The State ex inf. Mytton v. Borden

Citation64 S.W. 172,164 Mo. 221
PartiesTHE STATE ex inf. MYTTON, Prosecuting Attorney, v. BORDEN et al., Appellants
Decision Date29 June 1901
CourtMissouri Supreme Court

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

Kendall B. Randolph for appellants.

(1) The answer and return of the appellants state that the city of St. Joseph is a city of more than 100,000 inhabitants and less than 150,000 inhabitants, and the court will take judicial notice of the population of the city; and the return also states that the city of St. Joseph is a city of the second class. The demurrer, of course, admits the truth of all of the allegations of the answer and return. (2) The act above recited does not confer any new powers upon the cities for which it was enacted, neither does it put any restriction upon the city as to its powers. The whole act simply provides a method of procedure for the exercise of the powers already by previous laws granted to the city. The only prohibition in section 7 of article 9 of the Constitution is, that "the number of such classes shall not exceed four and the power of each class shall be defined by general laws." We understand the Constitution to mean that the powers 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." We do not understand that the Constitution in any manner seeks to control legislation as to the procedure to be followed by the city in the exercise of the powers which are provided by general law. Murnane v. St. Louis, 123 Mo. 479; Owen v. Baer, 154 Mo. 434; Kansas City ex rel v. Scarritt, 127 Mo. 642. It is plain that the general law, classifying cities and defining the powers and restrictions, is not a part of the Constitution and is subject to repeal and modification, the same as any other laws, the Constitution itself not providing the classification of cities. The classification can be made by any name and may be based upon the population, and when any general law is passed it can not be held to be unconstitutional because it conflicts with prior laws passed by the General Assembly. The conflict must be with the Constitution. Whatever effect it has on such prior laws must be either to repeal, modify or enlarge. If it has any other effect, it must be by reason of the Constitution so acting on the prior laws as to take away from the Legislature its power to reform or change them. The law in question is a general law; it provides certain procedure for cities of not less than 100,000 inhabitants nor more than 150,000 inhabitants. That this is a general law is clearly shown by the reasoning in Murnane v. St. Louis, supra.

