State ex rel. Chouteau v. Leffingwell

"Wagner, Judge, delivered the opinion of the court. This is a proceeding by quo warranto against the defendants as commissioners of Eorest park, and the purpose in view is to test the validity of the act establishing the park. The act was approved on the 25th day of March, 1872 (Sess. Acts 1872, p. 255), and the first section declares that a public park is established in the county of St. Louis, west of the city of St. Louis within certain boundaries designated, and then provides that the grounds embraced therein shall be set apart and appropriated as a public park,'for the free use and enjoyment of the people forever. The second section prescribes the manner of laying out the park; and the third section recites that the establishment of said park being 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 being impossible to make any provision by a general law to effect the desired object, therefore the defendants, naming them, are appointed commissioners and created a body politic and corporate, with power of succession, etc. The fifth section gives the commissioners exclusive control over the park, empowers them to grade, lay off and ornament the same, to adopt and enforce all ordinances, rules and regulations which are needful and proper for the preservation of order and the protection of property, to employ a special police force, and to have and possess all the powers which are or may hereafter be conferred upon the city of St. Louis in respect to public parks. The ninth section confers upon the commissioners authority to purchase the real estate of the owners embraced within the park, the title of which shall be to the people of the city and county of St. Louis, and if no agreement can be made for purchase at a reasonable price, then they are vested with power to proceed and have the same condemned. By section 11, the commissioners are authorized to issue bonds not exceeding in amount the sum of $1,200,000, to run — 470 — for twenty years, with seven per cent, interest, which are to be secured on the lands so purchased and condemned by such instruments in writing as the commissioners may agree upon and which are to constitute a first lien thereon; the proceeds of the bonds to be appropriated first to the payment in full for the lands so purchased or condemned, and the surplus, if any, to the necessary expenses and improvement of the park. Section 12 then lays olf a park district comprising lands surrounding the park within a designated distance; and section thirteen makes it the duty of the public assessor for St. Louis county to make an annual assessment for twenty years, and to levy a special tax of one per cent, upon all the real estate within said park district, and an additional tax of three mills on that part of the real estate in that district fronting on said park running back to the distance of 250 feet. It is then provided that “the said assessments shall be added to the general tax bills against said property and collected in the same way, and when so collected, the same shall be paid over to said commissioners, by whom it shall be appropriated and paid first in liquidation of said interest, and any surplus shall be appropriated, one-half to the improvement of the park and the other half to the extinguishment of the principal of said bonds. The said interest shall be a first lien on the taxes so collected to the amount thereof due at the time. Said tax shall be a lien on the property assessed and the same penalty and interest shall be paid, in case of non-payment as is provided for other taxes levied by the State.” The principal objections urged against the validity of the act are, first, that the passage of such an act was directly prohibited by the constitution, and secondly, that it levies a special tax for public purposes. The fourth section of the eighth article of the constitution says: “ Corporations may be formed under general laws, but shall not be created by special acts except for municipal purposes.” The fifth section of the same article declares that “no municipal corporations, except cities, shall be created by special — 471 — act, and no city shall be incorporated with less than 5,000 permanent inhabitants, nor unless the people thereof by a direct vote upon the question shall have decided in favor of such incorporation.” About the interpretation of the fifth section there can be no doubt. It prohibits entirely the incorporation of any municipal corporation, except cities, by special act of the legislature and then only when they contain 5,000 permanent inhabitants. The fourth section places a total prohibition upon the chartering of corporations by special acts except they be for municipal purposes. The real end to be reached is to ascertain in what sense the convention, that framed the constitution, used the terms “municipal corporations” and “corporations for municipal purposes.” If the two terms employed are interchangeable and express synonymous ideas, then there can be no further controversy, and it was clearly incompetent for the legislature to pass the special act we are now considering. When the constitution uses words having a well defined technical legal meaning, it will be presumed that they were used in accordance therewith. But when no such language is used, then the interpretation should be according to the usual and general acceptation of its meaning. The constitution was adopted by the people for the government of the people, and its framers must be understood to have employed words in their natural sense, and to have intended what they said. What is meant by a municipal corporation is well known by all law writers, and is sharply defined and recognized. In a case decided at the present term it was said: “ The definition of a municipal corporation would only include organized cities and towns and other like organizations with political and legislative powers for the local, civil government and police regulations of the inhabitants of the particular districts included in the boundaries of the corporation.” (Heller vs. Stremmel, 52 Mo., 309.) There are other corporations of a public character created — 472 — by the legislature for public purposes. These are political sub-divisions or State agencies and are denominated quasi corporations. They constitute a part of the State government with special powers, duties and functions. Their duties are generally local, it is true, but they act in obedience to State laws and derive all their power to act from the sovereign power of the State. In a recent elementary treatise the author thus lays down the distinction between the different classes: “ All corporations intended as agencies in the administration of civil government are public as distinguished from private corporations. Thus, an incorporated