This is an original proceeding wherein relators seek to prohibit the respondent, Judge of the Circuit Court of St. Louis County, from hearing and determining a suit brought by School District of the City of Ladue to condemn a 32.26-acre tract of land in said city as a site for the location and erection of a new schoolhouse. Respondent waived service of the provisional writ and the case was submitted upon the relators’ petition and respondent’s demurrer to the petition and motion ⅛> quash the provisional writ. Hence, the material facts are to be gleaned from the petition. The respondent judge, as is usual in prohibition proceedings, is represented by counsel for the party directly interested in sustain- *897 his jurisdiction, to wit: School District of the City of Ladue.
The City of Ladue is a city of the fourth class. School District of the City of Ladue, hereinafter generally referred to as “the school district”, includes not only the whole of the city hut also parts of eight surrounding incorporated cities and an unspecified extent of unincorporated area.
The site in question lies in the central area of the City of Ladue. It is a part of an 86-acre tract, known as “Lone Tree Farm”, which was owned by the late Joseph Pulitzer at the time of his death. By the terms of his will, said farm was devised to trustees therein named to be held and maintained in its entirety as a residential estate for his widow so long as she should live, and it is now so occupied by her. The widow, the executors of the will of Joseph Pulitzer and the trustees therein named are relators herein, as are Joseph Pulitzer, Jr., and his .wife, Louise V. Pulitzer, who own and occupy as their residence a 6-acre tract adjoining the site sought to be condemned and who are also the holders of an option to purchase a 3.6-acre tract adjoining their residence property and the site sought to be condemned. The relator trustees and relators, Joseph Pulitzer, Jr., and Louise V. Pulitzer, are also taxpayers on account of their ownership of the tracts above described and, presumably, it is in that capacity that Joseph Pulitzer, Jr., and Louise V. Pulitzer are joined as relators herein. The City of Ladue was permitted to and did intervene and, except as hereinafter stated, supports the position taken by relators.
At the time the condemnation suit was filed, City of Ladue’s Ordinance No. 282, enacted in 1948 pursuant to the provisions of Chapter 89, RSMo 1949, V.A.M.S., authorizing city zoning and planning, was and is now in effect. (All statutory references herein are to RSMo 1949, V.A.M.S., unless otherwise stated.) Among other provisions, said ordinance prohibits, by means of restrictive provisions, the erection of any schoolhouse upon the land here involved.
Relators contend that the ordinance deprives the school district of the power to condemn said land. Respondent contends that §§ 165.370 and 165.100 of the statutes expressly enjoin upon the school district, exclusively, the duty and power of selecting and locating the site for the school in question and that the foregoing provisions of said ordinance are wholly ineffective insofar as they may otherwise provide. Thus, do the parties hereto agree that the essential issue is whether the City of Ladue, by the enactment of said ordinance pursuant to the authority vested in it by Chapter 89, has the power to immunize private property within its boundaries from the express power vested by the Legislature in the school district to select, locate, take by eminent domain and use private property for a public school upon payment of just compensation.
The petition alleges in elaborate detail that many school and accessory buildings and other structures, such as stadiums, athletic fields and the like, will be incident to the taking and use of the tract for school purposes, which will bring many children and other persons, in many vehicles, to many scholastic, recreational and social gatherings, both day and night, producing great noise, confusion, traffic problems and other hazards; that the area in which the tract is located “abounds with beautiful and quiet residential estates of the highest character in said County; that to permit school uses of said tract will disturb the peace and tranquility of said neighborhood, destroy and unstabilize land values therein; [and] that Relators have no adequate remedy at law except by this Court’s writ of prohibition against the threatened taking and invasion ; * *
The zoning ordinance established a comprehensive zoning plan for the city. It regulates and restricts the height, number of stories and size of buildings and other structures, the percentage of a lot that may be occupied, the size of yards and other open spaces, the density of population, the location, erection, construction, reconstruction, *898 alteration, and use of buildings, structures, and land for industry, trade, residence, or other purposes, all for the purpose of promoting the health, safety, morals, or general welfare of the city. Pursuant to its provisions, the city is divided into five residential districts (A, B, C, D, and E), one commercial district (F) and one industrial district (G). Lone Tree Farm is in B district which, with districts A and C, forbid the erection or use, unless as otherwise authorized in said ordinance, of any building or land except for (1) one family dwellings, (2) public parks, (3) truck gardening and (4) accessory buildings. .(Since the institution of this action, C district, by ordinance, has been made available for public school sites. However, the view we take of the case makes that fact immaterial.)
Section 8 of said ordinance provides for granting special permits by the city council to make an otherwise unlawful use of the land in the various districts established by other sections of said ordinance. The petition alleges, however, that no such permit had been issued to the school district or anyone else, but that, in any event, such provision would not be available to the school district because it was unconstitutional in respects unnecessary to set forth in this opinion. The City of Ladue expressly refrains from urging invalidity of the special permit provisions of Section 8. Respondent, however, disclaims any reliance upon the provisions of that section and, for reasons hereinafter more fully stated, insists that the right of the school district to select, locate and acquire by condemnation the site in question is not and cannot be limited by or in any wise made dependent upon Section 8. Consequently, we also refrain from discussion of said section.
Article IX, § 1(a), of the Constitution of Missouri, V.A.M.S. provides: “A general diffusion of knowledg-e and intelligence being essential to the preservation of the rights and liberties of the people, the general assembly shall establish and maintain free public schools * ’ * ⅜.”
