
    BOARD OF EDUCATION OF CITY OF ST. LOUIS v. CITY OF ST. LOUIS et al., Appellants.
    Division One,
    March 30, 1916.
    1. POLICE REGULATION: Water-closets: Conflicting Authority of City and School Board. The Board of Education of the city of St. Louis is not subject to the ordinances and regulations of .the city in respect to the manner of construction of water-closets and vents therefrom in a public school building. Under the statute the Board of Education is specifically “charged with the care bf the public school buildings of said city, and with the responsibility for the ventilation and sanitary condition thereof,” and under the Constitution that statute makes their- authority exclusive.
    2. -: -: -: Presumption of Application to Sovereign: Repeal by implication. Where the sovereignty itself has dealt with the subject of the construction and management of property which is held and used by its agents for the highest governmental purposes, no presumption that laws of the character of the charter of the city of St. Louis and ordinances passed in pursuance thereof are applicable to the sovereign, can prevail, for then the power does not rest upon .presumption, but upon express legislative declarations.
    3. -: -: -: Paramount Authority of Statute. The general charter of the city of St. Louis must yield to the provisions of a law having special application to particular matters and things within the field of its operation; and where there is such a general law, the question of whether the charter and ordinances are impliedly repealed without being mentioned in the general law, is not in the case.
    Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
    Affirmed.
    
      William E. Baird for appellants.
    (1) The Board of Education is a public corporation formed for a special and limited purpose; its charter is found in the statutes, which must he construed by the. same rules as are applied to other statutes. Heller v. Stremmel, 52 Mo. 311; State v. Lockett, 54 Mo. App. 202; Peers v. Board, 72 111. 508; Smith v. Proctor, 130 N. Y. 319; McQuillin, Mun. Corp., sec. 114.. (2) The property controlled by the board is not owned by the State or used for governmental purposes; the presumption that the sovereign or the State is not bound by local regulations cannot be indulged. Kansas City v. Pee, 17'4 Mo. App. 510; School Dist. v. Pasadena, 166 Cal. 7; Public Schools v. St: Louis, 26 Mo. 468; Bank v. State, 69 Iowa, 30; Sioux City v. School Dist., 55 Iowa, 150; City, Trustee, v'. Chicago, 207 111. 37; Board v. People, 219 111. 87. (3) The city of St. Louis, by its charter, had and still has plenary power over sewers, drains, sanitation and other local subjects of regulation. Ex parte Smith, 231 Mo. Ill; Cunning Co. v. St. Louis, 235 Mo. 99. (4) No such power has been given the Board of Education; a modification of the city charter will not be implied in the law creating the board. R. S. 1909, secs. 11030-11062; Dillon, Mun. Corp. (5 Ed.), sec. 235; State ex rel. v. Severance, 55 Mo. 386; Wills v. Railroad, 133 Mo. App. 625; E. St. Louis v. Maxwell, 99 111. 443; Wood v. Comrs., 58 Cal. 563; State v. Williams, 80 Tenn. 251.
    
      Robert B'-urkham for respondent.
    (1) Education is a governmental function. Article 11, Missouri Constitution; Lehew v. Brummell, 103 Mo. 550; Heller v. Stremmel, 52 Mo. 309'; State ex rel. v. St. Louis School Board, 112 Mo. 213. The members of the Board of Education of the city of St. Louis are officers under the State and exercise functions of government. State ex rel. v. Rombauer, 104 Mo. 619; State ex rel. v. Cordon, 231 Mo. 547; Secs. 11030-11062, R. S. 1909. The Board of Education is a public corporation separate and distinct from and entirely independent of the municipality of St. Louis. Waterworks Co. v. School Districts, 23 Mo. App. 241; State ex rel. v. Tracy, 94 Mo. 221; School District No. 7 v. School District of St. Joseph, 184 Mo. 156. (2) School buildings being maintained by the State in the exercise of a governmental function, the presumption arises, at least so far as their internal construction is concerned, that they a,re not subject to municipal regulation or control, (a)- The general principle: Bank v. United States, 86 U. S. 227; 26 Am. & Eng. Ency. of Law, p. 644; 36 Cyc. 1171. (b) The application of the principle to local governmental subdivisions: Cole v. White Co., 32 Ark. 43 ; Whitehead v. Board of Education, 139 Mich. 490'; Cincinnati v. Yolk, 72' Ohio St. 469. (c) The application of the principle to local building regulations. Institution v. Louisville, 123 Ky. 767; Milwaukee v. McGregor, 140 Wis. 35. (3) Regardless of any presumption of independence from municipal control arising from the fact that school buildings are maintained by the State and controlled by State officers, existing legislation clearly indicates that the Board of Education of the city of St. Louis is intrusted with the power to determine what kind of interior plumbing in school buildings is best adapted for its purposes. Charter of the Board of Education of City of St. Louis, Secs. 11030 to 11062, R. S. 1909.
   BROWN, C.

