Rose v. Smiley
| Citation | 296 S.W. 815 |
| Decision Date | 27 June 1927 |
| Docket Number | 27829 |
| Parties | ROSE et al. v. SMILEY et al., County Judges |
| Court | United States State Supreme Court of Missouri |
Greensfelder Rosenberger & Grand and Harry Castlen, County Counselor all of St. Louis, for appellants.
H. C Etherton, of Overland, Roby Albin and Jerry Mulloy, both of St. Louis (F. L. Jackson, of St. Louis, of counsel), for respondents.
This was a suit brought by Rose et al., resident taxpayers of St. Louis county, against the judges of the county court of that county, to restrain the county court from entering into a contract with J. J. Dunnegan for the construction of sewers in a certain sanitary sewer district in St. Louis county, and from doing any act looking to the construction of such sewer.
The suit was filed July 21, 1925. The circuit court of St. Louis county rendered judgment February 1, 1926, finding the issues for the plaintiff, and perpetually enjoining the defendants from entering into the contract mentioned and from doing any act in fulfillment of the purpose to build sewers in said district. From that judgment defendants have appealed. Certain constitutional questions are raised and determined by the trial court, which circumstance gives this court jurisdiction of the appeal.
I. The contract for the construction of sewers in the district mentioned was contemplated under the provisions of the Act of 1921 (Laws 1921, pp. 208 et seq.). The plaintiffs claim that the act is unconstitutional for two reasons: First, because the bill contained more than one subject, contrary to section 28, art. 4 of the Constitution; and, second, because the act was local and special and in violation of article 4, § 53, subd. 32 of the Constitution; the last of which constitutional objections we will consider first. The title designates the act as an amendment of the act of 1917, setting out the title of that act, which need not be repeated here.
The enabling clause of the act which is attacked (section 2, p. 209, Acts of 1921), is as follows:
The argument of respondent is that the act is thus made applicable to St. Louis county alone, whereas a general act could be made applicable to several counties; it was therefore contrary to clause 32, § 53, art. 4 of the Constitution, which provides:
'In all other cases where a general law can be made applicable, no local or special law shall be enacted.'
Manifestly, there are other counties in the state to which a general law could be applicable. The construction of sanitary sewers may be necessary in many counties of the state, on account of the population and other considerations. If, therefore, this act on its face is made applicable to St. Louis county only, it is in contravention of that clause of the Constitution.
Two conditions are required for the application of the act: One is a population of more than 100,000 and less than 200,000 inhabitants in the county. The second is that the county must adjoin a city which now contains or may hereafter contain a population of 500,000 or more inhabitants. The appellants cite State ex rel. Barker v. Wurdeman, 254 Mo. 561, 163 S.W. 849, in support of their position that the act is constitutional and not in violation of that clause. That was a habeas corpus case which incidentally concerned an act similar in terms to the one under consideration here, and the leading opinion held the act constitutional. But only two judges concurred in that conclusion. Two other judges, Graves and Faris, concurred only in the result, expressing no opinion on the constitutionality of the act. Three judges dissented. So that the leading opinion in that case is not authority on the constitutional proposition.
Appellant also cites State ex inf. v. Southern, 265 Mo. 275, 177 S.W. 640. That case is not in point, for it determines only that the clause of the Constitution under consideration is not violated by classification upon the basis of population only.
Two late cases are in point upon this subject: State ex rel Mueller v. Fry, 300 Mo. 541, 254 S.W. 1084, where the constitutionality of an act relating to the formation of school districts was challenged. The enabling provision which appears in section 11192, R. S. 1919, makes it apply to a county containing 75,000 population, and adjoining a city having over 500,000 inhabitants. It was held unconstitutional because, although general in its terms, it could apply only to St. Louis county. Appellant calls attention to the language of the opinion (loc. cit. 550 ), where it says that the only qualification for the classification fixes an arbitrary standard, not applicable to any other...
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