Wrightsman v. Gideon

247 S.W. 135, 296 Mo. 214, 1922 Mo. LEXIS 160

Opinions

JAMES T. BLAIR, J.

The trial court sustained a general demurrer to the petition. Appellants refused to plead further, and judgment was rendered accordingly. This appeal followed. Appellants are resident tax-paying citizens of the city of Springfield. Five of the respondents are the Mayor and City Commissioners of the city, and the others are members of what is known as the Board of Commissioners of the Public Parks of the city, hereafter referred to as the Park Board.

The petition alleges, in substance, that on April 1, 1913, the city of Springfield was a city of the third class, organized as such under the laws of the State; that on the date named, at an election held under Section 10241, 'Revised Statutes 1909, a tax of one mill on the dollar was voted for the establishment and maintenance of public parks in the city, and has since been duly levied on all taxable property in the. city, and regularly collected; that thereafter “a Board of Commissioners was selected and duly qualified under the provisions of Chapter 93, Article 2, Revised Statutes 1909;” that subsequently, August 2,1915, the city of Springfield duly elected to become a city of the second class “by adopting the provisions of. the Act of . . . March 25, 1913, and thereafter proceeded to elect officers and administer the affairs of said city nnder the provisions of said act.” It is then alleged that the act last referred to does not provide, for the appointment of park commissioners, but confers exclusive jurisdiction of the parks of the city npon the mayor and the several commissioners thereof, and places all public parks and control and supervision thereof under control of the Commissioner of Public Utilities of the city. It is then alleged that in February, 1919, the defendants constituting the old Park Board, without authority, contracted to purchase from W. E. Freeman a tract of land in Springfield for the sum of $6500 for the purpose of using it “for a colored or negro park;” that by the terms of the contract Freeman “placed a deed of trust on the said real estate to secure the payment of an indebtedness of $5000, to the Citizens Bank, payable in installments of $1000 per annum, with seven per cent interest, and that this deed of trust was recorded; that said indebtedness, so secured, . . . .the Park Board assumed and agreed to pay as a part of the purchase price for said real estate” and paid Freeman the $1500 balance out of the park fund; that a warrant for the $1500 was, by ordinance passed and approved in March, 1919, drawn on the park fund, and the amount paid, on the warrant, to Freeman as provided in the contract referred to; that defendants are now about to pay further sums out of the park fund “in' pursuance of said contract of purchase; that in making the contract, and in making the payment to Freeman, the Park Board acted without authority of law and that their acts and contract were ultra vires and void,” and that the threatened further payments are without authority of law for the reasons:

First. Under the law the mayor had no authority to appoint a Park Board, and the board appointed had no authority to contract for or to purchase the land and have no authority to expend or control the expenditure of any part of the park fund; and

Second. The Park Boárd had no .authority to obligate the city to pay out of the park fund the indebtedness secured by the deed of trust in question.

It is then alleged that this last mentioned agreement' is in violation of Section 12 of Article 10 of the State Constitution and is ultra vires and void, because the Park Board had already incurred indebtedness for park purposes aggregating $60,000, which sum the Park Board was obligated to pay, with interest, at the time the contract with Freeman was entered into and the payment to him made; that the one mill tax yields not to exceed $22,000 per annum, and the Park Board has no other income except less than $1000 per annum derived from interest and concessions; and

Third. Because the park fund can be expended only for acquiring and maintaining free public parks, and that the Park Board in expending park funds for “a colored park, meaning a park for negroes” and threatening to expend further sums for that purpose “are threatening to act without” authority of law, and the mayor and city commissioners “have acted and are threatening to act in violation of the law in appropriating said funds for said purpose.”

It is then alleged that plaintiffs have no" adequate remedy at law, and that the granting of the relief prayed for will “save them from irreparable injury threatened” by defendants.

The prayer is for an injunction restraining defendants, and their successors in office, from carrying out the contract of purchase and from paying, out park funds to pay the encumbrance mentioned and from “establishing and maintaining on the said land a park for negroes,” and such other relief, etc.

To reverse the judgment appellants contend (1) that the law authorizing the establishment of the Park Board was repealed, in so far as it applied to Springfield, when the city elected to come under the Act of March 25,1913; and (2) that the acts of the Park Board, complained of, “were ultra vires and void because said board in purchasing said land contracted a debt in excess of the amount authorized by law.”