This suit was instituted April 11, 1912, against the defendant city and Stephen IT. Gilmore, its supervisor of plumbing, to obtain an injunction restraining them from interfering with work in course of construction under contract for a new school building in said city to be known as the Horace Mann School. The contract provided for a system of vents from the water-closets known as “a continuous venting system, doing away with all local vents to the fixtures, ’ ’ while a regulation of the Board of Public Improvements of the city of St. Louis provided for a different system, requiring “sewer, soil, waste, and ventilation pipes to be arranged and constructed to admit of a free circulation of air from the fresh air inlet to each fixture trap and through the roof.” The petition charged that the defendants threatened to apply the ordinances and rules of the city, which are fully set out, to this work, and cause the arrest of any and all of plaintiff’s agents, servants, or employees who may go upon the premises under plaintiff’s direction to prosecute said plumbing work, on the charge of violating said ordinances, rules and regulations. There is no question raised as to reasonableness of the ordinances of the city or regulations of its Board of Public Improvements, nor as to whether either system of venting is superior to the other, but the case is presented and discussed upon the broad proposition ’as to whether or not the Board of Education, in this particular, is subject to the ordinances and regulations of the city in this respect. A general demurrer to the petition was overruled, and defendants declining to further plead, final judgment was rendered granting the injunction and the case is here upon the defendants ’ appeal.

Section 26 of article 3 of the charter then in force provided, among other things, that the mayor and assembly shall have power, within the city, by ordinance not inconsistent with the Constitution or any law of this State or of this charter, to do the following things: In clause two, to construct and keep in repair all bridges, streets, sewers and drains, and to regulate the use thereof; in clause twelve, to provide for the safe construction, inspection and repairs of all private and public buildings within the city; and in clause fourteen, to pass all ordinances not inconsistent with the provisions of the charter or the laws of the State as may be expedient in regard to the peace, good government, health and welfare of the city.

It also provides (Sec. 3, art. 4) for a board of public improvements to consist of an elective president and five commissioners with certain prescribed powers, and adds the following provision: Section 42: “The municipal assembly shall provide by ordinance such additional duties of and requirements from the board of public improvements and its several members, as it may deem necessary, and for the appointment by them of such assistants and employees as the demands of the several departments may require!”

It was under these powers and ordinances passed in pursuance of them that the defendant superintendent of plumbing was appointed and the rule relating to the ventilation of water-closets, which the city is now attempting to apply to the Horace Mann School, was made.

When the framers of the present Constitution conferred upon the freeholders of the city the power to make their present charter they provided, with the most careful foresight. (Sec. 23, art. 9) that “such charter and amendments shall always be in harmony with and subject to'the Constitution and laws of Missouri, except only that provision may be made for the graduation of the rate of taxation for city purposes in the portions of the city which are added thereto by the proposed enlargement of its boundaries.”

In the same Constitution, and in pursuance of the uniform policy of the State from the beginning, it was provided (Sec. 1, art. 11) that “a general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the General Assembly” (not the freeholders of the city of St. Louis) “shall establish and maintain free public schools for the gratuitous instruction of all persons in this State between the ages of six and twenty years. ” It was in obedience to this constitutional mandate that the Act of 1807 (as amended by the Act of May 28, 1900') under winch, the public Schools of the city of St. Louis have ever- since been operated was enacted. It provided that ‘ ‘ every city in this State now having or which may hereafter have five hundred thousand inhabitants or over, together with the territory now within its limits, or which may in the future be included by any change thereof, shall be and constitute a single school district, shall be a body corporate, and the supervision and government ‘ of public schools and public school property therein shall be vested in a board of twelve members, to be called and known as the ‘Board of Education of . . . ’ ” ,[R. S. 1909, sec. 11030.]

The powers and duties of this hoard were highly specialized in the act, and included the general and supervising control, governing and management of the public schools, and public school property in such city; the power to appoint such officers, agents and employees as it may deem necessary and proper; to make, amend and repeal rules and by-laws for the government, regulation and management of the public schools and school property in such city and exercise generally all powers in the administration of the public school •system therein; and have all the powers of other school districts under the laws of the State except as herein provided. Particularizing further, it provides for the appointment by the Board of Education of a commissioner of school buildings who ‘ ‘ shall be charged with the care of the public school buildings of such city, and with the responsibility for the ventilation, warming, sanitary condition and proper repair thereof,” and “shall prepare, or cause to be prepared, all specifications and drawings required, and shall superintend all the construction and repair of all of such buildings.” [R. S. 1909, sec. 11036.] In the performance of these duties he was required to appoint such assistants as should be authorized by the Board of Education, one of whom"“shall he a trained and educated engineer, qualified to design and construct the heating, lighting, ventilating and sanitary machinery and apparatus connected with the public school buildings.” [R. S. 1909, sec. 11037.]

