This is a suit by Frederic E. Voelker, Lucy M. Schwienher, Haille Robinson, Forrest Boecker and Anton A. Tibbe, as members of the Saint Louis Mercantile Library Association, a corporation, referred to as “Library” or “Library Association,” on behalf of themselves and all other members of said Library Association, against said Saint Louis Mercantile Library Association, the First National Bank in St. Louis, a corporation, referred to as “Bank,” Five-Twelve Locust, Inc., a corporation, and Saint Louis Union Trust Company, a corporation, referred to as “Trust Company,” to cancel a certain lease and amendment thereto by said Library of its ground and part of its building at Broadway and Locust in the City of St. Louis to said Bank on grounds that said lease and amendment are unreasonable, voidable, ultra vires, and a breach of trust by the officers, directors and trustees of defendant Library. The motions of the defendants to dismiss plaintiffs’ amended petition were “sustained with prejudice on the grounds (1) that plaintiffs, and each of them, lack the legal capacity to sue, and (2) the petition fails to state a cause of action upon which relief can be granted.” The plaintiffs have appealed. Defendants contend the court was correct on both rulings.
This suit was filed January 3, 1961. Plaintiffs alleged that the reasonable rental of the demised premises for a term ending July 14, 2019, had a value of more than three times the agreed-upon annual rental of $59,000. The judgment of dismissal was entered July 14, 1961. This court has appellate jurisdiction by reason of the amount in dispute at the time of the appeal. Consult Newco Land Co. v. Martin,
It will aid in an understanding of the issues to narrate certain facts within the allegations of the petition, the exhibits and the stipulations at this point.
By Laws 1846-47, p. 153, approved February 16, 1847, the General Assembly passed an act incorporating the “ ‘Saint Louis Mercantile Library Association,’ ” expressly stating “the object of which is the establishment of a library and reading room, the collection of a scientific cabinet and apparatus and of works of art and for other literary *691 and scientific purposes.” Said act provided that said corporation “shall have perpetual succession,” and continued in effect the then constitution and by-laws “until regularly altered or repealed by the association.”
By Laws 1850-51, p. 74, approved February 17, 1851, the “ ‘Mercantile Library Hall Company of St. Louis,’ ” was created a body corporate and (§ 3) directed to expend its funds “in buying an adequate lot or piece of ground and erecting thereon a building sufficient and commodious for the use of the ‘Saint Louis Mercantile Library Association,’ which ground and building while the same or any part thereof shall be occupied and used as a public library shall not be subject to taxation.” Said act (§ 4) contemplated the lease of the ground and building to the Library, with right of subletting part of the building, and (§ 5) required the conveyance of the land and building to the Library as soon as the Library had reimbursed the Hall Company for its outlays. Section 7 of the act is more appropriately quoted later.
The Library Association acquired the real estate specifically described in plaintiffs’ petition.
Under the original lease (referred to in the petition as “Exhibit A”) defendant Library leased to defendant Bank, for a term beginning October 1, 1948, and ending October 1, 1952, all of the described premises with the improvements thereon, a six story and basement stone and brick building, except the sixth floor of said building, reserved by the Library, and the user of certain other portions of the building appropriate to the functioning of said Library. Said lease and an amendment thereto vested the Bank with certain options for the extension of the terms of the lease. Under an amendment of said lease, dated December 18, 1956 (referred to in the petition as “Exhibit B”), said lease was extended to terminate on July 14, 2019, and the Bank obtained Library’s consent to assign the lease to the Bank’s wholly owned subsidiary, Five-Twelve Locust, Inc., and to the use of the lease by the latter as security for bonds or debentures not to exceed $6,- 500,000, but said Bank is expressly held liable for all it obligations as lessee notwithstanding any such assignment or encumbrance. The Library, under Exhibit B, obtained an increase in the annual cash rent to $59,000 from $56,000, and more favorable provisions with respect to lessee Bank’s obligations for the maintenance, repair, upkeep, et cetera, of the building, for the proper functioning of the Library, and a provision that rent should continue notwithstanding any damage to or destruction of the building.
