State Ex Rel. Milham v. Rickhoff

ORIGINAL PROCEEDING IN MANDAMUS

SEILER, Judge.

Plaintiff seeks a writ of mandamus to compel the defendant to set aside an order dismissing the Board of Curators of the University of Missouri (hereinafter. Board) as defendants in an action brought by plaintiff. Because this is a proceeding for an original remedial writ, this court has jurisdiction. Mo.Const. art. V, § 4.

Plaintiff brought suit against the Board and six individuals alleging he was libeled by a television program broadcast over station KOMU, Columbia, Missouri. KOMU is owned and operated by the University of Missouri. One of the individual defendants, Eric Bartholomew, is a resident of St. Louis County. Suit was brought in the circuit court of that county, under § 508.010(2), RSMo 1978 ¹ which provides that “[w]hen there are several defendants, and they reside in different counties, the suit may be brought in any such county” and which has been held in a number of decisions to apply when one or more corporations are sued with one or more individuals. State ex rel. Allen v. Barker, 581 S.W.2d 818, 824 (Mo. banc 1979). The Board moved to dismiss, however, contending that venue was improper because it is a “municipal corporation” subject to the special venue rules of § 508.050, which provides in part:

Suits against municipal corporations as defendant or codefendant shall be commenced only in the county in which the municipal corporation is situated .... (Emphasis added.)

The Board argued that as a municipal corporation it is subject to suit only in Boone County. Defendant judge sustained this motion.² The mandamus proceedings followed. Our conclusion is that our alternative writ should be made peremptory.

The sole issue presented is whether the Board of Curators of the University of Missouri is a municipal corporation as used in § 508.050, and thus subject to suit, either as a defendant or as a codefendant, only when the action is instituted in Boone County. At the outset, we note that the legislature did not limit suit against the Board to Boone County.

The University is hereby incorporated and created a body politic and shall be known by the name of “The Curators of the University of Missouri”, and by that name shall have perpetual succession, power to sue and be sued, complain and defend in all courts .... Section 172.020 (emphasis added).

Missouri courts have defined the term “municipal corporation or municipality” in contexts other than the venue statute, § 508.050. It is a phrase that “may vary in meaning depending on the time, place and circumstance under which it is used.” City of Olivette v. Graeler, 338 S.W.2d 827, 835 (Mo.1960). In Marshall v. Kansas City, 355 S.W.2d 877, 883 (Mo. banc 1962), this court stated “[a] municipal corporation has been referred to as a miniature state within its locality and as an instrumentality of the state established for the convenient administration of local government.” In State ex rel. Caldwell v. Little River Drainage District, 291 Mo. 72, 236 S.W. 15 (1921), the question was whether property owned by a drainage district was entitled to the municipal corporation exemption from taxation. The court, holding that the district was a municipal corporation, stated that “[i]n its strict and primary sense the term ‘municipal corporation’ applies only to incorporated cities, towns, and villages having subordinate and local powers of legislation.” But, the court expanded the scope of the definition by going on to say, “the term is applied to any public local corporation, exercising some function of government, and hence includes counties, school districts, townships under township organization, special road districts and drainage districts.” 236 S.W. at 16 (emphasis added). In Laret Investment Co. v. Dickmann, 345 Mo. 449, 134 S.W.2d 65 (banc 1939), the court found that a housing authority was exempt from taxation because it was a municipal corporation. However, this court in Beiser v. Parkway School District, 589 S.W.2d 277 (Mo. banc 1979) defined “municipality” narrowly and held that a school district is not a “municipality” for purposes of § 71.185 which establishes a limited exception to sovereign immunity.

Although these cases do not define “municipal corporation” in the context of venue, they do give guidance on what factors would make a public corporation a municipal corporation. The common factor is that the municipal corporation has a local nature. Section 508.050 recognizes and protects the local interest of a municipal corporation by requiring that all suits against the municipal corporation be brought “in the county in which the municipal corporation is situated.” This avoids the necessity of local government officials defending suits in courts across the state.

The Board of Curators is “a public corporation for educational purposes” and an “agency or arm of the State.” Todd v. Curators of the University of Missouri, 347 Mo. 460, 465, 147 S.W.2d 1063, 1064 (1941).

The university is clearly a public institution, and not a private corporation.... The State established an institution of its own, and provided for its control and government, through its own agents and appointees. The act creating the institution, in its first section, declares that a “university is hereby instituted in this State, the government whereof shall be vested in a board of curators.” The university is then declared a “corporation and body politic” and invested with certain powers ... By establishing the university the State created an agency of its own, through which it proposed to accomplish certain educational objects. In fine, it created a public corporation for educational purposes — a State university.

Head v. Curators of the University of Missouri, 47 Mo. 220, 224-25 (1871), aff’d, 86 U.S. (19 Wall.) 526, 22 L.Ed. 160 (1873). A state university is “an instrumentality of the state performing an essential governmental function for the benefit of all the people of the state, ...” Rutgers v. Piluso, 60 N.J. 142, 286 A.2d 697, 703 (1972). Decisions in other jurisdictions have described the corporate nature of state universities similarly. E.g., City of Fargo v. State, 260 N.W.2d 333, 340 (N.D.1977); McConnell v. City of Columbus, 172 Ohio St. 95, 97, 173 N.E.2d 760, 763 (1961).

The interests of the Board of Curators and the University are distinctly different from those of such public corporations as cities, sewer districts, or local school boards. The primary difference is the statewide character and interest of the University as contrasted with the local focus of the other organizations. To illustrate this statewide character, we point to the fact that the members of the Board of Curators are appointed by the governor with the advice and consent of the senate, Mo.Const. art. IX, § 9(a); the general assembly must maintain the university, Mo.Const. art. IX, § 9(b); there are four campuses of the university (Columbia, Rolla, St. Louis, and Kansas City); the Board of Curators is to report annually to the legislature and to the governor, §§ 172.210, .220; agricultural research centers are to be established in southeast and southwest Missouri, §§ 172.493, .495; the professor of animal husbandry is to educate farmers “throughout the state,” § 172.490; the university is to establish and maintain an extension service throughout the state, §§ 262.550-.620. Because of these statewide interests and activities, it is not unreasonable or illogical to require the Board to defend suits outside Boone County if venue is otherwise proper under § 508.010. The considerations underlying § 508.050 as discussed above do not apply to the Board of Curators whose University operates throughout the state.

For the foregoing reasons, we hold that the Board of Curators is not a municipal corporation within the meaning of § 508.-050. It is a public corporation and is subject to the general venue statute, § 508.010. Because venue is proper under § 508.010 in St. Louis County as that is the residence of one of the defendants, the Board of Curators must be reinstated as defendant in the underlying cause. Accordingly, our alternative writ of mandamus is made peremptory.

RENDLEN, HIGGINS and BARDGETT, JJ., concur. WELLIVER, J., dissents in separate dissenting opinion filed. DONNELLY, C. J., and MORGAN, J., dissent and concur in separate dissenting opinion of WELLIVER, J.

1 . All statutory references are to RSMo 1978 unless indicated otherwise.

2 . The Board also alleged that defendant Eric Bartholomew had been joined only to provide venue in St. Louis County. The same ground was urged by the individual defendants, but their motions to dismiss for improper venue were overruled. Plaintiff is a resident of Camden County and the alleged tort occurred in Boone County.