Hall v. City of Sedalia
| Decision Date | 09 February 1911 |
| Citation | 134 S.W. 650,232 Mo. 344 |
| Parties | WILLIAM F. HALL v. CITY OF SEDALIA et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. Louis Hoffman, Judge.
Reversed and remanded (with directions).
W. W Blain for appellants.
The separate opinion of Gantt, C. J., in Owen v. Baer, 134 Mo. 438, was not the majority opinion of the court, so far as it held that a local option provision for classified cities created a class of cities not authorized by the Constitution. Ex parte Handler, 176 Mo. 390. This court has repeatedly held that a separate class of cities is not created by local option laws. State ex rel. v. Pond, 93 Mo. 606; Ex parte Handler, 176 Mo. 390; State v Harp, 210 Mo. 259. It is not necessary to resubmit the proposition to a vote of the people, after an amendment of the law, that had been previously adopted. Andrews v People, 84 Ill. 28; Commissioners v. People, 134 Ill. 170; Swett v. Sprague, 55 Me. 190; State ex rel. v. Wilcox, 45 Mo. 458.
W. E. Owen for respondent.
(1) The provisions of Secs. 5876 to 5893, R. S. 1899, providing that any city of the third class might operate under the power therein given, when adopted by a two-thirds vote of the qualified voters of any city of such class, are unconstitutional. Constitution, art. 9, sec. 7, and art. 4, sec. 53; Owen v. Baer, 154 Mo. 434. The opinion in the case above cited, about a sewer construction contract let by the city of Westport, which had by vote assumed to act under the authority of a special sewer scheme, is in every way similar to the case here, and unless that case is flatly overruled, it is decisive of the questions at issue in this case. Appellants contend that the case cited does not hold that local option sewer provisions are in violation of section 7 of article 9, of the State Constitution, and cite the remarks of Gantt, J., in Ex parte Handler, 176 Mo. 390. Appellants are in error in overlooking the force and effect of the Baer case. While it is true that only Judges Gantt, Robinson and Valliant directly held the sewer scheme void as in conflict with section 7 of article 9 of the Constitution, yet Judge Sherwood, in a separate opinion, held it void, as in conflict with section 53 of article 4 of the Constitution, and Judge Burgess concurred with him. In fact, the Sherwood opinion held that no proposed law could be referred to a vote of the people, to determine whether it should become operative, except in cases pointed out in the Constitution itself; and he further contended that the Constitution having provided that some matters might be submitted to the people for a vote, necessarily excluded the right of the Legislature to submit any others. And on page 447 of that case, he uses the following forceful language: "The Constitution specifically provides just when and where a vote of the people may be taken, and by so doing the framers of that instrument necessarily excluded all implication as to authority to vote being granted to the people, in any other cases than those mentioned." The conclusion then is plain, that five of the seven judges held that the sewer scheme of Westport, in litigation in that case, was unconstitutional and void; and such must be the holding in this case, unless the court decides no longer to abide by the holding in that case. (2) Even if the sewer sections referred to be held valid and constitutional, yet the amended Laws of 1909, did not by their terms confer the enlarged powers therein given to cities that had theretofore voted to adopt the scheme set out in said sections of the statutes. It seems to be prospective and not retrospective in operation. Laws 1909, p. 293. Assuming that Sedalia had legally adopted the provisions of Revised Statutes 1899, from 5876 to 5893, inclusive, it was only vested with the essential powers therein given, and the people in voting endowed the city with only the specified powers. In that act there was no provision for construction of a sewage disposal plant and the purchase of land for same; that power was created alone by the Amendment of 1909, and nowhere in that amendment does it mention that cities of the third class which had theretofore adopted the provisions of statutes amended, should have the additional power therein given.
FERRISS, J. Valliant, C. J., is absent, and Woodson, J., dissents.
In Banc.
