State ex rel. Fire Dist. of Lemay v. Smith, 39048.

• Decision Date: 02 January 1945
• Docket Number: No. 39048.,39048.
• Citation: 184 S.W.2d 593
• Parties: STATE OF MISSOURI at the Relation of FIRE DISTRICT OF LEMAY, a Body Corporate and Political Subdivision of the State of Missouri, Relator, v. FORREST SMITH, State Auditor of Missouri.
• Court: Missouri Supreme Court

184 S.W.2d 593 STATE OF MISSOURI at the Relation of FIRE DISTRICT OF LEMAY, a Body Corporate and Political Subdivision of the State of Missouri, Relator,
v.
FORREST SMITH, State Auditor of Missouri. No. 39048. Supreme Court of Missouri. Court en Banc, January 2, 1945.

[184 S.W.2d 594]

Mandamus.

PEREMPTORY WRIT ISSUED.

T. Douglas Moore for relator.

(1) Mandamus is the proper remedy to compel the State Auditor to register the bonds of relator. State ex rel. City of Jefferson v. Hackmann, 287 Mo. 156, 229 S.W. 1082; State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W. (2d) 147. (2) Proper protection against fire is essential to public health and safety and the passage of laws making such possible is a proper exercise of the police power. State ex rel. Gentry v. Curtis, 4 S.W. (2d) 467; Morrison v. Morey, 146 Mo. 543, 48 S.W. 629; Dillon on Mun. Corp., secs. 93-96; Cooley on Taxation (4 Ed.), 202; State v. Layton, 160 Mo. 474, 61 S.W. 171, 62 L.R.A. 163, 83 Am. St. Rep. 487; State v. Cantwell, 179 Mo. 245, 78 S.W. 569; State ex rel. v. Murphy, 130 Mo. 10, 31 S.W. 594, 31 L.R.A. 798; Union Cemetery Assn. v. Kansas City, 252 Mo. 466, 161 S.W. 261; 12 C.J. 912; Bellerive Inv. Co. v. Kansas City, 13 S.W. (2d) 628; Sec. 2, Art. II, Constitution of Mo.; Poole & Creber Market Co. v. Breshears, 125 S.W. (2d) 23. (3) The title of the act is sufficient in that the subjects contained in the act are clearly expressed and thus is not violative of Section 28, Article IV of the State Constitution. Witzman v. Railroad, 131 Mo. 612, 33 S.W. 181; State ex rel. v. Revelle, 257 Mo. 529, 165 S.W. 1084; State ex rel. Gentry v. Curtis, 4 S.W. (2d) 467, 219 Mo. 316; Grossman v. Public Water Supply Dist. No. 1 of Clay County, 339 Mo. 344, 96 S.W. (2d) 701; State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W. (2d) 147; Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 30 S.W. (2d) 447; State v. Mullinix, 301 Mo. 385, 257 S.W. 121; State ex rel. Lorantos v. Terte, 324 Mo. 402, 23 S.W. (2d) 120; Willhite v. Rathburn, 332 Mo. 1208, 61 S.W. (2d) 708; Williams Lbr. & Mfg. Co. v. Ginsburg, 347 Mo. 119, 146 S.W. (2d) 604. (4) The act involved is not a local or special law as prohibited by Section 53, Article IV of the State Constitution, but is a general law and the county classification is uniform. Thomas v. Buchanan County, 330 Mo. 627, 51 S.W. (2d) 95; State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W. (2d) 147; Hull v. Baumann, 345 Mo. 159, 131 S.W. (2d) 721; City of Springfield v. Smith, 322 Mo. 1129, 19 S.W. (2d) 1; Thompson v. St. Louis-S.F. Ry. Co., 334 Mo. 958, 69 S.W. (2d) 936; St. Louis Union Trust Co. v. State, 348 Mo. 725, 155 S.W. (2d) 107; State ex rel. Hollaway v. Knight, 21 S.W. (2d) 767, 323 Mo. 1241. (5) The act does not attempt to provide nor does it provide for the creation of a new class of municipal corporations, nor does it unconstitutionally infringe or diminish the powers of existing municipal corporations. State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W. (2d) 147; State ex rel. Gentry v. Curtis, 4 S.W. (2d) 467. (6) The Fire District of Lemay, St. Louis County, Missouri, was regularly and legally organized and the bonds involved were approved by the voters of the district and legally issued. Laws 1941, p. 505. (7) The procedure of incorporation by the circuit court subject to the approval of the voters as prescribed by the Fire District of Lemay is constitutional. Art. 12, Chap. 79, R.S. 1939; Grossman v. Pub. Water Supply District of Clay County, 96 S.W. (2d) 701; State ex rel. Halferty v. Kansas City P. & L. Co., 145 S.W. (2d) 116; State ex rel. Gentry v. Curtis, 4 S.W. (2d) 467.

Roy McKittrick, Attorney General, and Vane C. Thurlo, Assistant Attorney General, for respondent; Edwin Rader of counsel.

