Bull v. McQuie

• Decision Date: 13 July 1938
• Docket Number: 36168
• Parties: Richard Bull, Appellant, v. James L. McQuie, Fred S. Henderson, C. E. Williams and Herbert D. Condie, Constituting the Board of Election Commissioners of St. Louis County, and Ladue-Deer Creek Sanitary Sewer District, a Municipal Corporation
• Court: Missouri Supreme Court

119 S.W.2d 204

342 Mo. 851

Richard Bull, Appellant, v. James L. McQuie, Fred S. Henderson, C. E. Williams and Herbert D. Condie, Constituting the Board of Election Commissioners of St. Louis County, and Ladue-Deer Creek Sanitary Sewer District, a Municipal Corporation

No. 36168

Supreme Court of Missouri

July 13, 1938

Appeal from Circuit Court of City of St. Louis; Hon. John A Witthaus, Judge.

Affirmed.

Fred M. Switzer, Jr., for appellant.

(1) That election for sewer districts in St. Louis County Missouri, are governed by an act of the General Assembly of the State of Missouri, entitled "an Act to provide for the establishment of sewer districts," etc., adopted by the Fifty-seventh General Assembly of the State of Missouri in extra session, approved on January 13, 1934, and there is no other applicable provision of the law of Missouri. Laws 1933-1934, Ex. Sess., p. 123; State ex rel. Webster Groves Sewer Dist. v. Smith, 87 S.W.2d 147. (2) There is no express provision in said act so approved on January 13, 1934, requiring or authorizing the calling or holding of a second, or other than the first, election by the Board of Election Commissioners of St. Louis County for the purpose of incurring additional indebtedness. Laws 1933-1934, Ex. Sess., p. 123. (3) That there is no express provision in said act, so approved on January 13, 1934, requiring or authorizing the calling or holding of a second, or other than the first, election by the trustees of Ladue-Deer Creek Sanitary Sewer District, either themselves or through the Board of Election Commissioners of St. Louis County, Missouri. Laws 1933-1934, Ex. Sess., p. 123. (4) That a municipal corporation possesses only such powers as are expressly granted by statute or such as may be necessarily implied from powers expressly granted -- (a) That any reasonable doubt concerning the existence of power is resolved against the corporation. (b) Such rule applies with peculiar force to a municipal corporation, such as defendant sewer district, which was organized for one specific purpose only. (c) That the power to incur debt in addition to that authorized at the first election cannot necessarily be implied from any express provision of the act under consideration. State ex rel. Blue Springs v. McWilliams, 335 Mo. 820, 74 S.W.2d 363. (5) That it is the manifest intent of the act that the general plan of construction, the cost thereof and the amount of bonds to be issued, should be finally determined by the court at the time of entry of its decree incorporating the sewer district. Sec. 5, Laws 1933-34, Ex. Sess., p. 123. (6) State Constitutions by their nature are limitations upon legislative authority and are not grants of power. State v. Dixon, 73 S.W.2d 385, 335 Mo. 478; State ex rel. Gordon v. Becker, 49 S.W.2d 146, 329 Mo. 1053; State ex rel. McDonald v. Lollis, 33 S.W.2d 98, 326 Mo. 644; Clark v. Austin, 101 S.W.2d 977. (7) That the language of Section 12, Article X, of the Missouri Constitution is restrictive and prohibitory merely, and is not in itself a grant of power to incur indebtedness. State ex rel. Clark County v. Hackmann, 218 S.W.2d 324; Lamar Water Co. v. Lamar, 31 S.W. 756, 128 Mo. 188.

Fordyce, White, Mayne, Williams & Hartman, Walter R. Mayne and R. E. LaDriere for Ladue-Deer Creek Sanitary Sewer District.

The action of the lower court in sustaining demurrers to the petition should be affirmed because: (a) That Section 12, Article X of the Constitution of Missouri is self-executing and is a grant of power to Ladue-Deer Creek Sanitary Sewer District to incur debt for the construction of sewers. (b) That there is no need for the Legislature of Missouri to pass any act in aid of such a self-enforcing grant of power. Sec. 11071-E, 1 Mo. Stat. Ann., p. 7431; Sec. 12, Art. X, Mo. Const.; State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 87 S.W.2d 147; State ex rel. Clark County v. Hackmann, 218 S.W. 318, 280 Mo. 686; State ex rel. Gilpin v. Smith, 96 S.W.2d 40; Lawson v. Kanawha County Court, 92 S.E. 786, 80 W.Va. 612; Calland v. Springfield, 264 Mo. 296, 174 S.W. 396; Barker v. St. Louis County, 104 S.W.2d 731; State ex rel. Blue Springs v. McWilliams, 335 Mo. 816, 74 S.W.2d 363; Holmes & Bull Furn. Co. v. Hedges, 13 Wash. 696, 43 P. 944; State ex rel. Marshall v. Bugg, 220 Mo. 554, 123 S.W. 827; Mound City Land & Stock Co. v. Miller, 170 Mo. 252, 70 S.W. 724.

