State ex Inf. Attorney-General v. Curtis

• Decision Date: 17 March 1928
• Docket Number: No. 28264.,28264.
• Citation: 4 S.W.2d 467
• Parties: THE STATE EX INF. NORTH TODD GENTRY, Attorney-General, v. E.G. CURTIS, GEORGE BARNETT and JOSEPH B. ACKFELD, as Supervisors of WEBSTER GROVES GENERAL SEWER DISTRICT NUMBER ONE OF ST. LOUIS COUNTY.
• Court: Missouri Supreme Court

4 S.W.2d 467

THE STATE EX INF. NORTH TODD GENTRY, Attorney-General, v. E.G. CURTIS, GEORGE BARNETT and JOSEPH B. ACKFELD, as Supervisors of WEBSTER GROVES GENERAL SEWER DISTRICT NUMBER ONE OF ST. LOUIS COUNTY.

No. 28264.

Supreme Court of Missouri. Court en Banc.

March 17, 1928.

Quo Warranto.

WRIT DENIED.

North T. Gentry Attorney-General, and L. Cunningham, Assistant Attorney-General, for informant.

(1) Section 1 of the act purports to authorize the organization of sewer districts of contiguous territory in counties which now have, or may hereafter have, seventy-five thousand or more inhabitants. Said provision is not indicated in the title and does not have a reasonable or natural connection with the subject named in the title and is in violation of Section 28 of Article 4 of the Constitution. State ex rel. v. Hackmann, 292 Mo. 27; State ex rel. v. Roach, 258 Mo. 541; State ex inf. v. Armstrong, 286 S.W. 705. (2) Said provision is unconstitutional in that it changes and attempts to create more than four classes of cities, and to diminish the powers conferred by general law on the various classes in regard to sewer systems, and to create a class of cities which lie partly within and partly without such sewer districts as may be organized under the act. Sec. 7, Art. 9, Constitution; Secs. 7853 to 7861, Secs. 8131 to 8135, Sec. 8139, Secs. 8304 to 8307, Secs. 8354 to 8370, Secs. 8482 to 8490, Chap. 72, R.S. 1919; State ex inf. v. Borden, 164 Mo. 221; Owen v. Baer, 154 Mo. 434; Kansas City v. Scarritt, 127 Mo. 642; In re East Bottom Drain. Dist., 305 Mo. 577. (3) If the act be subject to the referendum under Sec. 57. Art. 4, of the Constitution, then it could not go into effect until ninety days after the adjournment of the General Assembly which was on the 4th day of April, 1927, and it was not in force on the 16th day of May, 1927, when the sewer district under consideration was organized, even though the act contained an emergency clause. The only theory on which the emergency clause could be sustained is that the law was necessary for the immediate preservation of the public peace, health or safety. Sec. 36, Art. 4, Constitution; State ex rel. Westhues v. Sullivan, 283 Mo. 546; Fahey v. Hackmann, 291 Mo. 351. (4) The act violates Section 28 of Article 4 of the Constitution, in that it contains more than one subject and the provisions of the act are not clearly expressed in the title. State ex inf. v. Armstrong, 286 S.W. 705; State ex rel. v. Hackmann, 292 Mo. 27; State ex rel. v. Roach, 258 Mo. 541; State v. Rawlings, 232 Mo. 544; State v. Great Western Co., 171 Mo. 634; St. Louis v. Wortman, 213 Mo. 131; State v. Fulks, 207 Mo. 26; State v. McEniry, 269 Mo. 228; State ex inf. v. Borden, 164 Mo. 221; State ex rel. Greene County v. Gideon, 277 Mo. 356; City of Kansas v. Payne, 71 Mo. 159; Vice v. Kirksville, 280 Mo. 348; Berry v. Majestic Co., 284 Mo. 182; State ex rel. v. Revelle, 257 Mo. 529. (5) The act denies to citizens and owners of property within the district and adjoining the district the equal protection of law in violation of Section 1 of Article 14, Constitution of the United States. McFarland v. American Co., 241 U.S. 79; Backus v. Fort Co., 169 U.S. 557; State ex rel. Penrose Inv. Co. v. McKelvey, 301 Mo. 1; Lansdown v. Kierns, 303 Mo. 75; Gast Realty Co. v. Granite Co., 240 U.S. 55. (6) The act denies to citizens and owners of property within the district and adjoining the district due process of law, in violation of Section 30 of Article 2 of the Constitution of Missouri, and in violation of the Fifth Amendment of the Constitution of the United States. It provides for the taking of private property for an alleged public use without affording the owners thereof notice or an opportunity to appear and be heard before any designated tribunal to contest the essential steps in the proceeding and defend their rights. Holden v. Hardy, 169 U.S. 366; Citizens' Savings Assn. v. Topeka, 20 Wall. U.S. 655; Turner v. Wade, 254 U.S. 64; Norwood v. Baker, 172 U.S. 269; Embree v. Road District, 240 U.S. 242; Jones v. Yore, 142 Mo. 38; Asphalt Co. v. Ridge, 169 Mo. 376; St. Louis v. Railways, 211 S.W. 671; State ex inf. v. Colbert, 273 Mo. 198; State ex rel. Inv. Co. v. McKelvey, 301 Mo. 1. (a) Section 2 of the act provides what the petition for the organization of the district shall contain. Section 3 provides for notice by publication. Section 4 provides that owners of property may file objections but "such objection or objections shall be limited to a denial of the necessity or desirability for sewage disposal in the district." In other words, the objections of property owners are limited to a denial of matters not required to be alleged in the petition, and the owner of property is denied a