State ex rel. Kirkwood v. Heege

• Decision Date: 23 June 1896
• Citation: 36 S.W. 614,135 Mo. 112
• Parties: The State ex rel. Kirkwood, Appellant, v. Heege et al
• Court: Missouri Supreme Court

36 S.W. 614

135 Mo. 112

The State ex rel. Kirkwood, Appellant, v. Heege et al

Supreme Court of Missouri, First Division

June 23, 1896

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Affirmed.

Albert N. Edwards and O. J. & R. Lee Mudd for appellant.

(1) Mandamus is the appropriate and proper remedy. Mandamus may not direct a particular action or judgment, but will compel the county court to act. The county court declined to receive the petition of the town of Kirkwood or to take any action thereon but to reject it. Therefore mandamus is the appropriate remedy. State ex rel. v. Court, 73 Mo 560; State ex rel. v. Cramer, 96 Mo. 84; High on Ex Leg. Rem. [2 Ed.], sec. 150. (2) The alternative writ stated every fact necessary in law to entitle relator to the peremptory writ. R. S. 1889, sec. 7895; Session Acts of 1893, p. 111. (3) Acts of the legislature duly passed and published are presumed to be law. The constitutionality of such act is presumed until its unconstitutionality is made to appear clearly and beyond doubt. Phillipps v. Railroad, 86 Mo. 540; Ewing v. Hoblitzelle, 85 Mo. 64. It is for the demurrants to show by what authority and wherein the act is unconstitutional. (4) The act of 1893 (Sess. Acts, 1893, p. 111) upon its face applies to St. Louis county and to the town of Kirkwood. It says: "All counties contemplated in the provisions of section 7895, of article 4, of chapter 140, of Revised Statutes of Missouri, 1889." The act of 1893 then applies to and controls that class of counties, or it applies to no counties and is a nullity. But the presumption is that the act is not a nullity but is law and means what it says. The class of counties "contemplated in the provisions of section 7895, of article 4 of chapter 140, of Revised Statutes of Missouri, 1889," can not adopt township organization. The provisions of article 4, referred to exclude the possibility of township organization, and therefore the act of 1893 can not mean or apply to counties adopting township organization, but as it plainly says, means and refers to the class of counties "contemplated in section 7895, article 4, of chapter 140, Revised Statutes, 1889." St. Louis v. Lane, 110 Mo. 254.

F. A. Heidorn, prosecuting attorney, Zach. J. Mitchell and John W. McElhinney for respondents.

(1) The act of 1893 should be construed as part of the township organization law, and as having no effect in counties where township organization has not been adopted. It purports to amend section 8553 of the statutes of 1889. That section was a part of the township organization act, passed in 1879, and has been retained through all amendments and revisions of the original act. Laws of Missouri, 1879, p. 231, sec. 29. (2) The effect of retaining this section in the revised laws is that it must be construed as a continuation of the original section, with the same meaning and effect as it originally had, and not as a new enactment. R. S. 1889, sec. 6606; R. S. 1879, sec. 3160; Dart v. Bagley, 110 Mo. 42; Cape Girardeau v. Riley, 52 Mo. 424; Pool v. Brown, 98 Mo. 675; State ex rel. v. Heidorn, 74 Mo. 410. (3) The constitution prohibits, first, double or "logrolling" legislation, and, second, deceptive or fraudulent legislation. The object is to protect the members of the legislature as well as the citizens at large from surprise and deception as to the contents and true purpose of a bill, as well as to prevent the uniting of incongruous matters in one act. Cooley, Const. Lim. [6 Ed.], 171-173; Black, Const. Law, sec. 107, pp. 286, 287; Sedgwick, Const. of Stat. etc. [2 Ed.], Pomeroy's notes to pp. 518, 520; State ex rel. v. Co. Ct. Jackson Co., 102 Mo. 531; St. Louis v. Tiefel, 42 Mo. 578; People v. Mahaney, 13 Mich. 481; In re Hauck, 70 Mich. 396; Town of Cantrill v. Sainer, 59 Iowa 26. (4) The act is in violation of the provision prohibiting the legislature to make any grant, or authorize the making of any grant, of public money or thing of value "to any individual, association of individuals, municipal or other corporation whatsoever." Const. 1875, art. 4, sec. 46. (5) A tax for county road purposes, when levied and collected, is public money. A county is a political subdivision of the state for local governmental purposes. Its funds are as much public funds as the moneys in the state treasury. (6) On the other hand, a city or town in its corporate capacity is proprietary or private in its character. (7) County roads and bridges are matters of general or public concern, while city streets, sidewalks and alleys have a local and peculiar or corporate character. 1 Dill. Munic. Corp. [4 Ed.], sec. 66; Id., sec. 74, note 1; Jefferson County v. St. Louis County, 113 Mo. 619; Clark v. Adair County, 79 Mo. 536.

Macfarlane J. Brace, P.J., is absent.

OPINION

Macfarlane, J.

This is a proceeding by mandamus brought at the relation of the town of Kirkwood, in the county of St. Louis, against the county court of said county and its judges. The object of the proceeding is to require said county court to cause to be paid over to the authorities of said town a portion of the road tax collected in the said county, to be applied to the improvement of its streets.

The real question in issue is the constitutionality of the following act of the general assembly of the state, approved April 1, 1893 (Laws 1893, p. 111):

"An act to amend section 8553, of article 14, of chapter 162, of the Revised Statutes of Missouri, relating to the exemption of citizens of incorporated cities and towns, and of the property within said cities and towns, from taxation for county road purposes.

"Be it enacted by the general assembly of the state of Missouri as follows:

"Section 1. That section 8553, of article 14, of chapter 162, of the Revised Statutes of Missouri, be and the same is hereby amended by adding to the end of said section the words 'And in all counties contemplated in the provisions of section 7895, of article 4, of chapter 140, of the Revised Statutes of Missouri, 1889, where money shall hereafter be collected as county taxes upon property within any incorporated town or city, the county court shall, as such taxes are collected, and as the trustees, council, or other corporate authorities of such city or town, shall make application to such county court, draw warrants upon the county treasurer, payable out of the road and bridge fund, to the treasurer of such town or city, for an amount bearing such proportion to the entire amounts of the year's taxes so collected upon said property as the amounts annually appropriated for road and bridge purposes shall bear to the total county revenue for such year, and all such sums so paid out shall be expended upon the roads and streets of such town or city, as shall be directed by the trustees, council, or other corporate authorities thereof;' so that the said section, as amended, shall read as follows:

"Sec 8553. Where any city or town has or may become incorporated under a special charter, or under a general law authorizing cities to become incorporated, no requisition in labor or in money from the citizens thereof, or the property within said corporation, shall be required to improve roads in the country, different from the grant in the charter, but they shall be required to work and pay a tax to improve the streets and roads, and such improvements as shall be specified in the charter, or within the limits of the incorporation, as long as the charter or corporation shall remain in full force; and in all counties contemplated in the provisions of section 7895, of article 4, of chapter 140, of the Revised Statutes of Missouri, 1889, where money shall hereafter be collected as county taxes, upon property within any incorporated town or city, the county court shall, as such taxes are collected, and as the trustees, council, or other corporate authorities of such city or town shall make application to such county court, draw warrants upon the county treasurer,...