school, district or county, as well as city, is a public corporation; but the school-district, or county, properly speaking, is not, while the city is, a municipal corporation. All municipal corporations are public bodies, created for civil or political purposes; ‘but all civil, political or public corporations are not, in the proper use of language, municipal corporations.” (Dill. Mun. Corp., § 10). As the county is a political agency or quasi corporation, instituted for convenience and to carry out the purposes of the government, the legislature possesses the undoubted right to direct the manner in which it shall proceed, and to determine 'what shall be done with what is entrusted to its care. (State, &c. vs. St. Louis County Court, 34 Mo., 546; Hamilton vs. St. Louis Co., 15 Mo., 3.) But although elaborately argued I cannot see that these principles help the act in question. Public corporations are expressly forbidden to be chartered by special acts. By this act there is no municipal corporation chartered nor attempted to be chartered. The declaration that the corporation is for municipal purposes does not make it so. There may be corporations for municipal purposes, but they must be connected with the municipal corporation itself and instituted for the purpose of carrying out some of the known objects of the municipality. But in the present case a district outside of the city is incorporated ; none of the commissioners who have the exclusive management and control of it reside within its boundaries; the peo — 473 — pie who own the lands within it are taxed against their consent by persons who have no interests in common with them, and then they are gravely told that resistance is useless-; that they have been incorporated lor municipal purposes. If this can be done, then special acts of incorporation for municipal purposes may be passed in the vicinity- of al-1 our towns which-do not rise to the dignity of cities, but are nevertheless municipal corporations, and the farming community will be made to pay for whatever they fancy or conceive will redound to their benefit* If the legislature can do this, it is difficult to set any bounds to their power. The constitution never contemplated such an exercise of power, but sought on the contrary to place a prohibition on it. Its language, fairly and properly interpreted, does not countenance it. The ingenious arguments that have been made to sustain the validity of the act resolve themselves into plausible pretexts for violating the plain meaning of the constitution. In the construction of the constitution I am unwilling to apply to it those elastic principles which will make it extend any required length to accomplish an end or a purpose. Unless some regard is paid to the injunctions of our organic law, written constitutions of government will be regarded as of no value, and the experiment of setting a boundary to capricious and arbitrary power will be a complete failure. But there is another point which remains-to be noticed. By the law, the park is set apart for the free use and enjoyment of the people forever, and it is declared to be 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. Yet, strange as it may appear, neither the people themselves nor the inhabitants of the city of St. Louis, for whose especial benefit it is created, are taxed one cent for its establishment; but the exclusive privilege of paying nearly one and a quarter millions of dollars is cast upon a few citizens who are inhabitants of the district. Nothing is better settled than that special taxation for objects that are general and public is illegal. — 474 — In the case of Wells vs. The City of Weston,(22 Mo., 384,) it was decided that the legislature could not authorize a municipal corporation to tax, for its own local support, lands lying beyond the corporate limits. In the Egyptian Levee Company vs. Hardin, (27 Mo., 495) the corporation was formed for the purpose of reclaiming a certain district from inundation by leveeing, ditching and embanking, and the tax was on the land-owners within the district whose property was reclaimed and benefited. They were the persons primarily interested, and it was a local taxation for a local purpose. The case of the Owners, etc. vs. The Mayor of Albany (15 Wend., 374), which has been cited as directly in point, is totally dissimilar to the case here. There it was held that, taking the grounds of individuals in a city to convert into a public square was taking private property for public use as much as if the grounds had been converted into a street, and the fact that the damages were assessed upon the owners of adjoining property, instead of being levied as a general tax upon the city was no evidence that the property was not taken for public use. In that case the property was taken by the city, in the city and for the city. In the present case the property is not in the city; it is not taken by the city, but it does purport to be for the use of the city. That is to say, citizens outside of the city are deprived of their property for the special use and benefit of the city. Admit this principle, and it would be perfectly competent for the legislature to pass a special act authorizing the building of a court-house for the use of the whole county and assess the cost of construction against the few individuals who happen to own property immediately adjoining the court-house square. Thus we have the broad pretension set up of justifying special taxation for objects which are avowed to be genera] and not local. Local assessments are constitutional only when imposed to pay for local improvements conferring special benefits. Uphold this law, and the time will probably come when it will be deemed advisable to provide statuary and other costly adornments for — 475 — the park. There would be nothing to hinder their cost being provided for in the same way. The legislature has no power to take the money of oneman and transfer to another, nor can it select a particular township and say that it shall pay all the taxes of the county, nor designate a certain county and declare it shall assume all the burdens of the State. Tet that is precisely the principle that must be established to sustain this act. The constitution has wisely erected a barrier against this exorbitant power, and there is a time in the tide of this special taxation when it must be said, “ thus far shalt thou go and no farther!” There is no question as to the desirableness of public parks in the vicinity of large cities and the benefits the people derive from them; but these benefits would be too dearly purchased at the expense of a violated constitution, and by striking down the sacred rights of the citizen. I am of the opinion that there could be a judgment of ouster. All the judges concur except Judge Sherwood,who is absent.