author: STORCKMAN, Judge.

text:
    Clara KING, Appellant, v. Giles ELLIS, Respondent.
    No. 48523.
    Supreme Court of Missouri, Division No. 2.
    Sept. 10, 1962.

      Riddle, Baker & O’Herin and Veryl L. Riddle, Charles H. Baker and Edward F. O’Herin, Malden, for appellant.
    Ward & Reeves and James E. Reeves, Caruthersville, for respondent.
   STORCKMAN, Judge.

This is a suit for personal injuries resulting from a collision of two automobiles alleged to have been caused by the defendant’s negligent operation of a third motor vehicle. The prayer of plaintiff’s petition was for damages in the sum of $25,000. At the conclusion of plaintiff’s case, the trial court sustained the defendant’s motion for a directed verdict and judgment for the de-. fendant was rendered accordingly. The plaintiff’s motion for new trial was overruled by lapse of time and the plaintiff appealed. The sole issue on appeal is the sufficiency of the evidence to make a case for submission to the jury.

On July 8, 1958, at about 2 p.m., three motor vehicles were being driven south-wardly on Missouri State Highway 25 within the northern city limits of Kennett, Missouri. At the place in question, the highway consisted of six traffic lanes, three for southbound and three for northbound traffic. The outside lanes on both sides of the highway were blacktop and generally used for parking. The four inside lanes, two southbound and two northbound were paved. The highway was dry and the day was cloudy.

The leading southbound vehicle was a pickup truck being driven by the defendant Giles Ellis. The second or middle vehicle was a 1957 Ford being driven by the plaintiff Clara King. The last of the three cars, which was the one following the plaintiff, was a 1953 Chrysler driven by Roy A. Rayburn, a resident of Cleveland, Ohio. AH of the vehicles were being driven at moderate rates of speed. All of them were being operated in the inside lane, the one next to the center line.

At the place in question, the defendant pulled his pickup truck somewhat to the right, then turned to his left in front of the plaintiff, made a U turn and headed back north on the other side of the highway. When the plaintiff saw the defendant start this maneuver, she applied her brakes and slowed down, or had stopped, so that her automobile did not come into contact with the defendant’s truck. Mr. Rayburn, last in the line of the three, saw the defendant’s pickup truck move first to the right and then to the left, saw the brake lights of the plaintiff’s car go on, and undertook to apply his own brakes but the brake line failed. The Rayburn car struck the plaintiff’s car on the left rear bumper. The plaintiff and her passengers were thrown about in the automobile and she was injured. The action originally included Mr. Rayburn as a defendant, but plaintiff’s claim against him was settled for $4,000 before trial. There was a dismissal as to him and he was a witness on behalf of the plaintiff in the trial of her claim against the defendant Ellis.

Mr. Rayburn testified that when the defendant turned his truck to the left across the street and the brake lights of the plaintiff’s car came on: “I hit my brakes and my brake line busted.” He estimated that the vehicles had been moving at about 20 or 22 miles per hour and that his car had slowed somewhat and was going about 10 or 12 miles per hour when it struck the plaintiff’s car. Mr. Rayburn further testified that he was traveling behind the plaintiff’s automobile at a normal safe distance and if his brake line had not broken he could have pulled up and stopped behind the plaintiff’s car without striking it. This testimony offered by the plaintiff was not controverted.

The plaintiff testified that the defendant’s truck was traveling very slowly when she first saw it just a little while before her car was struck; that the truck went slightly to the right, then turned left in front of her, and across three lanes of the highway; that she did not see the defendant give any signal; that she could not have been going over 20 or 25 miles per hour when the defendant turned in front of her and she applied her brakes; that she was following the truck at a good safe distance and she was sure her car was at least three or three and a half car lengths behind the defendant’s truck; that she saw the defendant starting to make his left turn and had plenty of room in which to stop without running into the truck and that she could have stopped even if she had been going faster.

The passengers in the plaintiff’s automobile and a police officer also testified. There was some divergence as to the speed of the defendant’s truck and the plaintiff’s automobile, but nothing of consequence was added to the testimony of Mr. Rayburn and the plaintiff so far as the issue before us is concerned. The plaintiff summarizes her two charges of negligence against the defendant as follows: “One in failing to give signal of his intention to turn and another in turning to the right and then back to the left in front of the King car.”

The plaintiff correctly contends that in determining whether she made a submis-sible case the evidence will be viewed in the light most favorable to her and she will be given the benefit of every inference that may be reasonably drawn from such evidence. Housden v. E. I. Du Pont De Nemours & Co., Mo., 321 S.W.2d 430; Cohagan v. Laclede Steel Co., Mo., 317 S.W.2d 452; Perry v. Dever, Mo., 303 S.W.2d 1.

In support of the action of the trial court, the defendant contends that the sole and independent cause of the collision and plaintiff’s alleged injuries was the failure of the brakes on the Rayburn automobile and that negligence on the part of the defendant could not be the legal and proximate cause of the collision between the automobiles of the plaintiff and Mr. Rayburn. The defendant cites Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240, as controlling on the issue. The evidence tends to show that the defendant was negligent and that the plaintiff was injured, so we may proceed to determine if the evidence was sufficient to show legal causation between such negligence and the plaintiff’s injuries.

The plaintiff recognizes that there must be a causal connection and that the defendant’s negligence must have been the proximate cause of the plaintiff’s injuries. The proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new cause, produces the event and without which the event would not have occurred. Kennedy v. Independent Quarry & Construction Co., 316 Mo. 782, 291 S.W. 475, 481 [5]; Evans v. Massman Construction Co., 343 Mo. 632, 122 S.W.2d 924, 932 [18].

Generally, an efficient, intervening ¿ause is a new and independent force which so interrupts the chain of events that it becomes the responsible, direct, proximate, and immediate cause of the injury but it may not consist merely of an act of concurring or contributing negligence. Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820, 824 [3].

As stated in Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240, 245 [2] : “The mere fact that injury follows negligence does not necessarily create liability. A causal connection must be established between the negligence charged or submitted and the loss or injury sustained, such that the injury would not have happened but for the negligence, and also that the negligence was not only a cause but was a proximate cause.” The Branstetter case also involved three motor vehicles. The traffic conditions ahead of the lead car prompted a sudden slowdown. The first two cars were able to slow down and stop, or practically so, but the driver of the third or rear car was not paying attention to the-traffic ahead; he was looking'to the side of the road and did not see the cars ahead slowing down until it was too late to stop. The last car struck the middle car shoving it into the first car in which plaintiff was a passenger. The plaintiff Branstetter settled her claim against Gerdeman, the driver of the last car, and proceeded with her case against the defendant Kunzler, the driver of the lead car in which she was riding. She alleged that the defendant Kunzler had slowed his automobile suddenly and! without giving sufficient warning to the automobiles following. The jury found for the defendant and the trial court granted' the plaintiff a new trial. The defendant on appeal contended that his motion for a directed verdict should have been given. This court held that the negligence of the driver of the third or last car was the proximate cause of the collision and plaintiff’s injuries and that the alleged negligence of the driver of the first car was too remote to-be causative in a legal sense. The order granting a new trial was reversed and the cause remanded with directions to reinstate the verdict and judgment for the defendant.

