Wrightsman v. Gideon , 296 Mo. 214 ( 1922 )

I dissent from the majority opinion filed in this case for the reasons stated in the divisional opinion filed by me in this case, which is as follows:

The plaintiffs instituted this suit in the Circuit Court of Greene County against the defendants to enjoin them from purchasing and paying for a certain tract of land, particularly described in the petition, to be used for park purposes.

The decree of the court was for the defendants, and the plaintiffs duly appealed therefrom to this court. The case went off upon a demurrer to the petition, and therefore it becomes my duty to set forth so much thereof as will intelligently present the legal propositions presented for determination. It was as follows:

"Plaintiffs state that they are resident tax-paying citizens of the city of Springfield, Missouri. That the defendant J.J. Gideon is Mayor and the defendants E.J. Cogley, W.H. Swinney, J.R. Ramsey and Edward S. Finch are Commissioners of the City of Springfield, Missouri, a city of the second class, organized under the laws of the State of Missouri, approved March 25, 1913, and the amendments thereto. Said last above named defendants being the duly elected, qualified and acting Mayor and Commissioners of said city and hereinafter referred to as the Mayor and City Commissioners of such city.

"That the defendants O.T. Hamlin, T.K. Bowman, I.D. Casebeer, E.G. Rathbone, E.E.E. McJimsey, A.R. Baldwin, Emmett Newton, M.V. Tyndall and J.L. Long are members of and constitute what is known as the Board of Commissioners of the Public Parks of said city, and were appointed by the Mayor and City Commissioners of such city, and are hereinafter referred to for convenience as the Park Board.

"Plaintiffs state that on the 1st day of April, 1913, that said city of Springfield was a city of the third class, organized as such under the laws of Missouri; that on said date an election was held in said city on the proposition of levying an annual tax `for the establishment and maintenance of free public parks in said city,' and at said election, authorized by Section 10241, Revised Statutes 1909, of the State of Missouri, duly held, a tax of one mill on the dollar-valuation of the taxable property in said city was adopted by the voters of said city for such purposes, and that ever since said date and at the present time said tax has been and is duly levied and collected on the property of these plaintiffs and all other taxpayers of said city.

"That thereafter a Board of Commissioners was selected and duly qualified under the provisions of Chapter 93, Article 2, Revised Statutes 1909; that thereafter, to-wit, on the 2nd day of August, 1915, the city of Springfield, at an election held on said day, elected to become a city of the second class by adopting the provisions of the Act of the General Assembly of Missouri approved March 25, 1913, and thereafter proceeded to elect officers and administer the affairs of said city under the provisions of said act.

"Plaintiffs state that said act does not provide for the appointment of Park Commissioners, but confers exclusive jurisdiction of the parks of the city upon the mayor and the several commissioners thereof, and specifically places all public parks and the control and supervision thereof under the control of the Commissioners of Public Utilities of such city.

"For cause of action plaintiffs state that on or about the 27th day of February, 1919, the defendants, herein called the Park Board, without authority of law, contracted with one W.E. Freeman, the owner thereof, for the purchase of a tract of land described as Lot 25 in Jonathan Fairbank's Addition to the City of Springfield, Missouri, for the price and sum of $6500; said real estate was purchased by said defendants, the Park Board, for a colored or negro park.

"That by the terms of said contract for the purchase of said real estate the said Freeman placed a deed of trust on the said real estate to secure the payment of an indebtedness of $5000 to the Citizens Bank of Springfield, Missouri, payable in installments of $1000 each in one, two, three, four and five years from said date, with interest thereon at the rate of seven per cent per annum, payable annually, which said encumbrance is evidenced by said deed of trust of record in Book ___ at Page ___, records of Greene County, Missouri, and which said indebtedness so secured by said deed of trust said defendants, the Park Board, assumed and agreed to pay as part of the purchase price for said real estate, and paid and caused to be paid to said Freeman the sum of $1500 out of the park fund of said city, levied and collected as aforesaid, as the balance of said purchase price.

"That thereafter, on the ____ day of March, 1919, the defendants, the Mayor and City Commissioners of said city, by Ordinance No. 10617, approved March __, 1919, ordered a warrant drawn on said public park fund for said sum of $1500 in accordance with the provisions of said contract of said defendants, the Park Board, with said Freeman, and the said warrant was paid to said owner of said real estate as part payment therefor.

"Plaintiffs state that said defendants are now threatening and are about to pay out of said park fund other and further sums of money in pursuance of said contract of purchase of said real estate wherein said defendants, the Park Board, contracted and assumed and agreed to pay said indebtedness of five thousand dollars and interest thereon secured by a deed of trust as aforesaid on said land.

