The State ex inf. Gentry v. Armstrong

• Decision Date: 06 August 1926
• Docket Number: 27322
• Parties: The State ex inf. North Todd Gentry, Attorney-General, v. Fred L. Armstrong et al., Supervisors of Northwest Maplewood Sewer District of St. Louis County
• Court: Missouri Supreme Court

286 S.W. 705

315 Mo. 298

The State ex inf. North Todd Gentry, Attorney-General, v. Fred L. Armstrong et al., Supervisors of Northwest Maplewood Sewer District of St. Louis County

No. 27322

Supreme Court of Missouri

August 6, 1926

Ouster awarded.

North T. Gentry, Attorney-General, and Geo. W Crowder, Assistant Attorney-General, for relator.

(1) The act violates Section 28, Article IV, Constitution of Missouri, in that it contains more than one subject, and in that the provisions of the act are not clearly expressed in the subject. 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. (2) In any proceeding which has for its purpose the taking of the citizen's property, or the taking of his property rights, whether in whole or in part, the property owner so affected is denied due process of law unless he is accorded the right, by adequate notice, to appear before some designated body or tribunal, and contest every essential step in such proceeding. Holden v Hardy, 169 U.S. 366, 398; Citizens Saving & Loan Association v. Topeka, 20 Wall. (U.S.) 655, 670; Turner v. Wade, 254 U.S. 64; Norwood v Baker, 172 U.S. 269; Embree v. Kansas City Road District, 240 U.S. 242; Jones v. Yore, 142 Mo. 38; Barber Asphalt Co. v. Ridge, 169 Mo. 376; St. Louis v. Railway, 211 S.W. 671. (3) The entire scheme of financing the improvements contemplated by the act challenged in this cause is based upon special taxation. While the form of the authority is for the levying of general taxes, the levies, in fact, constitute special taxation for public improvements, and the act can be upheld on no other theory. Laws 1925, p. 349, secs. 10, 11, 12. (a) The tax authorized to be levied for organization expenses is based on the square of lands within the district, the maximum rate being 20 cents for each 100 square feet of each tract or parcel of land, and no hearing is provided for to the property owner prior to the levy of this tax. Laws 1925, p. 347, sec. 7. (b) The tax defined by the act as "maintenance tax" which is authorized to be levied annually after the improvements are completed, "for the purpose of defraying the current expenses of the district," is likewise a special tax levied upon lands, instead of being levied upon all property generally within the district, and no hearing is accorded to the property owner for this form of tax. Laws 1925, p. 365, sec. 36. (4) The act impairs the obligation of contracts in the matter of re-assessment of benefits and damages from time to time, making possible the reduction of taxes to such an extent that the amount produced would be insufficient to take care of interest and sinking fund requirements on bonds issued by the district. Laws 1925, p. 366, sec. 37; Constitution, art. 2, sec. 15; Constitution of United States, art. 1, sec. 10.

Seneca C. Taylor and Wm. J. Kiely, amici curiae.

(1) It took a constitutional provision to separate the city of St. Louis from St. Louis County, and it will require something of a like kind to change the present situation. (2) If situations arise which require local or special legislation, then Sec. 54, Art. IV. of the Constitution, applies, and this section requires published notice for at least thirty days before such a bill can be introduced in the Legislature. The purpose of this was to give all persons interested a right to appear and be heard before the enactment of the law. It is a sensible restriction, and applies to this case. (3) This Act of 1925 applies solely to St. Louis County. If sewer districts can be organized as are drainage districts, then there is no reason why a general law cannot be passed to provide for the organization of such sewer districts in the rural sections. No reason appears for having sewer districts in St. Louis County organized differently from sewer districts in other counties. In this matter the Legislature cannot single out one county alone, as has been done here. The law is special and local, and no notice of its intended introduction was given. It is special and local, because a general law could be made applicable to sewer districts. The act clearly violates both Secs. 53 and 54 of Art. IV of the Constitution.

E. L. Rothganger, amicus curiae.

(1) Said act is a special and local law, violative of Section 53 of Article IV of the Constitution, which forbids the enactment of any special or local law where a general law can be made applicable. (2) The law is arbitrary and unreasonable. (3) A special and local law was passed without notice of thirty days before introducing the bill thereof, as provided in Section 54, Article IV, Constitution of Missouri.

Richard F. Ralph, J. H. Haley, C. G. Baxter, Arthur V. Lashley, Jesse L. Harnage, Greensfelder, Dyott & Grand, Martin J. Rassmussen, L. A. Prichard and Charles & Rutherford for respondents.