As stated in Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820, 824 [2], in determining questions of proximate cause and efficient, intervening-cause, each case must stand on its own individual facts. In the case at bar the evidence shows that the plaintiff and Mr. Rayburn both saw the defendant’s erratic-behavior and applied their brakes. The-plaintiff was able to slow her automobile-so as to avoid contact with the defendant’s, truck so that she was not injured directly as a result of the defendant’s negligence. Mr. Rayburn, in the car behind the plaintiff, was able to slow his automobile somewhat and would have been able to stop in* time to avoid striking the plaintiff’s automobile if the brake line on his car had not failed thereby permitting the brake pedal' to go all the way to the floor. On the un-controverted evidence, if the brakes on Mr. Rayburn’s car had not failed the plaintiff would not have been injured.

In the Branstetter case this court held that the admitted negligence of Gerde-man was the proximate cause of the plaintiff’s injuries. Without the sudden and unexpected failure of the brakes on the Rayburn car in the present case, the collision would not have occurred. On the record before us the brake failure was an efficient, intervening cause and the proximate cause of the plaintiff’s injuries. Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240; O’Neill v. Claypool, Mo., 341 S.W.2d 129, 133 [1-4]; Duke v. Missouri Pacific R. Co., Mo., 303 S.W.2d 613, 617 [3, 4] ; Smith v. Mabrey, 348 Mo. 644, 154 S.W.2d 770, 771 [3, 4]; Koogler v. Mound City Cab Co., Mo., 349 S.W.2d 233. The trial court did not err in sustaining the defendant’s motion and in directing a verdict for the defendant.

The judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: BOHLING, Commissioner.

license: Public Domain

text:
    Frederic E. VOELKER, Lucy M. Schwienher, Haille Robinson, Forrest Boecker and Anton A. Tibbe, Appellants, v. SAINT LOUIS MERCANTILE LIBRARY ASSOCIATION, a corporation, First National Bank in St. Louis, a corporation, Five-Twelve Locust, Inc., a corporation, and Saint Louis Union Trust Company, a corporation, Respondents.
    No. 49027.
    Supreme Court of Missouri, Division No. 2.
    Sept. 10, 1962.

      William B. Ewald and Forrest Boecker, St. Louis, for appellants.
    William Stix, St. Louis, for respondent Saint Louis Mercantile Library Association.
    R. H. McRoberts and John P. MacCarthy, St. Louis, for respondents First National Bank in St. Louis, Five-Twelve Locust, Inc., and St. Louis Union Trust Company. Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel.
   BOHLING, Commissioner.

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, 358 Mo. 99, 213 S.W.2d 504[1]; C. Bewes, Inc. v. Buster, 341 Mo. 578, 108 S.W.2d 66[1].

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 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.

“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.) 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 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., 318 S.W.2d 241, 246[4]; Frazier v. City of Rockport, 199 Mo.App. 80, 202 S.W. 266, 267 [2]; 5 C.J.S. Appeal & Error § 1482, p. 759; 71 C.J.S. Pleading § 256, pp. 496, 497. We stated in Williams v. St. Louis Public Service Co., 363 Mo. 625, 253 S.W.2d 97, 104[9]: “ ‘We will not review a case upon a theory different from that upon which it was tried in the circuit court. Litigants are not permitted to blow both hot and cold in the same case, even in different court.’ Smithpeter v. Wabash R. Co., 360 Mo. 835, 231 S.W.2d 135, 146, 199 A.L.R.2d 950, and cases cited.” See 71 C.J.S. Pleading § 59a, p. 147.

State ex rel. Buder v. Brand, 305 Mo. 321, 326, 265 S.W. 989, 990[2,3], states in part that it is not enough that plaintiff “alleges a cause of action existing in favor of someone; he must show that it exists in favor of himself, and that it accrued to him in the capacity in which he sues.” 71 C.J.S., Pleading, § 71a.

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, 345 Mo. 689, 136 S.W.2d 327[5]; Bogdanovich v. Bogdanovich, 360 Mo. 753, 230 S.W.2d 695 [2]; 14 C.J.S. Charities § 15, p. 446. The purposes of defendant Library set forth in the act of its incorporation (Laws 1846-47, p. 153) and quoted in ¶ 7 of plaintiffs’ petition are “charitable purposes.”

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, 326 Mo. 901, 34 S.W.2d 118, 120, 121, quotes from Ruling Case Law, Charities, § 3, so far as material: “ ‘a gift is a “public” charity when there is a benefit to be conferred on the public at large, or some portion thereof, or upon an indefinite class of persons. Even if its benefits are confined to specific classes, as decrepit seamen, laborers, farmers, etc., of a particular town, it is well settled that it is a public charity. The essential elements of a public charity are that it is not confined to privileged individuals, but is open to the indefinite public. It is this ■ indefinite, unrestricted quality that gives it its public character. * * * [A] s 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.’ (Italics ours.)” See also 4 Scott, supra, § 364, p. 2614; Charities, 10 Am.Jur., § 5, nn. 4, 10; 14 C.J.S. Charities §§ 12, 37-39.

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, 100 Mo. 451, 465, 466, 13 S.W. 952, 954, 955, the court had before it a private corporation incorporated March 27, 1867, under Laws 1865-66, p. 69, for the benefit of the orphans and widows of Missouri Confederate soldiers “who perished in the late war.” Contributing members sought to recover corporate funds alleged to have been misappropriated. The court held the charity to be a private one, as its beneficiaries were capable of definite ascertainment, “And it follows that, not being trustees of and having no interest in the fund, except the sentimental one that every person who contributed to it may be presumed to have, that it should be applied to the purpose for which it was contributed, they [contributing members} have no such interest in the fund, and sustain no such relation to it, as to give them, a cause of action for its misappropriation.” The court distinguished between the position of the plaintiffs as members of a benevolent corporation (without capital stock) organized purely for the benefit of others, and the position of stockholders of a business corporation with capital stock who have a pecuniary interest in the assets of the corporation.

Smith v. Board of Pensions of the Methodist Church, Inc., D.C., 54 F.Supp. 224, 237, was a class action by pensioners of defendant charitable corporation, challenging the legality of a charter amendment by defendant enlarging its class of beneficiaries. The court held plaintiffs had no vested interest in the trust fund: “It is evident that the creators of this trust retained control of this trust at all times. They determined who should be admitted to the pension-rolls and could have removed pensioners from the rolls. Furthermore, we have been cited to no case where the management of a trust of this character was by law or implication relegated to the will of those enjoying its benefits."

In Thatcher v. City of St. Louis, 343 Mo. 597, 122 S.W.2d 915[1], descendants of sisters of Bryan Mullanphy sued to terminate his testamentary trust on the ground that the purposes of the trust had long since failed. The Attorney General, made a party defendant, employed counsel to represent him, and the court dismissed plaintiffs’ bill, preserving the trust. That trust was not for the public at large. See Thatcher v. Lewis, 335 Mo. 1130, 1136, 76 S.W.2d 677, 678. Counsel for the Attorney General sought to be allowed fees out of the trust fund. We denied the allowance, stating in part: “Respondents correctly state that the Attorney General was a necessary party. Lackland v. Walker, 151 Mo. 210, 52 S.W. 414; Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 278, 62 A.L.R. 858”; and (122 S.W.2d 916[2]) held that the representation of the interest of the public in the enforcement of public charitable trusts was a duty directly pertaining to the office of the Attorney General. See RSMo 1959, V.A.M.S. § 27.010.

