State ex rel. City of St. Louis v. Seibert

Macfarlane, J. — Upon the petition of the city of St. Louis an alternative writ of mandamus was issued against respondent, as state auditor, requiring him to show cause why he should not draw warrants “in favor of. the city of St. Louis for the sum of $2,083.33 for the month of January, 1893, pursuant to the provisions of the act of the general assembly of Missouri, approved April 1,1893, and similar warrants for the same amount — 428 — for each of the months of February, March, April, May, June and July, 1893.” To this writ a general demurrer has been interposed. Under this demurrer it is claimed that section 8, of the act of the legislature approved April 1, 1893, referred to in said writ, is invalid, unconstitutional' and void, and this presents the question for decision. Section 8 is contained in an act, entitled “An act to appropriate money for the support of the eleemosynary institutions of the state, and of the indigent insane in the asylum at St. Louis, for the years of 1893 and 1894,” and is as follows: “Sec. 8. For the support of the indigent insane in the insane asylum of the city of St. Louis, who belong to the state outside of the city of St. Louis, fifty thousand dollars ($50,000), which sum shall be paid upon the requisition of the treasurer, indorsed by the mayor of the city of St. Louis and approved by the governor, in equal monthly installments.” Respondent argues that this section is in conflict with section 46, article 4, of the constitution, which provides, that: “The General Assembly shall have no power to make any grant * * * of public money or thing of value to any individual, association of individuals, municipal or other corporation whatsoever: Provided, that this shall not be so construed as to prevent the grant of aid in a case of public calamity.” On the other hand, relator argues that power to mate the appropriation is found under section 43, of article 4. Paragraph sixth of said section authorizes the legislature to appropriate money: “For the support of the eleemosynary institutions of the state;.” and paragraph seventh; “For the pay of the general assembly and such other purposes, not herein prohibited, as it may deem necessary.” — 429 — It is undisputed that the insane asylum of the city of St. Louis is a private institution belonging to and controled by the city of St. Louis, and is not included under the general statutes as one of the eleemosynary institutions of the state. Scheme & Charter, sec. 9, R. S. 1889, p. 2078; sec. 5671, R. S. 1889. It may be stated as a generally accepted principle of law that the legislature with all its plenary powers, regardless of constitutional restrictions and limitations, has no power to raise money by taxation, or appropriate it for purely private purposes; but to insure against an an attempt to do so, the constitution in express and positive terms, deprives it of such power by section 46, supra. Loan Association v. Topeka, 20 Wall. 658. If the appropriation complained of had been made for the support of the insane asylum of St. Louis, there could be no doubt of its unconstitutionality. That the support of the indigent insane is an object universally recognized as a charity, can not be questioned. That public money may be applied to the support of that class of unfortunate citizens, is recognized in the liberal support given our public institutions for the insane, as well as by the constitution itself. It may well be said here that the determination of the question, whether indigent insane belonging to the State outside of the city of St. Louis were supported by the St. Louis insane asylum, belonged to the legislature itself, and on that question we are concluded by its action. It is said by Judge Cooley: “The legislature is to make laws for the pulic good, and not for the benefit of individuals. It has control of the public moneys and should provide for disbursing them only for public purposes. Taxes should only be levied for those purposes which properly constitute a public burden. But what is for the public good, and what are public purposes, — 430 — and what does properly constitute a public burden, are questions which the legislature must decide upon its own judgment, and in respect to which it is invested with a large discretion which can not be controlled by the courts, except, perhaps, where its action is clearly evasive, and where, under pretense of a lawful authority, it has assumed to exercise one that is unlawful. Where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the constitution imposes, — not those implied restrictions, resting in theory only, the people have been satisfied to leave to the judgment, patriotism and sense of justice of their representatives.” Cooley on Const. Lim., 153. The constitution provides that appropriations may be made for “such other purposes; not herein prohibited as it may deem necessary.” Subdivision seven, sec. 43, supra. This general clause follows a number of specific purposes for which appropriations are expressly authorized. It is contended by the respondent that under the familiar rule of statutory construction the general clause is limited in its meaning and operation to the particular clauses preceding it. Though we should adopt that rule of construction, we still think the general powers expressly conferred upon the legislature, and those inherently residing in it, would authorize appropriations for’legitimate purposes. The right to approprite money to a public purpose follows legitimately from the right to tax for the same purpose. The taxing power of the general assembly is only limited, in its objects, to public purposes. If the power to appropriate the money raised by taxation be not prohibited in express terms, or by fair implication, it must be held to exist. And so we think the constitution should be read. Cooley’s Const. Lim., supra. But the rule of construction contended for would — 431 — clearly include the purpose for which this appropriation was made. That rule requires the general words to be treated as referring to