PER CURIAM.
Defendants-appellants appeal from a decree of the circuit court which mandated appellants, the mayor, building commissioner, director of streets, and the city of St. Louis (city), to issue certain permits needed by plaintiff-respondent St. Louis Children’s Hospital (hospital) to build an addition to that hospital over a portion of Kingshigh-way Boulevard, a public street in St. Louis. The appeal was originally taken to the Missouri Court of Appeals, Eastern District, but on recommendation of the court of appeals, this court transferred the cause here, prior to opinion, as it appeared to present a matter of general statewide interest and importance. Art. 5, sec. 10, Mo.Const., as amended 1970; Rule 83.06.
The underlying facts, in the main, are not in dispute. The hospital is a not-for-profit private institution which specializes in the care and treatment of injuries and illnesses of children and is located on the east side of the 500 block of Kingshighway Boulevard. Kingshighway is a main north-south roadway and at the place in question is about eight or ten lanes wide with a divider separating north and south bound traffic. Forest Park, which is the largest park in St. Louis, is on the west side of Kingshighway across from the hospital. The hospital concluded that the only direction it could expand laterally was to the west — over King-shighway. To facilitate or authorize this construction, ordinance No. 57251 was passed by the St. Louis Board of Aldermen (legislative body) and signed by the then mayor, Hon. John Poelker, in October 1976.
On April 6, 1977, pursuant to the ordinance, Mayor Poelker and Comptroller Bass executed a Special Warranty Deed and Deed for Easement conveying to Children’s Hospital the property designated in the ordinance and received back a perpetual surface easement as described in section two of the ordinance.
On May 16, 1977, the newly elected may- or, Hon. James Conway, issued an order forbidding other officials from approving plans or issuing any permits relating to the expansion of Children’s Hospital over King-shighway.
Following that order the hospital filed this suit for declaratory and injunctive relief seeking judgment requiring the officials to honor the deed and issue the permits and approve the plans necessary to the construction over Kingshighway.
As noted, the circuit court held the ordinance and deed valid and granted the relief sought by the hospital after which the city appealed.
The decisive issue presented on this appeal is whether the city of St. Louis has the constitutional authority to give title to a public street (Kingshighway) to a private corporation under the restrictions of art. 1, sec. 27,
art. 6, sec. 23,
art. 6, sec. 25,
but considering the power granted by art. 6, see. 19(a),
Mo.Const.
The hospital is a private corporation and not a governmental or public corporation.
Ruggeri v. City of St. Louis,
429 S.W.2d 765 (Mo.1968). There is no contention made that monetary consideration was actually intended to move from the hospital to the city as consideration for the real property conveyed. Mayor Poelker testified that no compensation (consideration) was even discussed. The mayor testified, in connection with the question of consideration, “Of course, we were talking about air rights and the city has frequently given air rights over streets and public ways without exacting from the receiver any compensation.”
The hospital argues that the public benefits substantially from the Children’s Hospital, as it now exists, and will benefit from the future medical services rendered by the hospital to children, a good part of which is free medical service.
There is no question but what the people of the city of St. Louis and other areas greatly benefit from the services rendered by the Barnes Hospital Group and St. Louis Children’s Hospital in particular; however, the hospital is, nevertheless, a private—not a public—institution and the services rendered are essentially the same as any other hospital. And with all due respect for the special services rendered to children by the instant hospital, it must be observed that other private corporations also render benefits to the communities in which they are situated. But those benefits cannot be utilized to convert a private corporation or association into a public corporation for the purpose of allowing a municipal government to give its property away without, in effect, completely obliterating the prohibition against giving public property to private persons or associations as provided in our constitution.
The discussion of
private
and
public institutions
in this context relates to the prohibitions in the constitution against giving public property to private persons and not to the propriety of private corporations being permitted by the city to utilize the air space above the street in a way not inconsistent with or in any way impeding the public use of the street.
