It is to be noted, however, that neither statutory scheme precludes the school board from selecting sites for school facilities. The City attempts to distinguish the leading Missouri case, State v. Ferriss, 304 S.W.2d 896 (Mo. 1957), by arguing that the Missouri and Texas statutes are not analogous; specifically, that Missouri law gives the school districts power to 'select' sites, § 177.141 V.A.M.S., whereas Texas law gives school districts only the power to 'manage,' (Sec. 23.26(b), Texas Education Code) and 'acquire,' (Sec. 23.31, Texas Education Code) property. Other than this distinction, the laws of Missouri and Texas are all but identical, and only a strained interpretation gives substance to the City's distinction.
On appeal Bridgeton alleges that the trial court erred in declaring that the City of St. Louis is immune from the Bridgeton Zoning Ordinance in all airport related activities because: 1) St. Louis is not a superior sovereign; 2) under § 305.200, RSMo 1978, land acquired for airport use is subject to the zoning of municipalities; and 3) a "balancing of interests" favors application of the Bridgeton Zoning Ordinance in this instance. The issue of governmental immunity from zoning has been considered by the Missouri Supreme Court in four cases: State ex rel. St. Louis Union Trust Co. v. Ferriss, 304 S.W.2d 896 (Mo. banc 1957); State ex rel. Askew v. Kopp, 330 S.W.2d 882 (Mo. 1960); St. Louis County v. City of Manchester, 360 S.W.2d 638 (Mo. banc 1962); and Appelbaum v. St. Louis County, 451 S.W.2d 107 (Mo. 1970). Ferriss held that the City of Ladue could not restrict, through its zoning ordinance, the School Board's power to select, locate and take by eminent domain private property for a public school.
At this point it should be interpolated, perhaps, that in connection with the location of public schools the statutes have endowed school districts with the power of eminent domain, (V.A.M.S. Secs. 165.100, 165.370) if not incidentally with some of the attributes of sovereignty, and that power and authority have not been subordinated or made subservient to the cities' right to zone. State ex rel. St. Louis Union Trust Co. v. Ferris (Mo.) 304 S.W.2d 896. While, as indicated, churches may not be excluded, this case is not concerned with an attempt to establish a parochial school as an adjunct to a church. Tustin Heights Association v. Board of Supervisors, 170 Cal.App.2d 619, 339 P.2d 914. Despite the fact that certain authoritative texts and some cases refuse to recognize the fact, there are several important distinctions in public schools and parochial schools (sometimes the latter are treated as "private schools").
Because of the view we take, it is not necessary to discuss all of these contentions. This is true because we think this case comes within our ruling in State ex rel. St. Louis Union Trust Co. v. Ferriss, Mo.Sup., 304 S.W.2d 896, concerning the scope of the enabling act providing authority for zoning by cities. Section 89.020 provides: "For the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body of all incorporated cities, towns and villages is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes."
Section 89.020, however, "contains no express grant of power to cities to regulate or restrict the location of schools or other public buildings. . . ." State ex rel. St. Louis Union Trust Co. v. Ferriss, 304 S.W.2d 896, 900 (Mo.banc 1957). "[I]n the absence of an express grant of power to so ordain, municipal zoning ordinances cannot encroach upon or limit the absolute right of the state or its lawfully designated subdivisions or agencies to select, locate and acquire land and buildings for public use, such as schools.
" all relate to property and the phrase "other purposes" has been construed by Missouri law as "not to extend the zoning power to restrict or limit the use of public property for public purposes." Kirkwood, 589 S.W.2d at 36 citing State of Missouri ex rel. Askew v. Kopp, 330 S.W.2d 882, 888 (Mo. 1960); State ex rel. St. Louis Union Trust Company v. Ferriss, 304 S.W.2d 896, 900 (Mo. banc 1957). Appellant's argument that the use of the property for a public purpose is not sufficient to immunize the land from zoning ordinances because it is privately owned by G.S.C., a non-for-profit corporation, is meritless.
Having determined that the City has the power to condemn property outside its borders, we next address whether that power immunizes the City from the zoning laws of the County. In resolving claims of governmental immunity from zoning regulations, this Court has applied two tests: 1) the "power of eminent domain" test, State ex rel. St. Louis Union Trust Co. v. Ferriss, 304 S.W.2d 896 (Mo. banc 1957); State ex rel.Askew v. Kopp, 330 S.W.2d 882 (Mo. 1960); and Appelbaum v. St. Louis County, 451 S.W.2d 107 (Mo. 1970); and 2) the "balancing of interests" test, St.Louis County v. City of Manchester, 360 S.W.2d 638 (Mo. banc 1962). In Ferriss, the Ladue School District initiated condemnation proceedings to acquire property in the City of Ladue for purposes of constructing a school.
Furthermore, on functions of statewide interest and concern, the general rule is that if the counties are not given specific authority to take over the function, the counties cannot thwart the State from performing its duty. See City of Bloomfield v. Davis County Community School District, 254 Iowa 900, 119 N.W.2d 909 (1963); City of Scottsdale v. Municipal Court of the City of Tempe, 90 Ariz. 393, 368 P.2d 637 (1962); State v. Ferriss, 304 S.W.2d 896 (Mo. 1957); Hilo Meat Co., Ltd. v. Antone, 23 Haw. 675 (1917); 8 McQUILLIN, MUNICIPAL CORPORATIONS, § 25.15 at 45 (3d ed. 1965). See HAW. CONST. art. VII, § 1; HRS § 50-15.
Frequently, in fact, authorities possessing the right to condemn have been held, by virtue of that right, to possess exemption from zoning regulations. State ex rel. Askew v. Kopp, 330 S.W.2d 882 (Mo. 1960); Decatur Park Dist. v. Becker, 368 Ill. 442, 14 N.E.2d 490 (1938); State ex rel. St. Louis Union Trust Co. v. Ferriss, 304 S.W.2d 896 (Mo. 1957); Town of Bloomfield v. New Jersey Highway Authority, 18 N.J. 237, 113 A.2d 658 (1955). However, the trend is to limit such freedom from regulation, a trend which we believe is well within the dictates of the public interest, principally because the pungent realities of urban sprawl and overpopulation have accentuated the need for land-use planning and control that serves as foundation for the exercise of police power in the area of zoning.
The power conferred upon St. Louis County to legislate in incorporated as well as unincorporated areas has already been established where the exercise of such power applies "county-wide," as in matters of public health. Readey v. St. Louis County Water Co., supra. The situation is analogous to that in State ex rel. St. Louis Union Trust Co. v. Ferriss, Mo., 304 S.W.2d 896, where the City of Ladue attempted through its zoning power to prohibit the Ladue school district from acquiring land and constructing school facilities on land in Ladue. The court held that where the constitution and statutes vested the power to locate and construct a school, the city had no power to prohibit the exercise of such power by zoning ordinance.