Chapter 165 sets forth the statutes im--plementing the above quoted constitutional mandate. Section 165.100 provides that “Whenever * * * the board of education in [a] city * * * school district * * * shall locate * * * sites for schoolhouses * * *, and cannot agree with the owner thereof as to the price to be paid for the same, or for any other cause cannot secure a title thereto, the * * * board of education * * * may proceed to condemn the same in the same manner as provided for condemnation of right of way in sections 523.010 to 523.100, * * and upon such condemnation and the payment of the appraisement, * * * the title * * * shall vest in the * * ⅜ board * * * in trust for the district and the purposes for which the same was so selected and located.” [Emphasis ours.}
Section 165.370 provides: “When the demands of the district require more than one public school building therein, the board shall, as soon as sufficient funds have been provided therefor, establish an adequate number of primary or ward schools, corresponding in grade to those of other public school districts, and for this purpose the board shall divide the school district into school wards and fix the boundaries thereof, and the board shall select and procure a site in each newly formed ward and erect a suitable school building thereon and furnish the same; and the board may also establish schools of a higher grade, *
The power of eminent domain is inherent in sovereignty and exists in a sovereign state without necessity of mention, Board of Regents for Northeast Missouri State Teachers College v. Palmer,
It is, therefore, too clear to admit of argument that the school district is vested by express grant from the Legislature with the absolute and exclusive power to select, locate and procure by condemnation the site here in question, unless the Legislature, by the enactment of Chapter 89, has invested the city with the police power of the state to restrict the selection and location of school sites to the extent herein asserted by relators.
Admittedly, there is no case in Missouri that rules the precise question here presented. Relators cite the case of Kansas City v. School District of Kansas City,
Relators also cite the case of Smith v. Board of Education of City of St. Louis,
*900
Relators also cite Pasadena School District v. City of Pasadena,
Chapter 89, § 89.020, provides that, for the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of the city is empowered, among other things, to “regulate and restrict * * * the location and use of buildings, structures and land for trade, industry, residence or other purposes”. Clearly, it contains no express grant of power to cities to regulate or restrict the location of
schools or other public buildings,
and relators cite no authority that such power is implicit in such a statute. On the other hand, respondent argues with much plausibility that the authority given the city to regulate and restrict the location and use of buildings and lands for “trade, industry, residence or
other purposes”,
under the rule of ejusdem generis, negates implied authority to control the location of
schools or other public
buildings, because “trade”, “industry and “residence” relate to private property only and the phrase “other purposes” is not to be broadened to include a public use of property by the state in carrying out its constitutional mandate to establish and maintain free public schools. See State ex inf. McKittrick v. Wilson,
The case of State ex rel. Helsel v. Board of County Commissioners of Cuyahoga County, Ohio Com.Pl. 1947,
Relators cite no authority contrary to the conclusion reached by the Ohio court. In their reply brief, they insist, however, as did the city in its original “suggestions”, that reference in Chapter 89 to “schools” amounts to “an express grant” of power to the city to prohibit the location of the school in question in district B, and that “there is no occasion for inference or implication regarding such power.” Let us see.
The only reference to schools in the whole of Chapter 89 is that in § 89.040, which states that the regulations therein authorized “shall be made in accordance with a comprehensive plan and designed * * * to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements.” [Emphasis ours.] The meaning of the reference to schools is not readily clear and we have not found nor have we been cited any authority tending to clarify the meaning of the phrase. But, “to facilitate the adequate provision of * * * schools” definitely cannot be reasonably construed to vest the city with power to regulate, restrict or prohibit them.
Furthermore, if, by any process of reasoning, Chapter 89 should be tormented into meaning what relators contend it does, then a substantial portion of Section 165.370 would ipso facto be nullified. That section, among other things, provides that when the demands of the school district require more than one public school, the board shall divide it into school wards, fix the boundaries thereof, and select and procure a site in each new ward. Obviously, if the nine cities within the school district had the power to restrict the location of schools,, it would become a practical impossibility for the school district to establish school wards and locate schools therein.
Respondent has cited numerous cases from other jurisdictions in support of the school district’s contention to the effect that, in the absence of an express grant of power to so ordain, municipal zoning ordinances cannot encroach upon or limit the absolute right of the state or its lawfully designated subdivisions or agencies to select, locate and acquire land and buildings for public use, such as schools, state office buildings, hospitals, parks, highways, airports, etc. Relators have cited no case to the contrary, and we have found none. Space forbids discussion of the several cases cited by respondent. A discussion of one that is especially in point, followed by citation of the others, must suffice.
In New York, the statutes Sections 175 and 177, Village Law, c. 64, 63 McKinney Laws Annotated, are, in substance, identical to our Sections 89.020 and 89.040. So, too, do the laws of New York, Sections 401, 404, 1604 and 1709, Education Law, c. 16, McKinney Laws Annotated, Part 1, invest the school districts of New York with the same powers, as do our Sections 165.370 and 165.100 invest school districts of Missouri.
In the case of Union Free School District No. 14 of Town of Hempstead, Nassau County v. Village of Hewlett Bay Park, 1950,
The only instances coming to our attention wherein the courts have permitted a municipality to control the location of a public institution through zoning ordinances are cases where the court found that the public agency in conducting such enterprise would be engaged. in a proprietary rather than a governmental function. See Taber v. City of Benton Harbor,
We are convinced that our statutes, Sections 165.100 and 165.370, enacted pur *903 suant to the constitutional mandate set forth in Article IX, § 1(a), vest exclusively in the school districts of this state the power to select, locate and procure by condemnation, if necessary, sites for public schools, and that City of Ladue Ordinance No. 282 does not and, until there is an express grant from the state so to do, the city cannot lawfully restrict those powers.
The provisional rule in prohibition herein issued is discharged.