Dickey v. Volker, supra, 321 Mo. 235, 11 S.W.2d 278, 280, 281 [2], involved a trust for the public generally and held that any action for the mismanagement or misuse of the trust funds “must be taken by the Attorney General as representative of the public.” See the authorities reviewed in the Dickey case, supra, 11 S.W.2d at page 282 et seq.; Parsons v. Childs, 345 Mo. 689, 136 S.W.2d 327[7,8]; Murphey v. Dalton, Mo., 314 S.W.2d 726[1,2], 67 A.L.R.2d 1278; Scott, Trusts, 2d ed., § 391, p. 2753; Restatement, Trusts, 2nd, § 348f, p. 212, and 3 Restatement, Id., appendix, p. 570, citing cases.

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.”

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, 326 Mo. 901, 34 S.W.2d 118, 120, 121, quoted supra.

Bader Realty & Inv. Co. v. St. Louis Housing Authority, 358 Mo. 747, 217 S.W. 2d 489, 491, states: “To be eligible for tenancy families must be living in sub-standard accommodations, and must be of low income as per regulations adopted by Housing Authority.” And (217 S.W.2d loc. cit. 493 [4]): “To us the conclusions seem inescapable and we rule that all the property of Housing Authority is exclusively used for purposes purely charitable * * *.” In Buckley v. Monck, Mo., 187 S.W. 31 [4], a testamentary trust “for the use of worn-out preachers in M. E. Church in North Mo. Conference” was considered a valid charitable trust, although “at the time of the trial there were 26 worn-out preachers in the Missouri Conference.” Consult, among others, the trusts involved in Missouri Goodwill Industries v. Gruner, 357 Mo. 647, 210 S.W.2d 38[4-6]; Salvation Army v. Hoehn, infra.

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, 354 Mo. 107, 188 S.W.2d 826, women and girls desiring to live in the 13-story “Evangeline Residence” of plaintiff were required to make out and file a written application therefor and if accepted were subject to-stated charges for board, lodging, etc. The court stated (188 S.W.2d page 827): “The Evangeline Residence is not open to the public. Occupants are selected on the basis of facts stated in the application.” The Evangeline Residence was held used for “charitable purposes.” (188 S.W.2d page 831 [7].) In Buchanan v. Kennard, 234 Mo. 117, 136 S.W. 415, 37 L.R.A.,N.S., 993, the testamentary trust involved resulted in the erection of Barnes Hospital in St. Louis “for sick and injured persons, without distinction of creed, under the auspices of the Methodist Episcopal Church South of the United States, or its successors, and under such rules and regulations as said trustees and their successors shall from time to time establish and maintain,” (234 Mo. 127 (1st), 136 S.W. 416(1)) and was sustained as a public charity, over the contention “that the trustees are given such-power as would authorize them to select the rich as patients and exclude the poor.” (234 Mo. 137-142, 136 S.W. 420-422.) Note the powers of the board of directors in Taylor v. Baldwin, 362 Mo. 1224, 247 S.W.2d 741, 746, and see Musser v. Musser, 281 Mo. 649, 221 S.W. 46, 51.

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 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, 79 Ark. 550, 96 S.W. 155, 7 L.R.A..N.S., 485, any woman might become a member by paying an annual initiation fee of $2.00 and monthly dues of 25$5; persons of either sex might become honorary members for life on payment of $50.00; and any one could become a life patron for $250.00. The Library had no capital stock. There was no provision for dividends or profits. The court held it was organized for purely charitable purposes. See also Minns v. Billings, 183 Mass. 126, 130-132, 66 N.E. 593, 595, 5 L.R.A., N.S., 686.

Plaintiffs’ case of Lilly v. Tobbein, 103 Mo. 477, 487(3), 15 S.W. 618, was a suit to establish a rejected will giving property “to the Catholic church at the city of Lexington,” Missouri, an unincorporated association, by the trustees and other members of the church for themselves and all other members of the association. The court stated: “The statute allows ‘any person interested in the probate of a will’ to prosecute a suit * * * to have one proved which has been rejected by the probate court” (see RSMo 1889, § 8888); and, although the action was one at law, applied the equity rule that one or more members of a voluntary association could sue for and in behalf of all the members.

Plaintiffs’ case of Harger v. Barrett, 319 Mo. 633, 5 S.W.2d 1100, 1101, 1102, in which the Attorney General was made a party defendant, was an action to quiet title under RSMo 1919, § 1970 (now RSMo 1959, § 527.150), involving a devise to “the Pleasant Ridge Baptist Church for the erection or improvement of a church house and what is not needed for the purpose to be used as may be directed by said church,” plaintiffs suing for themselves and all other members of said church. The only citation on the issue here presented is Lilly v. Tobbein, supra. In the Harger case (as in the Lilly case under RSMo 1889, § 8888) any party claiming any interest in real property under said § 1970 was entitled to an adjudication of his interest, and if he have no interest the court should so adjudge and decree. Pettus v. City of St. Louis, 362 Mo. 603, 242 S.W.2d 723, 729 [6], and cases cited. Scott, supra, § 391, p. 2759, nn. 22, 23, cites the Harger case under the subject “Persons having special interests,” stating: “There are other situations where the matter [party having a special interest] is more doubtful. It would seem, however, that where a charitable trust is created for the benefit of a small class of persons, any member of the class cap maintain a suit on behalf of himself and the other members of the class for the enforcement of the trust. * * * When a person having a special interest in the performance of a charitable trust brings suit for the enforcement of the trust, the Attorney General is ordinarily a necessary party to the suit, since his presence is necessary for the protection of the interests of the community in the performance of the trust.”

Holman v. Renaud, 141 Mo.App. 399, 125 S.W. 843, 844, 845(2), involved a testamentary gift to trustees for “erecting a Memorial Union Chapel to be used for religious purposes by the several evangelical denominations” in a specified vicinity. Plaintiffs sued on behalf of themselves and others alleging they were “resident property owners of Watkins township in Dent county in the vicinity of the proposed location of the chapel.” The court pointed out that the beneficiaries of the trust were “the church organizations of that vicinity included in the designation ‘evangelical denominations,’ ” not the property owners in that vicinity, and the precise holding was that plaintiffs’ petition showed on its face plaintiffs had no right to maintain the suit. The observations of the judge in the next paragraph of that opinion, quoted in part by plaintiffs, are favorable to defendants under the definition of a public trust therein (whether precisely correct or not) in that, briefly stated, the identity of the future beneficiaries of defendant Library Association cannot be ascertained with certainty, and the judge’s view, in such event, that the suit should be brought by the Attorney General.

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.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.

All of the Judges concur.

      . Emphasis supplied by pleader. Reference is to Laws 1874, pages 203, 204.


author: HYDE, Judge.

text:
    KANSAS CITY TERMINAL RAILWAY CO., a Corporation, Plaintiff-Respondent, v. KANSAS CITY TRANSIT, INC., a Corporation, Defendant-Appellant, Kansas City, Missouri, a Municipal Corporation, Defendant.
    No. 49234.
    Supreme Court of Missouri, En Banc.
    July 16, 1962.
    Rehearing Denied Sept. 10, 1962.

      Powell C. Groner, Hale Houts, Hogsett, Houts, James, Randall & Hogsett, Kansas City, for defendant-appellant.
    Sam D. Parker, William M. Stapleton, Kansas City, for plaintiff-respondent. La-throp, Righter, Gordon & Parker, Kansas City, of counsel.
   HYDE, Judge.