"Plaintiffs state that said defendants, the Park Board, in making said contract and in purchasing said real estate acted wholly without authority of law and that all of said defendants in paying and causing to be paid any money, and especially said sum of fifteen hundred dollars aforesaid, out of the park fund aforesaid on account of or by virtue of said contract so made for the purchase of said land, acted wholly without authority of law, and that said contract entered into with said Freeman and all other acts of any and all of said defendants relating to the purchase of said land wereultra vires and void, and that any further payments which said defendants are now threatening and are about to make on account of the purchase of said real estate are without warrant or authority of law for the following reasons to-wit:

"First: Because under the law governing the city of Springfield the Mayor of such city had no right or authority to appoint said Board of Commissioners for Free Public Parks and the said defendants, the Park Board, had and have no legal right or authority to contract for and on behalf of said city or the inhabitants thereof for the purchase of said real estate and had and have no right or authority to expend, contract for or direct the expenditure of any money belonging to said park fund of said city levied and collected as aforesaid on any account.

"Second: Because said defendants, the Park-Board, had no lawful authority to obligate said city to pay out of said park fund the indebtedness secured by said deed of trust on said land or the interest thereon.

"That said contract whereby said defendants, the Park Board, assumed and agreed to pay said indebtedness of five thousand dollars and interest was in violation of Section 12, Article 10, of the Constitution of the State of Missouri, and such contract was and is ultra vires and void; because prior to said 27th day of February, 1919, said defendants, the Park Board, had become indebted to various persons in the purchase and improvement of other tracts of real estate theretofore acquired for park purposes in a large sum, to-wit, the sum of sixty-thousand dollars which said sum said defendants, the Park Board, were obligated to pay with interest thereon at the date of the contract and purchase of the real estate herein described out of the park fund levied and collected as aforesaid.

"That the tax of one mill levied and collected on the taxable property in said city when collected provides a fund of not to exceed twenty-two thousand dollars per annum and that said defendants, the Park Board, has no other source of income except an amount of less than one thousand dollars per annum secured from interest and concessions.

"That by reason of the facts aforesaid said acts of said defendants and all of them relating to said purchase of said ground for said negro park were and are without authority of law and void.

"Third: Because under the law the park fund levied and collected as aforesaid could and can be expended only for acquiring and maintaining free public parks in said city, and that said defendants, the Park Board, in expending and causing to be expended the said funds for a `colored park,' meaning a park for negroes, and in threatening to make other and further payments out of said fund on account of the purchase of said real estate for such purpose, acted and are threatening to act without warrant or authority of law in violation of the law, and that the defendants, the Mayor and City Commissioners of said city, likewise have acted and are threatening to act in violation of the law in appropriating said funds for said purpose.

"Plaintiffs state that they have no adequate remedy at law and that the granting the relief herein prayed for will save them from irreparable injury threatened by the unlawful acts of the said defendants herein complained of.

"Wherefore, plaintiffs pray the court that said defendants herein named and called the Park Board, and said defendants herein named and called the Mayor and City Commissioners of said city, and each one and all of them and their successors in office, be perpetually restrained and enjoined from carrying out the provisions of said contract for the purchase of said real estate, and that they and each one and all of them and their successors in office be especially restrained and enjoined from paying out any part of the funds of said park fund so levied and collected for park purposes for the said encumbrance on said land and that they be perpetually enjoined from establishing and maintaining on said land a park for negroes, and for such other and further relief the court may deem proper."

To this petition the defendants filed a general demurrer, which was by the court sustained, and the plaintiffs declining to plead further, the court rendered judgment for the defendants, dismissing said cause, and from that judgment, as previously stated, plaintiffs duly appealed to this court.

The first contention of counsel for the plaintiffs is that the respondents, the Park Board, having been appointed under the authority of Article 2, Chapter 93, Revised Statutes 1909 (same as Art. 2, Chap. 80, R.S. 1919), Article 2, Chapter 93, Revised Statutes 1909, was necessarily repealed by implication by Article 3, Chapter 72, Revised Statutes 1919 enacted in 1913. That is, the latter article repealed the former in so far as the former created such board, with its attending powers and duties.

This requires a close consideration of these two articles, because it is not contended by counsel for appellants that the law of 1909 was repealed by express terms, by the law of 1913, but, if at all by implication; that is, the law of 1913 is so inconsistent and incongruous with that of 1909, both of them cannot stand together, and consequently the latter being subsequently enacted to the former the subsequent act must prevail. And in this connection it might not be amiss to state that since the law does not favor repeals by implication, the burden rests upon counsel for appellants to show the inconsistency and repugnancy to the full satisfaction of the court, before they can hope for a reversal of this case.

We shall now examine the sections of the two articles of the statutes which it is claimed are repugnant to each other. Section 10242 of Article II of Chapter 93, Revised Statutes 1909, reads as follows:

"When any incorporated city shall have decided to establish and maintain public parks under this article, the mayor of such city shall, with the approval of the legislative branch of the municipal government, proceed to appoint a board of nine directors for the same, chosen from the citizens at large, with reference to their fitness for such office; and no member of the municipal government shall be a member of said board."

And in so far as Section 10245, same article and chapter, is here concerned, it reads: "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 to fix their compensation" and remove the same, etc.

Section 10247 of the same article and chapter authorizes the board to accept donations for park purposes, and the succeeding section, Section 10248, provides for the condemnation of lands for park purposes.

It will thus be seen that this article provides for the acquisition of ground for park purposes by purchase, condemnation of donation, and empowers the mayor of the city, with the advice and consent of the law-making power of the city, to appoint a park board, and prescribe their qualifications, powers and duties. There are some other provisions contained in other sections of the same article, which are of no practical consequence in the consideration of this question.