I. In 1903 (Laws 1903, pp. 76, 77), under the title, “An Act to provide for the establishment and maintenance of public parks in cities of the second and third class,” the General Assembly passed an act which (Section 1) authorized cities of the classes mentioned to vote a tax for the establishment and maintenance °f free public parks, and provided, in case a tax was voted (Section 2), for the appointment of a board of directors who were empowered (Section 5) to adopt such “by-laws, rules and regulations for their own guidance and for the government of the parks, as may be’ expedient, not inconsistent with this article. They shall have the exclusive control of the expenditure of all moneys collected to the credit of the park fund and of the supervision, improvement, care and custody of said parks: Provided, that all moneys received for such parks shall be deposited in the treasury of said city or village to the credit of the park fund, and shall be kept separate and apart from other moneys of such city or village, and drawn upon by the proper officers of said city or village, upon the properly authenticated vouchers of the Park Board. Said board shall have power to purchase or otherwise secure grounds to be used for parks; shall have power to appoint a suitable person to take care of said parks and necessary assistants for said person, and fix their compensation, and shall have power to remove such appointees, and shall in general carry out the spirit and intent of this article, in establishing and maintaining public parks.” Other sections fix terms of office, require an annual report, authorize the acceptance of donations, and give the power to condemn land for park purposes. This act was carried into the Revised Statutes of 1909 as Article 2 of Chapter 93, entitled, “ Parks and Public Reservations.” It appears in the Revised Statutes of 1919, unamended in any matter now pertinent here, as Article 2 of Chapter 80, entitled the same as in 1909.

The Act of March 25, 1913, adopted by the city of Springfield August 2, 1915 (Laws 1913, pp. 420 to 516), was passed under the title, “An Act to repeal Article 3 of Chapter 84 of the Revised Statutes of Missouri of 1909, with all amendment thereto, said article being entitled, ‘Cities of the Second Class,’ and to enact in lieu thereof a new article providing for the government of cities of the second class,” and now constitutes Article 3 of Chapter 72 of the Revised Statutes of 1919. It is this act which appellants contend, upon its adoption in Springfield in 1915, had the effect of repealing, in so far as that city is concerned, that part of the article on Parks and Public Reservations, until that time in force in Springfield, which authorized the appointment of a Park Board, vested it with stated powers and charged it with specified duties.

There is no contention that there was an express repeal in any sense. In fact, the Commission Government Act (March 25, 1913) expressly repeals only the article which previously applied expressly to cities of the second class and constituted what is commonly called their charter. In fact that act, the Act of March 25, 1913 (Laws 1913, sec. 5, p. 425; Sec. 7973, R. S. 1919), provides that “all laws or parts of laws, or ordinances not inconsistent with this article, which were in operation in such city prior to its organization under this article, or prior to the passage of this article, shall continue in force until repealed.” With respect to this first contention of appellants, the single question is whether the putting in .force in Springfield of the Act of March 25, 1913, by implication repealed the article respecting “Parks and Public Reservations” in the particulars and to the extent contended for, in so far as Springfield is concerned.

It is settled law in this State, that, “while repugnant statutes must necessarily supplant previous ones, .they must he clearly repugnant, for, unless the legislative intent is expressed in terms, it will not be assumed, if any other construction can be given to the subsequent act. [State ex rel. v. Draper, 47 Mo. 29.] It is a fair presumption that if the Legislature intends to repeal a statute, it will do so in express terms, or by the use of words which are equivalent to an express repeal, and the court will not, if it can be consistently avoided, adjudge that a statute is repealed by implication. [State ex rel. v. County Court, 41 Mo. 453].” [Lang v. Calloway, 68 Mo. App. l. c. 396; approved, Gasconade Co. v. Gordon, 241 Mo. l. c. 582.] Repeals by implication are not favored. [State ex rel. v. Clark, 275 Mo. l. c. 102.] Further, in case of a repeal by implication “the old law is repealed by implication only pro tanto to the extent of the repugnancy.” [State ex rel. v. Walbridge, 119 Mo. l. c. 389; 25 R, C. L. p. 916, sec. 167.]

