Copeland v. City of St. Joseph

• Decision Date: 21 January 1895
• Parties: Copeland, Appellant, v. The City of St. Joseph
• Court: Missouri Supreme Court

29 S.W. 281

126 Mo. 417

Copeland, Appellant, v. The City of St. Joseph

Supreme Court of Missouri, Second Division

January 21, 1895

Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.

Affirmed.

""Thomas & Crow for appellant.

(1) The ordinance by which the respondent attempted to extend its limits is unreasonable, arbitrary and oppressive, in that it is an attempt arbitrarily so to extend the city limits as to include large and valuable tracts of farming lands used and suitable for agricultural purposes only, and which are not needed or used for any city purpose whatever, thereby imposing upon the owners of such tracts heavy and oppressive burdens without any benefit or compensation whatever therefor. ""Vestal v. Little Rock, 15 S.W. 891; ""Covington v. Arthur, 14 S.W. 121; ""Hartington v. Luge, 50 N.W. 957; ""St Louis v. Weber, 44 Mo. 547; Cooley on Const. Limitations [3 Ed.], 200 and 202, bottom pages 222, 225. (2) When an ordinance is unreasonable, the court will declare it void. ""Kelly v. Meeks, 87 Mo. 396; ""Corrigan v. Gage, 68 Mo. 541; ""Cape Girardeau v. Riley, 72 Mo. 220. (3) The proviso contained in section 5 of the act of the general assembly, approved March 30, 1887 (Acts of 1887 p. 53, sec. 5), is in conflict with the constitution of Missouri, in that said proviso exempts a class of property from taxation for city purposes, in violation of the provisions of said constitution. Const., art. 10, secs. 1, 2, 3, 4, 6 and 7; ""Slawson v. Racine, 13 Wis. 444; ""Knowlton v. Supervisors, 9 Wis. 410; ""St. Louis v. Speizel, 90 Mo. 587; ""State ex rel. v. O'Brien, 89 Mo. 631; ""State v. Railroad, 75 Mo. 208. (4) The said section 5 is in conflict with the constitution of Missouri in this: The general assembly can not extend the limits of a city, except by a local or special act due notice of which has been given as required by section 54, article 4 of the constitution, and, therefore, can not confer upon the mayor and council power to do so without the prescribed notice. (5) The proviso contained in said section 5 is the condition upon which the power to extend their limits is granted to cities of the second class, and the power is dependent upon the validity of the proviso. Therefore if the proviso is unconstitutional, the power falls with it, and the ordinance by which the mayor and council attempted to extend the city limits is null and void. ""City of Kansas v. Cook, 96 Mo. 127; ""City of St. Louis v. Railroad, 89 Mo. 44; ""Warren v. Mayor, 2 Gray (Mass.), 84; ""Slawson v. Racine, 13 Wis. 398; ""Hines v. The People ex rel., 92 Ill. 406; 3 Am. Encyclopedia of Law, p. 676, note 4; ""State ex rel. v. Dousman, 28 Wis. 541. (6) The ordinance extending the city limits was adopted in July, 1889, and the Revised Statutes of 1889 did not take effect until the first day of November, 1889; therefore the power granted to cities of the second class by the forty-third clause of section 1255 of the Revised Statutes of 1889 to extend their limits, can not be invoked to uphold the ordinance. ""Railroad v. Maquilkin, 12 Kan. 301.

""Huston & Parrish for respondent.

