The State ex rel. Board of Control of St. Louis School & Museum of Fine Arts v. City of St. Louis

• Decision Date: 05 January 1909
• Citation: 115 S.W. 534,216 Mo. 47
• Parties: THE STATE ex rel. BOARD OF CONTROL OF ST. LOUIS SCHOOL AND MUSEUM OF FINE ARTS v. CITY OF ST. LOUIS
• Court: Missouri Supreme Court

115 S.W. 534

216 Mo. 47

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

Supreme Court of Missouri

January 5, 1909

Peremptory writ denied.

Bond Marshall & Bond for relator.

(1) 1. Relator is not a department of Washington University, but is a separate, legal entity, constituted by the Act of March 7 1907, and the action of the people of St. Louis, and is the first board of control provided for by that act. 2. The Act of March 7, 1907, created the office and designated how it should be filled, and as the office is not one provided for in the Constitution of Missouri, it was the province and duty of the Legislature to "provide for" the filling of the office, under section 14 of art. 9 of the Constitution. State Revenue Agent v. Hill, 70 Miss 106; Kavanaugh v. State, 41 Ala. 399; Patton v. Board of Health, 127 Cal. 388; State v. Spaulding, 102 Iowa 639; State v. Cobb, 2 Kan. 27; Miller v. Warner, 42 N. Y. (App.Div.) 208; Jones v. Hobbs, 4 Baxt. (Tenn.) 113; State v. Finn, 8 Mo.App. 208; Mechem's Public Office and Officers, sec. 1; State v. Valle, 41 Mo. 31. 3. The Legislature has control over the revenues of the city. State v. Board of Education, 141 Mo. 50; State ex rel. v. Field, 119 Mo. 614; State ex rel. v. Owsley, 122 Mo. 68; State ex rel. v. Mason, 155 Mo. 499; State ex rel. v. Mason, 153 Mo. 43. 4. "As the Legislature represents the public interest, and has full control of all municipal organizations as instrumentalities of government, this branch of the State sovereignty may, unless restrained by constitutional provision, create such municipal offices as it thinks the public interests require, and fill them with any persons selected for the purpose." In re Senate Bill, etc., 12 Colo. 188; Com. v. Plaisted, 148 Mass. 375; People v. Draper, 15 N.Y. 532; Harris v. Wright, 121 N.C. 172; Phila. v. Fox, 64 Pa. St. 169; State v. Von Baumbach, 12 Wis. 310. The museum of art in Forest Park is a municipal institution, created by the ordinance of the city of St. Louis (ordinance 19969), by the will of the people speaking through the Legislature (Act March 7, 1907), and by the voice of the people of the city of St. Louis, at the election held April 2, 1907, by a vote of 27,771 in favor thereof and only 7,606 against it, and defendant admits in its return that it is "a public, municipal institution." St. Louis Co. Ct. v. Griswold, 58 Mo. 198; Throop on Officers, sec. 85. (2) Ordinance 19969 is not illegal or void. 1. The ordinance does not authorize Washington University to use the Art Building, and the University has nothing to do with it, and no power over it. The University is trustee of the property, pictures, art exhibits and of the endowments and trust estates, but the beneficial use is vested in the Board of Control, and the University has no power over it except to see that the trust property, the use and possession of which is in the Board of Control, is not lost or misappropriated, and that the income, earnings and interest arising from the trust investments are properly applied, and that the principal remains intact. In other words, the University is simply a trustee, and has only the power of a trustee. 2. Since the passage of the Act of March 7, 1907, and the vote of the people on April 2, 1907, and the acceptance by the Board of Control of the provisions of that act, and the expressed will of the people, the Board of Control has been and is a separate legal entity, an administrative, municipal board, charged with the duty of administering a municipal charity. 3. The Art Building is public; the use to which it is put is public; and a building in a park is a proper park purpose. State ex rel. v. Schweickardt, 109 Mo. 510. (3) The use contemplated by the Act of March 7, 1907, is a public use. 5 Am. and Eng. Ency. Law (2 Ed.), 897; Beach on Trusts and Trustees, sec. 320; People v. Coggswell, 113 Cal. 129; Price v. Maxwell, 28 Pa. St. 35; Russell v. Allen, 107 U.S. 163; Mo. Hist. Soc. v. Academy of Science, 94 Mo. 459. (4) The use being public, it can be administered by any instrumentalities the Legislature may designate, and relator is, pro hac vice, a municipal board, specially created for the purpose of administering the public charity, and the museum is a municipal institution, and its location in Forest Park is a legitimate and proper use of the park. But even if this was not true, the use being public, it may be administered by a private hand. 5 Am. and Eng. Ency. Law (2 Ed.), 895; Saltonstall v. Sanders, 11 Allen (Mass.) 456; Donohugh's Appeal, 86 Pa. St. 312; Bullard v. Chandler, 149 Mass. 532; Chambers v. St. Louis, 29 Mo. 543; State ex rel. v. Powers, 10 Mo.App. 263; Chapin v. School District, 35 N.H. 445; Wetmore v. Parker, 52 N.Y. 450; Chapin v. School District, 3 Ohio Dec. 321; Jones v. Habersham, 3 Woods 443 (affirmed 107 U.S. 174); First Congregational Society v. Atwater, 23 Conn. 35; City of Louisville v. University of Louisville, 54 Ky. 642; Succession of Auch, 39 La. Ann. 1043; Sohier v. St. Paul's Church, 53 Mass. 250. And a devise or gift for public charitable uses to be held by trustees or to a corporation to be incorporated by the Legislature, composed of the officers designated in the will as trustees, to take the estate and execute the trust, is a valid charitable use and may be administered in the manner stated. Inglis v. Sailor Snug Harbor, 28 U.S. 99; Ould v. Washington Hospital, 95 U.S. 303; Russell v. Allen, 107 U.S. 163; Jones v. Habersam, 107 U.S. 174; Field v. Drew Theological Seminary (C. C.), 41 F. 371; Coit v. Comstock, 51 Conn. 352; Milne v. Milne, 17 La. 46; Shapleigh v. Pilsbury, 1 Maine 271; Penoyer v. Wadhams, 20 Ore. 274; Dodge v. Williams, 46 Wis. 70. (5) The Act of March 7, 1907, does not violate sections 46 or 47 of article 4, or section 6 of article 9 of the Constitution. State v. University, 57 Mo. 178; State ex rel. v. Ziegenheim, 144 Mo. 283; County Court of St. Louis County v. Griswold, 58 Mo. 175; Jarrold v. Moberly, 103 U.S. 580. (6) The Act of March 7, 1907, does not violate sections 53 or 54 of article 4, or section 7 of article 9 of the Constitution. The act is not a Special Law. It applies to all cities which now have or may hereafter have four hundred thousand inhabitants. State ex rel. v. Miller, 100 Mo. 439; Lynch v. Murphy, 119 Mo. 163; State ex rel. v. Wofford, 121 Mo. 61; Dunne v. Railroad, 131 Mo. 1; Kansas City v. Stegmiller, 151 Mo. 189; State ex rel. v. Mason, 153 Mo. 52; State ex rel. v. Mason, 158 Mo. 486.