Plaintiffs’ amended petition contains allegations with respect to the facts herein-above set forth; and in ¶ 6 thereof, among other things, alleges that defendant Library and defendant Bank entered into the lease marked Exhibit A “for a term which has been extended to terminate on July 14, 2019, that is, a term of seventy years, nine months and thirteen days. By an amendment to said lease, * * * marked ‘Exhibit B,’ the leasehold has been assigned to defendant Five-Twelve Locust, Inc. * * * Defendant Five-Twelve Locust, Inc., has in turn assigned the leasehold to defendant Trust Company as trustee to secure an indebtedness of $6,500,000.00, due December 1, 1981, and has surrendered various portions of said leasehold to defendant Bank and defendant Trust Company.”
Paragraph “7” of said petition is quoted more appropriately hereinafter.
We quote portions of plaitniffs’ petition upon which they rely in their brief in support of their contention that the lease and amendment thereto are unreasonable, voidable, ultra vires and a breach of trust.
“9. The term of said lease is unreasonably long, extending far beyond the reasonably foreseeable future, and the assets of a charitable trust ought not to be tied up for such a period of time.
*692 “10. The rental payable under said lease, as amended, being fixed for the entire term thereof in the amount of some $59,000 per year, is unreasonably low for the premises let thereunder, which comprise some 70,000 square feet of very valuable downtown office and commercial space, conservatively worth more than three times the stated rental, and reasonably to be expected to increase in value as time goes on.
“11. The terms of said lease, as amended, are unreasonable in that there is included no ‘escalator clause,’ that is, no clause providing for an adjustment in the amount of rent commensurate with changing price levels and other circumstances affecting the rental value of the premises. * * *
7T2. Said lease, as amended, contemplates the alteration of the entire structure let thereunder to meet the special requirements of defendants Bank and Trust Company, rendering the premises unsuitable for use by any other tenants, without any provision for defendants to pay the cost of further altering the building so as to render it suitable for general use in the event the tenancy of defendants is terminated. * * *
“13. Said lease and the amendment thereto were not approved by a lawfully constituted Board of Trustees as required by the Act of March 28, 1874, which provides in part: ‘The real estate belonging to said corporation shall be managed and controlled, except as hereinafter mentioned, by a board of five trustees, members of said corporation who shall be elected at any annual meeting, or any meeting specially called for that purpose. * * ⅜ No conveyance in fee, mortgage, or deed of trust in the nature of a mortgage, nor lease for a longer period than ten years, shall be made of any real estate belonging to said corporation, unless the same shall be ordered to be made by the board of directors, three-fourths of the whole number of the members composing said board voting therefor,' nor unless the same shall also be concurred in by at least four of said board of trustees, * * * and any vacancy caused by death, resignation, removal from the County of St. Louis, incapacity to serve as such trustee, shall be filled by the remaining trustees (Emphasis supplied.) 1 On the occasion of the purported approval of said lease, Exhibit A, and on the occasion of the purported approval of the amendment thereto, Exhibit B, there existed a vacancy on said board which had not been filled by the remaining trustees.
“14. The election by defendants to extend the term of said lease from the original stated term to the present term of seventy years, nine months and thirteen days, has never been approved by any board of trustees.
“15. The members of the boards of trustees which purported to approve said lease and said extension thereto, acted adversely to the best interests of defendant Library and its members who are the beneficiaries to whom said trustees owed a fiduciary duty. Said boards of trustees in breach of said fiduciary duty acted in furtherance of their own personal interests in approving said lease and amendment and to the disadvantage of plaintiffs and the class represented by plaintiffs, in that members of said boards had an interest in defendants Bank and Trust Company, as did members of the families by blood and marriage of certain members of said boards.”
Paragraph 16 alleges that plaintiffs called the attention of the officers, directors and members of defendant Library to the infirmities of said lease and amendment at an annual meeting, and that said officers, directors and members have refused to take any action on behalf of defendant Library and its members.
Defendants say with respect to the ground plaintiffs lack the legal capacity to sue in *693 their motions to dismiss that plaintiffs are bound upon this review by the allegations and admissions in their amended petition.
