Owen v. Baer

Decision Date20 February 1900
Citation55 S.W. 644,154 Mo. 434
PartiesOWEN v. BAER.
CourtMissouri Supreme Court

1. Acts 1893, p. 101, concerning sewers and drains for cities having special charters, and containing more than 2,000 and less than 30,000 inhabitants, and for cities of the fourth class, and providing that cities of the fourth class could avail themselves of the power conferred only by a two-thirds vote of the qualified votes of such cities, is not an unauthorized delegation of the lawmaking power. Per Gantt, C. J., and Robinson and Valliant, JJ.

2. Such act, being a general law at the time it left the hands of the general assembly, and before any city had exercised its option, is not in violation of Const. art. 4, § 53, forbidding the passage of any local or special law "incorporating cities, towns or villages, or changing their charters." Per Gantt, C. J., and Robinson and Valliant, JJ.

3. Acts 1893, p. 101, providing for sewers and drains in cities of the fourth class, but providing that such cities can avail themselves of the power conferred only when two-thirds of the qualified voters of such cities vote in favor of adopting the provisions of the act, is void under Const. art. 9, § 7, providing for the classification of cities into four classes, and that "the power of each class shall be defined by general law, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions." Per Gantt, C. J., and Robinson and Valliant, JJ.

4. Const. art. 4, § 54, providing that no local or special law shall be passed unless notice of the intention to apply therefor shall have been published in the locality where the matter or the thing to be affected may be situated, does not authorize a special act conferring powers on cities of the fourth class, on condition that they adopt the provisions thereof by a two-thirds vote, which conforms to such constitutional provisions by requiring notice, etc., since Id. § 53, expressly forbids the passage of local or special laws, "incorporating cities, towns or villages, or changing their charters." Per Sherwood and Burgess, JJ.

Marshall and Brace, JJ., dissenting.

In banc. Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Suit by Robert S. Owen against George J. Baer to remove a cloud from title, caused by tax bills issued against plaintiff's lots to defendant for the building of a sewer. Submitted on agreed statement of facts. Judgment for plaintiff, and defendant appeals. Affirmed.

C. O. Tichenor, for appellant. Henry Smith, Wash Adams, and Hugh C. Ward, for respondent.

GANTT, C. J.

In my opinion, the discussion of the previous decisions of this court in the Dorr, Scarritt, Murnane and like cases, is not necessary to the proper disposition of this case. See 41 S. W. 1094, 46 S. W. 976, 42 L. R. A. 686; 29 S. W. 845, 30 S. W. 111; 27 S. W. 711.