OPINION

Hays, C. J.

Richard Bull, plaintiff below, a resident, citizen and taxpayer of Ladue-Deer Creek Sanitary Sewer District No. 12043 in St. Louis County, on April 14, 1938, filed suit in the circuit court of said county to enjoin said sewer district and the individuals constituting the Board of Election Commissioners of that county from calling and holding an election at which there was to be submitted to the electorate a proposition to incur an additional indebtedness of $ 125,000 to be evidenced by bonds, for the purpose of completing the sanitary sewer system.

Demurrers general and special interposed by the defendants below (respondents here) to plaintiff's bill were sustained by the court. The plaintiff declined to plead further. Judgment went against him accordingly, and the case is here on appeal taken by him.

It is conceded that all steps necessary for the incorporation of the district were taken in accordance with the statutory requirements (Laws 1933-34, p. 119) pertaining to sewer districts in counties having a population of not less than 150,000, nor more than 400,000 inhabitants. Such is St. Louis County.

Application for the incorporation was filed in Division No. 3 of the Circuit Court of St. Louis County on August 15, 1936, and the preliminary hearing thereon was had on August 25, 1936, at which Mr. Horner, an engineer, was appointed to lay out and define the boundaries of the proposed district, and report. In due time he filed his report in which the boundaries of the district were laid out and defined, and in which it was stated "that the cost to complete the sanitary sewer system recommended by him would be approximately $ 445,000; that application had been made to the Public Works Administration for the United States Government for a grant, and that the balance of the necessary funds would be raised by bond issue of $ 275,000 -- an amount within the debt-incurring limitations of the State Constitution; that "the remaining sewers, the construction of which will be deferred until additional funds are made available (if no grant is obtained) are estimated to cost, under private contract without WPA regulations, $ 125,000. It appears from the rate of development and the building progress now going on in the area in the proposed district, that the assessed valuation will sufficiently increase so that by 1938 the additional funds required for the full construction could be voted at that time. The failure to obtain a grant therefore, would result in a deferred program with the work scheduled for full completion by 1939."

Upon the final hearing had on October 10, 1936, the court decreed the incorporation of said area as defined in the engineer's report and ordered the Board of Election Commissioners of St. Louis County to call an election within sixty days so that the voters residing in the district might vote (1) for three persons who should form the Board of Trustees of such district and (2) on the proposition to incur indebtedness by said district for the purpose of constructing a system of sanitary trunk line sewers within said district as shown by the amended report of said engineer appointed by the court, "in an amount not greater than the estimated cost of construction, to-wit, $ 275,000."

An election was held in conformity with the decree and with the Sewer District Act (Laws 1933-34, Extra Sess., p. 119), at which election three trustees were chosen and the proposition to incur indebtedness in the form and amount as set out in the paragraph next preceding this was carried; on February 10, 1937, bonds evidencing this indebtedness were issued and sold and the proceeds thereof have now been used or allocated for the purpose of constructing the contemplated sanitary sewer district.

The grant was not made by PWA. On April 6, 1938, the Board of Trustees considered the situation resulting from the failure to secure the grant, and considered also the advisability of holding an election at which additional indebtedness could be authorized and thereafter additional bonds issued pursuant thereto. They resolved to do so and accordingly expressed their purpose in a formal set of resolutions in which all steps hereinabove stated were set out in detail.

It was also noted therein (1) that it is estimated by the chief engineer of the district that an additional amount of $ 125,000 will be necessary to complete the sewer system as contemplated in the report of the engineer appointed by the court; (2) that it is unfair that certain residents of the sewer district will not be furnished sewage facilities and at the same time will be required to pay taxes the same as other residents who have been furnished such facilities; (3) that the assessed valuation of taxable property in said district as of June 1, 1935 -- the assessment of that date being the one governing the debt-incurring limitations of the district -- is not less than $ 8,000,000 -- so that an additional amount of bonds in the sum of $ 125,000, when added to the present outstanding indebtedness of $ 275,000, will not in the aggregate exceed five per centum of said assessed valuation.

Pursuant to said resolutions so adopted there was, on April 6, 1938 filed a petition In the Matter of Ladue-Deer Creek Sanitary Sewer District, No. 12043, Division No. 3, Circuit Court of St. Louis County, for an order of court on the ...