The sections of the new act, as they appear in the present revision (1919), which appellants bring forward as containing provisions irreconcilably in conflict with the older Park Board law, are 7976 (pars. 11 and 36), 8018, 8023 and 8025. Section 7976 begins thus ¡"“Every city of the second class shall have power, by ordinance, not inconsistent with the Constitution, or any law of this State or this article.” Then follow seventy-two paragraphs which enumerate the things the city may do. Paragraph 11 reads as follows: “To establish, open, vacate, alter, widen, extend, grade, improve, repair, construct, pave, repave, re-construct and maintain, light, clean, oil and sprinkle all streets, avenues, boulevards, sidewalks, alleys, wharves, parks, public grounds and squares, bridges, viaducts, subways, tunnels, sewers and drains; and to regulate the use thereof.” Paragraph 36 of Section 7976 gives the city power “to acquire by eon- demnation, purchase, gift, lease or otherwise property, real and personal, within such city and beyond the limits thereof for the use of the city for” the burial of the dead, the preservation of the public health, “for establishing and maintaining parks, parkways, boulevards, bathing places, crematories ’ ’ and many other named purposes, “and for any other public use or purpose, and to manage and regulate the use thereof, and to sell, lease or otherwise dispose of the same.” Section 8018 provides that “each commissioner shall have the right to appoint all officers and employees in the department under his immediate supervision, subject to the merit system hereinafter provided in this article, and may remove said officers and employees at his pleasure.” Section 8023 provides that “the commissioner of public property and public utilities shall have under his special charge the maintenance and operation of' all public utility plants owned by the city, and shall see to the enforcement of all regulations with respect to the same, and to the collection of all revenue derived from the same. He shall have control over all public parks and pleasure grounds in the city. He shall have charge of and supervision over the city hall and the grounds adjoining the same. He shall have charge of and supervision over grounds belonging to or controlled by the city, except as may be otherwise provided,” and he is given charge and supervision over cemeteries “in or belonging to the city.” Section 8025 provides that “all salaries and wages of appointive officers and employees of the city, unless otherwise herein provided, shall be fixed by the city council acting as a whole, and shall not become effective unless at least three members of the council shall vote therefor. The salaries of such officers and employees may be increased or decreased at any time by a vote of at least three members of the council. ’ ’ In looking into the question whether these provisions are so repugnant to the old law that the power of the Park Board and the Park Board itself are de stroyed, it is well' to make use of the light which the Legislature itself has provided. In Section 8205, in which provision is made for the passing of a city of the third class, as Springfield was, into the new class under the new law, there appears the following: “The terms of office of the mayor, couneilmen, or aldermen, assessor, collector, police judge, marshal, city treasurer, city attorney, members of the hoard of public works and all other officers of the city of such city of the third class except library directors and park commissioners in office at the beginning of the terms of office of the officials first elected under the provisions of this article shall cease and determine and end at ten o’clock a. m. on the third Monday in April following such election.” It is a fair inference from this that the Legislature was not of the opinion that the Act of 1913, when adopted by a city of the third class, wiped out the Park Board. In addition, the new act expressly repealed a designated article, and that fact raises an implication that no further repeal was •intended. [State v. Morrow, 26 Mo. 131.] Further, the act contains the provision, already referred to, which expressly continues in force all laws previously in force, in cities coming under the new act, “not inconsistent with this article.”

