State ex rel. Chouteau v. Leffingwell

1. Corporations — Municipal purposes — Forest Parle — Taxation, special and general. — Under the provisions of the act to establish Forest Park, (Sess. Acts, 18V2, p. 255) a district outside the city of St. Louis was incorporated. The commissioners created under it and having its exclusive management and control in no instance resided within its boundaries. Those owning lands within it were to be taxed for its establishment “and support, against their consent, by persons having no interest in common with them. It was declared to be “for a municipal purpose of great importance to the city of St. Louis, conducive alike to the dignity and character of the city, and the recreation, health and enjoyment of its inhabitants.” But the inhabitants of St. Louis were not to be taxed in anywise on account of it. Held, 1st. That the park was not established for “municipal purposes” within the meaning of ji 4, Art. YIII, of the State Constitution; 2nd. That it authorizes a special tax for the purpose of a general nublic character; and that for these reasons the act was void. On Motion for Re-hearing. 1. Constitution — Corporations for municipal purposes — Meaning of term.— A corporation, “ for municipal purposes,” as contemplated by j¡(¡ 4, 5, Art. YIII of the State Constitution, is either a municipality, such as a city or town, created expressly for local self-government with delegated legislative powers, or it may be a sub-division of the State for governmental purposes, such as a county, a school or road district, etc.; but it must embrace some of the functions of government,local or general; and no corporation not exclusively designed for this end can be properly denominated a municipal corporation. 2. Constitution — Municipalities—Corporations, independent of. — The Constitution did not contemplate that corporations, independent of a city government, should perform any of its functions. 8. Revenue — Taxation—Street openings — Public Parle__The doctrine which justifies special taxation against adjoining property holders for supposed benefits, as in the matter of street openings, has no application to public parks. A lot holder has a property interest, or easement, in the adjoining street, independent of the public parks. Not so, however, with lots fronting on public parks.

I. The act establishing Forest Park is special, while its objects could have been accomplished by general law. II. The act is in violation of §§ 4, 5, Art. YIII, of the State Constitution. Under these clauses, no corporation, except a city, can be erected by special legislation. A corporation for municipal purposes and a municipal corporation are the same thing. The terms are convertible. • (Dil. Mun.' Oorp., Oh. 2, 9 ; Ang. & Ames’ Corp., §§ 14,15.) But Forest Park is not, in any proper sense, a municipal corporation. The essence of such a corporation is that there be inhabitants of a particular locality, who are incorporated for the purpose of local government. Nothing of the sort is shown in this act. Forest Park is not an appendage of the city of St. Louis. It is “in St. Louis county, west of the city of St. Louis.” III. This act authorizes the levy of a tax for the purposes of the proposed corporation outside of its limits. This cannot be done. (Wells vs. City of Weston, 22 Mo., 384.) I. The act creating the corporation of “ The Commissioners of Forest Park,” attempts to create a corporation which the act declares to be for a municipal purpose outside of the city of St. Louis, at the same time declaring that the municipal purpose is solely connected with the city of St. Louis. The park was, at the passage of the act, about, at its nearest point, one and a half miles from the western limits of the city of St. Louis. As far as any constitutional question is concerned, it might as well have been established at Glencoe, twenty miles from the city of St. Louis. II. The act on its face declaring that it is the creation of a corporation for municipal purposes, and not being the incorporation of a city, is in violation of §§ 4 and 5, Art. VIII, of the consti tution. It is clear from the context, that the municipal corporations allowed to be chartered by special law, were the same corporations and those only, which were excepted in the 4th clause, and which were more particularly pointed out and designated by the 5th section. It is contended that the legislature can incorporate any corporation by special act, so that it is for a municipal purpose. It would be, on this theory, competent for the legislature to incorporate, by special act, a coal company, so that its object was, and was expressed to be, for the municipal purpose ” of furnishing the city of St. Louis with cheap coal; or if a gas well was discovered