City of St. Louis v. Russell

Napton, J. delivered the opinion of the court. Russell filed his bill in the circuit court of St. Louis county, praying [507] an injunction to restrain the city from selling his land for city taxes. The facts upon which he based his right to enjoin, are stated to be these: Russell purchased a tract of land lying adjoining the city of St. Louis about the year 1828, of which he then took possession, and has occupied and cultivated as a farm ever since. In 1822 the charter of St. Louis defined the boundaries of the city, and those boundaries continued unchanged until 1839, when another charter was obtained from the legislature, by which the southern boundary of the city was slightly altered. By this act, it was also provided, that if the proprietors of land adjoining St. Louis, laid off their land into lots, it might be made a part of the city upon petition of two-thirds of the owners, and with the assent of the inhabitants. The charter of 1841, enlarged the limits of the city, so as to take in several farms and gardens adjoining the city, and this law was passed, as the complainant alledges, against the remonstrances of the owners of these lots, and amongst others of the complainant Russell. This charter, so far as the boundary of the city is concerned, was re-enacted in 1843, and by color of these two acts, the city authorities proceeded to levy taxes on Russell’s land, and to sell the same for the non-payment thereof. These proceedings the complainant considers not warranted by the charter, or if they are so warranted, not sanctioned by the constitution of this State or of the United States. This case was transferred to the court of common pleas, where a demurrer was filed ; and the case having been re-transferred to the circuit court, that court overruled the demurrer, and made the injunction perpetual. The only questions arising here, are, first, as to the power of the legislature to enlarge the limits of the city of St. Louis, against the will of the inhabitants brought into the city by such extension ; and second, the power of the city corporation, under its charter, to sell lands for the non-payment of city taxes. The right of a State legislature, to change, modify, enlarge, or restrain the charter of a public municipal corporation, established for public- purposes, has been conceded in all the adjudicated cases, both of the Federal and State Courts, to which we have been referred. Terrill vs. Taylor, 9 Cranch, 52; Dartmouth College vs. Woodward, 4th Wheaton ; 2 Kent’s Com. 206 ; 1st Tucker Com. 162. That this power may not be. exercised in such a mode as to infringe any right of private property, is equally well established. In the Dartmouth College case, a case of much celebrity on this branch of Constitutional law, the court declared that “if the act of incorporation be a grant of political power, [508] if it create a civil institution to be employed in the administration of government, or if the funds of the college be public property, or if the State, as a government, be alone interested in its transactions, the subject is one in which the legislature may act according to its own judgment, unrestrained by any limitation of its power imposed by the Constitution of the United States.” It seems to be a settled principle in the English Courts, that the acceptance of the charter is essential to create a body corporate, and that the government cannot compel persons to become coporators without their assent, or at least without the assent of a majority, though this assent is generally inferred from the acts of the incorporation. 4 Burr. 2200; 3 Term Rep. 240. This doctrine is no doubt equally applicable in this county in all cases of private corporations. A man may refuse a grant, whether from the government or an individual; he may decline to improve his property, and the legislature cannot compel him, however much, in their estimation, he may have mistaken his own interests. Ellis vs. Marshall, 2 Mass. Rep. 276. But this doctrine cannot be applicable to public municipal corporations, except in the modified form to which we have alluded. The assent of every individual corporator cannot be necessary to the creation or alteration of a city charter; the assent of the majority alone puts in operation this “government within a government,” and its future action under the charter raises the presumption that all have acquiesced. If the legislature had the power to annul the charter of St. Louis, in tota, a power which is conceded in most of the acts of incorparation, and which existed independent of any such concession, upon what principle can they be denied the power of alteration. The power to destroy of necessity includes the power to alter or effect a partial destruction, as much so as the whole is greater than a part. The legislature then had the power to repeal the charter of 1839, in toto ; and if the charter of 1841, had embraced the entire county of St. Louis, and been accepted and acted on by the majority of the corporators, such an act would not be an infringement upon the Constitution of this State or of the United States. It is not to be understood that in the exercise of this power to alter, amend or abolish city and town charters of incorporation, the legislature may disregard the vested rights either of individuals or corporations, which are protected by the principles of every free government, and by our State and Federal Constitutions in particular. The complaint of Russell is, that his land has been embraced within the limits of the corporation of St. Louis, against his consent. This [509] consent is not, we think, necessary to authorize the legislature to exercise its power in creating, enlarging, or restraining public municipal corporations. If other rights of Russell have been infringed; if his private property has been taken for the public use, without just compensation being made; or if his land has been subjected to pay the debts of another, whether that other person be a natural or artificial one, without his consent, either express or implied, he is certainly not without remedy. Such infringements of private right, are provided against by our written constitution, as well as condemned by the fundamental principles of every republican government, and it would be neither respectful to the legislature, or the corporation which they have created, to suppose that any such wanton violations of right would be attempted. The question remaining to be considered, is the right of the city of St. Louis to sell lands for the non-payment of the taxes thereon. On this point we assume it to be the settled doctrine, that corporations have only such powers as are specifically given by charter, or are necessary to carry into effect some specified power. The exercise of a corporate franchise, being restrictive of individual right, must be within the letter and spirit of the act of incorporation. The power to impose a tax on real estate, and to sell it where there is a failure to pay the tax, is a high prerogative, and should never be exercised where the right is doubtful. (Beaty vs. Knowler, 4 Peters, 152.) The charter of 1841, gives to the city council of St. Louis power •“to levy and collect taxes, not exceeding one half of one per centum, upon all persons and property made taxable by law for State purposes.” If this section of the act were alone on this subject, there might be room for contending that the sale of land was not the only or the necessary mode by which the tax could be collected, and therefore the power ef sale Would not arise by implication, from the granted power “to levy and collect.” But we regard the 8th section of the 6th article of the charter, as a legislative interpretation of this power “to levy and collect taxes,'” That section provides that the mayor and city council shall have power by ordinance, to direct the manner in which any property, real or personal, advertised for sale, or sold for taxes by authority of the corporation, may be redeemed. This is a clear and distiilct recognition of the power in the city to sell land for the nonpayment of taxes, and is sufficient to remove any doubts, which the general .phraseology of the previous article might create. The judgment of the St. Louis circuit court will, therefore, be reversed, and this court doth order and adjudge, that the injunction granted by said court be dissolved,, and .the bill pf complainant dismissed,