The sufficiency of a petition upon a motion to dismiss must be determined by the facts alleged in the petition. Klorner v. Nunn, Mo.,
State ex rel. Buder v. Brand,
The following allegations of plaintiffs’ amended petition are pertinent to this issue:
“7. By the terms of its charter, defendant Library is operated for charitable purposes, to-wit: ‘The establishment of a library and reading room, the collection of a scientific cabinet and apparatus and works of art and for other literary and scientific purposes,’ and its assets, including the above-described real estate, are a trust res, held for the benefit of plaintiffs and all other present and future members of defendant Library.”
And, so far as material in ¶ 9, quoted in full supra: “The term of said lease is unreasonably long, * * * and the assets of a charitable trust ought not to be tied up for such a period of time."
And, the opening paragraph of plaintiffs’ brief states they represent a class “consisting of members of defendant St. Louis Mercantile Library Association, a charitable trust chartered by special acts of the Missouri Legislature.”
Plaintiffs’ petition thus designated defendant Library Association as “a charitable trust,” affirmatively alleged that it is a corporation “operated for charitable purposes,” setting out the same objects and purposes of its operation as are stated in the act of its incorporation (Laws 1846 — 47, p. 153, supra) and alleged that its assets “are a trust res” held for the benefit of an indefinite number of beneficiaries.
Scott, Trusts, 2d ed., Vol. 4, § 370, p. 2640, states: “A trust is a valid charitable trust as one for the advancement of education although it is not connected with an educational institution. Thus trusts to establish or maintain public libraries * * * are charitable.” Consult Parsons v. Childs,
Plaintiffs’ petition states defendant Library’s assets “are a trust res, held for the benefit of plaintiffs and all other present and future members of defendant Library.” The beneficiaries of the “trust res” are indefinite. Newton v. Newton Burial Park,
The General Assembly considered and intended defendant Library to be a public charitable corporation. See Laws 1846-47, p. 153, stating the purposes of defendant Library. Laws 1850-51, p. 74, incorporating the Mercantile Library Hall Company, provided that the funds of said Hall Company be used for acquiring ground and erecting a building thereon for defendant Library, and that (§3) said “ground and building while the same or any part thereof shall be occupied and used as a public library shall not be subject to taxation”-, and (§ 7) : “This act shall be a public act and shall be construed benignly and favorably in all courts and places for every beneficial purpose herein intended * * (Emphasis added.)
The defendant St. Louis Mercantile Library Association is, for the purposes of this suit, subject to the principles applicable to charitable trusts.
“The owner of property may devote it to charitable purposes not only by-transferring it to trustees in trust for such purposes, but also by transferring it to a charitable corporation.” 4 Scott, supra, § 348.1, p. 2553. 2 Restatement, Trusts, 2nd, § 348f, pp. 211, 212. “Certainly many of the principles applicable to charitable trusts are applicable to charitable corporations. In both cases the Attorney General can maintain a suit to prevent a diversion of the property to other purposes than those for which it was given; and in both cases the doctrine of cy pres is applicable.” Scott, Id., nn. 2, 3; see also § 391, p. 2753; Restatement, Id., p. 212.
In Tyree v. Bingham,
Smith v. Board of Pensions of the Methodist Church, Inc., D.C.,
In Thatcher v. City of St. Louis,
Dickey v. Volker, supra,
Bogert, Trusts and Trustees, 1953, Vol. 2A, § 414, p. 277, states that courts usually require suits for the enforcement of charitable trusts to be “brought by the established representative of the charity, namely, the Attorney General, so that the trustees may not be vexed by frequent suits, possibly based on an inadequate investigation, and brought by irresponsible parties.”
The members of the St. Louis Mercantile Library Association have the right to participate in the charitable use, but that is not a pecuniary interest in its corporate assets.
Plaintiffs state Laws 1846-47, p. 153, made defendant Library Association a body corporate for the purpose of establishing a library and reading room, etc., and continued in effect its then constitution and by-laws until altered or repealed by the association. To escape the binding effect of their specific allegations that defendant Library Association is a “charitable trust,” “operated for charitable purposes,” and that its assets “are a trust res” held for the benefit of an indefinite number of beneficiaries, plaintiffs seek to distinguish this case from Dickey v. Volker, supra, by the following provisions for membership in defendant Library Association: “[F]irst, that there were, indeed, restrictive provisions.for membership; second, that membership was under the control of the Association; third, that memberhip required the payment of a cash fee; and, fourth, that enjoyment of the Library’s facilities was limited to members.”
