Hardwicke v. Wymore

• Citation: 228 S.W. 757
• Decision Date: 07 March 1921
• Docket Number: No. 21405.,21405.
• Parties: HARDWICKE v. WYMORE.
• Court: United States State Supreme Court of Missouri

228 S.W. 757

HARDWICKE v. WYMORE.

No. 21405.

Supreme Court of Missouri, Division No. 2.

March 7, 1921.

Appeal from Circuit Court, Jackson County; Frank P. Divelbiss, Judge.

Action by Claude Hardwicke against C. D. Wymore, trustee of the Kansas City-Liberty Boulevard Road District, in which Elsie Harmon intervened. Judgment for plaintiff and intervener and the defendant appealed to the Kansas City Court of Appeals, which certified the case on the ground that a constitutional question was involved. Transferred to the court of appeals.

On August 7, 1911, the county court of Clay county, Mo., made an order of a preliminary character, under section 10612, R. S. 1909, for the organization and incorporation of the Kansas City Liberty Boulevard Road District of said county, as authorized by section 10613, R. S. 1909. The district was duly authorized, and said court appointed W. W. Cosby, A. W. Lightburne, and T. J. Ward as commissioners thereof. They qualified as such, organized and incorporated said district as required by law, and began the performance of the duties imposed upon them under the provisions of section 10614 et seq., R. S. 1909. Plaintiff was employed as counsel to take all legal steps necessary to be taken in the organization and incorporation of said district, and afterwards to defend an action brought by W. S. Embree and others against said district to enjoin it from selling $77,000 of bonds the proceeds of which were to be used in paying the entire cost of all the work necessary to the completion of the improvements made therein. These bonds were to be paid by a special benefit assessment on all of the lands comprising the district. Plaintiff was to perform some additional legal work which it is not necessary to set out here. The county court on November 17, 1917, made an order dissolving said district and appointed defendant, C. D. Wymore, as trustee therefor. Elsie Harmon, a stenographer, had a claim for stenographic work done for said district, and she filed an intervening petition to compel said trustee to pay same. On March 11, 1918, plaintiff filed an amended petition in the circuit court of said county, wherein he seeks to recover judgment for said services against defendant for $2,652.10. The cause was tried before the court, and on March 27th it rendered judgment in favor of plaintiff for $2,150, and in favor of said intervener for $7.25. Motions for new trial and in arrest proved without avail, and the cause was duly appealed to the Kansas City Court of Appeals, and by that court certified to this court on the ground that a constitutional question was involved.

Defendant makes the point that the matter runs counter to the provisions of section 12, article 10, of our state Constitution, in that

"No political subdivision of the state shall be allowed to become indebted, without a vote of the people, in excess of the revenues for each year, and that the indebtedness incurred in the organization and incorporation of said district was forbidden thereby."

It may not be inappropriate to remark here that said district never became a political subdivision of the state. Said section, so far as necessary to quote, reads as follows:

"No county, city, town, township, school district or other political corporation or subdivision of the state shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose: nor in cases requiring such assent shall any indebtedness be allowed to be incurred to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness."

James S. Simrall and Theodore Emerson, both of Liberty, for appellant.

Ralph Hughes, of Liberty, for respondent.

MOZLEY, C. (after stating the facts as above).

1. As above stated, the proceeds of the bonds when sold were to be used for the payment of all legal matters connected with the organization and incorporation and other matters after its incorporation and the payment of the improvements to be put upon said district, and these bonds were to be paid by a special benefit assessment on all of the lands comprising the district.

2. Does said section of the Constitution have any application to the facts presented by this record? We think not. This court has always maintained a clear distinction between public or governmental taxes and special benefit assessment taxes. The former falls within the constitutional provision while the latter does not. Lockwood v. City of St. Louis, 24 Mo. loc. cit. 22; Garrett v. City of St. Louis, 25 Mo. 505, 60 Am. Dec. 475; Egyptian Levee Go. v. Hardin, 27 Mo. loc. cit. 496, 72 Am. Dec. 276; Sheehan v. Good Samaritan Hospital, 50 Mo. 155, 11 Am. Rep. 412; City of St. Louis, to Use, etc., v. Allen, 53 Mo. loc. cit. 54; Adams v. Lindell, 72 Mo. 198; Farrar v. City of St. Louis, 80 Mo. 379; Keith v. Bingham, 100 Mo. 300, 13 S. W. 683; City of St. Joseph, to Use of Gibson, v. Owen, 110 Mo. 445, 19 S. W. 713; City of Independence v. Gates, 110 Mo. loc. cit. 380, 19 S. W. 728; Kansas City v. Bacon, 147 Mo. loc. cit. 282, 48 S. W. 860; Lamar Water & Electric Light Co. v. City of Lamar, 128 Mo. 188, 26 S. W. 1025, 31 S. W. 756, 32 L. R. A. 157...