We shall now examine those sections of Article 3 of Chapter 72 relating to the same subject-matter as those found in Article 2 of Chapter 72, Revised Statutes 1919.

They are Sections 7976, Subdivisions XV and XXXXI, and cities of the second class by the former section are given power among other things: "To procure by purchase, condemnation, gift or otherwise, within the city or beyond the limits thereof, property for use of the city in and for the performance of its functions, and manage and regulate the use thereof; and to sell, lease or otherwise dispose of the same." The latter section provides among other things that such cities shall have power to acquire by condemnation, purchase, gift, lease or otherwise, property real and personal, within or beyond the limits thereof for the use of the city . . . for the purpose of establishing and maintaining parks, park-ways, boulevards, bathing places," etc.

And Sections 8018, 8023 and 8025 of same article and chapter are enactments along the same lines.

The first authorities the commissioners of the city to appoint all officers and employees in the departments under the supervisor, and the second section mentioned provides that the Utilities Commissioner "shall have control over all public parks and pleasure grounds of the city" and buildings adjacent thereto, and the last section of the three provides that the salaries of the officers and employees of the city shall be fixed by the city council.

By reading these Sections of the statute of 1919, it will be seen that they not only cover or revise all the matters referred to in the Revision of 1909 before referred to regarding parks and the things incident thereto, but they cover many more subjects of kindred nature.

The most casual observation will disclose the fact that the things required to be done by the 1909 Statutes regarding the formation of parks, their maintenance and control and their officers employees, etc., will discover that the Statutes of 1919 also provide for the formation of parks, their maintenance and control, and provide for the appointment of their officers and employees, etc., and that too in substance, if not in almost the same language. So it is perfectly clear that if both statutes are to be given force and effect, then we would have in cities of the second class two systems of parks, whose management and control would be by different sets of officers and employees. That being true there must be a repeal of the 1909 statutes by those of 1919, because they are inconsistent and repugnant to each other. And whenever that occurs this court has in a number of well considered cases held that the former is repealed by the latter.

In the case of State v. Roller, 77 Mo. 120, syl. 1, this court said: "A statute revising the whole subject-matter of a former statute and evidently intended as a substitute for it, although it contains no express words to that effect, repeals the former."

The following cases also decide the same point: State ex rel. v. Patterson, 207 Mo. 129, l.c. 145; Yall v. Gillham,187 Mo. 393, l.c. 405; Delaney v. Police Court, 167 Mo. 667, l.c. 676; Meriwether v. Love, 167 Mo. 514, l.c. 521; Kern v. Legion of Honor, 167 Mo. 471, l.c. 484; State v. Summers, 142 Mo. 568, l.c. 595 and others too numerous to mention.

Learned counsel for the respondents have with much learning and ability given a careful review of the history of all the legislation governing cities of the second class, from the beginning down to the Act of 1913 (Sec. 55, p. 455, Laws 1913) and undertake by that process of reasoning to show that the latter section is inconsistent with all the other laws cited from the Acts of 1913 before referred to in Article 3 of Chapter 72, Revised Statutes 1919. I have previously referred to Section 8023, Revised Statutes 1919, which is Section 55, page 455, Laws 1913, and tried to show that there was no inconsistency or repugnancy between it and any of the other sections of that act or between it and Article 3 of Chapter 72, Revised Statutes 1919, which are one and the same, as I understand it. It simply undertakes to create an officer who shall have care, custody and control of the parks of cities of the second class, and has nothing whatever to do with their creation. It therefore cannot be in conflict with the other statutes mentioned which provide for the procurement of property for the purpose of creating parks nor the other employees who are to look after them.

On account of the public nature of these parks and the great blessings and pleasures they furnish to the inhabitants of these cities and especially to the children and the old and sick people, I deeply regret that I feel constrained to reverse the judgment of the circuit court and remand the cause with directions to enter a decree permanently enjoining the defendants from proceeding with the purchase of the land and establishing the park.

I wish to add by way of query, that if this park is not the property of the city of Springfield, nor subject to its regulation or control, as I understand the majority opinion to hold, then under Section 46 of Article IV of the Constitution of 1875, I wish to know where the old Park Board, mentioned in the majority opinion, is going to procure the revenue with which to maintain the park and pay the salaries of the officers and the wages of the laborers who so manage and control and keep up the same? — for the reason that said section of the Constitution in express terms provides that "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 corporations whatsoever."

This Park Board must be an individual, or an association of individuals or a corporation, within the meaning of that provision of the Constitution.

I predict that when the taxes are levied by the city of Springfield and attempted to be collected or expended for the purposes mentioned, the questions now involved in this case will again appear here and greatly vex and torment us no little; but I see my learned associates are obeying the divine mandate of the Lord, when He says, "Take no thought of the morrow, for the day is sufficient unto the evil thereof."

While I do not disagree with the Lord's injunction to wait, but he did not say the evil of that day may not be difficult of solution when presented.

I therefore dissent from the majority opinion.