(1) The title to the Fire District Act (Laws 1941, p. 505) is insufficient to cover the following provisions of the Act: (a) Section 34, restricting the power of cities to enlarge their boundaries by requiring that all of a fire district be taken if any part is taken, and prohibiting the creation of cities or villages comprising a part only of the territory of a fire district. (b) Section 34, providing that a city or village which annexes a fire district shall assume all debts and obligations of the district and acquire all its property. (c) Sections 23, 24, 25 and 26, declaring the parking of vehicles within six feet of a fire hydrant in a fire district and the intentional interference with or obstruction of a fireman in the performance of his duties to be misdemeanor; providing for the prosecution and punishment of such misdemeanors; and vesting firemen with the power to make arrests. (2) The title, after stating generally that the act provides for the establishment and incorporation of fire districts, descends into particulars, listing ten particular matters; therefore the ten particular matters become the subject of the act. The act may not embrace matters not covered by the statement of particulars even though germane to fire districts. State ex rel. Niedermeyer v. Hackmann, 292 Mo. 27, 237 S.W. 742; State ex rel. Department of Penal Institutions v. Becker, 329 Mo. 1041, 47 S.W. (2d) 781; Woodward Hardware Co. v. Fisher, 269 Mo. 271, 190 S.W. 576; Fidelity Adjustment Co. v. Cook, 339 Mo. 45, 95 S.W. (2d) 1162. (3) The subject matter of Section 34 of the act is boundary changes by cities and villages and the effect of such changes on the debts and property of the district, and the incorporation of new cities or villages. No indication is given in the title to the act that the right of cities and villages to extend their boundaries or to incorporate is restricted. State ex rel. Department of Penal Institutions v. Becker, 329 Mo. 1041, 47 S.W. (2d) 781; Woodward Hardware Co. v. Fisher, 269 Mo. 271, 190 S.W. 576; State v. Hurley, 258 Mo. 275, 167 S.W. 965; Fidelity Adjustment Co. v. Cook, 339 Mo. 45, 95 S.W. (2d) 1162. (4) Sections 23, 24 25 and 26 declare certain acts to be misdemeanors, provide for the prosecution of offenders and for their punishment, and grant to firemen the right to make arrests. The title includes "authorizing the Trustees to make rules and regulations for fire prevention and fire protection and providing for fire prevention and fire protection, and providing penalties for the violation thereof." The Act must be limited to the above. It may authorize the trustees to make regulations, and may provide penalties for the violation of such regulations and has done so in Sections 20 and 21. It cannot go further and declare certain acts to be misdemeanors. Woodward Hardware Co. v. Fisher, 269 Mo. 271, 190 S.W. 576; State v. Hurley, 258 Mo. 275, 167 S.W. 965. (5) A law, general in form, will be a special law, if the classification of the objects affected by the law is unnatural, unreasonable and arbitrary. The basis of a sound legislative classification is similarity of situation or condition with respect to the feature which renders the law appropriate. A law may not include less than all who are similarly situated. If it does it is special and, therefore, invalid, because it omits a part of those which in the nature of things the reason of the law includes. State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W. (2d) 147; Colley v. Jasper County, 337 Mo. 503, 85 S.W. (2d) 57; State v. Logan, 268 Mo. 169, 186 S.W. 979; State ex inf. Wallach v. Loesch, 169 S.W. (2d) 675. (6) The only basis for the segregation of counties of 200,000 to 400,000 population into a separate class for the purpose of the Fire District Act is the presumed existence in such counties and in such counties only of territory located without the corporate limits of any village or city where the erection of buildings has become so congested that destruction of such buildings by fire would be a danger to life and property and the presumed existence of densely populated areas without adequate fire prevention facilities. Laws 1941, p. 505, secs. 1, 42. (7) The act does not include all areas which may be thickly built up. Jackson County, containing Kansas City, is omitted, and such areas as in smaller counties are also omitted. It is, therefore, a special or local law. Colley v. Jasper County, 337 Mo. 503, 85 S.W. (2d) 57; Hull v. Baumann, 345 Mo. 159, 131 S.W. (2d) 721. (8) No reasonable connection exists between the need for the creation of a fire district to give fire protection to an area within a county and the population of the county. Reals v. Courson, 164 S.W. (2d) 306. (9) The population of a county is not a proper basis of classification where the act does not apply to the entire county. Reals v. Courson, 164 S.W. (2d) 306. (10) Article IV, Section 53, Paragraph 32, prohibits the enactment of a local or special law where a general law can be made applicable. The purpose of the fire district act could have been accomplished by the enactment of a general law providing for the creation of fire districts in any territory where the erection of buildings has become so congested that fire protection is needed. State ex inf. Gentry v. Armstrong, 315 Mo. 298, 286 S.W. 705; Reals v. Courson, 164 S.W. (2d) 306; State v. Logan, 268 Mo. 169, 186 S.W. 979. (11) The act vests in the circuit court, a judicial tribunal, the determination of what circumstances justify the creation of a fire district, which is a legislative power. Essentially the determination is whether in given circumstances and conditions the law should authorize the creation of a fire district. Such determination is legislative and cannot be delegated to any person exercising powers belonging to the judicial department. Woods ex rel. Rogers v. Henry, 55 Mo. 560; Hall v. De Armond, 46 Mo. App. 596; Searle v. Yensen, 118 Neb. 835, 226 N.W. 464, 69 A.L.R. 257; State ex rel. Luley v. Simons, 32 Minn. 540, 21 N.W. 750; Re Ridgefield...