The legislature of Missouri, in obedience to the plain constitutional mandate contained in section 7, art. 9, of the constitution of 1875, provided for the organization and classification of cities and towns, and made four classes. Westport by virtue of those laws became a city of the fourth class, and was such when the act of 1893 was enacted. The title of the act of 1893 is as follows: "An act concerning sewers and drains for cities in the state having special charters which now or hereafter contain more than 2,000 and less than 30,000 inhabitants and for cities * * * of the fourth class." Section 7, art. 9, provides that "the power of each class [of cities or towns] 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." This act is one which undertakes to grant powers to cities of the fourth class, which they did not possess under their general statutory charter previous to 1893. If the act of 1893 had omitted the proviso that cities of the fourth class could avail themselves of the power conferred only when two-thirds of the qualified voters of such cities voted in favor of adopting the provisions of the act, no one could doubt that the law was not only a general law, but that it also conformed to the constitutional requirement of legislation by classification. Has the proviso enabled one or more cities of the fourth class to acquire powers not possessed by others of that class, and thus violated the command of section 7, art. 9, of the constitution? The proposition is that because Westport and other cities of the fourth class have voted to avail themselves of the power conferred by this act, while other cities of the fourth class have not, or may not elect to do so, the inevitable result is that cities of this same class do not have the same powers, and thereby the prohibited result has been indirectly reached. It is admitted that the tax bill in this case was issued under the act of 1893, and not under the act of April 11, 1895, which is not open to the objection now being considered. It must be conceded, I think, that if the act of the legislature had on its face conferred upon Westport alone, of all cities of the fourth class, this power to issue special tax bills in payment of district sewers, and withheld that power from other cities of the fourth class, it would have been a palpable violation of section 7, art. 9, of the constitution, which requires that all cities of the same class shall have the same powers and be subject to the same restrictions. The purpose of classification would be nullified if the legislature could take one city out of its class, and endue it with powers not granted to all the others. The object to be attained by section 7, art. 9, of the constitution was well understood when the people adopted that instrument as the organic law of the state. In a word, it was to produce uniformity in the municipal charters of the state, so that the city officials and citizens alike should know the law applicable to municipal corporations and their limitations, and to prevent a multiplication of charters, each different from the others, and also to relieve the legislature of a tribe of individual tinkerers who were constantly seeking changes in the charters of the various cities and towns, too often for their own personal aggrandizement. Its design was that any citizen or any lawyer, whether in or out of the state, who desired to know the powers and restrictions of a given city, could ascertain them by reading the general law of the state governing such class. Section 7, art. 9, of the constitution was further re-enforced by section 53, art. 4, which placed certain limitations upon the general power of legislation otherwise conferred upon the legislative branch of the state government, and expressly prohibited the legislature from passing any local or special law "incorporating cities, towns, villages or changing their charters."

Does this act destroy the uniformity of powers of cities of the fourth class? It is most strenuously insisted that because it is a general act, and therefore not a violation of section 53, art. 4, of the constitution, it is necessarily valid. I agree that it is now too late to disturb the long line of decisions in this state which uphold the power of the legislature to enact a law which in itself is a complete rule of conduct, but which only becomes applicable in a given county or city when such county or city elects by a vote of its electors to avail itself of the privileges granted by such a law. Such laws have long withstood the objection that they are an unauthorized delegation of the lawmaking power. State v. Binder, 38 Mo. 450; Opinion of the Judges, 55 Mo. 295; State ex rel. Maggard v. Pond, 93 Mo. 606, 6 S. W. 469; Ex parte Swann, 96 Mo. 44, 9 S. W. 10; State v. Moore, 107 Mo. 78, 16 S. W. 937; State v. Searcy, 111 Mo. 236, 20 S. W. 186; State v. Watts, 111 Mo. 553, 20 S. W. 237; State v. Wingfield, 115 Mo. 428, 22 S. W. 363. If there were no other provision of the constitution governing the case in hand, I might well assent to the conclusion that this was a general law when it left the hands of the general assembly, and before any city had exercised its option of availing itself of the said act; but it seems to me, with all due respect to my learned Brother, that the question here is not whether this is a special or general law, but, conceding that it is otherwise good as a general law, the question remains, does it violate that specific provision of the constitution found in section 7, art. 9, of the organic law, which requires that all cities of the fourth class shall have the same powers and be subject to the same restrictions? It is urged that it is inconsistent to say that it is a general law, and yet unconstitutional because it violates section 7, art. 9, of the constitution; but my understanding is that full force and effect must be given to all parts of the organic law, and, while the law may be general in form, still, if in another particular it collides with another express provision of the constitution, there is no inconsistency in holding it invalid because of the latter vice.

In support of the act of 1893 it is said that when it left the hands of the legislature it conferred the same powers upon all cities of the fourth class; but is it not plain that this is true only until such time as one of said cities adopted its privileges, and, the moment it availed itself of the act, that instant it became possessed of powers different from others of its class? It is true that, if no city of the fourth class ever adopted it, no diversity of powers would follow its enactment; but just as soon as Westport or any other city of the fourth class, acting for itself, chose to avail itself of the privilege granted to construct sewers, and make their cost a special improvement tax, chargeable upon the...

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