(1) The legislature has plenary power to originally fix or subsequently change and extend at will the territorial limits of a municipality, and to authorize this to be done. Judge Dillon, in his work on Municipal Corporations, enunciates the rule of law thus: "Not only may the legislature originally fix the limits of the corporation, but it may, unless specially restricted in the constitution, subsequently annex or authorize the annexation of contiguous or other territory, and this without the consent of the persons residing in the corporation or the annexed territory." Dillon on Mun. Corp. [4 Ed], sec. 185, p. 267; ""St. Louis v. Russell, 9 Mo. 507; ""Kayser v. Bremen, 16 Mo. 88; ""Giboney v. Cape Girardeau, 58 Mo. 141; ""Kelly v. Meeks, 87 Mo. 396; ""McCormack v. Railroad, 20 Mo.App. 65; ""Santa Rosa v. Coulter, 58 Cal. 537; ""Stilz v. Indianapolis, 55 Ind. 515; ""People v. Bennett, 29 Mich. 451; ""Blanchard v. Bissell, 11 Ohio St. 96; ""Westport v. Kansas City, 103 Mo. 141; ""State v. Westport, 116 Mo. 582. Where this power is exercised directly by the legislature, it is conclusive. ""Giboney v. Cape Girardeau, 58 Mo. 141. When exercised by the city under a power from the legislature, it is ""prima facie valid. It is presumed to be properly exercised, but is not conclusive. (2) The legislature has, in express terms, conferred this power upon cities of the second class. Session Acts, 1885, p. 51 and following; Session Acts, 1887, p. 53, sec. 5; R. S. 1889, subdiv. 43, sec. 1255, p. 368. (3) Then the legislature having power to confer this authority, and, having conferred it, and that power having been exercised, the only question remaining on this branch of the case is whether, upon the whole case, the power has been exercised unreasonably. In arriving at a conclusion on this contention certain rules furnish the guide. The courts in determining whether a power has been unreasonably exercised, apply the same rules as applied in determining whether a law is constitutional or not -- the presumption is in favor of a reasonable exercise of the power, and, before this presumption is overthrown, it must be made to appear so clearly that there can be no reasonable doubt of the fact. ""Nier v. Railroad, 12 Mo.App. 25; ""City v. Riley, 42 Mo.App. 18; ""State v. Baird, 15 S.W. 98. (4) The point that the exemption of certain lands from municipal taxation in section 5, Session Acts, 1887, p. 53, is unconstitutional, and that the entire section is thereby invalidated and void, is not well taken, for several reasons. ""First. Because it is not clear that such exemption is unauthorized. ""City of Kansas v. Cook, 69 Mo. 127; ""United States v. Memphis, 97 U.S. 300. ""Second. Because, even conceding that the exemption clause is obnoxious to the constitutional provision, yet it does not follow that the entire section is bad. The rule is well settled that part of an act or section may be sustained, while another part fails on constitutional grounds. ""County Court v. Griswold, 58 Mo. 175. (5) If a repealing clause is only of acts and parts of acts inconsistent with the provisions of the statute, which is itself unconstitution and void, it has no effect. ""Shepardson v. Railroad, 6 Wis. 588; ""Campau v. Detroit, 14 Mich. 276; ""Childs v. Shower, 18 Iowa 272; ""Tims v. State, 26 Ala. 165; ""Devoy v. Mayor, 26 Barb. 264; ""Stephens v. Ballou, 27 Kan. 594. (6) The point, 3 1/2, is not well taken. The legislature can not pass any local or special law changing the charter of cities. Sec. 53, art. IV, State Constitution. To change the limits of a city is to change its charter. ""Westport v. Kansas City, 103 Mo. 141. Then no special or local law could be passed by the legislature extending the limits of a particular city. The constitution provision for notice has sole reference to such local and special laws as the legislature has power to enact. The constitution requires a classification of cities. Sec., 7 art. Ix, Const. of Missouri. Any law for any such class is a general law. (Same section.) And is not in any sense a local or special law, and therefore it is conclusive that the constitutional provision as to notice is not applicable. ""State v. Orrick, 106 Mo. 111; ""State ex rel. v. Hughes, 104 Mo. 460; ""Ewing v. Hoblitzell, 85 Mo. 75; ""State v. Walton, 69 Mo. 558.

OPINION

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 of 1887, sec. 5, p. 53), under which the limits of said city were extended and said tract brought within the said limits.

The petition avers that prior to the first 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 first 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 twelfth day of July, 1889, duly signed by the mayor of said city, and afterward 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.

The 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...