Asel v. City of Jefferson

• Decision Date: 01 April 1921
• Docket Number: No. 22434.,22434.
• Citation: 229 S.W. 1046,287 Mo. 195
• Parties: ASEL v. CITY OF JEFFERSON et al.
• Court: Missouri Supreme Court

229 S.W. 1046

287 Mo. 195

ASEL v. CITY OF JEFFERSON et al.

No. 22434.

Supreme Court of Missouri, in Banc.

April 1, 1921.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Suit by Christ H. Asel against the City of Jefferson and others. A temporary injunction granted plaintiff was dissolved on defendants' motion, and plaintiff's motion for a rehearing and review and his motion in arrest of judgment were overruled, and plaintiff appeals. Affirmed.

This is an equitable action wherein plaintiff (appellant herein) seeks to enjoin defendants from contracting for the sprinkling, oiling, repairing, surfacing and resurfacing of certain streets in Jefferson City, Mo. Respondent having agreed to appellant's statement of the facts, we adopt the same, with some slight modifications:

On February 9, 1920, the city council of the said city of Jefferson passed an ordinance dividing the city into six sprinkling, oiling, repairing, surfacing, and resurfacing districts, one of which is known as district No. 4, and established the boundaries thereof. Plaintiff is a citizen and resident of the city of Jefferson, owning real estate in said district No. 4, fronting 48 feet on Madison street and 98 feet on Ashley street.

On May 7, 1920, the city council of said city passed an ordinance providing for the sprinkling, oiling, repairing, surfacing, and resurfacing of certain streets within the limits of district No. 4, by the terms of which the streets upon which plaintiff's property abuts, were proposed to be improved. The city engineer was instructed to prepare plans and file the same with the city clerk, and advertisements for bids for the work were authorized. It was provided in said ordinance that the costs of sprinkling, oiling, repairing, surfacing, and resurfacing should be defrayed by special tax to be assessed in favor of the city of Jefferson on the property fronting on or abutting the streets improved, in proportion that the lineal feet of each lot fronting or bordering on the improvement bears to the total number of lineal feet of all property chargeable with the tax aforesaid, in the territory embraced by the contract for which advertisement was directed to be made.

Two specifications were made by the city engineer, one for resurfacing the streets as an entirety, and the other for patching holes and depressions. The city engineer testified that under specification No. 1 they proposed to scarify the streets and give them surface treatment, where they were too far gone to be retreaded under specification No. 2, and that under specification No. 2 they proposed to fill the holes with a bituminous concrete mixed.

After the specifications were filed, due notice was given to contractors, which was duly published according to law. The Pope Construction Company, a partnership composed of Joseph Pope and F. J. Kersting, submitted the lowest bid for the work proposed to be done, 108,133 square yards, at $0.321 per square yard, amounting in all to $34,724.80, which sum the city engineer testified would not exceed 60 cents per front foot on the streets proposed to be improved. The bid of the Pope Construction Company was accepted by the city council by resolution adopted July 6, 1920, and the mayor of the city was authorized by the council to enter into a contract with the Pope Construction Company for the faithful performance of the contemplated work.

Before the contract was entered into the plaintiff herein gave notice to defendants of his intention to file an application for an injunction on the 13th day of July, 1920, and on said 13th day of July he filed his petition and exhibits, and a temporary injunction was granted, enjoining the defendants from proceeding further in any way from entering into the contract for sprinkling, oiling, repairing, surfacing, and resurfacing the streets within district No. 4, as provided in the city ordinances.

The petition for injunction recites that the city council of the city of Jefferson, in attempting to establish the sprinkling, oiling, repairing, surfacing, and resurfacing district and providing for the improvement thereof, was acting under the provision of an act of the Missouri Legislature approved May 29, 1919 (Laws 1919, p. 572), entitled "An act to repeal `An act to amend chapter 84, article 4, of the Revised Statutes of the State of Missouri, 1909,' in relation to municipal corporations as it appears in the Laws of Missouri, 1915, at page 359, and approved March 24, 1915, and to enact a new section in lieu thereof to be known as section 9237a"; that said act is unconstitutional and void, and in violation of section 28, article 4, of the Missouri Constitution; that it is in conflict with and contrary to sections 9254, 9255 and 9256, R. S. Mo. 1909, as amended by Laws of Missouri 1911, pp. 337-341; that the city of Jefferson, its officers and agents, were acting without authority of law and will cast a cloud upon the title to plaintiff's real estate, with a pretended lien for street improvement under and by virtue of illegal acts, and deprive plaintiff and those similarly situated of their property without due process of law, contrary to section 30, of article 2, of the Constitution of Missouri; and that said city proposes to create a lien for the work and improvements in favor of the city of Jefferson, instead of the contractor, who does the work.