The question whether the new act repeals that part of the old law which vested in the Park Board power to purchase land for park purposes for Springfield must' be solved by inquiring whether the new law vests that power exclusively in some agency established by the new law and does so in such clear language that such provision of the new law is in such irreconcilable conflict with the old, in this respect, that there is no reasonable theory upon which the two can be harmonized; for the power of the Park Board can be held to be destroyed, by repeal by implication of the law which vests it only by such a clear vestiture of that power in some other agency, by the later law, that no other reasonable construction can be found. This is the necessary result of the ap plication of the quoted rules to this contention of appellants. The solution of the question is to he found, on this appeal, by examining the, provisions of the new law relied upon by appellants to the end that it may appear whether they are, when tested by the rules mentioned, in the light of other provisions of the new act already mentioned, repugnant to the provision of the older law from which the Park Board got its power to purchase land for park purposes. Paragraph 11 of Section 7976 merely gives the city power to establish, improve, maintain and care for parks, among other things. Paragraph 36 vests the city with power to acquire land for park purposes by purchase, and by other methods. Neither of these paragraphs expressly attempts to provide a method or agency for the exertion of the powers given, nor does either of them use terms which are pre-clusive. It may be that the right to condemn suggests its own method in part, but this case does not involve a condemnation. Before the adoption of the Act of 1913, there was an agency expressly authorized to purchase lands for park purposes, the Park Board, and the Act of 1913, the new act, makes no pretense, in the paragraphs referred to, of creating any new agency which might displace the- old in the performance of this function.' The new act merely continues in the city the power to purchase land for parks. That power was not repealed, but was carried forward into the new law. It cannot be said that (Paragraph 36) a legislative act merely continuing in the city a power it previously had is in any way repugnant to a provision in the old law which dealt; not with the power of the city (o purchase, as before, but with the establishment of the agency or board through which that power is to be exerted and investing it with authority as such agency to exert that power. Paragraph 11 is obviously disposed of by the same reasoning. Neither do the provisions of Sections 8018' and 8025, relating to the appointments of employees and the fixing of salaries and wages in any way deal with any thing connected with the Park Board’s power to purchase lands for park purposes. Whatever may he their effect on other provisions of the law under which the Park Board is acting, they do not relate to the subject of purchase, and, therefore, cannot conflict with the old provision pertaining thereto. The sentence in Section 8Ó23 which is relied on is that which provides that the Commissioner of Public Property and Public Utilities “shall have control over all public parks and pleasure grounds in the city.” If this is to he construed to repeal the Park Board’s power, as the city’s agent, to purchase and establish parks, it must be because this language empowers the commissioner to purchase and establish parks. Unless it does so it manifestly' does not give him anything which conflicts with the Park Board’s power to purchase land and establish parks. If it does so, then it must be held that he is also given power to purchase land and establish a city hall and other buildings and grounds and cemeteries; for much the same form of words is used respecting these as. respecting public parks. Without regard to this it seems clear that vesting in one control over a thing is far from being equal to empowering him to purchase or establish that thing.- Whatever control he is given is control over the finished product and does not necéssarily pertain to the power or process whereby the thing itself is brought into being. In view of the rules laid down in the cases and the plain absence of any such repugnancy between the Park Board law and the new act, in the respect in question, as would require the two to be held to be in such conflict that they are irreconcilable on any reasonable theory, this first position of appellants must be held to be untenable.

II. It is argued that even though the Park Board survives and still possesses the power to purchase land for park purposes, its action called in question in this case is without authority of law and ultra vires and void, “because said board in purchasing said land contracted a debt in excess of the amount authorized by law. ’ ’ This is founded upon tbe assumption that the fund arising out of the special tax voted under the Park Board law is the only fund that can be made available for the purchase of land for park purposes, a further assumption that when the Park Board contracted for the assumption of the debt evidenced by the deed of trust on the property purchased it legally bound the city or park fund to pay that indebtedness, or the contract of purchase was void in all respects, and the argument that the park fund “was already indebted in the sum of $60,000 and had an income of only $23,000 per year so that there was no fund or income,” not “bound by contract for about three years,” and that this demonstrates that the debt so contracted is in excess of the Park Board’s authority and, therefore, violative of the letter and spirit of Section 12 of Article 10 of the Constitution, and of many decisions of this court construing it. If it be true that the principle invoked applies as against the attempted assumption of the indebtedness, then it results that the assumption of that indebtedness is void as a matter of law and no indebtedness at all was created by it. This leaves the grantor in the position of being secured solely by the land itself, and leaves the title to the equity in the land in the public, subject to the indebtedness mentioned. If this is the , situation, and it is the situation if appellants ’ present contention is sound, the assumption of the debt, as a matter of law, forms- no part of the contract and, consequently, affords no ground for the relief prayed. On this, theory the authority of the Park Board to pay off the indebtedness with funds which may be available is not questioned in the pleadings or briefs, and further attempts to use for- that purpose the funds which may not lawfully be so used can be dealt with when they are made. The point must be ruled against appellants.

This disposes of the questions raised in appellants’ brief. ¡The judgment is affirmed.

All concur, except Woodson, C. J., who dissents in separate opinion.