outside of the city of St. Louis, by special act, to incorporate a company for the purpose of utilizing it for the advantage of the citizens of the city of St. Louis. Such a proposition would enable any corporation to be created by the legislature, so that it was claimed to be for “ municipal purpose,” and every municipal purpose might be exercised by a separate corporation. There is an express prohibition against the incorporation of any town under 5,000 permanent inhabitants, so that an incorporation of a town .having only 4,500 people, would be void. But by the construction contended for, though such a legislative act would be void, it is entirely competent for the legislature, by special act, to incorporate persons to lay out, purchase and establish a park for the recreation and enjoyment of a town of 4,500 people, as that is “a municipal purpose of great importance to the town.” In Horton vs. Mobile School Commissioners, 43 Ala., 598, there was no constitutional prohibition to be construed. The word municipal, as used in the constitution, is construed by the constitution itself. If you change the words in the 4th and 5th sections from “municipal” to “banking,” — to “insurance,” — to “ railroad,” will any one say that there was a different sense in the 4th section, when it speaks of “ banking purposes,” &c., from that conveyed by the 5th section, when it speaks of banking corporations ? As to the incorporation of counties, which it is said, under our construction, there is no power in the legislature to institute, we reply that, the institution of counties is a political sub-division made by the State for the more convenient exercise of its sovereign power. It is not correctly a corporation, but a quasi corporation, as stated in Bush vs. Shipman, 4 Scammon, 190; Han. & Si. Joe. E. Co. vs. Marion Co., 36 Mo., 294, also 555. III. The statement in the third section of the Park act, that it is “impossible to make any provision by a general law to effect the desired object,” does not relieve the act from the prohibition contained in the 27th section of the 4th Art. 1. This section has nothing to do with corporations. This is apparent from the context. 2. If the provision was so general in its character as to include corporations, then Art. YIII declares what corporations can be created by special laws. 3. It is patent from the Act, that provision could have been made for creating parks in cities by general law. 4. The recital in the Act, that no law of a general nature could be passed to affect the object (even if Art. YIII had not fixed the matter as to corporations), is not to be taken as conclusive, but the question is to be judicially determined. IY. It is not in the power of the legislature to tax persons and property not in the limits of a municipal corporation,- for an object which in the act is declared to be for the benefit and advantage of the municipal corporation and its residents. (See Wells vs. City of Weston, 22 Mo.-, 384.) Y. If for any reason, the power of taxation in the act fails, the act must fall with it, for it is vital to the act, and without it the whole purposes of the act fail. I, The plain reading of sections 4 and 5, of Art. YIII, of the constitution is: That. Corporations may be'created for municipal purposes by special act; but no municipal corporations except cities having a population of over 5,000 permanent inhabitants shall be created by special act. Hence, a county — a school district — a State University, — and such like quasi corporations established for municipal purposes, may be invested with corporate powers by special act. Unless a county is a corporation created for municipal purposes, and not strictly a municipal corporation, it cannot be established by special act. There is no express power in the constitution to create a county, and yet it is clearly contemplated that it may be done; (See Art. IY, §21) and no one has doubted or disputed the power to do so by special act. We must distinguish between those organizations, having a few functions of a corporate existence, and some of those of a municipal character; and a municipal corporation proper. “This distinction is usually drawn between such corporations, as towns and cities voluntarily organized under incorporating acts, and involuntary quasi corporations such as counties.” (Dillon on Municipal Corporations, p. 31, and note; Hamilton county vs. Wright, 7 Ohio State H., p. 109-118.) There are certain actions to which counties are not liable at the suit of private individuals, and to which cities are. In the case of cities, the inhabitants are regarded as having been clothed with municipal powers at their request, and for their peculiar and special advantage, and hence, to a certain extent, they are liable