W. K Amick and James Moran also for appellants.

(1) Whenever a law operates uniformly in all parts of the State and affects all persons and localities in the same manner under similar conditions, it is a general and not a special law. State ex rel. v. Yancy, 123 Mo. 391; State ex rel. v. Bishop, 128 Mo. 373; State ex rel. v Ins. Co., 150 Mo. 113. Statutes relating to persons or things as a class are general laws; and statutes relating to particular persons or things of a class are special laws. State v. Walsh, 136 Mo. 400; Dunne v. Kansas City, 131 Mo. 1; State v. Gritzner, 134 Mo. 512. Legislation which is authorized by the Constitution itself, can not be regarded as local or special legislation within the meaning of the Constitution. Spaulding v. Brady, 128 Mo. 653. The Act of 1877, providing for the election of justices of the peace in St. Louis, was held not invalid as being local legislation. State ex rel. v. Walton, 69 Mo. 556. The Act of 1883, providing for the registration of voters and the government of elections in certain cities, held not local or special law. Ewing v. Hoblitzelle, 85 Mo. 64. The Act of 1891, providing for a division of cities having a certain population into election districts for the election of justices of the peace, was held not invalid as special or local legislation, although it was intended to apply to the city of St. Louis only. State ex rel. v. Higgins, 125 Mo. 364; Spaulding v. Brady, 128 Mo. 653. The Act of 1881, relating to sewers and drains in cities containing a specified population, held valid and not local or special legislation. Rutherford v. Heddins, 82 Mo. 388; Rutherford v. Hamilton, 97 Mo. 543. An act of the Legislature must appear to be unconstitutional beyond a reasonable doubt before the judiciary will pronounce it invalid for that reason. Ewing v. Hoblitzelle, 85 Mo. 64. A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is a special law. State v. Tolle, 71 Mo. 650; State ex rel. v. Walton, 69 Mo. 558; Ewing v. Hoblitzelle, 85 Mo. 64. (2) The fundamental rule is, that legislators, as well as judges, are bound to obey and support the Constitution, and it is to be understood that they have weighed the constitutional validity of every act they pass. Hence, the presumption is always in favor of the constitutionality of a statute; every reasonable doubt must be resolved in favor of the statute, not against it; and the courts will not adjudge it invalid unless its violation of the Constitution is clear, complete and unmistakable. Cooley on Const. Lim. (6 Ed.), 217; Block's Constitutional Law, sec. 30, p. 59; Tonnage Tax Cases, 62 Pa. St. 286; Kerrigan v. Force, 68 N.Y. 381; Stewart v. Supervisors, 30 Ia. 9; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Yancy, 128 Mo. 391; Lynch v. Murphy, 119 Mo. 163; State v. Addington, 77 Mo. 110; State v. Railroad, 48 Mo. 470. (3) Whether an act of the Legislature be a local or general law must be determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which it operates, and if it affects equally all persons who come within its range, it can neither be special nor local within the meaning of the Constitution. State ex rel. v. Yancy, 123 Mo. 401; State ex rel. v. Bishop, 128 Mo. 373; State ex rel. v. Ins. Co., 150 Mo. 113; Ewing v. Hoblitzelle, supra; State ex rel. v. Dolan, 93 Mo. 467. (4) All that the Constitution requires is that the subjects embraced in the act shall be fairly and naturally germane to that recited in the title. State v. Bennett, 102 Mo. 356; State ex rel. v. Bronson, 115 Mo. 271; State v. Blackstone, 115 Mo. 424; State v. Bockstruck, 136 Mo. 335. The provisions of this section of the Constitution are to be liberally construed. State ex rel. v. Ranson, 73 Mo. 78; State ex rel. v. Finn, 8 Mo.App. 341. And where all the provisions of a statute fairly relate to the same subject, and have a natural connection with it, the subject is single, and if sufficiently expressed in the title, the statute is valid. State v. Morgan, 112 Mo. 202; Lynch v. Murphy, 119 Mo. 163. The title to the act in question could not in any manner deceive any one -- to make such a charge is, in effect hypercritical and fantastic criticism. (5) The act under review is general, applying to all cities having 100,000 and less than 150,000, and to cities of the second class; and is presumed to have been passed with deliberation, and with a knowledge of all existing laws on the same subject (Brown v. Lease, 5 Hill, 226; Landis v. Landis, 39 N. J. L. 277), and if the act makes any change in the existing law, a repeal to that extent is suggested, and the extent of the repeal must be ascertained and defined by the court. Moore v. Mausert, 49 N.Y. 332. Such repeals are recognized as intended by the Legislature, and its intention to repeal is ascertained as the legislative intent is ascertained in other respects. Thorpe v. Schooling, 7 Nev. 15. Sutherland on St. Con., sec. 138. An implied repeal results from the terms and necessary operation of all that can not be harmonized with the terms and necessary effect of the earlier law. The last expression of the Legislature must prevail; and the repugnancy being ascertained, the last act in date or position has full force and displaces by repeal whatever in the precedent law is inconsistent with it. Wood v. U.S. 16 Pet. 342; Railroad v. Boston, 102 Mass. 389; Mayor, etc. v. Railroad, 20 N.J.Eq. 360; Fowler v. Perkins, 77 Ill. 271; Supervisors v. Railroad, 93 U.S. 619; U. S. v. Sixty-seven Packages, 17 How. 85; Ex parte Crow Dog, 109 U.S. 556; Lyddy v. Long Island City, 104 N.Y. 218; Sutherland on Stat. Const., sec. 138.

H. M. Ramey and Stauber, Crandall & Strop for respondent.

(1) The act purports by its title, and by all its sections, except 5 12 and 13, to be an act creating a board of public works in cities containing a population of 100,000 and under 150,000, and can not be held to apply to any city of the second class in this State. City of Kansas v. Payne, 71 Mo. 159; State ex rel. v. Hedge, 135 Mo. 112. (2) If the act can be held to apply to any city of the second class that has a population of 100,000 inhabitants or over, then it is in violation of section 28 of article 4 of the Constitution, for two reasons: (a) The bill contains two subjects. (b) The title of the bill does not indicate the subject dealt with by the act itself. Witzman v. Railroad, 131 Mo. 612. (3) Said act is also in conflict with the provisions of section 7, article 9, of the Constitution, for two reasons: (a) Because an attempt is made by this act to create a fifth class of cities, to-wit, cities of 100,000 and less than 150,000. (b) Because under this act all cities of the same class are not governed by the same laws and are not subject to the same restrictions. Murnane v. St. Louis, 123 Mo. 479; Kansas City ex rel. v. North Park District, 127 Mo. 642; St. Louis v. Dorr, 145 Mo. 466; Owen v. Baer, 154 Mo. 434. (4) The act under...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT