City of St. Louis v. Tiefel

• Decision Date: 31 October 1868
• Citation: 42 Mo. 578
• Parties: CITY OF ST. LOUIS, Plaintiff in Error, v. HENRY TIEFEL, Defendant in Error.
• Court: Missouri Supreme Court

42 Mo. 578

CITY OF ST. LOUIS, Plaintiff in Error,

v.HENRY TIEFEL, Defendant in Error.

Supreme Court of Missouri.

October Term, 1868.

Error to St. Louis Criminal Court.

H. A. Clover, for plaintiff in error.

I. The two acts, the original and amendatory, ought to be construed together as making but one law; and looking at the two acts as one act, and regarding the provision of the second section of the amendatory act, no one can assert that the provisions of this section are not germain to the general object of the bill--the enabling the city of St. Louis to procure a supply of wholesome water.

If a provision of a particular section of a law is within the general scope, nature, and object of the law, then it is sufficient; and no constitutional objection lies that the nature of the particular provision is not expressed in the title of the bill. Any other rule than this would make the title of a bill express not only the “subject” of the bill, but all the details, minutiæ, and machinery of the bill, making the title to the act as full and specific as the act itself. The other sections of this law all plainly and legitimately relate to the one subject. Look at the original law in the light of this objection. Its general title is as above quoted; yet the first section creates a quasi corporation, charged with important and extensive duties, and vested with extraordinary powers. Nothing hereof is expressed in the title. The seventh section abolishes the offices of superintendent of water-works and register of water-rates as formerly existing, and takes from the city all control of water-works existing for a long while previous, and vests such control in this new corporation. Nothing hereof is expressed in the title of the act. Another section makes particular provision for the taking and condemnation for public use of private property; provision is made for the issue of $3,500,000 of gold bonds. Nothing of this appears in the title, and so in very much of the matters of the act; yet no one would seriously argue that this law in any of its parts was inoperative and void by reason of this constitutional provision. The general scope, nature, and object of this law is sufficiently well-stated in the title to meet any constitutional objection, and it does not aid the defendant's argument that this provision is found in another and an amendatory act--the acts being construed as one act.

It is argued by counsel that “an act which compels A. to pay for a water-license, whether he used the water or not, cannot be viewed as an act enabling B. to procure a supply of wholesome water.” But an act which compels A. and B., property-owners, to use water when it is offered them, most assuredly is an act enabling the city of which they are inhabitants to procure a supply of pure and wholesome water if the water be pure and wholesome. It is idle to call this measure an arbitrary tax, or unreasonable, harsh, or unnecessary. The first portion of the section undoubtedly is a part of a general plan for enabling the city of St. Louis to procure a supply of pure and wholesome water, and the proviso is added that the section shall not have force or effect unless the board of health shall do something. This is merely a proviso competent for the legislature to make, and there could be no necessity or propriety in expressing the subject of a proviso in the title to a bill.