as private corporations; but not so in regard to counties, they are more peculiarly the agents of the State. We must conclude then, that the term municipal corporation as used in the constitution, has a technical meaning, and that it is not synonymous with a corporation for municipal purposes. This was a wise distinction made by the framers of the constitution, and the language is used in the light of judicial decisions upon such questions. That counties are corporations, see Bush vs. Shipman, 4 Scammon, 190; Bradley vs. Case, 3 Scammon, 603 ; see also, Hear vs. Curators of State University, 47 Mo., 225. As to the State University and its character as a public corporation, see also State ex rel. Police Commissioners vs. St. Louis County, 34 Mo., 570-572. Municipal law is public law. (Bouvier’s Law Dictionary, Tit. Municipal Law, Blackstone.) And so are municipal affairs public affairs, and municipal'purposes are public purposes as contra-distinguished from private purposes. And so the Constitution intends that corporations for public purposes may be created by special act, such as the Board of Water Commissioners, the Board of Police Commissioners, Board of Public Schools, counties, school districts, as agencies of the State to subserve the purposes of the public. And so the Legislature has declared in this act, (§3,) that the establishment of this Park is a municipal purpose. A city, or purely municipal corporation, is a miniature government, having legislative, executive and judicial powers. It may pass laws, levy taxes, imprison for violation of law, authorize the issue of executions and the sale of property; but those quasi corporations, established for municipal purposes, have no such extended powers and are not intended from their very nature, to have. them. They are mere agencies of the State to promote the convenience of the public at large. II. As to the objection that the mode of taxation provided in the act operates unequally, and is unconstitutional, this cannot affect the question of the validity of the law establishing Eorest Park, or the power of the Legislature to pass such a law under the provisions of the Constitution referred to. It will be time enough to meet those objections when an attempt is made to enforce those provisions of the law which are claimed to be unconstitutional. There is warrant enough for the Park Commissioners to act, and the court will not presume that they intend to enforce the unconstitutional provisions of the law, if there be any such. I. It is averred thatt he Eorest Park act violates Sec. 27 of Art. IV. of the State Constitution. We submit that the recital of the act that “it is impossible to make any provision by any general law to effect the desired object,” (Sec. 3,) is or ought to be enough to create a doubt in the mind of the court whether such provision can be so made. This is a matter on which the action of the legislature must be conclusive. (State ex rel. &c. vs. County Court of New Madrid, 51 Mo., 82; State ex rel. vs. Boone Co. Court, 50 Mo., 317; Dill, on Mun. Corp., § 26, citing authorities; 29 Ind., 409, overruling; 5 Ind., 4; 32 Ind., 322; and Cooley’s Const. Lim., 129, note; State vs. Ebert, 40 Mo., 190-1.) The Court of Criminal Correction would not be necessary throughout the State. It is in the nature of a police or municipal regulation and although highly necessary in one community may be wholly inapplicable in another. So we may well urge here, Sti Louis is a great metropolis, promising rapid growth, in which the whole State is greatly interested, and a great park for it has many reasons to recommend it beyond one for any other place in the State. It is apparent a general law would not be necessary or applicable ; we rest upon the decision on this point. II. Does the act in question violate Sec.4, Art.,VIII, that “corporations may be formed under general laws, but shall not be created by special acts, except for municipal purposes. ” Observe the persons named in the act are incorporated without the possibility of the slightest pecuniary benefit to them, or any private advantage whatever. There is no stock to be subscribed, no salary or reward; no power of appointment of even their own successors; there is no acceptance necessary and their existence is at the will of the State. The park is created by the State, for the use and enjoyment of the people forever; by the State, put under control of this corporate body that compensation from means furnished by the State may be duly made to owners of property taken; that the place may be appropriately arranged and controlled, and the purposes of the State fully obtained. The members of the corporatio'n may be properly termed civil officers. A member of the Board of Water Commissioners is a