267 Mo. 356 | Mo. | 1916
This suit was instituted April 11, 1912, against the defendant city and Stephen IT. Gilmore, its supervisor of plumbing, to obtain an injunction restraining them from interfering with work in course of construction under contract for a new school building in said city to be known as the Horace Mann School. The contract provided for a system of vents from the water-closets known as “a continuous venting system, doing away with all local vents to the fixtures, ’ ’ while a regulation of the Board of Public Improvements of the city of St. Louis provided for a different
Section 26 of article 3 of the charter then in force provided, among other things, that the mayor and assembly shall have power, within the city, by ordinance not inconsistent with the Constitution or any law of this State or of this charter, to do the following things: In clause two, to construct and keep in repair all bridges, streets, sewers and drains, and to regulate the use thereof; in clause twelve, to provide for the safe construction, inspection and repairs of all private and public buildings within the city; and in clause fourteen, to pass all ordinances not inconsistent with the provisions of the charter or the laws of the State as may be expedient in regard to the peace, good government, health and welfare of the city.
It was under these powers and ordinances passed in pursuance of them that the defendant superintendent of plumbing was appointed and the rule relating to the ventilation of water-closets, which the city is now attempting to apply to the Horace Mann School, was made.
When the framers of the present Constitution conferred upon the freeholders of the city the power to make their present charter they provided, with the most careful foresight. (Sec. 23, art. 9) that “such charter and amendments shall always be in harmony with and subject to'the Constitution and laws of Missouri, except only that provision may be made for the graduation of the rate of taxation for city purposes in the portions of the city which are added thereto by the proposed enlargement of its boundaries.”
In the same Constitution, and in pursuance of the uniform policy of the State from the beginning, it was provided (Sec. 1, art. 11) that “a general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the General Assembly” (not the freeholders of the city of St. Louis) “shall establish and maintain free public schools for the gratuitous instruction of all persons in this State between the ages of six and twenty years. ” It was in obedience to this constitutional mandate that the Act of 1807 (as amended by the Act of
The powers and duties of this hoard were highly specialized in the act, and included the general and supervising control, governing and management of the public schools, and public school property in such city; the power to appoint such officers, agents and employees as it may deem necessary and proper; to make, amend and repeal rules and by-laws for the government, regulation and management of the public schools and school property in such city and exercise generally all powers in the administration of the public school •system therein; and have all the powers of other school districts under the laws of the State except as herein provided. Particularizing further, it provides for the appointment by the Board of Education of a commissioner of school buildings who ‘ ‘ shall be charged with the care of the public school buildings of such city, and with the responsibility for the ventilation, warming, sanitary condition and proper repair thereof,” and “shall prepare, or cause to be prepared, all specifications and drawings required, and shall superintend all the construction and repair of all of such buildings.” [R. S. 1909, sec. 11036.] In the performance of these duties he was required to appoint such assistants as should be authorized by the Board of Educa
It will be noted that this act not only gives the Board of Education plenary power with reference to the construction, maintenance and care of the public school buildings of the city, but descends into matters connected with the health and comfort of the pupils including the designing as well as the construction and maintenance of the very appliances which are the subject of this litigation, ventilating and sanitary machinery and apparatus to be installed and maintained for the removal from the building of foul and noxious air necessarily generated in the use of the water-closets.
We have been favored by counsel on both sides with exhaustive and highly interesting briefs and arguments relating to the presumptions which should prevail in determining whether laws of the character of the charter of St. Louis and ordinances passed in pursuance of its terms are applicable to the sovereign, and whether they are repealed by general laws which do not in terms mention them.' We cannot appreciate the application of either of these questions to this case. The first does not rest upon .presumption, fo'r the sovereignty itself has dealt with the subject of the construction and management of the property which is held and used by its agents for the highest governmental purposes, and we have to look no further than its legislative declarations to determine in whom the authority claimed by each of the parties to this proceeding is vested; and as to the second question so ably argued, we have only to look to the converse of the proposition stated by counsel for appellant. The question is not whether a law of general application in the city of St. Louis impliedly repeals any of the provisions of a spe
It cannot even he claimed that there is a question in this case relating to the intention of the Legislature to apply the Act of 1897 from which we have- quoted, to the schools of the city of St. Louis. By its terms it describes the city of St. Louis as the only community in the State in which it can apply. That it gives to the Board of Education through its lawfully constituted officers the power to design, construct and maintain the very apparatus now in question is not and cannot be denied by any English-speaking person, and the constitutional power of the Legislature to enact it is unquestioned and unquestionable.
We have carefully examined the authorities cited by the appellant and find but one, Pasadena School District v. Pasadena, 166 Cal. 7, which seems to question the view we have taken with reference to the effect we give to the statute giving authority to the Board of Education to supervise and govern public school property within the city, and charging it through its officers possessing special qualifications for that purpose with the responsibility for the ventilating, warming and sanitary condition of such building, and the designing as well as the construction of the machinery and appliances for that purpose. In the California casé the city by ordinances established an elaborate building code providing that only certain classes of buildings should be erected in certain fire districts and for the inspection of plumbing construction and electrical wiring and equipment of buildings, the use of permits and the collection of fees therefor, and making it unlawful to commence the erection of any . building within the city other
Here the right to erect a building within the limits of the city is not involved, but only the question as to which of these two contending municipalities is clothed by statute with the right to determine interior sanitary arrangements for the ventilation of its water-closets,
PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.