Hall v. City of Sedalia

• Decision Date: 09 February 1911
• Parties: HALL v. CITY OF SEDALIA et al.
• Court: Missouri Supreme Court

134 S.W. 650

232 Mo. 344

HALL v. CITY OF SEDALIA et al.

Supreme Court of Missouri.

February 9, 1911.

1. STATUTES (§ 77)—SPECIAL LEGISLATION— LOCAL OPTION LAWS.

Sess. Laws 1895, p. 58, authorizing cities of the third class to provide for drains and sewers on a two-thirds vote of the qualified electors does not violate Const. art. 9, § 7 (Ann. St. 1906, p. 260) requiring the powers of each class of cities to be defined by general laws in that it permits cities voting affirmatively to obtain a privilege which other cities are denied.

2. STATUTES (§ 220)—LEGISLATIVE CONSTRUCTION— CONCLUSIVENESS.

Courts are not bound by the legislature's erroneous construction of a statute.

3. MUNICIPAL CORPORATIONS (§ 270)—SEWAGE DISPOSAL PLANTS—POWER TO CONSTRUCT.

Sess. Laws 1895, p. 58, authorizing certain cities to construct sewers, connections therewith, appurtenances, etc., authorizes construction of a sewage disposal plant.

4. MUNICIPAL CORPORATIONS (§ 75)—SEWER IMPROVEMENT — STATUTORY PROVISIONS — ADOPTION.

By adopting Laws 1895, p. 58, providing a plan of sewer construction for certain cities, a city subjected itself to the general law then in force and subsequent amendments of the act including that enacted in 1909 (Laws 1909, p. 293), authorizing construction of sewage disposal plants.

Woodson, J., dissenting in part.

In Banc. Appeal from Circuit Court, Pettis County; Louis Hoffman, Judge.

Action by William F. Hall against the City of Sedalia and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with instructions.

This case comes here by appeal from the circuit court of Pettis county, where judgment was rendered in favor of respondent on May 21, 1910. The case arises upon the following facts: The respondent, plaintiff below, entered into a written contract in March, 1910, with the city of Sedalia for the construction of a sewage disposal plant, and for the construction of sewer mains to be connected therewith, at a total cost of $36,000, and, as security for the performance of such contract, plaintiff gave bond to the city in the sum of $8,000. Before work was begun plaintiff was advised by counsel that the act of the Legislature under which the city was proceeding to erect this disposal plant was unconstitutional and void, and that the special tax bills that should be issued to the plaintiff in payment for the work done under his contract would not constitute a valid lien on the property in the district, and could not be collected by law; whereupon plaintiff filed his bill in equity praying the court to cancel, annul, and declare wholly null and void plaintiff's aforesaid contract and bond Issues were made up, the case was tried by the court, and judgment rendered for plaintiff granting the relief prayed for. Due proceedings were had, and the case comes here by appeal.

Two questions arise upon the record: (1) It is contended by the plaintiff that the act of the Legislature passed in 1895 (Sess. Acts 1895, p. 58), providing a scheme of sewer construction for all cities of the third class which should, by a vote of the people, adopt the provisions of such act, is unconstitutional in that (1) it violates section 7, art. 9, of the Constitution (Ann. St. 1906, p. 260) which provides that the powers of each class shall be defined by general laws, "so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions," in that it permits certain cities, voting affirmatively, to acquire powers which are not common to all cities of the third class; and that (2) it violates section 53 of article 4 (Ann. St. 1906, p. 197) which forbids the General Assembly to pass any local or special law. This contention is based upon the case of Owen v. Baer, 154 Mo. 434, 55 S. W. 644. (2) It is also contended that even if the act of 1895 is held to be constitutional, yet the contract in question is invalid because the power granted to the city to erect a disposal plant was not in the original act as voted upon by the people, but was granted by an amendment to that act made by the Legislature in 1909 (Laws 1909, p. 293) which amendment had never been submitted to or voted upon by the people, and that therefore the enlarged powers given to the city by such amendment were not in force and effect, and could not be made effective without an affirmative vote by the people.