civil officer, he' exercises a share of the powers of civil government and his authority comes directly from the State. (State vs. Talle, 41 Mo., 30-31.) So are commissioners appointed by the legislature to sign City Treasury warrants. (Gamier vs. St. Louis, 37 Mo., 554.) If we may deem the members of the corporation, officers of the State, what kind of a corporation shall we style the corporation itself? We are dealing day by day with a most valuable class of corporations which are public in their character, one well defined branch of which includes cities, towns, and villages, called municipal corporations, and another branch which though varying in application and peculiar features are but so many instrumentalities of the State to accomplish its great design —the welfare of tbe people — and are in tbe broadest and most statesmanlike use of the term, for municipal purposes. It is the narrowest construction of language to say, that “ municipal purposes ” means only city, town or village purposes. (See Webster’s definition and Blackstone Yol. I, p. 44.) We thus perceive that there are not only two classes of public civil corporations' — but the word “ municipal ” has a double meaning, one a narrow, confined meaning as relating to a municipium or free town, or as we should say in the present age, relating to cities, towns and villages; and another broader and more usual signification relating to the State or nation. And therefore while the words “municipal corporations” have a well defined meaning and embrace cities towns and villages and nothing more, the words are not equivalent at all to those other words, “for municipal purposes.” The latter embrace by the common speech of men, before and since the days of Blackstone — State or national purposes. And therefore, while municipal corporations are for municipal purposes, there are other corporations for municipal purposes that are not strictly municipal corporations. In further exemplifications of this class of corporations we may refer to State Universities, Agricultural Colleges, Lincoln Institutes and Public Schools. The State is a corporation, a legal being capable of transacting some kinds of business like a natural person, and such a being is a corporation. (State of Ind. vs.Woram, 6 Hill, 33.) From this enumeration we pass to direct adjudications upon the point involved. In Horton vs. Mobile School Com’rs, 43 Ala., 598, there was an act passed which repealed all prior laws except those creating corporations for municipal purposes, Held, that these were not words of technical import and should be construed to apply to a corporation to carry on a public free school and to raise funds for its support. (Heller vs. Stremmel, 52 Mo., 309.) Examination of the statute before us as to the peculiar nature of this corporation shows: First, that this park is, in the language of the act, “set apart and appropriated as a public park for the free use and enjoyment of the people foreveV.” This was within the authoritative and well recognized power of the State. On the ground that the public health, convenience and welfare will be promoted, the condemnation of private property for a park is authorized. (Central Park Extension, 16 Abb. Pr., 56; Park Comm’rs vs. Williams, 51 Ills.3 57; or public square, Owners vs. Albany, 15 Wend., 374; or drains and sewers, Hildreth vs. Lowell, 11 Gray 345; or for pure water, Maryland vs. Oo. Comm’rs, 4 Gray, 500; Bow-den vs. Stem, 27 Ala., 104; and 25 Ala., 455; Reddall vs. Bryan, 14 Md., 444; Gardner vs. Newbury, 2 John. Ohy., 162; Ham vs. Salem, 10 Mass., 350; Mayor vs. Bailey, 2 Denio, 433-446; Kane vs. Baltimore, 15 Md., 240.) The legislature is the sole judge of the necessity of exercising the power of eminent domain and the amount of land to be taken. The question is political and not judicial. (People vs. Smith, 21 N. Y., 597; Gresy vs. Railroad Oo., 4 Ohio St., 308; Varick vs. Smith, 5 Paige, 137.) It is also added in the third section of the act that the establishment of the park is a municipal purpose, of great importance to the city of St, Louis; conducive alike to the dignity and character of the city, and the recreation, health and enjoyment of its inhabitants and it is impossible to make any provision by any general law to effect the desired object. It is not necessary to elucidate largely the proposition that the park is of great importance, not only to the City, but the State at large. The City and State have interests in common. By such projects population is attracted; commerce follows, the basis of taxation is increased, a happy and prosperous community grows from year to year, within our borders, azzd the greatest good to the greatest number is attained. The construction put upon the sections here now presented