Birch v. City of Plattsburg.

• Decision Date: 10 February 1904
• Citation: 79 S.W. 475,180 Mo. 413
• Parties: BIRCH et al. v. CITY OF PLATTSBURG.
• Court: Missouri Supreme Court

79 S.W. 475

180 Mo. 413

BIRCH et al. v. CITY OF PLATTSBURG.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

STATUTE—CONSTITUTIONAL LAW.

1. In Rev. St. 1889, § 1580, providing that the mayor and board of aldermen of a city of the fourth class, with the consent of a majority of the voters, shall have power to extend the corporate limits, and that all agricultural or pastoral lands included in such extension shall be exempt from taxation for city purposes, the clause relating to exemption from taxation is a separable part of the section, so that its unconstitutionality under Const. 1875, art. 10, §§ 6, 7, does not affect the validity of the remainder of the section.

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

Action by Mary B. Birch and others against the city of Plattsburg. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

W. S. Herndon, for appellants. H. T. Herndon, for respondent.

BRACE, P. J.

This is an action to recover certain sums of money which the plaintiff paid the defendant as taxes levied upon their property by the defendant city for the years 1894, 1896, and 1897, which they allege were levied without authority of law, and which they allege they were constrained to pay under duress. The judgment in the circuit court was for the defendant, and the plaintiffs appeal.

There is no dispute about the facts. The plaintiffs are the owners of 40 acres of land in the S. W. ¼ of section 24, township 57, range 32, in Clinton county, that was included within the corporate limits of the city of Plattsburg by an extension of those limits, duly made, on the 19th of April, 1887, under the provisions of section 4932, Rev. St. 1879, as amended by an act of the General Assembly approved March 27, 1883 (Sess. Acts 1883, p. 37), the law in force at the time. The taxes were duly assessed and levied upon said property, but plaintiff contends that said act under which the extension was made is unconstitutional and void. The defendant is a city of the fourth class. The section of the original act (Sess. Acts 1877, p. 175) classifying the cities of the state in pursuance of the mandate of the Constitution of 1875, of which the section in question is amendatory, is as follows: "The jurisdiction of any city which shall organize under the provisions of this act, shall not in anywise be affected or changed in consequence of such reorganization; but the limits, wards and boundaries of such city shall remain after such change of organization the same as at the time of such reorganization; and all laws or parts of laws or ordinances not inconsistent with this act, which were in operation in such city prior to its organization, shall continue to be in full force until repealed. The mayor and board of aldermen of such city, with the consent of a majority of the legal voters of such city, voting at an election therefor, shall have power to extend the limits thereof over any territory lying adjacent thereto, or may, by the same vote, reduce the territory of such city to exclude land used for farming purposes." Sess. Acts 1877, p. 175. The act was revised in 1879, and the section appeared in that revision as follows: "The jurisdiction of any city which shall organize under the provisions of this article, shall not in anywise be affected or changed in consequence of such reorganization; but the limits, wards and boundaries of such city shall remain after such change of organization the same as at the time of such reorganization; and all laws or parts of laws or ordinances not inconsistent with this article, which were in operation in such city prior to its reorganization, shall continue to be in full force until repealed. The mayor and board of aldermen of such city, with the consent of a majority of the legal voters of such city, voting at an election therefor, shall have power to extend the limits thereof over any territory lying adjacent thereto, or may, by the same vote, reduce the territory of such city to exclude land used for farming purposes. All agricultural or pastoral lands included in such extension to be exempt from taxation for city purposes until they have, by recorded plats or sale, been reduced to tracts or lots of five acres or less." Rev. St. 1879, § 4932. The section was amended in 1883, and made to read as follows: "The jurisdiction of any city which shall organize under the provisions of this article shall not in anywise be affected or changed in consequence of such re-organization; but the limits, wards and boundaries of such city shall remain after such change or organization the same as at the time of such re-organization; and all laws or parts of laws or ordinances not inconsistent with this article, which were in operation in such city prior to its re-organization, shall continue to be in full force until repealed. The mayor and board of aldermen of such city, whether the same shall have been incorporated before becoming a city of the fourth class or not, with the consent of a majority of the legal voters of such city, voting at an election therefor, shall have power to extend the corporate limits thereof over any territory lying adjacent thereto, or may, by the same vote, reduce the territory of such city to exclude land used for farming purposes. All agricultural or pastoral lands included in such extension to be exempt from taxation for city purposes until they have, by recorded plats or sale, been reduced to tracts or lots of five acres or less. Such elections shall be held in accordance with the general election law of the state, and the same shall be held upon such notice, and at such time and place, and judges and clerks of the same shall be appointed and make their returns of the same in such manner as may be prescribed by ordinance of such city." Sess. Acts 1883, p. 37. The changes in the section in each instance are indicated by italics.

Under the section thus revised and amended the defendant's limits were extended. In the revision of 1889 the section appears in the same language as in the act of 1883, except that the words "in such extension to" are omitted, and the words ...