Charles W. Bates, Benjamin H. Charles, Charles P. Williams and A. H. Roudebush for respondent.

(1) The generally understood and accepted law in this commonwealth at the time the Constitution of 1875 was framed. 1. Taxes must be for a public purpose. Loan Assn. v. Topeka, 20 Wall. 665; Hilliard on Taxation (1875), sec. 17, ch. 1; Allen v. Jay, 60 Me. 124; In re Mayor, 11 Johns. 80; Sharpless v. Mayor, 21 Pa. St. 167; Grim v. Weissenberg, 57 Pa. St. 433; Curtis v Whipple, 24 Wis. 350; Bank of Cleveland v. Iola, 9 Kan. 689. 2. It was clearly understood that the terms "company, association or corporation," in article 11, section 14, of the existing Constitution of 1865, included all kinds of agencies, no matter how public, and even the State University. State v. Curators, 57 Mo. 178. 3. It was the settled law that no town or city had any power to make any grant of aid in favor of any association, individual or corporation, unless such town or city had been clearly empowered so to do by its charter or by the Legislature. Hitchcock v. City, 49 Mo. 484. The provisions of the Constitution of 1875, art. 4, secs. 45, 46, 47, 49; art. 9, sec. 6; art. 10, secs. 1, 10, 17; art. 14, sec. 11. The meaning and intent of these provisions taken together, is plainly to forbid a city from granting money or property or thing of value to or in aid of any individual, association, corporation, college, institution of learning or other institution whatsoever, whether created for, or to be controlled or administered by the State or any other person whatsoever, except the municipal corporation itself. (2) It is immaterial that the proposed beneficiary is a public charity, unless it be one which is a municipal institution, controlled and administered by the municipality itself. State v. Curators, 57 Mo. 178; Tyssen on Charitable Uses, p. 33; State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. Orr, 50 La. Ann. 887; Jeanes' Estate, 3 Pa. Dist. Rep. 314; Constitution of 1875, art. 4, sec. 47; State ex rel. v. Ziegenhein, 144 Mo. 283; Laws 1903, p. 279; In re Douglas, 35 Ch. Div. 472; Garrison v. Little, 75 Ill.App. 402; State ex rel. v. Seibert, 123 Mo. 424; Jenkins v. Andover, 103 Mass. 94; St. John's College v. State, 15 Md. 375; Sharpless v. Mayor, 21 Pa. St. 169; State v. County Court, 142 Mo. 584; Kingman v. Bracton, 153 Mass. 255. (3) The Board of Control of the St. Louis School and Museum of Fine Arts was originally and is now a private association -- the mere creature and appanage of Washington University, a private corporation, and neither Ordinance 19969 nor the Statute of 1907 effected any change in its character. Regents, etc., v. Williams, 9 Gill. & John. (Md.) 365. (4) The Ordinance 19969 (supposing it were valid), does not effectuate this change. 1. By its express terms the ordinance makes the grant to the board, as being a department of Washington University. St. Mary's School v. Brown, 45 Md. 329. 2. It is not pretended that Washington University nor any one else has complied with the ordinance. (5) Ordinance 19969, upon which relator relies, is void: 1. Because it is in violation of constitutional provisions prohibiting the granting of anything of value to any person, association, corporation or institution whatever. 2. ...