Action for declaratory judgment and other relief including a money judgment for plaintiff, the Kansas City Terminal Railway Co. (hereinafter called “Terminal”) against defendant Kansas City Transit, Inc. (hereinafter called “Transit”). The trial court’s judgment gave Terminal the declaratory relief sought and a judgment against Transit for $5,613.30. Defendant City of Kansas City (hereinafter called “City”) was given judgment on a counterclaim against Terminal for $5,884.22 from which Terminal did not appeal. Because the amount in dispute was insufficient to give this court jurisdiction, we transferred this case to the Kansas City Court of Appeals. After hearing there, the Court of Appeals reversed the judgment of the trial court without ordering any declaratory judgment on the issues involved. For proper procedure see Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282; Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39; Strype v. Lewis, 352 Mo. 1004, 180 S.W.2d 688, 155 A.L.R. 99; King v. Priest, 357 Mo. 68, 206 S.W.2d 547; Preisler v. Doherty, 365 Mo. 460, 284 S.W.2d 427, 440; Evans v. Brussel, Mo.Sup., 300 S.W.2d 442; Mayor, Councilmen and Citizens of City of Liberty v. Dealers Transport Co., Mo.Sup., 343 S.W.2d 40. The previous opinions in this case are Kansas City Terminal Railway Co. v. Kansas City Transit, Inc,, Mo. Sup., 339 S.W.2d 766, Mo.App., 350 S.W. 2d 828. On application of Terminal, we transferred the case here. See Sec. 10, Art. V, Const., V.A.M.S. and Rule 84.05, V.A.M.R.

The issues for decision herein are whether, under ordinances of City and contracts between Terminal and Transit relating thereto, Transit is required to pay a portion of the maintenance cost of certain viaducts and subways after abandoning the use of streetcars using tracks and substituting motorbuses and trolley buses therefor. Transit is the successor of previous companies which made the contracts, and are named in the ordinances but we will use the term “Transit” as designating all of them as it has assumed the obligations of its predecessors.

Terminal’s petition was in two counts. Count 1 sought a declaration that Transit was obligated by certain ordinances of 1909 and 1911 (No. 2336 and No. 9701) to pay Terminal one-half of the cost of maintenance of certain viaducts, subways and approaches thereto for such time as Transit had operated or would operate buses thereon and sought a money judgment for one-half of the cost of maintenance expended thereon by Terminal. Count 2 sought a declaration that a 1917 contract between Terminal and Transit and ordinances in connection therewith required Transit to pay Terminal one-third of the maintenance cost of the viaducts, subways and approaches mentioned therein and sought a money judgment for one-third of the cost of maintenance expended thereon by Terminal. The parties have made a stipulation of facts and much of the evidence is documentary but there were also interrogatories and answers, a deposition and some oral evidence. (Terminal had oral testimony that the use of buses required more maintenance expense on viaducts than streetcars.) The trial court made findings of fact, stated its conclusions of law and entered a decree declaring that:

“1. The use of the viaducts and subways and approaches thereto in Kansas City, Missouri, which are subject to the provisions of Ordinances of Kansas City No. 2336 and 9701, by Kansas City Public Service Company for the transportation of passengers by bus or by means other than streetcar is the same use contemplated by and within Ordinances of Kansas City No. 2336, 9701 and 54217.

“2. The 1917 contract between Kansas City Terminal Railway Company and Kansas 'City Railways Company, adopted by Kansas City Public Service Company, is in full force and effect, and Kansas City Public Service Company has been, is now, and will in the future be obligated to pay to-Kansas City Terminal Railway Company, during such times as it has in the past used, is now using, or may in the future use said viaducts and subways for the transportation of passengers, one-third of the cost of maintenance or repair of the following viaducts and subways and the approaches thereto: The viaducts at Grand Avenue, Charlotte Street, Troost Avenue, Vine Street, Brooklyn Avenue, Prospect Avenue, 18th Street, and the Extension of Main Street south of 23rd Street (270 feet), and the subways at 15th Street, 9th Street, 12th Street, Jackson Avenue, Southwest Boulevard, and Summit Street.

“3. Kansas City Public Service Company is obligated to pay to Kansas City Terminal Railway Company one-half of the cost of maintenance and repair of all viaducts and subways and the approaches-thereto which are subject to the provisions, of Ordinances of Kansas City No. 2336- and 9701 and not included in the above described 1917 contract, during the time or times when said viaducts or subways were or are now being, or may in the future be used by Kansas City Public Service Company for the transportation of passengers, by bus or any means other than streetcar.” (Transit is the successor of Kansas City Public Service Co.)

The 1909 ordinance (No. 2336) gave Terminal its franchise and the 1911 ordinance (No. 9701) was supplemental to it. Terminal’s franchise was for 200 years and it was required to build and maintain viaducts or subways for the City streets it crossed. Sec. 19(a) of Ordinance 2336 provided that before City shall permit any company to “operate a streetcar line or lines over or upon any of the viaducts” constructed by Terminal it shall require payment of one-half the cost to Terminal and “to enter into a suitable undertaking to pay * * * Terminal ⅜ * * one-half of the subsequent maintenance of * * * viaducts during the period of such use.” Sec. 19(b) contained similar provisions concerning subways. Ordinance 9701 made provisions for substitution of viaducts for certain designated subways and subways for certain designated viaducts made necessary by change of grade of streets. Transit’s latest franchise ordinance of 1927 (No. 54217) granted it the right to “own, construct, reconstruct, improve, maintain and operate as a common carrier of passengers for hire * * * the certain street railway lines now existing * * * and ajso such additions thereto and extensions thereof as shall be hereafter made or required in accordance with the terms and provisions of this Ordinance.” It further provided that “if the City is legally bound by any franchise contract with” Terminal to require any predecessor of Transit to pay to Terminal “any sum towards the construction or maintenance of viaducts or subways or approaches thereto upon any route to be used for streetcar traffic under this contract, the company shall be required to pay the same, otherwise not.” It further stated: “The purpose is to leave in the Terminal Company every legal right it has, if any, under its franchise with the City, and to have the Company (Transit) pay for the use and maintenance of said viaducts, subways and approaches, if legally required by said Terminal Company’s franchise.”

Ordinance 54217 was amended in 1937 to provide: “To the end that modernization, improvement and expansion of the street railway system * * * operated * * * pursuant to Ordinance No. 54217 be continued in the public interest, said company * * * is hereby authorized * * * to install from time to time and operate trolley bus and motor bus lines * * * (a) as substituted lines for existing facilities, (b) as feeder lines * * * and (c) as special service lines (such as trunk and express lines, etc.) additional to existing facilities.” Authorization by the City and the Public Service Commission of Missouri was required. Thereafter, substitution of trolley buses and motorbuses was authorized by the Missouri Public Service Commission at various times without formal objection by City; and the present use of all of the viaducts and subways involved is by such buses only. Transit is now operating under the jurisdiction of the Public Service Commission without a new franchise from the City.

