Copeland v. City of St. Joseph.

• Decision Date: 21 January 1895
• Citation: 29 S.W. 281,126 Mo. 417
• Parties: COPELAND v. CITY OF ST. JOSEPH.
• Court: Missouri Supreme Court

29 S.W. 281

126 Mo. 417

COPELAND v. CITY OF ST. JOSEPH.

Supreme Court of Missouri, Division No. 2.

January 21, 1895.

EXTENSION OF CITY LIMITS — CONSTITUTIONALITY OF STATUTE — PARTIAL INVALIDITY — EFFECT — REPEAL OF PRIOR LAW — ORDINANCE — REVIEW BY COURT.

1. An act empowering a certain city to extend its limits makes a change in the city's charter, within Const. art. 4, § 53, cls. 1, 12, prohibiting the general assembly from passing any special or local laws changing the charter of any city.

2. Act March 30, 1887, § 5, empowering cities of the second class to extend their limits, and providing that no tract of over three acres thereby included in a city shall be subject to municipal taxation so long as it is not subdivided, and it is used for agricultural or horticultural purposes, or for dwelling-house purposes, in connection with a single dwelling house, conflicts with Const. art. 10, §§ 1-7, requiring taxes to be uniform upon the same class of subjects within the territorial limits of the authority levying the same.

3. The power to extend the limits over farm land is so dependent on the condition of exempting them from taxation that the invalidity of the exempting clause renders the whole section void.

4. An act which, by its terms, repeals all parts of former acts inconsistent with or repugnant to its provisions, does not repeal a section of a former act in substance corresponding with a section of the new act, when the latter section is unconstitutional.

5. A city, empowered to extend its limits, extended them so as to take in plaintiff's farm land. On two sides of said lands there were large settlements of people, whose lands were also included in the extension, and plaintiff's land was needed for highways to such lands. One of the streets of the city, before extension, ran to plaintiff's land, and the land included in the extension was not disproportioned to the apparent demands of the city. After the extension the city furnished electric lights and police protection for the new territory, and worked the adjacent streets, and street-car lines ran near to plaintiff's land. Plaintiff acquiesced in the extension, and for two years, without protest, paid his municipal taxes, and three times voted for municipal officers. Held, that the action of the municipal authorities in making the extension would not be disturbed.

Appeal from circuit court, Buchanan county; H. M. Ramey, Judge.

Action by Abner Copeland against the city of St. Joseph. From an order dismissing the action and denying his motion for a new trial, plaintiff appeals. Affirmed.

Thomas & Crow, for appellant. Huston & Parrish, for respondent.

GANTT, P. J.

This is a proceeding to enjoin the collection of city taxes for the year 1892 on a tract of eight acres of land, by the city of St. Joseph, and involves the constitutionality of an act of the general assembly of this state approved March 30, 1887 (Laws 1887, p. 53, § 5), under which the limits of said city were extended, and said tract brought within the said limits. The petition avers: That prior to the 1st day of July, 1889, and the passage of the ordinance hereinafter described by the defendant, plaintiff's said real estate was situated outside of the corporate limits of the defendant. That on the 1st day of July, 1889, the common council of the city of St. Joseph passed an ordinance extending the corporate limits of said city of St. Joseph so as to include within the corporate limits of said city the real estate of the plaintiff above described, which ordinance was, on the 12th day of July, 1889, duly signed by the mayor of said city, and afterwards published as the law requires. That plaintiff's said land is distant from the inhabited part of the said city. That his said land was at all times herein mentioned, and is now, kept, and alone used, for farming and gardening purposes. That said real estate has not at any time, by recorded plat or otherwise, been divided into lots for city purposes. That said real estate is not, and was not at the time of the passage of said ordinance, used for any city purposes whatever, such as opening streets, the construction of sewers, the laying of water or gas pipes, or any other known municipal use whatever, but was taken into said corporate limits of the defendant for the sole purpose of subjecting plaintiff's property to city taxation. That plaintiff's said land and the residents thereon, or those residing in the immediate neighborhood thereof, did not, and do not now, need the police protection of the city, nor have they received any such police protection of the city since said real estate was taken into the corporate limits of said city, nor any other benefit arising from said city government. That plaintiff's said land is not capable of being used as city property, nor is it demanded for that purpose, nor does it possess any value based upon its adaptation for residence or business. No streets of the defendant, or other town improvement, extend to plaintiff's land, and the line of the city settlement has not reached it, but, on the other hand, are far distant. It is not laid off for city uses. There is no settlement upon it. That plaintiff resides thereon with his family, and uses the same for farming and gardening. That the value of plaintiff's land has not been increased by being taken into the corporate limits of said city, but, on the contrary thereof, it has been diminished in value thereby. That plaintiff's said land, by being thus placed within the corporate limits of said city, and all of plaintiff's personal property, he being a resident upon said real estate, has become subject to assessment and levy to taxes by the defendant for each and every municipal purpose, by which the plaintiff or his said land is in no wise benefited. He charges that such extension was unreasonable; that he paid city taxes for the years 1890 and 1891, and that taxes for 1892 were assessed and levied, and he sought to enjoin the collection of the tax for the last-mentioned year. The answer admitted that the defendant was a city of the second class, and admitted the regular enactment of the ordinance extending the limits, and the assessment and levy of the taxes for 1892, but denied every other allegation of the petition. The evidence shows that the city limits were extended east opposite plaintiff's lot a half a mile, but that plaintiff's lot is considerably within this distance. The evidence further discloses that the Missouri river bluffs rise abruptly in an irregular formation extending north and south, forming a barrier along about Fourteenth street, which is pierced by streets only at intervals where water courses have made it possible. In the growth of the city, population has passed though these gateways, and at the time the ordinance was passed was rapidly peopling the table-land on the north, east, and south, which could only be reached by these openings in the palisade of the bluffs. The lands occupied by plaintiff and his immediate neighbors are subdivided into lots of four, five, eight, and ten acres, and are principally devoted to gardening. When the ordinance in question was passed, the city was growing very rapidly in an eastern and southern direction. Wyatt Park, to the north, then contained a large population beyond the old city limits. Parnell Place, South Park, and Hall's additions were compactly built up communities; Donnell & Saxton's addition laid off in choice lots, and all the lots built upon. To the south of this tract was Gladstone Heights, an addition by William G. Rush, Esq., who was, at the time of the trial, an alderman from this new territory. In fact we think the evidence clearly discloses that this new territory was either already platted and largely occupied, or had the prospect of becoming in the near future desirable urban property. Pacific street extends to this property, and has been worked each year, more or less, by the city. It has not been paved or improved because the charter requires this to be done at the expense of abutting owners, and they have not petitioned for the improvement. It also appeared that the nearest route to the business part of the city from plaintiff's property is north and west by streets through a thickly populated community, and which, all the way from plaintiff's lot, is lighted by electricity furnished by the city at an annual cost for each light of about $85. Police have been furnished by the city to patrol this territory. The plaintiff admits that he registered and voted at the city election for the years 1890, 1891, and 1892. During the pendency of this cause in the trial court that court, on appellant's application, issued a temporary injunction restraining the respondent from proceeding to enforce the payment of city taxes by appellant until the further order of said court. On the final hearing the court dissolved the temporary injunction, and dismissed appellant's bill. Appellant moved for a new trial, which being denied, he brings the case to this court by appeal, having given bond to operate as a supersedeas.

On the trial the court was asked to give certain declarations of law. It refused those asked by plaintiff and gave those prayed by the city. The two propositions relied upon to reverse the decree of the circuit court are, briefly, that the extension of the city limits was unconstitutional and void as to plaintiff's land and other tracts adjoining him, similarly situated; secondly, if the act and ordinance are constitutional, still the ordinance is unreasonable, arbitrary, and oppressive, and should be so declared by the court.

The constitutionality of the act of March 30, 1887 (Laws Mo. 1887, p. 53), and of section 5 thereof, is denied upon three grounds: First, it is asserted that the limits of the city could only be extended by a local or special law, after due notice given, as required by section 54, art. 4, of the constitution, and, as no such notice was given, it...