State ex rel. Jones v. Nolte

• Citation: 165 S.W.2d 632,350 Mo. 271
• Decision Date: 12 November 1942
• Docket Number: 38046
• Parties: State of Missouri at the relation of Hugh McKittrick Jones, John F. Schlafly, J. B. Corby, Alvan J. Goodbar, Leah v. R. Oliver Scarlett, Thomas P. Moore, Helen D. Bridge, Mary Platt Nobel, Mortimer Burroughs, Benedict Farrar, Gurdon G. Black, Robert L. Jordan, Edward S. Funsten, Crow Investment Company, a Corporation, Frank J. Pollnow, William N. Matthews and Royall H. Seitzler, Relators, v. Julius R. Nolte, John A. Witthaus, Peter T. Barrett and John J. Wolfe, Judges of the Circuit Court of St. Louis County, Missouri
• Court: United States State Supreme Court of Missouri

165 S.W.2d 632

350 Mo. 271

State of Missouri at the relation of Hugh McKittrick Jones, John F. Schlafly, J. B. Corby, Alvan J. Goodbar, Leah v. R. Oliver Scarlett, Thomas P. Moore, Helen D. Bridge, Mary Platt Nobel, Mortimer Burroughs, Benedict Farrar, Gurdon G. Black, Robert L. Jordan, Edward S. Funsten, Crow Investment Company, a Corporation, Frank J. Pollnow, William N. Matthews and Royall H. Seitzler, Relators, v. Julius R. Nolte, John A. Witthaus, Peter T. Barrett and John J. Wolfe, Judges of the Circuit Court of St. Louis County, Missouri

No. 38046

Supreme Court of Missouri

November 12, 1942

Preliminary rule discharged.

Alvan J. Goodbar, Henry T. Ferriss and Homer Hall for relators.