The 1917 contract between Terminal and Transit stated it was intended to settle all differences between them “with respect to all viaducts and subways mentioned * * * and be in substitution of all rights, however, arising, that are or could be claimed by either party against the other.” It further stated that “as to all other viaducts and subways * * * the rights and remedies of the parties remain as they now exist.” It stated in paragraphs 2 and 3 the amount Transit was to pay Terminal for the construction cost of certain designated subways and viaducts; and in paragraph 3 provided for paving to be done and maintained by Transit between and for 18 inches outside its tracks. Paragraph 4 was as follows : “The cost of future maintenance (except of paving, provision for which is above provided) of each viaduct and subway mentioned in paragraph 2 and 3 hereof, and the approaches thereto, shall be paid one-third by the Railways and two-thirds by the Terminal.” Other paragraphs required City’s approval of this contract by ordinance, including the right of Transit to construct and operate certain additional “street railway lines.” This contract was approved by ordinance No. 30355. It was stated that ten viaducts and six subways are now used by Transit and that of these seven viaducts and five subways are covered by the 1917 ■contract.

Transit says the facts being established by documentary evidence and stipulations ■of the parties, we are to reach our own ■conclusions on the facts and the law without deference to the trial court, citing Lukas v. Hays, Mo.Sup., 283 S.W.2d 561, 565, holding “the rule of deference does not apply to this type of evidence;” and we shall do so. Transit’s contentions are that as a matter of law a bus is not a streetcar and the term “street car lines” used in Terminal’s franchise ordinances cannot mean or include bus lines; and that to declare they have the same meaning is to rewrite the franchise and make and enforce ■a new contract instead of giving effect to the actual franchise contract. As to the 1917 contract, Transit says it must be construed in the light of surrounding circumstances, with reference to the original franchise ordinances and what was done under them, and also considering the provisions in this contract concerning its right to lay additional tracks and its obligation for paving along its tracks. So construed Transit says this contract “imposed no obligation upon Transit to contribute to Terminal for the maintenance of Terminal viaducts, subways or approaches used by Transit for the transportation by buses or any means other than streetcars.”

Transit cites Patillo v. State, 120 Tex.Cr.R. 568, 47 S.W.2d 847; City of Philadelphia v. Philadelphia Transportation Co., 345 Pa. 244, 26 A.2d 909; Levy v. New Orleans & Northeastern R. Co., La.App., 20 So.2d 559; State v. York Utilities Co., 142 Me. 40, 45 A.2d 634; Akron Transportation Co. v. Glander, 155 Ohio, 471, 99 N.E.2d 493, 497; Utah Rapid Transit Co. v. Ogden City, 89 Utah, 546, 58 P.2d 1; Woodward v. City of Seattle, 140 Wash. 83, 248 P. 73. The Patillo case was a prosecution for violation of a statute imposing a fine: “If any passenger upon a train or street car or interurban car provided with separate coaches or compartments as above provided shall ride in any coach or compartment not designated for his race after having been forbidden to do so by the conductor in charge of the train.” The court held this did not apply to a passenger on a bus, saying: “In common language a train, street car, or interurban car is understood to be one which serves the public in conveying passengers or freight, or both, and which runs upon fixed tracks. ‘Bus’ is a contraction of the word ‘omnibus,’ and it is well understood to be a vehicle which serves the passenger public, but which does not operate upon fixed tracks. It certainly is not a ‘train,’ nor an ‘interurban car,’ and no one would understand in common language that, when a street car was mentioned, it had reference to a ‘bus.’ ” Since this was a statute creating a crime, the court followed the well-established rule of strict construction resolving any fair doubt as to what was intended to be a crime in favor of the accused.

In the City of Philadelphia case, the issue was the meaning and application of tax ordinances. The transportation company had taken over a company operating a street railway and its subsidiary company operating buses. The license fees paid by the bus company for motorbuses were $50.00 per vehicle but the street railway made fixed annual payments which were in lieu of “all license fees with respect to the cars run upon the said streets, or over the various city bridges or the system of operating said cars, and shall be in lieu of the right of the City hereafter to impose upon the Company, or its subsidiary companies, similar obligations or charges * * * ”; and also in lieu of other obligations including paving and repairing streets. The company sought to add several hundred more buses without paying the $50.00 fee per vehicle, claiming the fixed amount required for the operation of the street railway covered all fees for all its operations. The Court held “that the clause ‘all license fees with respect to' cars run upon the said streets or over the various City bridges or the system of operating such cars’ refers solely to street passenger railway cars or trolley cars and not to motor buses which are not limited to any given area but may operate over the entire cart-way of the street”; and that “the broad provision immediately following, namely, that the fixed annual payments ‘shall be in lieu of the right of the City hereafter to impose upon the Company, or its subsidiary companies, similar obligations or charges,’ must be restricted in its application to the general subject matter to which the preceding specific clauses have reference, in other words, the similar obligations and charges incident to the operation of a street passenger railway system.” The court also relied on the interpretation of these provisions by the original companies which had been taken over and their previous practice of paying both the amount fixed for the street railway and the vehicle fees for buses.

The other cases also involved interpretations of terms used in statutes or ordinance. In York Utilities Company case (45 A.2d 634) a company that had substituted buses for cars on street railway tracks was held, with respect to its bus lines, not engaged in operating a street railroad, within the meaning of a statute making a street railroad subject to gross receipts taxes. In the Akron Transportation Company case (99 N.E.2d 493) a company using only trolley and motorbuses was held not to be a street railroad and therefore not taxable as a public utility; but the statutes separately defined a motor transportation company. In the Levy case (20 So.2d 559) an ordinance requiring a railroad to have a flagman at each crossing, where the railroad crossed streets on which streetcars were running, was held not to apply to crossings where buses had been substituted for streetcars. In the Utah Rapid Transit case (58 P.2d 1) a statute, authorizing a city to operate a street railway, was held not to give it authority to operate motorbuses. However, the City had never operated a street railway and so did “not claim the authority to operate motor vehicles as an incident to the operation of a street railway.” Likewise in the City of Seattle case (248 P. 73) the court held that a statute authorizing a city to operate “railways” did not give power to operate buses. See also Utah Light & Traction Co. v. Public Service Comm., 101 Utah 99, 118 P.2d 683, 689.

A different view was taken in Russell v. Kentucky Utilities Co., 231 Ky., 820, 22 S.W.2d 289, 66 A.L.R. 1238, where a franchise was granted to Paducah Railway Company in 1919 “to operate street cars on and over the streets of the City of Pa-ducah.” In 1927, the City Council granted to Railway Company by ordinance the right to operate motorbuses over certain of these streets on which thereafter streetcars were to be discontinued. A taxpayer objected on the ground that the 1927 ordinance was a new franchise requiring the approval of the voters. The court held the ordinance valid without the necessity of the approval by popular vote. The court said, 22 S.W.2d 1 c. 291: “The purpose and object of the franchise involved in this case was to provide for the rapid and convenient transportation of the public. That was the basic right granted. The motive power or method of propulsion of the vehicle is subordinate or subsidiary. It is but the means of making the franchise effective. Is the substitution of cars running on rubber tires, free from limitations of steel rails and trolley wires, and propelled by internal combustion engines, in place of cars with metal wheels without tires on fixed rails, and propelled by electric motors supplied with power through overhead wires, such a radical departure from the purposes and objects and terms of the original franchise as to preclude the change? If busses be used for the transportation of passengers, there is no additional servitude on the streets or obstructions to the free and safe use of the streets by other vehicles. On the contrary, the streets are relieved of trolley poles and wires and the imbedded rails, more or less dangerous. It can hardly be said that the operation of the busses is more dangerous or obstructive than the operation of electric street cars on the thoroughfares. The problem is one of distinction between the essence in which the permanent values lie — the use of streets for transportation of passengers for hire' — and the incidents of that franchisal right which are subject to change by agreement, viz. the facilities to be used.”