matters ejusdem generis with such class first mentioned. One class mentioned was “for the support of the eleemosynary institutions of the' state” in some of which'the indigent insane of the state are supported. The support of the insane of the state is the purpose of this appropriation. Broom’s Legal Maxims, 625; State v. Bryant, 90 Mo. 534. The insane of the state being proper objects of charity, some of the insane of the state outside the city of St. Louis being supported by the St. Louis insane asylum, the constitution authorizing an appropriation for their support, unless prohibited expressly or by reasonable implication, the question is, whether there is such prohibition. The words of the constitution do not contain a prohibition. Its language is: “The general assembly shall have no power to make any grant, or to authorize the making of any grant of public .money or thing of value to any individual, association of individuals, municipal or other corporation whatever.” The appropriation is for the “indigent insane of the state outside the city of St. Louis,”' and not for the institution. There is no prohibition here unless the state has no power to dispense its public charity through the agency of a private institution. There is no constitutional inhibition against it doing so. It is true the charitable institutions of the' state are named-under the statute (sec. 5671). That fact furnishes no ground against its use for the insane of the state who may wander into the city of St. Louis. There is no provision that all charity shall be dispensed through the state institutions. Most thoroughfares of the state end in St. Louis, and numbers of the insane from other parts of the state necessarily find — 432 — their way there. Shall these unfortunates be cared for, at the expense of the state, or turned into the streets to live or die as they may! But a private corporation o Pin dividual may be the recipient of the funds of taxation, provided that the use be a public one. St. John’s College v. State, 15 Md. 375; Spear v. Blairsville, 50 Pa. St. 150; Sharpless v. Mayor, 21 Pa. St. 169. In the case last cited, the distinguished jurist and statesman, Judge Jeremiah Black, says: “But the right to tax depends on the ultimate use, purpose and object for which the fund is raised, and not on the nature or character of the person or corporation whose intermediate agency is to be used in applying it. A tax for a private purpose is unconstitutional, though it pass through the hands of public officers; and the people may be taxed for a public work, though it be under the direction of an individual or private corporation.” So it is held that a municipal corporation may be a trustee under the 'grant or will of an individual or private corporation but only, as it seems, for public purposes, germane to its objects. Philadelphia v. Fox, 64 Pa. St. 181 and cases cited. It was held by the court of appeals of Maryland that the city of Baltimore could, by contract with private institutions, provide for the support of the foundlings, insane and other charitable objects of the city and appropriate the public money for that purpose. The court in that case says: “If the city has not provided for such persons, or if they can be better taken care of and trained in those, or such institutions, than in the institutions of the city, we can perceive no good reason why the city may not contract for such care and training.” St. Mary’s Industrial School v. Brown, 45 Md. 335. — 433 — We can see no reason why the insane of the state, not belonging to the city of St. Louis, who are found in the city, may not be cared for and .supported in its insane asylum at the public expense, if it can be as well and economically done. .The expediency of providing for their support is a matter that must be left to the discretion of the legislature. We only pronounce upon the constitutionality of the eighth section of the act and say it is not in conflict with the constitution. The-writ is made peremptory. All concur, except Sherwood, Gantt and Burgess, JJ., who dissent. STATEMENT BY SHERWOOD, J. The alternative writ of mandamus issued in this cause required the state auditor against whom the writ ran, to show cause why he should not draw certain warrants on the state treasurer, for certain sums due monthly under the provisions of section 8 of an act entitled “An act to appropriate money for the support * * * of the indigent insane in the asylum at St. Louis for the years 1893 and 1894,” approved April 1, 1893. The section in question is the following: “For the support of the indigent insane in the insane asylum of the city of St. Louis, who belong to the state outside of the city of St. Louis, fifty thousand dollars ($50,-000), which sum shall be paid upon the requisition of the treasurer, indorsed by the mayor of the city of St. Louis and approved by the governor, in equal monthly installments.” The warrants aforesaid, drawn for the support of indigent insane outside of the city of St. Louis, were drawn by the city treasurer on the state treasurer, and in accordance with the section in dispute, were duly indorsed by the mayor of the city of St. Louis, and by — 434 — the acting governor of the state of Missouri, and presented to the state auditor, who being thereupon requested to draw his warrants on the state treasurer therefor, refused so to do. These, in practical substance, are the allegations of the alternative writ, to which the state auditor interposed these grounds of demurrer: “First. Because said alternative writ and the matters therein set forth do not state facts sufficient to constitute a cause of action. “Second. Because said alternative writ is not sufficient in law to entitle the relator to the relief ashed, orto authorize the issuing of said writ of mandamus. “Third. Because, under the allegations contained in said writ, relator is not entitled to mandamus nor to any relief in the premises. “Fourth. Because section 8 of the act of the leg-v islature approved April 1, 1893, referred to in said writ is invalid, unconstitutional and void.”