The defendants answered, admitting that plaintiff was the owner of property in district No. 4, and a citizen of the city of Jefferson, and admitting the existence of all the ordinances and proceedings of the council, but denied that the provisions thereof would cast a cloud upon plaintiff's title to his real estate and denied that they were illegal, or would deprive plaintiff of his property without due process of law, and denied that said act of the General Assembly of Missouri of 1919 is contrary to other preexisting laws of the state of Missouri. The answer practically admits all the facts stated in plaintiff's petition, but denies the legal effect thereof.

After filing of the answer, defendants filed a motion to dissolve. The case was tried on July 24, 1920, and the court dissolved the temporary injunction theretofore granted. On the same day plaintiff filed a motion for rehearing and review and a motion in arrest of judgment, both of which were overruled, to which plaintiff excepted, and an appeal was granted to this court.

Pope & Lohman, of Jefferson City, for appellant.

Leonard M. Rice, of Jefferson City, and Vance J. Higgs, of St. Louis, for respondents.

ELDER, J. (after stating the facts as above).

Plaintiff's first contention is that the act upon which the establishment and proposed improvement of the district in question is based, being section 9237a, pp. 572, 573, Laws of Missouri 1919, approved May 29, 1919 (now section 8301, Revised Statutes 1919), is violative of section 28, article 4, of the Constitution of Missouri, in that the subject of the act is not clearly expressed in the title thereof. Learned counsel for plaintiff argue that this act repealed an act approved March 24, 1915 (Laws of Missouri 1915, pp. 359, 360), providing for the sprinkling and oiling of streets, and enacted a new section in lieu thereof; that the said act of 1919, in addition to providing foe the sprinkling and oiling of streets, also provides that the same may be repaired, surfaced and resurfaced, but that "no mention of the repairing, surfacing and resurfacing thereof appears in the title," and that therefore, so far as the act relates to repairing, surfacing and resurfacing, it is unconstitutional.

In approaching the question presented, we do so with full recognition of the rule that the constitutional provision as to the necessity of clearly expressing the subject of a law in the title thereof must be reasonably and liberally construed and applied, due regard being had to its object and purpose. As has been declared, the principal purpose of the provision was to prevent surprise or fraud upon the members of the Legislature, by barring the insertion a matter in the body of the bill of which the title gave no intimation, City of. St. Louis v. Tiefel, 42 Mo. loc. cit. 590; State ex rel. v. Ranson, 73 Mo. loc. cit. 78; State v. Doerring, 194 Mo. loc. cit. 412, 92 S. W. 489; State v. Cantwell, 179 Mo. loc. cit. 260, 78 S. W. 569. Also, as said by Sherwood, J., in St. Louis v. Weitzel, 130 Mo. loc. cit. 616, 31 S. W. loc. cit. 1049:

"The evident object of the provision of the organic law relative to the' title of an act was to have the title like a guide board, indicate the general contents of the bill, and contain but one general subject which might be expressed in a few or a greater number of words. If those words only constitute one general subject; if they do not mislead as to what the bill contains; if they are not designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title and does not impinge on constitutional prohibitions."

Furthermore, so long as the title does not cover legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection, it is not subject to objection for generality. City of St. Louis v. Tiefel, 42 Mo. loc. cit. 592; Lynch v. Murphy, 119 Mo. 163, 24 S. W. 774. With these general principles in mind, and passing to a minute consideration of the question before us, we find the title to the act of 1915 to be as follows:

"An act to amend chapter 84, article 4, of the Revised Statutes of the State of Missouri, 1909, in relation to municipal corporations, by adding thereto a new section to be known as section 9237a."

The title to the act of 1919 is as follows:

"An act to repeal `An act to amend chapter 84, article 4, of the Revised Statutes of the State of Missouri, 1909,' in relation to municipal corporations as it appears in the Laws of Missouri, 1915, at page 359, and...