Rutherford v. Heddens

• Decision Date: 30 April 1884
• Citation: 82 Mo. 388
• Parties: RUTHERFORD, Appellant, v. HEDDENS.
• Court: Missouri Supreme Court

82 Mo. 388

RUTHERFORD, Appellant,

v.HEDDENS.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Buchanan Circuit Court.--HON. W. H. SHERMAN, Judge.

REVERSED.

H. K. White for appellant.

The act in question is constitutional. State ex rel. v. Herman, 75 Mo. 340; Kilgore v. Magee, 85 Pa. 411. The constitution is not a grant of powers to the legislature, but its province is to bind and restrain the power which the legislature possesses, independent of the limitations in it. Cooley on Const. Lim., (4 Ed.) p. 107; C. & St. L. R. R. Co. v. Warrington, 92 Ill. 157; Richards v. Raymond, 92 Ill. 612. Unless the act in question clearly conflicts with the provisions of the constitution, it cannot be declared void. St. Louis Co. v. Griswold, 58 Mo. 175; State v. Able, 65 Mo. 357.

Ramey & Brown, Strong & Mosman, Spencer & Hall for respondent.

The act in question is a special and local law, and as such is unconstitutional. Const., art. 12, § 2; art. 9, § 7; R. S. 1879, art. 1, chap. 89.

HENRY, J.

The only question submitted for our consideration is the constitutionality of an act of the general assembly, approved March 28, 1881. Sess. Acts of 1881, pages 69, 70, 71. It is entitled: “An act authorizing cities acting under special charters, and containing more than 30,000 inhabitants, to establish a system of sewerage, and to construct, establish and keep in repair, sewers, culverts and drains.” The body of the act authorizes the mayor and council of all cities in this State having, and such as may hereafter contain, more than 30,000, and less than 50,000 inhabitants, to establish a system of sewerage, and to hold, and to construct, and keep in repair, sewers, culverts and drains, when the same may be deemed necessary to convenience and health.

This is a suit against defendant to collect a special tax assessed against his property for sewerage work done in front of it, under an ordinance passed in conformity with said act. Respondent contends that the act of 1881 is special legislation, and, therefore, forbidden by section 53, article 4 of the constitution, which declares that: “The general assembly shall not pass any local or special law: * * Regulating the affairs of counties or cities; * * incorporating cities, towns, or villages, or changing their charters, * * or creating corporations, or amending, renewing, extending or explaining the charter thereof.” By section 7 article 9, the general assembly is required to provide, by general law, for the organization and classification of cities and towns, the number of classes not to exceed four, and to define the power of each class, and to give to each member of a given class, the same powers, and subject it to the same restrictions as are given to, and imposed upon the other members of that class. Also, to make provision by general law, whereby any city, town, or village, existing by virtue of a special or local law, may elect to become subject to the general law.

The legislature has discharged its duty under that section, but the city of St. Joseph has not elected to become subject to the general law, as is the case with many other cities, towns and villages in the State. It is contended by respondent that while in this condition, the charter of the city of St. Joseph can never be amended, not under the general laws, because they can be made applicable only to the four classes established by the constitution and the law, and not by a special law, because the enactment of such laws is forbidden by the constitution. It is assumed that the constitution is hostile to existing special charters, and that by the sections above mentioned, it was the intention to force all cities, towns and villages to surrender their respective charters, and come under the general law. We can gather from the instrument no such intent. If such hostility to special charters was entertained by the convention which framed the constitution, it could have been easily expressed by a requirement, that all cities, towns and villages in the State, having special charters, should be subject to the provisions of the general law, which the legislature was required to pass for their classification. Unquestionably the charter of the city of St. Joseph cannot be amended by a special law, but, is the act of 1881 a special law?

If we correctly construe the opinion delivered by this court, in the case of the State ex rel. v. Herrman, 75 Mo. 340, and the cases there cited, the principles they announce uphold the act of 1881 as general, and not special legislation. The case first cited is the State v. Hammer, 42 N. J. Law 435. A law of that State provided that: “In any city where a board of assessment and revision of taxes now exists, such board shall,” etc. There were but two cities in the State having such a board, and the court observed that: “The result, therefore, is, that the act was intended to apply, and that it does, and must ever apply to...