(1) Whenever a statute is attacked the courts approach the subject with caution. State ex rel. v. Aloe, 152 Mo. 477; Ex parte v. Loving, 178 Mo. 203. (2) Sewer laws and drainage laws are legally in the same class. And sewer laws, unless clearly unconstitutional, are uniformly upheld. Mound City Land & Stock Co. v. Miller, 170 Mo. 240, 251; St. Louis v. Oeters, 36 Mo. 456; Kansas City v. Ridenour, 84 Mo. 253; St. Joseph v. Owen, 110 Mo. 445; Heman v. Allen, 156 Mo. 534; Heman v. Schulte, 166 Mo. 409. (3) The Sewer Act is not violative of Section 12 of Article X of the Constitution, in that it authorizes the issuance of bonds without the assent of two-thirds of the voters of the district voting at an election held for that purpose. Bonds authorized by this act are not secured by ad valorem taxes, but by special assessments, and do not come within the provisions of Section 12 of Article X. Morrison v. Morey, 146 Mo. 564; State ex rel. v. Little River Drain. Dist., 291 Mo. 277; In re Birmingham Drainage Dist., 266 Mo. 60-68; Houck v. Little River Drain. Dist., 248 Mo. 373; Meier v. St. Louis, 180 Mo. 408; Farrar v. St. Louis, 80 Mo. 379; St. Joseph v. Owen, 110 Mo. 445; Mobile Co. v. Kimball, 102 U.S. 691; Levee Co. v. Hardin, 27 Mo. 495; Cooley on Taxation (1 Ed.) p. 444; Construction Co. v. Railroad, 206 Mo. 179; Page & Jones on Taxation by Assessment, sec. 147. (4) The act does not violate Section 28 of Article IV of the Constitution. The subject is single, and the provisions of the act are clearly indicated in the title. State v. Doerring, 194 Mo. 398; State v. Murlin, 137 Mo. 297; St. Louis v. Tiefle, 42 Mo. 578; Dickason v. County Court, 128 Mo. 427; State ex rel. v. Miller, 100 Mo. 439; Lynch v. Murphy, 119 Mo. 163; Cox v. Railroad Co., 174 Mo. 588; Asel v. City of Jefferson, 287 Mo. 195; State ex rel. Drain. Dist. v. Hackmann, 305 Mo. 685; O'Connor v. Transit Co., 198 Mo. 622. (5) There is no denial of due process. Laws 1925, secs. 3, 4, 11, 12, 29, 30, 34, 37. (a) The provisions of the act with respect to notices and hearings are practically identical with the corresponding provisions of the Circuit Court Drainage Act (Art. 1, Ch. 28, R. S. 1919). The latter has frequently been attacked on this very ground, but always sustained by this court; as, for example, in Elsberry Drain. Dist. v. Harris, 267 Mo. 149; Houck v. Little River Drain. Dist., 248 Mo. 273. (6) The act is not violative of Section 53 of Article IV of the Constitution forbidding the enactment of special or local laws. (a) This legislation rests upon an appropriate and logical and legitimate classification by population. State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Marion Co., 128 Mo. 427; State ex rel. v. Arnold, 136 Mo. 446; Owen v. Baer, 154 Mo. 434; State ex rel. v. Mason, 155 Mo. 486; Ex parte v. Lucas, 160 Mo. 218; State ex rel. v. Keating, 202 Mo. 197; State ex rel. v. Wurdeman, 254 Mo. 561; State ex rel. v. Southern, 265 Mo. 275; 36 Cyc. 1004; State ex rel. v. Hedrick, 241 S.W. 402; State ex rel. v. Hartmann, 253 S.W. 911. (b) The act is valid because its subject-matter furnishes the basis for the classification. Cases supra. (c) The act is valid because it rests upon the classification, as to subject-matter, growing out of the necessities of the situation. Cases supra. (d) St. Louis County is a constitutional county, under Section 20 of Article IV, in the same way that the city of St. Louis is a constitutional city, and the General Assembly may legislate for said county in any appropriate special case just as it does for the city of St. Louis. (7) The act is not void because it contains a provision for a reascertainment and adjustment of benefits. The courts everywhere recognize the general power to reassess, and for several different reasons. Lambord v. West Chicago Park Co., 181 U.S. 33, 45 L.Ed. 731; Bellingham Bay & British Col. Ry. v. New Whatcom, 172 U.S. 314, 43 L.Ed. 460; Shiloh Street, Wilson's Appeal, 152 Pa. St. 136; Haubner v. City of Milwaukee, 124 Wis. 153, 101 N.W. 930; Ede v. Cuneo, 126 Cal. 167, 58 P. 538; State v. Township of Kearney, 48 N. J. 125.

Robert A. Roessell and Robert C. Powell, amici curiae.

(1) Section 53, Article IV, of the Constitution, does not prohibit the General Assembly from passing a statute affecting one class in particular where a necessity exists justifying this distinction. Ex parte Loving, 178 Mo. 194; State v. Swagerty, 203 Mo. 523; State ex rel. v Mason, 155 Mo. 505; State ex inf. v. Ins. Co., 150 Mo 136; State ex rel v. Arnold, 136 Mo. 450; State ex inf. v. Heidrick, 241 S.W. 419; State ex inf. v. Southern, 265 Mo. 75; State ex rel. v. Miller, 100 Mo. 448; State ex rel. v. Roach, 258 Mo. 563. (a) Whether such a necessity obtains or not is a judicial question to be determined by the courts. Cases supra. (b) The instant case comes clearly and forcibly within the meaning of the constitutional...