Robert J. Boyd Paving & Contracting Co. v. Ward

• Decision Date: 03 January 1898
• Docket Number: 941.
• Citation: 85 F. 27
• Parties: ROBERT J. BOYD PAVING & CONTRACTING CO. v. WARD.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F. 27

ROBERT J. BOYD PAVING & CONTRACTING CO. v. WARD.

No. 941.

United States Court of Appeals, Eighth Circuit.

January 3, 1898

Daniel B. Holmes (L. C. Krauthoff, on the brief), for appellant.

Wash Adams (Hugh C. Ward, on the brief), for appellee.

Before SANBORN and THAYER, Circuit Judges, and RINER, District Judge.

SANBORN Circuit Judge, after stating the facts as above, .

This case presents but a single question, and that is whether or not the act of the general assembly of the state of Missouri concerning drains and sewers for cities, which was approved on March 18, 1893 (Sess. Laws Mo. 1893, p. 101), violates section 7, art. 9, of the constitution of that state, which reads:

'The general assembly shall provide, by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the power 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.'

When the act of 1893 was passed, the general assembly had already complied with this provision of the constitution. It had provided by general laws for the organization and classification of cities and towns in that state, had divided them into four classes, and had defined the power of each class, so that all these municipal corporations of the same class possessed the same powers, and were subject to the same restrictions. Sess. Laws Mo. 1877 pp. 42, 48, 79, 101, 150, 158, 174; Rev. St. Mo. 1879, Sec 4897. Under these general laws none of the cities of the fourth class, to which the city of Westport belonged, had the power to assess the cost of the construction of sewers upon the property specially benefited by the making of such an improvement, although, under the general welfare clause of their charters, the cities of this class probably had authority to construct sewers as well as waterworks at the expense of all the taxpayers of their respective cities. Aurora Water Co. v. City of Aurora, 129 Mo. 540, 575, 31 S.W. 946. The act of 1893 provides that 'in every city in this state having a special character, which now or hereafter contains more than two thousand and less than thirty thousand inhabitants, and in every city in this state of either the third class or of the fourth class, the acting municipal authorities thereof, upon a vote by ballot of two thirds of the qualified voters of such city, voting at an election held for that purpose, in favor of adopting the voting at an election held for that purpose, in favor of adopting the provisions of this act, shall have power by ordinance' (Acts 1893, p. 101) to acquire by purchase or condemnation the right of way for sewers, to construct such sewers, to charge their cost upon that portion of the property in the city which they deem to be benefited thereby, to attach to each lot so thought to be benefited a lien for its proportion of the cost of the sewers, and to issue tax bills upon such lots which authorize their holders, if they are not paid, to foreclose such liens, and thereby to deprive the owners of their property. Two-thirds of the qualified voters of the city of Westport voted in favor of adopting the provisions of this act at an election held for that purpose, and, if this law is valid, the municipal authorities of that city acquired the power to construct sewers at the expense of the owners of the property therein which they deemed to be benefited thereby. There are many other cities of the fourth class in the state of Missouri whose municipal authorities have not acquired this power, because two-thirds of their voters have never voted in favor of adopting the provisions of this law. The result is that, under the act of 1893, if it can be sustained, a municipal power has been vested in the city authorities of Westport which has not been conferred upon the municipal authorities of many other cities of its class, and the question is whether a law which has this effect defines the power of this class of cities 'so that all such municipal corporations of the same class shall possess the same powers, and be subject to the same restrictions,' as required by section 7, art. 9, of this constitution. It is conceded on all hands that if the general assembly had, by the terms of the act of 1893, given to that law the effect which it now has, if that assembly had directly conferred upon the city of Westport this power, which that city claims now to have acquired, and had failed to bestow the same power upon other cities of its class, the act would have been a plain violation of the section of the constitution under consideration, and for that reason void; so that, when we examine more closely and analyze more carefully the issue before us, we discover that the real question is: May a law which would be a violation of this constitutional provision, and therefore void if given its necessary effect by the force of its own terms, escape the ban of the constitution by an entire suspension of that effect until the happening of a future event or contingency? The answer to this question will necessarily determine this case, and render the consideration and decision of many others which have been exhaustively discussed in the able arguments which have been presented to us unnecessary and immaterial.

It is contended, for instance, in support of this law, that no act of the general assembly could violate section 7, art. 9, of the constitution, unless it was a special law, and fell under the ban of section 53, art. 4, of the same constitution, also, which provides that 'the general assembly shall not pass any local or special law * * * regulating the affairs of counties, cities, townships, wards or school districts, * * * incorporating cities, towns or villages, or changing their charters'; and many cases have been cited to show that the act of 1893 is not a special law. The argument is, the act of 1893 cannot violate section 7 unless it is a special law. It is not a special law, therefore it does not violate section 7. It is unnecessary for us to review the vast array of authorities presented in support of the minor premise, because we are unable to concede the soundness of the major premise of this syllogism. A law which suspended within the reach of every city of the fourth class every municipal power which it is competent for the general assembly to confer, and provided that each city might have any of these powers which it specified and elected by a majority vote of its citizens to adopt, would doubtless be, in form, a general law; but it would certainly be a palpable violation of section 7. An act which submitted to the choice of every city of the fourth class a dozen municipal charters, each of which conferred different powers from any of the others, and provided that each city of that class might have the powers from any of the others, and provided that each city of that class might have the powers bestowed by any one of these charters upon condition that it would specify and accept the charter of its choice by a vote of the majority of its qualified electors, would undoubtedly be a general law in form, but would not define the powers of any of the cities of that class, so that all such municipal corporations of the same class should possess the same powers, and be subject to the same restrictions. General laws of this character would naturally result in the possession of different powers subject to different limitations by municipal corporations of the same class, and it was undoubtedly to prevent this very contingency that the framers of this constitution added to the prohibition of special or local laws regulating the affairs of cities, incorporating cities, and changing their charters, contained in section 53 of article 4, the mandate and prohibition of section 7. The provisions of section 53 required the powers of cities to be conferred by general laws. But section 7 went further, and commanded that they should be so bestowed and defined that all of the same class should always have the same powers, and be subject to the same limitations. This is the interpretation of these provisions of section 7 which has been adopted by the supreme court of Missouri, whose decision upon that question is controlling in this court. Madden v. Lancaster Co., 27 U.S.App. 528, 535, 536, 12 C.C.A. 566, 570, and 65 F. 188, 192. In Murnane v. St. Louis, 123 Mo. 479, 489, 27 S.W. 711, Judge Barclay, while delivering the opinion of that court, said: 'Any general law conferring strictly charter powers upon a city, under the present organic law, must be so framed as 'that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions;' and in Kansas City v. Scarritt, 127 Mo. 642, 652, 29 S.W. 847, and 30 S.W. 111, the same learned jurist, speaking for the court of the amendment of a city charter said: 'Legislation for such amendment, regarding strictly local concerns, must not only be general in form, to comply with the demands of other parts of the constitution (article 4, Sec. 53), but it must likewise conform to the classification of cities, and of charter powers, prescribed by section 7 of article 9.' Thus it appears that a general as well as a special law may violate the provisions of section 7, and that the question whether the act of 1893 is a general or a special law is immaterial, so that we are compelled to decline to follow counsel through their interesting and exhaustive discussion of that issue. The question is not whether this law is general or special, but whether or not it violates section 7.

Another proposition advanced in support of this act which is pressed upon us with great zeal...