Hitchcock v. City of St. Louis , 49 Mo. 484 ( 1872 )

Wagner, Judge,

delivered the opinion of the court.

This suit was brought to test the validity of an ordinance passed by the city council of the city of St. Louis, by which the sum of $1,500 was appropriated out of the general revenue and ordered to be paid to the mother superior of St. Ann’s Orphan Asylum and Widows’ Home, as a donation from the city toward the maintenance and support of that institution. The.court below decided that the ordinance was' invalid, and that the council possessed no power to make the appropriation, and from that decision this appeal is prosecuted. The general grant of corporate powers contained in the charter incorporating the city gives it authority to “purchase, receive and hold property, real and personal, within said city, and also hold the like beyond the limits of the city, to be used for the burial of the dead of the city; also for the erection of waterworks to supply the city with water; also for the establishment of a hospital or hospitals for the reception of persons infected with contagious and other diseases; also for a poor-house or poorhouses, work-house, house of correction, or for any other purpose; and may sell, lease, or dispose of property for the benefit of the city; may receive bequests, gifts and donations of all kinds of property, within and without the city, for charitable and other purposes, and may do all acts necessary to carry out the purposes of such bequests, gifts and donations, with power to sell, lease, dispose of and manage the same.” In the article defining the legislative powers of the city council, the council is invested with power “ to make all such ordinances, not inconsistent with the • laws of this State, as may be expedient, maintaining the peace, good government and welfare of the city, and its trade, commerce ¡and manufactures.” Do any of the above enumerated grants authorize the city council to appropriate or give away the public moneys as pure donations or gratuities ? We do not think the donation can be upheld on the ground that it is germain or incident to any power granted. The council may exercise implied or incidental powers wherever they are necessary to carry out or execute those clearly expressed. And where the corporate authorities have a discretion, courts will not ordinarily interfere. But when they act they must show some grant or power to authorize their action. The city council, in the discharge of their duties, do not act for themselves, but for the public. They are trustees clothed with a trust, not for the corporation as such, but for the citizens and the public who have confided the authority to them. The charter is the power of attorney which defines and limits the objects and powers with which they are intrusted. The diversion of the money-of the tax-payers for any purpose other than that which is expressed in the charter, is a perversion of the trust and an excess of authority. That there is no express power in the charter conferring authority to make donations, gifts or gratuities, is too clear to require any argument.

The donee is a mere private institution, not under the control of the city and having no connection with it. If the tax-payers’ money can be taken and given to it, it may be also to any other private corporation, or it may be distributed gratuitously to individuals. It' is clear that the charter confers no such authority, and we think, therefore, that the judgment should be affirmed.

The other judges concur.