Likewise in Scott v. Cincinnati, N. & C. Ry. Co., 268 Ky. 383, 105 S.W.2d 169, a city had granted a franchise “to operate upon the streets of the city a street railway system, equipped with electrically propelled street cars for the transportation of passengers.” The court in holding substitution of buses proper under this franchise said: “Such a change in motive power and transportation vehicles is permitted in order to meet changed and altered conditions, since, in doing so, the service contracted for in granting the franchise is not interfered with by the change, but is continued to be carried out and performed, in a manner to meet new conditions, and at the same time to not be in the least detrimental to the safety and convenience of the traveling public.” In a similar case, Warren v. Fitzgerald, 189 Md. 476, 56 A.2d 827, 831, the court said: “Transportation is the end, rails and motive power are means. When new motive power makes rails unnecessary, power to furnish transportation is not lost.” See also Denny v. Brady, 201 Ind. 59, 163 N.E. 489; Kansas Electric Power Co. v. Walker, 142 Kan. 808, 51 P.2d 1002, 102 A.L.R. 387; Carolina Power & Light Co. v. Iseley, 203 N.C. 811, 167 S.E. 56; City of Columbia v. Tatum, 174 S.C. 366, 177 S.E. 541; City of Columbia v. Pearman, 180 S.C. 296, 185 S.E. 747; Anderson v. Knoxville Power & Light Co., 16 Tenn.App. 259, 64 S.W.2d 204; 83 C.J.S. Street Railroads § 142, Motorbusses, p. 262; Annotation 75 A.L.R. 246.

It is our view that construction of these ordinances and contracts cannot be made solely on the narrow issue of a technical meaning of the words “streetcar line or lines” and references to tracks. We must determine the maintenance obligation from all the ordinances, the 1917 contract and all surrounding circumstances. The original 1909 franchise ordinance used broad disjunctive language, namely: that before permitting anyone “to construct, maintain or operate a streetcar line or lines” over the viaducts the city should require “the first person or company desiring to so use and who shall be permitted to use such viaduct or viaducts or the approaches thereto, or to construct a track or tracks thereon, to pay” to Terminal “one-half the cost, including land damages” and agree to pay one-half of the subsequent maintenance. Thus Transit was required to assume the same status as Terminal as to paying the cost of building the viaducts and subways and their approaches, including the land cost. Therefore, it was contemplated that Transit and Terminal should participate in this enterprise on the same cost basis. However, Transit was given a way out of its obligation for maintenance because that obligation was for “the period of such use.” No doubt one reason for this was that Transit would have a shorter franchise term than Terminal. The decisive issue is: what “use” was meant? Transit is still using the viaducts and subways (as stated in its answer to interrogatories) for “transportation of metropolitan passengers as a common carrier in intrastate and interstate commerce.” It is our view that this was the use originally contemplated although the motive power and type of vehicle has changed; and reasonably it must have been expected that there would be changes. Our statutes of 1899 authorizing organization of street railroad companies provided for their incorporation “for public use in the conveyance of persons” (Sec. 1186, R.S. 1899, Section 391.010 RSMo 1959, V.A.M.S.); and further provided such a company should have power “to operate its road by animal, cable, electric or other motive power,” (Sec. 1187, R.S.1899, Section 391.020 RS Mo 1959, V.A.M.S.) Furthermore, in the stipulation of facts herein, it is stated: “Regular common carrier transportation of metropolitan passengers by motor buses began in London, England, in 1904 and has been in operation there ever since that time. Experimental motor bus operation for public transportation began on Fifth Avenue in New York City, New York, in 1905, and regular common carrier transportation of metropolitan passengers by motor buses began on a permanent basis in 1907 on Fifth Avenue in New York City and has been in operation there ever since that time.” Thus common carrier bus transportation was not unknown in 1909, but nothing was said in the original ordinances either for or against its use and it was not being used in Kansas City at that time.

As long ago as 1868, the Supreme Court of Pennsylvania in Frankford and Philadelphia Pass. Ry. Co. v. City of Philadelphia, 58 Pa. 119, 125, 98 Am.Dec. 242, ruled that the City of Philadelphia had authority to require payment of a license fee on cars operated on rails within the city under a legislative act of 1850 giving the city authority by ordinance “to provide for the proper regulation of omnibuses, or vehicles in the nature thereof” and “to provide for the issuing of licenses * * * to keep and use omnibuses or vehicles in the nature thereof and to charge a reasonable annual or other sum therefor.” The court said: “This act is still in force. It plainly authorizes regulation by the issue of licenses. And we are of opinion that it applies to passenger railway cars. They are omnibuses, or if not, they are vehicles in the nature of omnibuses. They are opened to all, intended for all. The change of form from that of anything known when the Act of Assembly was passed, is not a change of the nature of the vehicle. In one city, at least, of Europe, large vehicles intended for indiscriminate public use, run sometimes upon a railway track, and at other times upon a common pavement. Nobody can doubt they are omnibuses. The form of the wheels, or the character of the roadway over which a vehicle runs, does not determine its nature so much as do the uses to which it is put, and for which it was designed.”

In Higgins v. St. Louis & Suburban Ry. Co., 197 Mo. 300, 313, 95 S.W. 863, this court construed Sec. 2864, R.S.1899 (of our wrongful death act) to apply to streetcars before streetcars and street railroads were mentioned in the act by amendment in 1905 (Laws 1905, p. 135), saying: “There is no question that a street car is a public conveyance. If we attach horses thereto and put on a driver, under another clause of the statute, we would have liability of the company, but according to contention of counsel for defendant, no liability, if we changed the propelling power to electricity. In other words we would have street railway companies liable at times and not liable at other times, if they changed their motive power. In our judgment the statute was intended to apply to public conveyances of whatever kind, as first herein-above stated.”

Coming to the 1917 contract, we find that, in stating the obligation of Transit to pay one-third of the cost of the specified viaducts and subways and one-third of the cost of future maintenance of the designated viaducts and subways, there was no mention whatever of tracks on them or the operation of streetcars over or through them. The obligation to pay was unequivocal and unconditional. Although elsewhere therein the right to put tracks on the station plaza was stated and the obligation to pave around tracks on viaducts and in subways provided, the obligation for the cost of future maintenance as well as the cost of building the new structures was stated unconditionally without regard to how they were to be used by Transit. As noted 12 of the 16 structures now used by Transit are covered by the 1917 agreement. To be considered also is the 1937 ordinance amending Transit’s franchise for the purpose of permitting “modernization, improvement and expansion of the street railway system” by authorizing “motor bus lines * * * as substituted lines for existing facilities.” Similar statements were made in subsequent applications to the Public Service Commission for authority to substitute trolley bus lines and motorbus lines for streetcar lines. Thus it was understood and authorized that the buses were to be used for the same purpose as the streetcars; and by abandoning tracks, Transit was relieved of its obligation to pave around tracks.