This case comes here by appeal from the circuit court of Pettis county, where judgment was rendered in favor of respondent on May 21, 1910. The case arises upon the following facts:
The respondent, plaintiff below, entered into a written contract in March, 1910, with the city of Sedalia for the construction of a sewage disposal plant, and for the construction of sewer mains to be connected therewith, at a total cost of $ 36,000, and as security for the performance of such contract, plaintiff gave bond to the city in the sum of $ 8000. Before work was begun plaintiff was advised by counsel that the act of the Legislature under which the city was proceeding to erect this disposal plant was unconstitutional and void, and that the special taxbills that should be issued to the plaintiff in payment for the work done under his contract would not constitute a valid lien on the property in the district, and could not be collected by law; whereupon plaintiff filed his bill in equity praying the court to cancel, annul, and declare wholly null and void plaintiff's aforesaid contract and bond. Issues were made up, the case was tried by the court, and judgment rendered for plaintiff granting the relief prayed for. Due proceedings were had, and the case comes here by appeal.
Two questions arise upon the record:
1. It is contended by the plaintiff that the act of the Legislature passed in 1895 (Laws 1895, p. 58), providing a scheme of sewer construction for all cities of the third class which should, by a vote of the people, adopt the provisions of such act, violates section 7, article 9, of the Constitution, which provides that the powers of each class shall be defined by general laws, "so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions," in that it permits certain cities, voting affirmatively, to acquire powers which are not common to all cities of the third class; and that it also violates section 53 of article 4, which forbids the General Assembly to pass any local or special law. This contention is based upon the case of Owen v. Baer, 154 Mo. 434, 55 S.W. 644.
2. It is also contended that even if the Act of 1895 is held to be constitutional, yet the contract in question is invalid because the power granted to the city to erect a disposal plant was not in the original act as voted upon by the people, but was granted by an amendment to that act made by the Legislature in 1909, which amendment had never been submitted to or voted upon by the people, and that therefore the enlarged powers given to the city by such amendment were not in force and effect, and could not be made effective without an affirmative vote by the people.
I. Upon the threshold of this case arises the question whether a court of equity will entertain a bill to construe a contract, or to declare a contract invalid, before any performance or attempt to perform is shown. If a man makes a contract, and afterwards before beginning a performance, doubts its validity, he has his legal remedy. He may decide either to perform or refuse to perform, and take his chances in a court as to results. If this were a contest between individuals over a matter of private interest only, it would be a serious question whether the court would entertain the case at all. In view, however, of the public character of the contract in question, and in further view of the fact that the law invoked in this case cannot be regarded as being satisfactorily settled by the former decisions of this court, we have decided to pronounce judgment upon the questions involved; our action, however, not to be regarded as a precedent for suits of this character.
II. Constitutional questions of the character of those involved in the present case have been frequently before this court. They received a full discussion in Owen v. Baer, 154 Mo. 434, 55 S.W. 644. That case arose upon the Act of 1893 (Laws 1893, p. 101), which provided that "in every city in this State, of either the third class or of the fourth class, the acting municipal authorities thereof, upon a vote by ballot of two-thirds of the qualified voters," etc., "in favor of adopting the provisions of this act, shall have power by ordinance to provide drains and sewers for the same," etc. The aforesaid act is similar to the Act of 1895 in question, so far as the questions raised are concerned. Westport, a city of the fourth class, proceeded under said act to construct a sewer system, and issued taxbills in payment thereof, and Owen v. Baer, supra, was a suit to cancel certain of these taxbills upon the ground that the act was in violation of section 7 of article 9, and section 53 of article 4, of the Constitution; presenting questions similar to those in the case at bar. Three judges In Banc, Gantt, C. J., and Robinson and Valliant, JJ., held the Act of 1893 to be in violation of section 7 of article 9, upon the ground that this act enabled some cities of the fourth class to acquire powers not possessed by other cities of that class; that it created, in the language of Judge Gantt, who wrote the opinion, "a dissimilarity in the powers of cities of the fourth class."
Judge Sherwood, in a separate opinion, Judge Burgess concurring held that the act was unconstitutional because it was not within those specific provisions of the Constitution which Judge Sherwood...
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