State v. Lichte

• Decision Date: 07 March 1910
• Citation: 226 Mo. 273,126 S.W. 466
• Parties: STATE ex rel. SCOTT v. LICHTE et al., County Court Justices.
• Court: Missouri Supreme Court

126 S.W. 466

226 Mo. 273

STATE ex rel. SCOTT v. LICHTE et al., County Court Justices.

Supreme Court of Missouri.

March 7, 1910.

1. MUNICIPAL CORPORATIONS (§ 23) — INCORPORATION OF VILLAGES — TERRITORY TO BE INCLUDED.

Rev. St. 1899, § 6004 (Ann. St. 1906, p. 3032), authorizes the county court to incorporate a village on a petition "setting forth the metes and bounds of their village and commons, and praying * * * for local government, and for the preservation and regulation of any commons appertaining to any town or village," etc. Held that, though authority is not thus given to include in any village a large body of farming land, where the only apparent purpose is to increase the taxable area, the incorporation of two small towns already platted, including a field of 45 acres between them and an outlying, but contiguous, 85 acres of land, is authorized.

2. CONSTITUTIONAL LAW (§ 278) — DUE PROCESS OF LAW.

That Rev. St. 1899, § 6004 (Ann. St. 1906, p. 3032), providing for the incorporation of villages by the county court on the petition of two-thirds of the taxable inhabitants of the village, does not provide for notice to persons whose lands are to be included does not deprive such persons of their property without due process of law, in violation of Const. art. 2, § 30 (page 166), as they are not thereby deprived of their property, but they are only liable to have an additional protection under the state government extended over their property, and a tax levied to pay the expenses.

3. MUNICIPAL CORPORATIONS (§ 22)—INCORPORATION OF VILLAGES — CONSTITUTIONAL PROVISIONS — CLASSIFICATION.

The purpose of Rev. St. 1899, § 6004 (Ann. St. 1906, p. 3032), authorizing the county court to incorporate towns or villages "whenever two-thirds of the taxable inhabitants of any town or village * * * shall petition" therefor, being the incorporation of villages, as distinguished from larger urban communities, it does not violate Const. art. 9, § 7 (page 260), forbidding the creation of more than four classes of cities and towns, though Rev. St. 1899, §§ 5252-5255 (pages 2749, 2750), enacted pursuant to the constitutional declaration, divides all cities and towns having more than 500 inhabitants into four classes.

4. MUNICIPAL CORPORATIONS (§ 10)—INCORPORATION OF VILLAGES—STATUTORY PROVISIONS.

Since Rev. St. 1899, § 6004 (Ann. St. 1906, p. 3032), authorizes county courts to incorporate towns and villages "whenever two-thirds of the taxable inhabitants of any town or village * * * shall petition" therefor, the jurisdiction of such court to incorporate a village is not derived from or affected by section 5256 (page 2750), providing that "All towns not now incorporated in this state containing less than 500 inhabitants are hereby declared to be villages."

5. WORDS AND PHRASES — "CITIES" — "TOWNS" — "VILLAGES."

There is nothing technical or obscure in the meaning of the words "city," "town," and "village." The word "town" is more comprehensive than either of the others. It is a generic word, applicable as well to a city as to a village. In England a city was distinguished from other towns by the fact that it had a cathedral, and was the residence of a bishop, but in this country the name "city" is used ordinarily to designate the larger class of towns. The name "village" always carries to the mind the idea of a small urban community. A city is a town, and a village is a town, but the word "city" or "village" indicates the size of the town.

In Banc. Original petition in the name of the State, on the relation of H. B. Scott, for a writ of prohibition to Fred Lichte and others, justices of the county court of Montgomery county. Writ denied.

E. Rosenberger & Son, for relator. W. B. M. Cook, R. H. Norton, and Avery, Young & Woolfolk, for respondents.

VALLIANT, C. J.