Considering all these ordinances together with the 1917 contract as a whole, we must agree with the trial court’s conclusions, hereinabove set out. (For rules of construction see Williston on Contracts, 3rd Ed., Secs. 618, 619; 12 Am.Jr. 745, Contracts, Secs. 226 et seq.; 17 C.J.S. Contracts § 294 et seq., p. 682.) It is our view that the main purpose of agreement required by the original ordinance and the 1917 contract was to require Transit to participate with Terminal in building the viaducts and subways, required for its transportation of passengers as a common carrier over or under the tracks Terminal was building through the city (paying half the cost of the original ones and one-third of the later ones), and to pay the same proportion of their maintenance cost during the period of their use by Transit in its business of transporting passengers as a common carrier. There was nothing in the original ordinances limiting or requiring Transit to use any particular type of vehicle or motive power; and the subsequent ordinances recognized that motorbus lines were substituted lines for existing facilities permitted for the purpose of modernization of Transit’s street railway system. Although Transit points out that many other motor vehicles (including some buses owned by other companies) use the viaducts and subways, it was always intended that they should be open to public use as public ways of travel and it can make no difference that such use is now by motor vehicles rather than mainly by horse drawn vehicles, as originally, or that the volume of traffic from such public use has increased. It must have been contemplated that traffic would increase as the city grew and at the time of the 1917 contract much of it was by motor vehicles. Our view as to the reasonable construction of the agreement (based on the ordinances and contract) considered as a whole is that the maintenance obligation continues as long as Transit continues to use the viaducts and subways for its business of surface transportation of passengers over them regardless of the kind of motive power and vehicles used for that purpose.

The judgment is affirmed.

All concur.


author: LEEDY, Judge.

text:
    Petition of MONROE CITY, Missouri, for a Pro Forma Decree Authorizing the Issuance and Adjudicating the Validity of $50,000 Principal Amount of General Obligation Industrial Building Bonds, and $100,000 Principal Amount of Industrial Building Revenue Bonds of Said City. MONROE CITY, Missouri (Petitioner), Respondent, v. Earl Richard SOUTHERN (Intervenor), Appellant.
    No. 49328.
    Supreme Court of Missouri, En Banc.
    Aug. 13, 1962.

      John F. Spalding, Monroe City, Mo., Robert B. Fizzell, Robert B. Fizzell, Jr., Norman E. Gaar and Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for respondent, City of Monroe City, Missouri.
    Earl Richard Southern, pro se.
   LEEDY, Judge.

This is a statutory proceeding (Sections 108.310-108.350, RSMo 1959 and V.A.M.S., to which revision all statutory references are made unless otherwise noted) upon the petition of the City of Monroe City (a city of the fourth class) for a pro forma decree authorizing the issuance and declaring the validity of two proposed bond issues approved by the voters to carry out a project for industrial development of such municipality. The bonds are of two types, one issue being denominated and referred to as “$50,000 principal amount of general obligation Industrial Building Bonds” and the other as “$100,000 principal amount of Industrial Building Revenue Bonds.” Earl Richard Southern, a taxpaying citizen appearing pro se, intervened and contested the validity of the bonds. Upon a hearing the trial court decreed their validity and authorized their issuance, and intervenor has appealed.

The project for which the bonds in question have been voted is characterized by the petition and accompanying exhibits as one “relating to the purchase, construction, extension and improvement of an industrial plant and the lease of the same to Kuhlman Die-casting Company” (for manufacturing and industrial development purposes). The petition bottoms the validity of the bonds and the city’s right to issue them upon the authority conferred by §§ 23(a) and 27 of Article VI of the Constitution of Missouri, V.A.M.S. (as amended at the general election held November 8, 1960, by the adoption of Amendment No. 4 submitted thereat), and the provisions of the statute enacted in implementation of such constitutional amendment to-wit, House Committee Substitute for House Bills 41 and 370, Laws 1961, p. 189, now known as §§ 71.790-71.850, and hereinafter referred to as the enabling act. All proceedings for the issuance of the bonds are alleged to have been taken pursuant to such constitutional and statutory authority.

Amendment No. 4 so adopted by the people, was proposed by the 70th General Assembly (Joint House Resolution No. 11, Laws 1959, Resolutions p. 10a). It contained two sections, by the first of which § 23(a)- — an entirely new provision — was added to Article VI, as follows:

“By vote of two-thirds of the qualified electors thereof voting thereon, any city or incorporated town or village within any county in this state which has less than four hundred thousand inhabitants according to the last preceding federal decennial census, may become indebted for and may purchase, construct, extend or improve plants to be leased or otherwise disposed of pursuant to law to private persons or corporations for manufacturing and industrial development purposes, including the real estate, buildings, fixtures and machinery; and the indebtedness incurred hereunder shall not be subject to the provisions of Sections 26(a), 26(b), 26(c), 26(d) and 26(e) of Article VI of this Constitution; provided, such indebtedness incurred hereunder for this purpose shall not exceed ten per cent of the value of taxable tangible property in said city, or incorporated town or village as shown by the last completed assessment for state and county purposes.” § 23(a), Article VI.

Section 2 of said Amendment No. 4, while technically repealing pre-existing § 27 of the same article and inserting in lieu thereof a new section, actually worked only the addition of those words and figures which are italicized below, together with a slight change in the punctuation previously existing. As so amended, § 27 of Article VI reads as follows:

“Any city or incorporated town or village in this state, by vote of four-sevenths of the qualified electors thereof voting thereon, may issue and sell its negotiable interest bearing revenue bonds for the purpose of paying all or part of the cost of purchasing, constructing, extending or improving any of the following: (1) revenue producing water, gas or electric light works, heating or power plants; (2) plants to be leased to private persons or corporations for manufacturing and industrial development purposes, including the real estate, buildings, fixtures and machinery; or (3) airports; to be owned exclusively by the municipality, the cost of operation and maintenance and the principal and interest of the bonds to be payable solely from the revenues derived by the municipality from the operation of the utility or the lease of the plant.”

At the session of the Legislature next following the adoption of Amendment No. 4, that body, obviously regarding these new provisions as not self-executing, passed the enabling act just mentioned.

Without undertaking a critical analysis of the enabling act (§§ 71.790-71.850), it may be said that its salient features are, in general outline, these: It authorizes any city, incorporated town or village to carry out projects for industrial development (“project for industrial development” being defined as meaning “the purchase, construction, extension and improvement of industrial plants, including the real estate, buildings, fixtures and machinery”), and requires prior approval of the plan for any such project by the governing body of the municipality, to be followed by submission of the plan to a state agency (presently the Division of Commerce and Industrial Development — § 71.803) with certain information pertaining to the project. It then becomes the duty of the state agency to promptly examine the application and make such investigation as it deems necessary; and to approve the project when it finds such project “(1) Will further the economic development of, and employment in, the municipality and the state; (2) Will further the general welfare of the municipality and the state; and (3) Is economically feasible and will not become a burden to the taxpayers of the municipality.” The state agency is required to notify the municipality of its approval or disapproval of the plan. Conditional approval is also provided for. Upon the approval of the plan by the state agency “the municipality shall consider the project, as approved. The governing body may, by ordinance or -reso-Iution duly enacted, approve the project, and the municipality shall thereupon he authorized to carry out the project according to the plan” as approved by the state agency. Carrying out a project without such prior approval (state and municipal) is expressly prohibited. And no subsequent change in the plan is permissible without state and municipal approval obtained in the same manner as the original plan.

