Wrightsman v. Gideon
| Decision Date | 20 December 1922 |
| Citation | 247 S.W. 135,296 Mo. 214 |
| Parties | E. J. WRIGHTSMAN et al., Appellants, v. J. J. GIDEON et al |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Orin Patterson, Judge.
Affirmed.
G. A Watson and Arch A. Johnson for appellants.
(1) The respondents called the Park Board were appointed under authority of Article 2, Chapter 93, R.S. 1909 (Art. 2, Chap 80, R.S. 1919). Article 3, Chapter 72, R.S. 1919, enacted in 1913, provided a new charter for cities of the second class and by necessary implication repealed Article 2, Chapter 93 R.S. 1909, supra, in so far as the former law provided for such board with its attendant powers and duties. By the law of 1913, supra, cities adopting this law as its charter are given a new and different system for the acquirement and management of public parks from that provided in the old law. Therefore the respondent Park Board had no authority to bind the city in the purchase of the real estate. Sec. 7976, pars. 11, 36, R.S. 1919; Secs. 8018, 8023, 8025, R.S. 1919; State ex rel. Atty. Gen. v. Pearey, 44 Mo. 159; Music v. Ry. Co., 114 Mo. 309. (2) The contract for the purchase of the land was in violation of the law. Sec. 12, Art. 10, Mo. Constitution; State ex rel. Smith v. Neosho, 203 Mo. 40.
Dan M. Nee and Fred A. Moon for respondents.
(1) Article 3, Chapter 72, R.S. 1919, the charter under which Springfield has been operating since April, 1916, does not repeal by implication, as contended by appellants, Article 2, Chap. 80, R.S. 1919, under and by virtue of which the Park Board has its existence. Peterson v. Railroad Co., 178 S.W. 194. If there is any conflict at all it is between two different sections of the charter, namely, Sections 55 and 243. The former places control of parks in a commissioner, while the latter preserves the Park Board. Where there is an irreconciliable conflict between different parts of the same act, the last in order of position controls. State ex rel. v. Gideon, 273 Mo. 79. On the other hand, if there be an irreconciliable conflict between our present city charter and the general park law applicable to cities of the second and third class, as contended by petitioners, then "the rule is, that when it can be seen that the exercise of any jurisdiction by a municipal corporation cannot be brought within the scope of the grant of its powers without a conflict with the laws of the State the exercise of such power cannot be allowed." City of Moberly v. Hoover, 93 Mo.App. 666. (2) The constitutional inhibition, Section 12, Article 10, is not in point, because it only applies to municipal and political corporations and sub-divisions of the State. The Park Board is neither. It is not made a body corporate by express language. Neither is it a body corporate by implication. Dillon on Municipal Corporations, sec. 64. Furthermore, if the Park Board be considered an arm or branch of the municipal corporation, said constitutional inhibition is still inapplicable because it prohibits the municipal corporation from contracting a debt in excess of its revenues for the current year, and the debt in the case at bar is not the debt of the body corporate. It is not even alleged to be. The municipal corporation is not obligated to pay the same either legally or morally. State v. Topeka, 74 P. 648; Burnham v. Milwaukee, 73 N.W. 1018; State ex rel. v. Neosho, 203 Mo. 76. (3) Petitioner's last point furnishes no ground for equitable relief: First, the designation of a Park acquired by the Park Board as a Negro Park would not and could not make such a park other than a free public park open to all persons desiring to use the same as such. Second, if the park board should attempt to exclude the "white public" from said park (it is not so pleaded), no citizen's rights could be invaded by such an order itself. His rights would only be invaded upon his being refused admittance to said park by those in charge upon attempting to enter said park. Not until then are his rights denied him, and at that time he would have an adequate remedy at law, and hence has no standing in a court of equity now. (4) Finally, these petitioners cannot maintain this action in their own names and right. If the members of the Board are acting beyond the scope of their authority, or if the Park Board no longer exists, within the eyes of the law, and they are assuming to discharge certain duties as public officials, then the wrong is a public one, and the State by the Attorney-General or the prosecuting attorney of the county only can maintain an action to prevent either the wrongful assumption of public office or the wrongful assumption of a power by a public officer or trustee. The only exception to this rule is the one which permits the bringing and maintaining of a suit in equity by a taxpayer, as such, where the tendency of the wrongful act on the part of a public officer or board is to increase taxes (the petition is silent on the question of an increased tax burden), and hence inflict a special injury on the taxpayer as such. Mathis v. Cameron, 62 Mo. 506.
