Owen v. Baer

• Decision Date: 20 February 1900
• Citation: 55 S.W. 644,154 Mo. 434
• Parties: OWEN v. BAER, Appellant
• Court: Missouri Supreme Court

55 S.W. 644

154 Mo. 434

OWEN v. BAER, Appellant

Supreme Court of Missouri

February 20, 1900

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Affirmed.

C. O Tichenor for appellant.

(1) This law applies to all cities of a class, excludes none, and hence is general. It applies to cities which have special charters, and which contain, or may contain, a certain population. Such cities are recognized by the Constitution and it is not necessary to cite authorities to show that a law based on population may be general. (2) It would seem that the act did not become unconstitutional until the city took action under it. Had all the cities of the fourth class voted on a certain day to build sewers under this act, then the law would have been constitutional. The law, both as to form and as to result, would have been such that all the cities would have possessed the same powers, and would have been subject to the same restrictions in building sewers. But had one city voted not to build sewers under this law, this would have wrecked it. To avoid such a result, there should have been created a legislative body to pass ordinances for all cities of each class, so that their action might be uniform. The Constitution does not say that if one city has sewers or paved streets, all must have them. One can not say that two cities belong to the same class from their general appearance. Suppose an act of the legislature gave cities of the first class the power to build a city hall, a wharf and a waterworks plant, and to issue bonds therefor upon a two-thirds vote. One votes to build a wharf, a second a city hall, and a third a waterworks plant. So soon as the vote was taken, each could do that it could not have done before, and each could do that which the others could not do. Each would become antagonistic to the Constitution, if such an expression can be allowed. The law in each case was general applied to each city of the class; each could act in the same way; each was restricted in the same way; yet, if a city took the necessary action so as to remove the restriction that was placed upon it by the law, to-wit, building without a vote, then this action recoiled back upon the law, so as to make it unconstitutional. Under a law giving cities of the four classes the right to prohibit saloons, if a majority so voted, one city alone could not do so, because if it did, it would possess a different power from the others. The fallacy of this position is in declaring that the grant of a power is the same thing as the exercise of that power, in accordance with terms of the grant; in holding that if a city, under a provision of law, removes a restriction which rests upon all, and which each and all can remove in the same manner, then the law which gives the right to remove the restriction is unconstitutional. Lynch v. Murphy, 119 Mo. 172; Ward v. Board, 135 Mo. 322; Kirby v. Shaw, 19 Pa. 258; Merchants Bank v. Penn., 167 U.S. 461; Gibson v. Miss., 162 U.S. 565; In re Cleveland, 52 N. J. L. 188; Brown v. Holland, 97 Ky. 249; Hellman v. Shousters, 114 Cal. 136; Paul v. Gloucester, 50 N. J. L. 585.

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

(1) That the statute in question is an infraction of section 7, article 9, of the Constitution of Missouri, has been twice adjudicated. Boyd Paving & Contracting Co. v. Ward, 85 F. 27; Ward v. Boyd Paving & Contracting Co., 79 F. 390. These decisions have both been expressly approved by the Supreme Court of Missouri, sitting in banc. St. Louis v. Dorr, 145 Mo. 466. (2) This statute may well be condemned as special legislation. By its terms, the statute applies only to such cities of the third and fourth classes as shall adopt its provisions, giving each city the power to refuse to adopt it, thus disclosing the legislative purpose of applying the statute to a portion of a class. Dividing a class, and applying legislation to a part only of that class, is incompetent. State v. Buchardt, 144 Mo. 83; State v. Thomas, 138 Mo. 95; State v. Walsh, 136 Mo. 400; Dunne v. Cable R. R., 131 Mo. 1; Appeal Scranton School District, 113 Pa. St. 176; Frost v. Cherry, 122 Pa. St. 417; Commonwealth v. Denworth, 145 Pa. St. 172; Goodrich v. State, 5 Iowa 492; People v. Cooper, 83 Ill. 585; Ward v. Boyd Paving & Contracting Co., 79 F. 390; Louisville v. Kuntz, 47 S.W. 592.

GANTT, C. J. SHERWOOD, J. MARSHALL, J. Brace, J., concurs in the VI paragraph. Gantt, C. J., Robinson and Valliant, JJ., express their views in a separate opinion by Gantt, C. J. Sherwood and Burgess, JJ., express their views in a separate opinion by Sherwood, J.

OPINION

In Banc.

SEPARATE OPINION.

GANTT C. J.

-- In my opinion the discussion of the previous decisions of this court in the Dorr, Scarritt, Murnance and like cases, is not necessary to the proper disposition of this case.

The Legislature of Missouri, in obedience to the plain constitutional mandate contained in section 7 of article 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 two thousand and less than thirty thousand inhabitants, and for cities of the third and fourth class." [Laws 1893, p. 101.]

Section 7 of article 9 of Constitution 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 of article 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, whilst 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 of article 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 the seventh section of article nine 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 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 of article 9 of the Constitution was further re-enforced by section 53 of article 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 of article 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 law-making power. [State v. Binder, 38 Mo. 450; Opinion of the Judges 55 Mo. 295; ...