It will be noted that this act not only gives the Board of Education plenary power with reference to the construction, maintenance and care of the public school buildings of the city, but descends into matters connected with the health and comfort of the pupils including the designing as well as the construction and maintenance of the very appliances which are the subject of this litigation, ventilating and sanitary machinery and apparatus to be installed and maintained for the removal from the building of foul and noxious air necessarily generated in the use of the water-closets.

We have been favored by counsel on both sides with exhaustive and highly interesting briefs and arguments relating to the presumptions which should prevail in determining whether laws of the character of the charter of St. Louis and ordinances passed in pursuance of its terms are applicable to the sovereign, and whether they are repealed by general laws which do not in terms mention them.' We cannot appreciate the application of either of these questions to this case. The first does not rest upon .presumption, fo'r the sovereignty itself has dealt with the subject of the construction and management of the property which is held and used by its agents for the highest governmental purposes, and we have to look no further than its legislative declarations to determine in whom the authority claimed by each of the parties to this proceeding is vested; and as to the second question so ably argued, we have only to look to the converse of the proposition stated by counsel for appellant. The question is not whether a law of general application in the city of St. Louis impliedly repeals any of the provisions of a special act or charter for the government of that community, hut it is whether the general charter yields to the provisions of a law having special application to particular matters and things within the field of its operation. The statement of this question includes its answer.

It cannot even he claimed that there is a question in this case relating to the intention of the Legislature to apply the Act of 1897 from which we have- quoted, to the schools of the city of St. Louis. By its terms it describes the city of St. Louis as the only community in the State in which it can apply. That it gives to the Board of Education through its lawfully constituted officers the power to design, construct and maintain the very apparatus now in question is not and cannot be denied by any English-speaking person, and the constitutional power of the Legislature to enact it is unquestioned and unquestionable.

We have carefully examined the authorities cited by the appellant and find but one, Pasadena School District v. Pasadena, 166 Cal. 7, which seems to question the view we have taken with reference to the effect we give to the statute giving authority to the Board of Education to supervise and govern public school property within the city, and charging it through its officers possessing special qualifications for that purpose with the responsibility for the ventilating, warming and sanitary condition of such building, and the designing as well as the construction of the machinery and appliances for that purpose. In the California casé the city by ordinances established an elaborate building code providing that only certain classes of buildings should be erected in certain fire districts and for the inspection of plumbing construction and electrical wiring and equipment of buildings, the use of permits and the collection of fees therefor, and making it unlawful to commence the erection of any . building within the city other than those erected by the United States unless plans and specifications are submitted to the building inspect and a permit for the erection thereof first obtained and the fee paid. The school district denied that it was subject to these regulations and an agreed case was submitted to the court to determine it. The court stated, in substance, that the Constitution of the State had invested the city with the powers to make these regulations and that the sole contention of the school district was that it was an independent governmental agency of the State created under a general law which invested its trustees with the control and management of all school property within its limits, and hence insisted that its authority in that respect was not subject to be controlled by the police regulations of a municipality in which a part of the territory of the school district was embraced. The trustees of the school districts were required by statute before building school houses to submit the plans to the superintendent of schools. The court stated that it was not claimed that these code provisions expressly gave any power to the trustees or enjoined upon them the duty of adopting sanitary building regulations, or regulations in the nature of provisions for the public health and comfort and safety in the construction of such buildings, and held that in the general powers mentioned no such power was conferred, and that their power was not different from that possessed by private corporations and other owners of land to control it and plan and erect buildings thereon and sustained the city in its contention that a permit was required. It will be seen that the issue in that case was entirely different from the issue in this.

Here the right to erect a building within the limits of the city is not involved, but only the question as to which of these two contending municipalities is clothed by statute with the right to determine interior sanitary arrangements for the ventilation of its water-closets, so as to promote the health, and comfort of the pnpils and teachers who should he its inmates. We think it is peculiarly appropriate that those charged with the custody and control of the pupils while in the building should also be charged with the protection of their health while engaged in their studies. The Legislature seems to have taken this view of the matter, and has, in our opinion, in unmistakable terms, placed that responsibility upon the board. We therefore affirm the judgment of the circuit court.

Bailey, G., concurs.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All of the judges concur.  