This is an application for a writ of prohibition to go against respondents, composing the county court of Montgomery county, to prohibit them entertaining jurisdiction of a petition filed in that court, founded on section 6004, Rev. St. 1899 (Ann. St. 1906, p. 3032), praying for the incorporation of a village to be called the "Town of Bellflower." The petition was signed by two-thirds of the taxable inhabitants of the area sought to be embraced within the limits of the proposed corporation, and was in due form; it embraced 460 acres of land; it was filed in the county court May 8, 1908, while the court was in session, whereupon the court made an order continuing the matter until May 13th; on May 12th relator filed his petition in this court, praying a writ of prohibition; this court on that day issued a preliminary rule to the justices of the county court to show cause why the writ should not issue as prayed. On October 13th respondents filed a motion to quash the application and dismiss this suit. The court ordered that the motion be retained, to be considered on the final submission of the cause on its merits, whereupon respondents filed their return, and the court appointed David H. Harris, Esq., a commissioner to take proof on the disputed facts. The commissioner has made his report; relator has filed exceptions to same and the cause now before us for final disposal on the questions of law and facts.

The relator relies on three propositions to sustain his application for a writ of prohibition: First. That the area embraced in the proposed incorporation includes two separate towns, and, of the 460 acres so embraced, 130 acres are lands unplatted, and used only for agricultural and pastoral purpose. Second. Section 6004 is unconstitutional in this: That it makes no provision for notice of the proceeding in the county court, and thereby deprives relator of his property without due process of law. Third. That section 6004, in connection with sections 5252 to 5256, inclusive (Ann. St. 1906, pp. 2749, 2750), is unconstitutional in the face of section 7, art. 9 (Ann. St. 1906, p. 260), of the Constitution, which requires the General Assembly to enact general laws for the organization and classification of cities and towns, and limits the classes to four; that having by sections 5252 to 5255 created four classes of cities, it could not create a fifth class by calling it a village.

1. The facts on which relator's first proposition is based are as follows: For some years prior to the beginning of this controversy there existed the unincorporated platted town of Bellflower, containing originally 80 acres, but afterwards, by additions made from time to time, so extended as to cover 240 acres. Relator bought a tract of 190 acres lying adjacent to and south of the town. After the relator's purchase the Chicago, Burlington & Quincy Railroad was constructed, running diagonally through relator's land from southeast to northwest, and through a small part of the southwest corner of the town. The location of the railroad left a tract of about 45 acres of relator's land in the shape of a triangle north of the track and adjoining the south line of the town. The relator then laid off and platted a town on his own land south of the railroad and called it New Bellflower. His new town was separated from what he calls the old town by this 45-acre triangle, and he has since used that triangle solely for a corn-field.

The following diagram, though not mathematically accurate, will assist in understanding the situation. A very much more accurate map is on file in the case showing the plats of the two towns laid off in lots, streets, alleys, etc., to which reference may be had if desired:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The petition on file in the county court asks that all the land shown on the above diagram, including the two platted towns, the 45-acre triangle, and 85 acres embraced in the dotted lines, aggregating in all about 460 acres, be included in the corporation. Of the 85 acres embraced in the dotted lines, 26 acres in a narrow strip south of the new town belong to relator, the rest to other parties, one of whom is one of the petitioners for the incorporation, and neither of whom is making any resistance to the act of incorporation.

The statute under which the parties seeking the incorporation are proceeding is section 6004, Rev. St. 1899, of which the following is the part of vital interest in this case: "Whenever two-thirds of the taxable inhabitants of any town or village within this state shall present a petition to the county court of the county, setting forth the metes and bounds of their village and commons, and praying that they may be incorporated under a police established for their local government, and for the preservation and regulation of any commons appertaining to such town or village, and the court shall be satisfied that two-thirds of the taxable inhabitants of such town or village have signed such petition, and that the prayer of such petition is reasonable, the county court may declare such town or village incorporated, designating in such order the metes and bounds thereof, and thenceforth the inhabitants within such bounds shall be a body politic and corporate, by the name and style of `The town of ____, naming it,'" etc. Relator interprets that statute to mean that the county court has no jurisdiction to entertain a petition for incorporation that seeks to include in the corporation area any more than "the metes and bounds of their village and commons." Therefore it cannot entertain this petition, which seeks to include the new town, which is no part of the original village, the 45-acre triangle, and the 85 acres outlying, which are no part of the village commons. In support of that interpretation of the statute relator relies on the law as declared by this court in State ex rel. v. McReynolds, 61 Mo. 203. The language used by the court in that case gives strong support to the relator's contention here, but that language must be understood as applied to the facts of that case. That was a proceeding by quo...