is not new in this State. By reference to an act entitled “An Act to provide for the government of the Tower Grove Pai'k of the City of St. Louis” approved March 9th, 1867, p. 172; it will be perceived that a corporation is just as absolutely created as by the act in question (Sec., 3-4-5-18-22; also the next act p. 176.) But the term “municipal’*? may.be allowed to have in the fourth section even its more limited signification, and yet there would be no prohibition of this Board of Bark Commissioners, because it may exist as an auxiliary or instrumentality to aid the city as well as the State, and yet may not in a strict sense be a municipal corporation. It by no means follows, that in creating a city the State abandons to it all corporate control or action within its territorial limits. Examples to the contrary are abundant. In St. Louis the- Police Commissioners are appointed by the Governor and responsible only to the State for their conduct. The Board of Water Commissioners might be here and in some cities are regulated in the same manner. What would hinder the State from forming these boards into corporations and if so incorporated would they not be for municipal purposes and yet not municipal corporations ? It is by no means essential that the operations of such a board should be confined to the city limits. The Board of Health has jurisdiction far beyond the city limits. The city of New York has been endowed with power to bring pure water for many miles to the city and its Board of Water Commissioners has corresponding jurisdiction and authority. The several parks already existing in St. Louis were created at their origin beyond the city limits. But there is a fact that removes all difficulty on the score of locality, for it was but three days after the passage of the present act, before another act was passed extending the limits of the city over the whole of Forest Park, and creating the park district into one of the wards of the city. This being at the same session and before any organization of the corporation was possible, it follows that this corporation to aid the city has never existed nor attempted to exercise any right or franchise beyond the limits of the city of St. Louis. Here then we have within the most limited sense, sufficient warrant for our existence being as we claim a corporation for municipal (or city) purposes, but not a city. It is not until organization is completed that existence is given to the artificial being and its agency commences. (Falconer vs. Campbell, 2 McLean, 95 ; Langhorne & Scott vs. Eobinson, 20 Grattan, 661.) III. We suppose the question of assessment for benefits cannot be raised here, but to avoid any misconception, as the authorities are abundant, we here present them. The constitutional provision is “that property subject to taxation ought to be taxed in proportion to its value.” This corporation have nothing to do with this tax but to receive it after assessment and collection by officers of the State assigned to that duty and who are not parties to this action. This provision of the constitution relates only to the general revenue and has no application to assessments for local improvements on adjacent property. (Egyptian Levee Co. vs. Hardin, 27 Mo. 495; Egyptian Levee Co. vs. Cummins, 27 Mo., 495; Columbia River Bottom vs. Meier, 39 Mo., p. 56; 25 Mo., 264-268; and cases cited; 4 Comstock, 428-9; Lockwood vs. St. Louis, 24 Mo., 20; Garrett vs. St. Louis, 25 Mo., 505; Sheehan vs. Good Sam., Hosp., 50 Mo., 155; where are cited 11 Johns., 80; 13 Penn. St., 107; 2 La. Am.. 329.) The principles applicable to the present case are closely applied in (Owners vs. Albany, 15 Wend., 374 (1836,) cited and noted, as above, Dill. MumOorp., 4G3, n. 2.) The power operating here is the State of Missouri. It uses no city or county instrumentality, but by its power of eminent domain erects a park “for the free use and enjoyment of the people forever.” It requires a tax to be assessed by the public assessor as a special tax upon the adjoining district designated. Can it be said with any assurance, that the State cannot do what the city or county might do ? We are familiar with sewer, plank road, pavement, alley and other special assessments, and in St.Louis with Lafayette Park, Tower Grove Park, and other Park assessments. Parks and sewers are but different means of preserving the common health. If the State can create a city and allow it to levy these special taxes, is it not absurd to say the State itself cannot do this? We leave this question to be dealt with by the court upon the authorities. On the one side is the ordinary pursuit by ordinary means of public good; on the other individual interests to withstand the common good. Sah/s populi suprema lex esto /”