(1) The Supreme Court of Missouri has jurisdiction of original proceedings in prohibition to keep the Circuit Court of St Louis County within the limits of its jurisdiction and this court has jurisdiction of this cause, as is shown in the preceding paragraph on jurisdiction. Mo. Constitution, Sec 3, Art. 6; Amend. 1890, Secs. 1, 3; R. S. 1939, secs 1773-1781; State ex rel. General Mills, Inc. v Waltner, 156 S.W.2d 664; State ex rel. v. Harris, 159 S.W.2d 799; State ex rel. v. Sartorius, 344 Mo. 919, 130 S.W.2d 541; State ex rel. Arthur v. Hammett, 151 S.W.2d 695, certiorari denied. (2) The assessments made by Central Sewer District and sued for in its name are a tax and the rule is universal that taxing statutes are to be strictly construed against the taxing authority and in favor of the taxpayers. The relators rely upon that rule and ask the court to apply it in this case. F. Burckhardt Mfg. Co. v. Coale, 345 Mo. 1131, 139 S.W.2d 502; In re Kansas City Star Co., 346 Mo. 658, 142 S.W.2d 1029; Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896; State ex rel. Ford Motor Co. v. Gehner, 325 Mo. 24, 29, 27 S.W.2d 1; Berry-Kofron, etc., Co. v. Smith, 345 Mo. 922, 137 S.W.2d 452; State ex rel. Kansas City P. & L. Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; Bussen Realty Co. v. Benson, 159 S.W.2d 813. (3) The purported incorporation of Central Sewer District based upon the petition and publication of notice of Brentwood Sewer District was invalid and the respondents are without jurisdiction or authority to entertain or decide the suits for taxes assessed by Central Sewer District, and they should be prohibited from so doing. The requirements of the statutes with respect to service by publication must be strictly complied with and the purported incorporation of Central Sewer District based upon publication of notice of Brentwood Sewer District, was unauthorized and void especially when the boundary lines described an area in Central Sewer District different from that described in the petition and publication of notice of Brentwood Sewer District. State ex rel. v. Ryan, 337 Mo. 1180, 88 S.W.2d 157; In re Letcher, 269 Mo. 140; State to Use of Douglas v. Arcadia Timber Co., 178 S.W. 93; State ex rel. Ray v. Arcadia Timber Co., 274 Mo. 663. The publication of notice of the filing of and hearing on the petition for the incorporation of Brentwood Sewer District, if valid at all, constituted at most nothing more than constructive service as to any landowners within the boundary of such district, and could not have been notice to or binding upon the relators, none of whom owned any land within the boundaries of that district. None of the relators entered his appearance in any way whatever in any of the proceedings for the incorporation of Brentwood Sewer District or the purported Central Sewer District. State ex rel. v. Harris, 159 S.W.2d 799. (4) The circuit court had no authority to change and could not by the nunc pro tunc order of June 25, 1928, made at the May Term, change the order made on April 20, 1928, or on April 30, 1928, at the preceding January Term, 1928, of court, and the purported incorporation of Central Sewer District rests upon the orders and decree made at the January Term. Wiggins v. Perry, 343 Mo. 40, 119 S.W.2d 839; Freeman v. Joplin Water Works, 154 S.W.2d 744; Cross v. Greenaway, 151 S.W.2d 43; State ex rel. v. Hammett, 151 S.W.2d 695. (5) The Act of March 25, 1927 (the Sewer Law), should be held invalid in this proceeding for the reason that it is in violation of the Constitution of Missouri, in that it contains more than one subject, namely the disposal of sewage for sanitary purposes and the disposal of storm water, which subjects are not so related that they may be included in one act, and the purpose of the act to provide for disposal of storm water is not mentioned in the title to the act. The act is further invalid because it provides for taking and damaging property outside the sewer districts without providing for a hearing by the property owners, and that purpose is not clearly expressed in the title. (6) The Act of March 25, 1927, is unconstitutional and void as special class legislation in that it does not require that the property of public corporations which would be in need of and benefited by sewage disposal should be taxed the same as private property. Public property is liable to special assessment for public improvements and should have been made liable by the Act of March 25, 1927. State ex rel. v. Knight, 323 Mo. 1241, 21 S.W.2d 767; Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721; State ex rel. v. Hedrick, 294 Mo. 21, 241 S.W. 402; Normandy Consolidated School Dist. v. Wellston Sewer Dist., 77 S.W.2d 477. (7) The suits involved in this proceeding were not commenced within six months after December 31, 1931, the year for which the tax was levied, as required by Section 20 of the Sewer Law, and the liquidator has no right to prosecute them and respondents have no jurisdiction to try or decide them. First Natl. Bank v. Holt, 158 S.W.2d 229. (8) The Act of March 25, 1927, did not require that land included in an extension of the boundaries of an existing sewer district should be assessed the preliminary tax of ten cents per square of 100 square feet, but only provided that land in such extension should be "liable to taxation to pay the cost of making and maintaining such sewer improvements." The rule expressio unius est exclusio alterius is applicable and controlling in this cause and excludes the assessment of the preliminary tax against the lands of the relators, all of which are within the purported extension of the boundaries of Central Sewer District. Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896; State ex rel. v. Smith, 336 Mo. 810, 81 S.W.2d 613; Kansas City v. J. I. Case, etc., Co., 337 Mo. 913, 87 S.W.2d 195; State ex rel. v. Smith, 342 Mo. 75, 111 S.W.2d 513; State ex rel. v. Hunt, 152 S.W.2d 77; Cases cited under Point (3). (9) The Act of December 15, 1933 (Laws of Mo. Extra Session, 1933-1934, p. 117), the liquidation law, under the provisions of which the liquidator was substituted as plaintiff in the suits for the tax in question confers no right or authority upon the liquidator to prosecute said suits in his name, and the respondents are without jurisdiction to try or decide said suits. The Act of December 15, 1933, is unconstitutional because it is a local and special law applicable only to St. Louis County and regulating the affairs of that county, creating the office of liquidator of St. Louis County and prescribing the powers and duties of liquidator of St. Louis County, contrary to the provisions of Article 4, Section 53, Subsections (2) and (15), and contrary to the provisions of Article 4, Section 54 of the Constitution of Missouri, and of Section 10 of Article I and Section 1 of the Fourteenth Amendment to the Constitution of the United States. The Act of December 15, 1933, is an ex post facto law and retrospective in its operation and is violative of Article 2, Section 15 of the Constitution of Missouri, and of Article 1, Section 10 of the Constitution of the United States, and of Section 1 of the Fourteenth Amendment to the Constitution of the United States, in that it abridges the privileges and immunities of the relators who are citizens of the United States and deprives the relators and other persons of their property without due process of law, and denies to relators and other owners of land within the jurisdiction of the State of Missouri the equal protection of the laws. The Act of December 15, 1933 (the Liquidator Act) is invalid and violative of the Constitution of Missouri, Article 4, Section 53, paragraph 32, in that it is a special law, applicable and intended to apply only to St. Louis County. This view is fully supported by the decision of this court. State ex rel. v. Armstrong, 315 Mo. 298, 286 S.W. 705; Rose v. Smiley, 296 S.W. 815; Colley v. Jasper County, 337 Mo. 503, 85 S.W.2d 57; Massey-Harris Harvester Co. v. Federal Reserve Bank, 340 Mo. 1133, 104 S.W.2d 385, citing 242 Mo. 688, 129 Mo. 163. (10) The decisions of the court in prior cases under the Act of March 25, 1927, the sewer district law, are not controlling in this case for the reason that the questions now presented in this case were not presented or decided in those prior decisions. Siemens v. Shreeve, 317 Mo. 736, 296 S.W. 415; State ex rel. v. Trimble, 333 Mo. 207, 62 S.W.2d 756. (11) The court is not bound by and will not hesitate to depart from or to expressly overrule prior decisions which are erroneous or are found to be opposed to a fair and reasonable decision of the case under consideration and for this reason prior decisions of the court, whether involving the sewer district law or not, which might be opposed to the justice of this cause, ought to be disregarded. State v. Williams, 337 Mo. 884pg383, 87 S.W.2d 175; Siemens v. Shreeve, 317 Mo. 736, 296 S.W. 415; City of Mountain View v. Farmers' Tel. Exchange Co., 294 Mo. 623, 243 S.W. 153.

T Douglas Moore for respondents; Fordyce, White, Mayne, Williams & Hartman of counse...