Art. 1, sec. 1(8), Charter of the City of St. Louis, cited by respondents, authorizes the city
“To
acquire or receive and hold, maintain, improve, sell, lease, mortgage, pledge or
otherwise dispose of property, real
or personal, and any estate or interest therein
within
or without
the city
or state.” (Emphasis added.) This provision, however, cannot be construed to grant to the city a power the constitution otherwise denies.
However, art. 6, sec. 19(a), Mo.Const., clearly grants to a constitutional charter city all power which the legislature
could
grant. The legislature many years ago affirmatively provided that constitutional charter cities have broad and exclusive power over their public streets. Section 82.190, RSMo 1969 (originally approved March 10, 1887, Laws 1887, p. 51, sec. 50), provides: “Such city shall have exclusive control over its public highways, streets, alleys and public places and shall have exclusive power, by ordinance, to vacate or abandon any public highway, street, avenue, alley or public place, or part thereof, any law of this state to the contrary notwithstanding.”
It becomes readily apparent that a constitutional charter city, and perhaps other cities, has been granted almost pervasive power to control their public streets, including power to vacate a street or part thereof. Here, however, the city went through the motions of vacating a street and at the same time required the area to remain in use as a public street. The result, of course, is that the street is not vacated at all.
The substance of the ordinance provides for a transfer by warranty deed of a real property interest and not the vacation of a street. At least a part of the property conveyed by the city was held in fee simple—the area that was part of Forest Park. We do not know what interest—fee or ease
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PER CURIAM.
Defendants-appellants appeal from a decree of the circuit court which mandated appellants, the mayor, building commissioner, director of streets, and the city of St. Louis (city), to issue certain permits needed by plaintiff-respondent St. Louis Children’s Hospital (hospital) to build an addition to that hospital over a portion of Kingshigh-way Boulevard, a public street in St. Louis. The appeal was originally taken to the Missouri Court of Appeals, Eastern District, but on recommendation of the court of appeals, this court transferred the cause here, prior to opinion, as it appeared to present a matter of general statewide interest and importance. Art. 5, sec. 10, Mo.Const., as amended 1970; Rule 83.06.
The underlying facts, in the main, are not in dispute. The hospital is a not-for-profit private institution which specializes in the care and treatment of injuries and illnesses of children and is located on the east side of the 500 block of Kingshighway Boulevard. Kingshighway is a main north-south roadway and at the place in question is about eight or ten lanes wide with a divider separating north and south bound traffic. Forest Park, which is the largest park in St. Louis, is on the west side of Kingshighway across from the hospital. The hospital concluded that the only direction it could expand laterally was to the west — over King-shighway. To facilitate or authorize this construction, ordinance No. 57251 was passed by the St. Louis Board of Aldermen (legislative body) and signed by the then mayor, Hon. John Poelker, in October 1976.
On April 6, 1977, pursuant to the ordinance, Mayor Poelker and Comptroller Bass executed a Special Warranty Deed and Deed for Easement conveying to Children’s Hospital the property designated in the ordinance and received back a perpetual surface easement as described in section two of the ordinance.
On May 16, 1977, the newly elected may- or, Hon. James Conway, issued an order forbidding other officials from approving plans or issuing any permits relating to the expansion of Children’s Hospital over King-shighway.
Following that order the hospital filed this suit for declaratory and injunctive relief seeking judgment requiring the officials to honor the deed and issue the permits and approve the plans necessary to the construction over Kingshighway.
As noted, the circuit court held the ordinance and deed valid and granted the relief sought by the hospital after which the city appealed.
The decisive issue presented on this appeal is whether the city of St. Louis has the constitutional authority to give title to a public street (Kingshighway) to a private corporation under the restrictions of art. 1, sec. 27,
art. 6, sec. 23,
art. 6, sec. 25,
but considering the power granted by art. 6, see. 19(a),
Mo.Const.
The hospital is a private corporation and not a governmental or public corporation.
Ruggeri v. City of St. Louis,
429 S.W.2d 765 (Mo.1968). There is no contention made that monetary consideration was actually intended to move from the hospital to the city as consideration for the real property conveyed. Mayor Poelker testified that no compensation (consideration) was even discussed. The mayor testified, in connection with the question of consideration, “Of course, we were talking about air rights and the city has frequently given air rights over streets and public ways without exacting from the receiver any compensation.”