1st. The restrictive provisions for membership.
The constitution in effect in 1847 contemplated that the regular members of the Library Association should be persons engaged in mercantile pursuits; but it also provided for “honorary members” and members “not engaged in mercantile pursuits” and life membership without restriction as to occupation. Since 1925, however, and at the time of the institution of this suit, the Association was to be composed of persons engaged in mercantile pursuits and other persons, without restriction as to occupation so far as disclosed by the record presented, all being subject to approval by the “Board of Direction.”
*696
It is stated in 10 Am.Jur., Charities, § 5, nn. 4, 10: “A public charity is one in which there is a benefit to be conferred on the public at large, or some portion thereof, or upon an indefinite class of persons. * * * A charity may restrict its admissions to a class of humanity and still be public. * * * [A]nd as long as the classification is determined by some distinction which involuntarily affects or may affect any of the whole people, although only a small number may be directly benefited, it is public.” See Newton v. Newton Burial Park,
Bader Realty & Inv. Co. v. St. Louis Housing Authority,
2nd. The contention that membership is under the control of the Association.
It is stated in 10 Am.Jur., Charities, § 135, p. 685: “Moreover, the facts * * * that no person has individually a right to demand admission, and that the trustees of the hospital determine who are to be received does not render it the less a public charity.”
In Salvation Army v. Hoehn,
3rd. The contention that membership requires the payment of a cash fee.
American Jurisprudence, supra, § 64, p. 631, states: “The fact that such an institution [educational] requires its students to pay tuition does not change its character as a charitable institution.” And, Id., § 135, p. 685: “Moreover, the facts that a corporation, established for the maintenance of a public hospital, by its rules requires of its patients payment for their board, according to their circumstances and the accommodation they receive, * * * do not render it the less a public charity.” The St. Louis Housing Authority charges low rent. Bader Realty & Inv. Co. v. St. Louis Housing Authority, supra, 217 S.W.2d *697 loc. cit. 491. The Salvation Army-charges for board and lodging in the Evangeline Residence. Salvation Army v. Hoehn, supra. Scott, Trusts, 2d ed., § 376, p. 2724, states trusts may be charitable notwithstanding provisions that the beneficiaries or some of them are to contribute to the expense of maintaining the institution. “The question is not whether the institution may receive a profit, but what disposition is to be made of the profit, if any, which may be received. If the profits are to inure to the benefit of individuals, the institution is not charitable. But if the profits, if any, are to be applied wholly to charitable purposes, the institution is charitable.” See also “4th,” infra.
4th. The contention that the enjoyment of the library facilities is limited to members. We consider this contention answered by holdings that it is not necessary that a charity be for the benefit of the public at large where its membership is open to an indefinite number of the public; and, so far as involved on this review, defendant Library Association, which admittedly is incorporated, is a charitable corporation. See also Scott, supra, § 370.5, p. 2647, stating: “On the other hand, a trust is none the less charitable although it is for the benefit of a private educational institution, provided that it is not a proprietary institution. The fact that the institution is not conducted by the government, and the fact that all of the members of the public are not accepted as students in the institution, does not prevent it from being a charitable institution.” In Fordyce v. Woman’s Christian National Library Ass’n,
Plaintiffs’ case of Lilly v. Tobbein,
Plaintiffs’ case of Harger v. Barrett,
Holman v. Renaud,
Defendant Library Association in the case at bar is not a voluntary association, but a public charitable corporation organized by special act of the General Assembly. Plaintiffs, who are appellants, have filed no reply brief. We conclude their presentation does not establish error in the trial court’s holding “that plaintiffs, and each of them, lack the legal capacity to sue.” If they do not have the legal right to sue, it logically follows that “the petition fails to state a cause of action upon which relief can be granted” to plaintiffs.
The judgment is affirmed.
PER CURIAM.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All of the Judges concur.
Notes
. Emphasis supplied by pleader. Reference is to Laws 1874, pages 203, 204.