W. W. Blain, for appellants. W. E. Owen, for respondent.

FERRISS, J. (after stating the facts as above).

1. Upon the threshold of this case arises the question whether a court of equity will entertain a bill to construe a contract, or to declare a contract invalid, before any performance or attempt to perform is shown. If a man makes a contract, and afterwards, before beginning a performance, doubts its validity, he has his legal remedy. He may decide either to perform or refuse to perform, and take his chances in a court as to results. If this were a contest between individuals over a matter of private interest only, it would be a serious question whether the court would entertain the case at all. In view, however, of the public character of the contract in question, and in further view of the fact that the law invoked in this case cannot be regarded as being satisfactorily settled by the former decisions of this court, we have decided to pronounce judgment upon the questions involved; our action, however, not to be regarded as a precedent for suits of this character.

2. Constitutional questions of the character of those involved in the present case have been frequently before this court. They received a full discussion in Owen v. Baer, 154 Mo. 434, 55 S. W. 644. That case arose upon the act of 1893 (Sess. Acts 1893, p. 101), which provided that, "In every city in this state * * * of either the third or fourth class, the acting municipal authorities thereof upon a vote by ballot of two-thirds of the qualified voters," etc., "in favor of adopting the provisions of this act, shall have power by ordinance to provide drains and sewers for the same," etc. The aforesaid act is similar to the act of 1895 in question, so far as the questions raised are concerned. Westport, a city of the fourth class, proceeded under said act to construct a sewer system, and issued tax bills in payment thereof, and Owen v. Baer, supra, was a suit to cancel certain of these tax bills upon the ground that the act was in violation of section 7 of article 9 and section 53 of article 4 of the Constitution, presenting questions similar to those in the case at bar. Three judges in banc, Gantt, C. J., and Robinson and Valliant, JJ., held the act of 1893 to be in violation of section 7 of article 9, upon the ground that this act enabled some cities of the fourth class to acquire powers not possessed by other cities of that class; that it created, in the language of Judge Gantt, who wrote the opinion, "a dissimilarity in the powers of cities of the fourth class." Judge Sherwood, in a separate opinion, Judge Burgess concurring, held that the act was unconstitutional because it was not within those specific provisions of the Constitution which Judge Sherwood said provided "just when and where a vote of the people may be taken." Judge Marshall, in a separate opinion, held that the act was a valid one, violating no provision of the Constitution, and that the bill of plaintiff should be dismissed. Judge Brace concurred with Judge Marshall upon the proposition that the act did not violate section 7 of article 9. Five of the judges concurred in holding the act invalid; three upon one ground, two upon another and different ground, and one upon a ground which does not appear. The decision in Owen v. Baer settled that case, but it did not establish the judgment of this court upon the main proposition involved in the case at bar; that is, that the act violates section 7 of article 9 of the Constitution.

The respondent contends, first, that the act of 1895 (Laws 1895, p. 58), now sections 9281 to 9298, inclusive, Rev. St. 1909, violates section 53 of article 4 of the Constitution, in that it is a local or special law; second, that it violates section 7 of article 9, in that it enables some cities of the fourth class to acquire powers not possessed by all the cities of that class. These two propositions were presented in the Owen-Baer Case. Upon the first proposition the separate opinion of Judge Gantt accepted the holding of Judge Marshall. Hence, a majority of the court agreed that the act did not violate section 53 of article 4. That proposition may be regarded as settled.

As the second proposition received the approval of only three members of the court, it remained open so far as the case of Owen v. Baer goes, and so far as we are advised, is still an open question in this state.

The act in question provides: "In every city of the third class in this state the acting municipal authorities thereof, upon a vote by ballot of two-thirds of the qualified voters," etc., "shall have power by ordinance to provide for drains and sewers," etc.

Does this act violate section 7 of article 9 of the Constitution, which provides that "the power of each class (of cities) shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions"? The act in question is complete in itself, and is uniform in its application to cities of the...