In Banc.
The trial court sustained a general demurrer to the petition. Appellants refused to plead further, and judgment was rendered accordingly. This appeal followed. Appellants are resident tax-paying citizens of the city of Springfield. Five of the respondents are the Mayor and City Commissioners of the city, and the others are members of what is known as the Board of Commissioners of the Public Parks of the city hereafter referred to as the Park Board.
The petition alleges, in substance, that on April 1, 1913, the city of Springfield was a city of the third class, organized as such under the laws of the State; that on the date named, at an election held under Section 10241, Revised Statutes 1909, a tax of one mill on the dollar was voted for the establishment and maintenance of public parks in the city, and has since been duly levied on all taxable property in the city, and regularly collected; that thereafter "a Board of Commissioners was selected and duly qualified under the provisions of Chapter 93, Article 2, Revised Statutes 1909;" that subsequently, August 2, 1915, the city of Springfield duly elected to become a city of the second class "by adopting the provisions of the Act of . . . March 25, 1913, and thereafter proceeded to elect officers and administer the affairs of said city under the provisions of said act." It is then alleged that the act last referred to does not provide for the appointment of park commissioners, but confers exclusive jurisdiction of the parks of the city upon the mayor and the several commissioners thereof, and places all public parks and control and supervision thereof under control of the Commissioner of Public Utilities of the city. It is then alleged that in February, 1919, the defendants constituting the old Park Board, without authority, contracted to purchase from W. E. Freeman a tract of land in Springfield for the sum of $ 6500 for the purpose of using it "for a colored or negro park;" that by the terms of the contract Freeman "placed a deed of trust on the said real estate to secure the payment of an indebtedness of $ 5000 to the Citizens Bank, payable in installments of $ 1000 per annum, with seven per cent interest, and that this deed of trust was recorded; that said indebtedness, so secured, . . . the Park Board assumed and agreed to pay as a part of the purchase price for said real estate" and paid Freeman the $ 1500 balance out of the park fund; that a warrant for the $ 1500 was, by ordinance passed and approved in March, 1919, drawn on the park fund, and the amount paid, on the warrant, to Freeman as provided in the contract referred to; that defendants are now about to pay further sums out of the park fund "in pursuance of said contract of purchase; that in making the contract, and in making the payment to Freeman, the Park Board acted without authority of law and that their acts and contract were ultra vires and void," and that the threatened further payments are without authority of law for the reasons:
First. Under the law the mayor had no authority to appoint a Park Board, and the board appointed had no authority to contract for or to purchase the land and have no authority to expend or control the expenditure of any part of the park fund; and
Second. The Park Board had no authority to obligate the city to pay out of the park fund the indebtedness secured by the deed of trust in question.
It is then alleged that this last mentioned agreement is in violation of Section 12 of Article 10 of the State Constitution and is ultra vires and void, because the Park Board had already incurred indebtedness for park purposes aggregating $ 60,000, which sum the Park Board was obligated to pay, with interest, at the time the contract with Freeman was entered into and the payment to him made; that the one mill tax yields not to exceed $ 22,000 per annum, and the Park Board has no other income except less than $ 1000 per annum derived from interest and concessions; and
Third. Because the park fund can be expended only for acquiring and maintaining free public parks, and that the Park Board in expending park funds for "a colored park, meaning a park for negroes" and threatening to expend further sums for that purpose "are threatening to act without" authority of law, and the mayor and city commissioners "have acted and are threatening to act in violation of the law in appropriating said funds for said purpose."
It is then alleged that plaintiffs have no adequate remedy at law, and that the granting of the relief prayed for will "save them from irreparable injury threatened" by defendants.
The prayer is for an...
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