The hospital argues that the public benefits substantially from the Children’s Hospital, as it now exists, and will benefit from the future medical services rendered by the hospital to children, a good part of which is free medical service.
There is no question but what the people of the city of St. Louis and other areas greatly benefit from the services rendered by the Barnes Hospital Group and St. Louis Children’s Hospital in particular; however, the hospital is, nevertheless, a private—not a public—institution and the services rendered are essentially the same as any other hospital. And with all due respect for the special services rendered to children by the instant hospital, it must be observed that other private corporations also render benefits to the communities in which they are situated. But those benefits cannot be utilized to convert a private corporation or association into a public corporation for the purpose of allowing a municipal government to give its property away without, in effect, completely obliterating the prohibition against giving public property to private persons or associations as provided in our constitution.
The discussion of
private
and
public institutions
in this context relates to the prohibitions in the constitution against giving public property to private persons and not to the propriety of private corporations being permitted by the city to utilize the air space above the street in a way not inconsistent with or in any way impeding the public use of the street.
Art. 1, sec. 1(8), Charter of the City of St. Louis, cited by respondents, authorizes the city
“To
acquire or receive and hold, maintain, improve, sell, lease, mortgage, pledge or
otherwise dispose of property, real
or personal, and any estate or interest therein
within
or without
the city
or state.” (Emphasis added.) This provision, however, cannot be construed to grant to the city a power the constitution otherwise denies.
However, art. 6, sec. 19(a), Mo.Const., clearly grants to a constitutional charter city all power which the legislature
could
grant. The legislature many years ago affirmatively provided that constitutional charter cities have broad and exclusive power over their public streets. Section 82.190, RSMo 1969 (originally approved March 10, 1887, Laws 1887, p. 51, sec. 50), provides: “Such city shall have exclusive control over its public highways, streets, alleys and public places and shall have exclusive power, by ordinance, to vacate or abandon any public highway, street, avenue, alley or public place, or part thereof, any law of this state to the contrary notwithstanding.”
It becomes readily apparent that a constitutional charter city, and perhaps other cities, has been granted almost pervasive power to control their public streets, including power to vacate a street or part thereof. Here, however, the city went through the motions of vacating a street and at the same time required the area to remain in use as a public street. The result, of course, is that the street is not vacated at all.
The substance of the ordinance provides for a transfer by warranty deed of a real property interest and not the vacation of a street. At least a part of the property conveyed by the city was held in fee simple—the area that was part of Forest Park. We do not know what interest—fee or ease
ment — the city held in the remainder of the property. The gift of this real property by the city to a private institution cannot be approved in view of the prohibitions contained in art. 1, sec. 27, Mo.Const., which permits the disposition to be by “sale”, and art. 6, secs. 23 and 25, Mo.Const., which prohibits the giving away of public property to a private association or corporation.
The court has been informed by the parties of the importance of this case with respect to the utilization of air space over public streets by private entities with the permission of the city. Although the preamble to the ordinance recites that its purpose is to accommodate the construction of an addition to the hospital in the air space over Kingshighway, nevertheless, the method used to accomplish that end violates the Constitution of Missouri as set forth supra and cannot be approved. This is not to be understood as diminishing the control a city has over its streets, including the air space above them. Nor should it be taken as any restriction of the power of a constitutional charter city to permit building in the air space over streets so long as it does not impede travel or public use of the streets, and does not contravene property rights of others. If there are questions relating to such matters, they are simply not adjudicated in this case.
The warranty deed is invalid for the reasons stated supra. The judgment of the circuit court is reversed with directions to deny relief to plaintiff-respondent and enter judgment for defendants-appellants.
MORGAN, C. J., BARDGETT and SEILER, JJ., WELBORN, Special Judge, and FINCH, Sr., J., concur.
DONNELLY and RENDLEN, JJ., concur in result.
SIMEONE, J., not sitting.
WELLIVER, J., not participating because not a member of the court when cause was submitted.