II. The act is assailed on the ground that the law is void as being against common right. In an act to provide the city of Brooklyn with water, passed April 16, 1859, the eighteenth section reads as follows: * * * “Such rents (water-rents for the supply of water) shall be collected from the owners and occupants of all such buildings, respectively, which shall be situated upon lots adjoining any street, avenue, lane, or court in said city, in which the distributing pipes have been laid, and from which they can be supplied with water, whether the water shall be used or not; such regular rates, together with all interest that may accrue thereon, shall be a lien upon such houses and lots respectively.” So in section 24: “The said water-board shall, in every year, by resolution, fix the price, which shall be assessed upon every vacant lot situated upon any street, lane, alley, or court, etc., etc.” Reference is made to this law simply to show that the act of March 23, 1868, is not an extraordinary law or peculiar to the legislature of this State--not to prove its constitutionality. Every act, and there are very many such, for the laying of water-pipe in cities, is upon the same principle of legislation. The very act under consideration, that of March 13, 1867, being the act to enable the city of St. Louis to procure a supply of pure and wholesome water, is based upon the same principle. The twenty-third section provides that whenever the city council shall, by a two-third vote, declare the laying of water-pipe to be necessary, the said board of water commissioners shall cause the same to be laid, and the cost of laying all such pipe shall be apportioned among the owners of property on such street, according to the fronting of their lots thereon, and be levied as a special tax, etc. Now, the principle of this legislation is precisely similar to that condemned by the St. Louis Criminal Court. A man, owner of property on a street, may not choose to use water from the public works; he may not like it; it may not agree with him; he has no necessity for it. Wherefore should he be compelled to pay for water-pipe laid in front of his ground, the water from which he will not use? He does not want it. Why should he be compelled to pay for the laying of the pipe to the lot of his neighbor who does want it? This is supposing he has a house with cisterns and wells supplying him with wholesome water. But if the lot is vacant, much greater is the injustice which the legislature imposes upon him; for if, as owner, he is unable to build, of what possible use can the pipe be to his vacant lot, and why should he be compelled to pay a proportionate share of the cost thereof when, in any event, he never intends to use the pipe or water? This is a mode, and a very proper mode, adopted by the law-making power to compel every landed proprietor to pay a due share of the burden or debt created by a needed and great public improvement. It should be remembered that there exists an absolute necessity for water in crowded cities, as a matter of comfort and health, indispensable in certain seasons to the well-being of the community. This necessity, being provided for, has to be paid for. While men planted a city by the side of the Mississippi river, nature did not thereafter carry this water into all the streets and avenues of that city, extending over an area of many miles; and yet this is an important essential of the health of the city. The legislature says it shall be brought so as to be capable of being used in every house where the same is demanded, as a sanitary measure, or it shall be paid for as if brought in and used.

III. It is contended that the Police Court had no jurisdiction over this cause or proceeding. This leads us to an examination of the meaning of the language of the second section, to-wit: “The parties who fail or neglect to comply with the provisions of this section shall be subject to the same penalties as parties who use the water of the city and fail or refuse to pay the rate or assessment for the same.” We are immediately referred hereby to other legislation to find out what are the penalties which parties are subject to who use the water of the city and fail or refuse to pay the rate or assessment for the same. Referring to the city ordinances we find that “whoever shall, himself, or by any of his family, or any of his agents or servants, use the water from any part of the water-works, without license, shall forfeit and pay,” etc. Now, it is impossible to say that the legislature may not vest the police justice of the city of St. Louis with jurisdiction over the failure or neglect of parties to comply with the provisions of this section; and if so, and if the legislature has vested this jurisdiction by this act with the police justice, it is idle to look further--as to the city charter of the city of St. Louis--for this grant of jurisdiction, for the act itself gives the jurisdiction. It is claimed that the act of March 23, 1868, is a penal statute, and must receive a strict construction. But we reply, it is the duty of the courts to uphold, wherever possible, the legislation of the land-- ut res magis valeat quam pereat. Does the act contemplate after or subsequent action on the part of the city council before it could have effect? The reasonable, sensible, and proper interpretation of this act is this: Parties who fail or neglect to comply with the provisions of this section shall be subject to a penalty. That penalty is the same as is imposed upon parties who use the water of the city and fail or refuse to pay the rate or assessment; and, per consequence, and by indispensably necessary construction, through the same channel, by the same forum, in the same court. If the legislature had merely said “and suable or collectable in the same manner,” or “to be enforced in the same manner or through the same jurisdiction,” there could have been no doubt; nor is there any more room for doubt on a fair and reasonable construction of the law as it is. The case of The Town of Fishkill v. The Fishkill and Beekman Plank Road Company, 22 Barb. 634, decides nothing as to our own act.

Krum, Decker & Krum, for defendant in error.

The court below properly dismissed the case, if there was no jurisdiction either of the subject matter or over the person of defendant in the Police Court. (Webb v. Tweedie et al., 30 Mo. 488.)

I. There was no jurisdiction in the Police Court over the subject matter of the complaint. The jurisdiction of this court is fixed by statute. ““The police justice” * * * “shall...