Section 71.817 authorizes “Any municipality, no part of which is located in a county of more than four hundred thousand population,” to issue its general obligation bonds in an amount not in excess of ten per cent of the assessed valuation of the taxable tangible property in the municipality to provide funds for the carrying out of a project under the act. Proposals for the issuance of such bonds are required to be submitted in the manner provided by §§ 95.135-95.170, and to be approved by at least two-thirds of the voters voting on the proposition.

Section 71.820 is not restricted to those municipalities mentioned in the preceding section, but is applicable to, and authorizes “any municipality” (defined as meaning “any city, incorporated town or village of the state”) to “issue revenue bonds to provide funds for the carrying out of a project under sections 71.790 to 71.850. The revenue bonds shall be paid solely from revenue received from the project, and shall not be a general obligation of the municipality.”

When an approved project provides for the issuance of revenue bonds, the governing body is required to submit such proposal to the voters at a regular or special election. The act prescribes the time and manner of giving notice of the election, the 'form of ballot, and the vote required (four-sevenths) for the issuance of such revenue bonds. It also empowers the municipality to fix the terms and form of the revenue bonds so to be issued, and requires that a sufficient sinking fund for the payment of such revenue bonds and the interest thereon and necessary fiscal agent charges be created and maintained.

Section 71.840 provides, “When funds have been received by the municipality for the carrying out of the project, the municipality shall purchase, construct, extend or improve the facilities as provided by the plan.”

Whenever the approved plan calls for the construction, improvement or extension of facilities, the municipality is required to enter into a contract for that purpose, the same to be let on competitive bidding, after notice of the letting, etc. § 71.843.

Section 71.847 confers upon the municipality the power to lease to private persons, partnerships or corporations the facilities thus purchased, constructed or extended by it, but requires, in the event the facility has been financed by revenue bonds, that the rental shall be sufficient to meet the interest and sinking fund requirements; the lease to contain such other terms consistent with the act, as are agreed upon.

Apart from the emergency clause, the concluding provisions of the act as presently contained in § 71.850 are: “Any municipality may sell or otherwise dispose of the property, or buildings or plants acquired under sections 71.790 to 71.850 upon approval by the division of commerce and industrial development. The terms and method of the sale or other disposal shall be established by the division.”

The act was passed with an emergency clause, and thereafter approved by the Governor on June 26, 1961. Substantially all of the proceedings taken by the city (allegedly in compliance with the act) in authorizing the issuance of both bond issues (approval of the project at both local and state levels, the calling and holding of the special election, canvassing the returns and declaring the result thereof, by the enactment of the requisite ordinances) were taken prior to the time such enabling act would have taken effect in the absence of the emergency clause; that is, such proceedings were taken within ninety days after the adjournment of the session at which the enabling act was passed. This is the situation that obtained in the very recent case of State ex rel. City of Charleston v. Holman, Mo., 355 S.W.2d 946, except that only general obligation bonds of the city for a project for industrial development (and not revenue bonds) were there involved. In that case it was held that § 23(a) of Article VI of the Constitution was not self-enforcing; that as of the date of the passage of the enabling act no emergency existed within the meaning of §§ 29 and 52(a) Article III of the Constitution, thus rendering invalid and inoperative the emergency clause with which the bill was passed, and consequently the bonds were void because authorized by proceedings pursuant to the act before its legally effective date.

The Charleston case was decided by this court after the instant case was determined in the trial court and before being submitted here. The city frankly concedes that the Charleston case is applicable to the $50,000 principal amount of general obligation Industrial Building Bonds here involved, and accordingly does not seek to sustain that portion of the judgment of the trial court which declares the validity of the general obligation bonds. The city insists, however, that the Charleston decision does not apply to the $100,000 principal amount of Industrial Building Revenue Bonds for the reason that the provisions of § 27, Article VI of the Constitution, as amended, are self-executing and no enabling legislation is necessary to permit a municipality to issue revenue bonds pursuant to said section. This contention is based On the case of State ex rel. City of Fulton v. Smith, 355 Mo. 27, 194 S.W.2d 302. It is true that this court there held § 27, Article VI of the Constitution, as originally adopted in 1945, to be self-executing, and so, in the absence of an enabling statute, sustained the validity of an issue of revenue bonds of the city for the purpose of paying a part of the cost of extending and improving its municipally owned combined water and electric light works. Such bonds had been authorized by the constitutionally prescribed four-sevenths majority of the electors voting on the proposition at a special election, which special election complied with general statutes in relation to elections to authorize the contracting of debts in excess of a municipality’s annual income and revenue. The determinative question was whether, under the facts and circumstances there in judgment, the absence of a statute expressly providing the manner of conducting an election to determine whether or not a municipality shall issue revenue bonds for one of the purposes specified in § 27 (paying a part of the cost of extending and improving its municipally owned combined water and electric light works) was an insurmountable barrier. As indicated, this question was answered in the negative, the court being of the opinion, and so holding, that the utilization of the general statutes to which reference has just been made was authorized and efficacious.

It is to be noted that § 27, at the time it was construed to be self-executing, was applicable to revenue bonds for only municipally owned public utilities and municipally owned airports. The ownership and operation of the former, at least, had long been regarded as a traditional function of municipal government. The latter (airports), by virtue of advances in air transportation and the consequent demands of changing times, had more recently succeeded to that status. Such practices, as functions of municipal government, had been so long well established and universally recognized that we do not pause to cite the numerous statutes then (and now) expressly authorizing municipalities so to do. The intent of the framers of the section might, paradoxically, have been to endow such constitutional provision with the qualities of an enabling act as to the subjects then within its scope. We say this in the light of the debates in the Constitutional Convention on the meaning and effect of the section (as adopted by the people in 1945) wherein it was asserted that previous efforts to obtain legislation authorizing municipalities to issue revenue bonds to finance municipally owned utilities had been futile, and, in the opinion of some of the members, at least, the section was self-executing.

So much for the situation and state of the applicable law as of the time of the decision in the City of Fulton case. Since then the constitutional and statutory changes herein-above pointed out have been made by which a wholly new concept of municipal governmental function has been introduced into the body of our law. We are unhesitatingly of the opinion that the mere expanding of § 27 by the simple device of wedging (so to speak) words embodying such new concept into or between provisions previously interpreted as being self-executing does not compel that same interpretation as to the new matter so inserted. Nor are we willing to say that it should be so interpreted, this for the reason that this innovation by way of municipal financing of industrial projects is so new and untried, its possibilities so sweeping, and its operation and potentialities so utterly uncertain (and great) as to imperatively require statutory charting of its course. This was recognized by the Legislature in passing the enabling act, and at least tacitly by the City of Monroe City in taking all steps requisite to the validity of the bonds pursuant to the enabling act, and relying thereon in the trial court; nor was it ever contended in the trial court that the provisions of § 27, as amended, were self-executing. We are of the opinion that the new provisions of said section (under Amendment No. 4) are not self-executing, and require legislation to carry them into effect, quite as much as did § 23(a), as held in the Charleston case. The proceedings taken by the city pursuant to the enabling act for authorization to issue the bonds having antedated the effective date of such act, it follows that the revenue bond aspect of the present case is' also governed by the Charleston case, thus resulting in the invalidity of those bonds as well as the general obligation bonds. This being true, as said in the Charleston case, “[N]one of the other contentions herein made can properly be before the court for consideration.” The judgment of the trial court must, therefore, be reversed; it is so ordered.

All of the Judges concur.