hearing except on that question. It constitutes a denial to due process of law. Windsor v. McVay, 93 U.S. 274. A party has the right to appear and plead or prove any fact which would constitute or tend to constitute a defense of an assault on himself or on his property. Twining v. New Jersey, 211 U.S. 111. There is no due process of law or opportunity to defend if only one party is allowed to produce proof, or if a particular item of evidence precludes a party from establishing his rights in opposition to it. 2 Cooley, Constitutional Limitations (5 Ed.) p. 768. It is beyond the power of the Legislature to restrain a defendant in a suit from setting up any good defense to the action against him. Wright v. Cradlebaugh, 3 Nev. 341; Zeigler v. Railroad, 58 Ala. 594; State ex rel. Hurwitz v. North, 304 Mo. 607; McGehee, Due Process of Law, p. 80; 12 C.J. 1233. (b) Section 8 of the act provides for the appointment of commissioners and assessment of damages without affording the owners of property any notice or opportunity to appear and make claims or present evidence. The only notice given is by publication after the commissioners have completed their duties. The only right afforded to the property owner is to then file exceptions to the report. It has long been held in this State that the finding of commissioners as to damages in condemnation proceedings will not be interfered with by the court unless the commissioners have erred in the principal upon which the appraisal was made. St. Louis v. Brown, 155 Mo. 545; St. Louis v. Abeln, 170 Mo. 318; Railroad v. Richardson, 45 Mo. 466; Railroad v. Campbell, 62 Mo. 585. Notice of the taking of property for a public use must precede and not follow the determination of compensation therefor. The owner of property must have an opportunity to be heard, both on the question of the taking and the question of value. Goodrich v. Detroit, 184 U.S. 432; St. Louis Co. v. Kansas City, 241 U.S. 419; Twining v. New Jersey, 211 U.S. 113; State ex rel. v. Billings, 55 Minn. 467; Railroad v. Fairchild, 224 U.S. 510; Grannis v. Ordean, 234 U.S. 385; Michigan Trust Co. v. Ferrv. 228 U.S. 346; State ex rel. Hurwitz v. North, 304 Mo. 607; Hickman v. Kansas City, 120 Mo. 110; Markowitz v. Kansas City, 125 Mo. 485; McGrew v. Railroad, 230 Mo. 496; Secs. 20, 21, Art. 2, Constitution. (c) The act denies notice to owners of property and the right to be heard on the question of benefits to be assessed. A property owner is entitled to be heard as to the amount of his assessment of benefits and on all questions entering into that determination. St. Louis v. Kansas City, 241 U.S. 430; Embree v. Road District, 240 U.S. 242; Browning v. Hooper, 269 U.S. 405. (d) Section 33 violates due process clauses of both Constitutions. It also violates the equal protection clause of the Constitution of the United States. Sec. 30, Art. 2, Mo. Constitution; Sec. 1, Art. 14, U.S. Constitution. Not only is the owner of the fee entitled to compensation but every person who holds a valid estate or interest which the courts would recognize as against the owner of the fee is clearly protected by the Constitution. Parks v. Boston, 15 Pick. 198. (7) The act authorizes the re-ascertainment and re-assessment of benefits, and re-assessment of taxes from time to time, and the amounts thereof may be reduced below a sum sufficient to pay the interest on bonds issued and the principal of such bonds at maturity, and thus impair the obligation of contracts entered into between the district and the owners of its obligation in violation of the Constitution of Missouri and the Constitution of the United States. Sec. 15, Art. 2, Mo. Constitution; Sec. 10, Art. 1, U.S. Constitution. (8) The act provides for the re-ascertainment and re-assessment of benefits and re-assessment of taxes, and for the levying of the maintenance tax without notice to owners of property affected, or affording to them any opportunity to appear and be heard thereon. It is in violation of due process of law and equal protection of the law. (9) Such sewer districts must be held to be political subdivisions of the State, municipal corporations and political corporations, and must be governed by the provisions of Section 12 of Article 10 of the Constitution. Section 35 of the act is in violation of said Section 12. Union Bank v. City of Sedalia, 300 Mo. 399; State ex rel. Christian County v. Gordon, 265 Mo. 181; Steinbrenner v. St. Joseph, 285 Mo. 318. (10) Sections 7 and 31 authorize the levy of a general tax on real estate situated in the district, and thus indirectly exempts other property from taxes in violation of Section 4 of Article 10 of the Constitution and in violation of Sections 6 and 7 of Article 10 of the Constitution. (11) The act is a local or special law and is in violation of Section 53 of Article 4 of the Constitution of Missouri in the following particulars: It is a special or local law regulating the affairs of counties, cities, etc., prohibited by paragraph 2. It is a special or local law regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings before the courts, commissioners, arbitrators or other...