 and 7, sec. 43, art. 4, Const. Mo. The words "and such other purposes not herein prohibited, as it may deem necessary," to be found in subdivision 7, supra, are, under the maxim expressio unius exclusio alterius, and the familiar rule of statutory construction, limited in their meaning and operation to the particular words preceding them. State v. Bryant, 90 Mo. 534. The same rules of construction apply to constitutions as to statutes. State ex rel. v. Macon County Court, 41 Mo. 453. (4) The St. Louis insane asylum is not one of the eleemosynary institutions of the state. R. S. 1889, sec. 5671. The general assembly is, therefore, not authorized under section 43, article 4, supra, to appropriate money for its support. The "St. Louis insane asylum" is one of the institutions belonging to, under the control of, and to be supported by, that municipality. Sec. 26, subdiv. 13, Charter of St. Louis, p. 2100; R. S. 1889. An appropriation "for the support of the indigent insane in the insane asylum of the city of St. Louis who belong to the state outside of the city of St. Louis" is nothing more than a grant of aid to such institution; and a grant of aid to such institution is simply a grant of aid to the municipality to which the institution belongs. An appropriation of this nature is expressly prohibited by the present constitution -- section 46 of article 4. (6) The attempt to legalize the appropriation by stating that it is for the support of the indigent insane in said asylum, "who belong to the state outside of the city of St. Louis," is mere persuasive phrasing employed by the draughtsman of the bill to facilitate its passage, and adds nothing to its force or legal effect. "The indigent insane of the state outside of the city of St. Louis" are either supported in the insane wards of the poorhouses of the counties to which they belong, or in one of the state asylums at the expense of such counties. R. S. 1889, arts. 1 and 2, chap. 9; State ex rel. v. Cole Co., 80 Mo. 80. (7) The state of Missouri could not, by an act of its general assembly, have authorized the levy of a tax to create a fund for the support of the St. Louis insane asylum. Secs. 46 and 53, art. 4, Const. Mo.; Loan Association v. Topeka, 20 Wall. 653; Truett v. Justices, 20 Ga. 102. It follows, then, that it could not appropriate money for one purpose which had been levied and collected for another. Loan Association v. Topeka, supra; St. Mary's Indus. School v. Brown, 45 Md. 310; State v. Haben, 22 Wis. 660. (8) Taxes which have been levied and collected for "state purposes" have, in some instances, been appropriated for purposes purely charitable, because such purposes are in some sense public; but wherever this has been done it will be found, if the matter has been tested in the courts, that such appropriations were not, as in Missouri, expressly prohibited by the organic law. Fox v. Philadelphia, 64 Pa. St. 182. (9) There is no force in the argument that this appropriation should be sustained because former general assemblies have made similar grants of aid. An unconstitutional law will be treated by the courts as null and void. Board of Liquidation v. McComb, 92 U.S. 531.

Macfarlane, J. Sherwood, Gantt and Burgess, JJ., dissent.

OPINION

In Banc

Mandamus.

Macfarlane J.

Upon the petition of the city of St. Louis an alternative writ of mandamus was issued against respondent, as state auditor, requiring him to show cause why he should not draw warrants "in favor of the city of St. Louis for the sum of $ 2,083.33 for the month of January, 1893, pursuant to the provisions of the act of the general assembly of Missouri, approved April 1, 1893, and similar warrants for the same amount for each of the months of February, March, April, May, June and July, 1893."

To this writ a general demurrer has been interposed. Under this demurrer it is claimed that section 8, of the act of the legislature approved April 1, 1893, referred to in said writ, is invalid, unconstitutional and void, and this presents the question for decision.

Section 8 is contained in an act, entitled "An act to appropriate money for the support of the eleemosynary institutions of the state, and of the indigent insane in the asylum at St. Louis, for the years of 1893 and 1894," and is as follows:

"Sec. 8. For the support of the indigent insane in the insane asylum of the city of St. Louis, who belong to the state outside of the city of St. Louis, fifty thousand dollars ($ 50,000), which sum shall be paid upon the requisition of the treasurer, indorsed by the mayor of the city of St. Louis and approved by the governor, in equal monthly installments."

Respondent argues that this section is in conflict with section 46, article 4, of the constitution, which provides, that:

"The General Assembly shall have no power to make any grant * * * of public money or thing of value to any individual, association of individuals, municipal or other corporation whatsoever: Provided, that this shall not be so construed as to prevent the grant of aid in a case of public calamity."

On the other hand, relator argues that power to make the appropriation is found under section 43, of article 4. Paragraph sixth of said section authorizes the legislature to appropriate money: "For the support of the eleemosynary institutions of the state;" and paragraph seventh; "For the pay of the general assembly and such other purposes, not herein prohibited, as it may deem necessary."

It is undisputed that the insane asylum of the city of St. Louis is a private institution belonging to and controlled by the city of St. Louis, and is not included under the general statutes as one of the eleemosynary institutions of the state. Scheme & Charter, sec. 9, R. S. 1889, p. 2078; sec. 5671, R. S. 1889.

It may be stated as a generally accepted principle of law that the legislature with all its plenary powers, regardless of constitutional restrictions and limitations, has no power to raise money by taxation, or appropriate it for purely private purposes; but to insure against an an attempt to do so, the constitution in express and positive terms, deprives it of such power by section 46, supra. Loan Association v. Topeka, 87 U.S. 655, 20 Wall. 655, 22 L.Ed. 455. If the appropriation complained of had been made for the support of the insane asylum of St. Louis, there could be no doubt of its unconstitutionality.

That the support of the indigent insane is an object universally recognized as a charity, can not be questioned. That public money may be applied to the support of that class of unfortunate citizens, is recognized in the liberal support given our public institutions for the insane, as well as by the constitution itself.

It may well be said here that the determination of the question, whether indigent insane belonging to the state outside of the city of St. Louis were supported by the St. Louis insane asylum, belonged to the legislature itself, and on that question we are concluded by its action.

It is said by Judge Cooley: "The legislature is to make laws for the public...