The State ex rel. Moody v. Wardell
| Decision Date | 23 December 1899 |
| Citation | 54 S.W. 574,153 Mo. 319 |
| Parties | THE STATE ex rel. MOODY, Collector, Appellant, v. WARDELL |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.
Affirmed.
J. D Sparrow and Ben Eli Guthrie for appellant.
(1) Under the act of April 11, 1895 (Laws 1895, p. 259), the instructions asked by plaintiff should have been given. The passage of that act ipso facto added to the school district the territory lately annexed to the city. Litson v Smith, 68 Mo.App. 397. (2) Section 1466, R. S. 1889 is a valid statute. The power to extend is in no way dependent upon the proviso relating to exemption. The exemption also applies to all forty-acre tracts "in such city" and not simply to those in "such extension." Constitution, art. X, secs. 3, 4; Westport v. McGee, 128 Mo. 162. (3) The unconstitutionality of said section is wholly immaterial in this case. The section originally appeared in the Laws of 1877, section 2, page 158, without any proviso whatever. Thence it was carried up without change into the revision of 1879, becoming section 4828. It was next re-enacted in 1887, and still without the proviso. (Laws of 1887, sec. 2, p. 66.) In the revision of 1889 it appears as section 1466 with the proviso attached for the first time. If this revised section be unconstitutional, then the law of 1878 is the law of the land and was such in March, 1892. The revision of 1889 does not undertake to repeal any prior law. Copeland v. St. Joseph, 126 Mo. 430; Westport v McGee, 128 Mo. 163; State v. Thomas, 138 Mo. 99. And these cases are supported and re-enforced by sections 6606 and 6607, R. S. 1889. (4) Defendant had acquired no right under the general law to remain a resident of district 6, nor to be taxed for the year 1895 at the school rate fixed in that district. The law invested him with no such immunities. The right of the Legislature to extend the limits of Macon special district by curtailing the bounds of district 6 had been in no wise impaired, but such right remained in proprio vigore. Defendant was liable to school taxes for 1895 in some district. The rate was a future contingency dependent upon the assets and liabilities of the district he may find himself in at taxing time. In order to be vested, a right must be fixed, certain and complete. Meyer on Vested Rights, secs. 13, 15, 19, 24 and 316.
Dysart & Mitchell for respondent.
The only section in existence for the extension of the boundaries of a city of the third class in 1892 was section 1466, Revised Statutes 1889. That section was unconstitutional and void, because of a proviso therein exempting certain lands taken in by the extension from taxation. Copeland v. St. Joseph, 126 Mo. 427; Barr v. Flinn, 20 Mo.App. 383; Bird v. Sellers, 113 Mo. 593; Bird v. Sellers, 122 Mo. 32; Westport v. McGee, 128 Mo. 162; Blodget v. Schaffer, 94 Mo. 672. (2) A school district is a municipal corporation. And a change of the city limits, prior to the act of 1895, did not affect the boundaries of an adjoining district. If the defendant was a resident of the Macon school district he was made so by the act of 1895. School District v. Goodding, 120 Mo. 67.
This is a suit by the collector of Macon county to recover of defendant $ 1,324.38, the amount of a certain tax bill for school taxes alleged to be due and owing to the city of Macon for the year 1895.
The answer is a general denial and that the defendant was not a resident of said city of Macon or of said special school district. It is conceded that prior to 1892, the city of Macon existed under a special charter, passed by the Legislature in 1872.
In 1891 said city surrendered its special charter and organized and became a city of the third class under and pursuant to the general statutes of Missouri.
During the time said city was under its special charter and at the time it became a city of the third class, defendant did not reside in said city, but lived on farming lands outside of its limits, and was a resident of School District No. 6, township 57, range 14, a country school district adjoining the city of Macon on the west. In the spring of 1892 the city of Macon by an ordinance and a vote of the voters of said city undertook to extend the limits of said city, by which proposed extension defendant's residence was taken in if said extension was valid, and was not taken in if the extension was invalid.
It is, moreover, admitted that even if said extension was valid it did not have the effect in law of changing the lines of School District No. 6, or to cause defendant to become a resident of the school district of Macon. [School District v. Goodding, 120 Mo. 67, 24 S.W. 1034.]
I. In the circuit court defendant insisted he was not a resident of the school district of Macon, because the extension of the limits of said city in 1892, was attempted under an unconstitutional law and was void.
If this objection was good, it will be unnecessary to examine the other grounds upon which the case was decided.
The defendant insists that section 1466, Revised Statutes 1889, was the only act by virtue of which cities of the third class in 1892 could extend their limits, and that the power to extend the boundaries of such cities was made dependent upon the proviso in said section "that all agricultural or pastoral lands included in such extension shall be exempt from taxation for city purposes until they have, by recorded plats or sale, been reduced to tracts or lots of ten acres or less."
This court held in Copeland v. St. Joseph, 126 Mo. 417, 29 S.W. 281, that section 5 of the Act of 1887 (Laws 1887, p. 53), containing a proviso identical in principle with the proviso in section 1466, was void because by the 10th Article of the Constitution of this State, sections 1 to 7 inclusive, taxes are required to be uniform upon the same class of subjects within the territorial limits of the authority levying the tax and all laws exempting property other than that enumerated in the Constitution are void. It was urged upon us then, as now, that so much of the section as authorized the extension could be held valid notwithstanding the proviso was in conflict with the Constitution, on the recognized doctrine that part of an act may be unconstitutional without necessarily invalidating the remainder of the act and the remainder of the law will be enforced provided the invalid part was not the consideration for the passage of the whole law. In Railroad v. Evans & Howard Brick Co., 85 Mo. 307, it was said: "Sometimes a statute is unconstitutional in part and constitutional as to the residue, and if the unconstitutional part is not inseparably connected in substance with that which is valid and complete in itself, and capable of being executed in conformity with the apparent legislative intent, regardless of that which is rejected, the unconstitutional part may be regarded as stricken out," but in Copeland's case, supra, we held that the proviso was not an immaterial part of the section so far as it related to extension of the city limits, but
When Copeland's case came again under review in Westport ex rel. v. McGee, 128 Mo. 152, 30 S.W. 523, we re-affirmed the foregoing statement.
It appears to us now, as it did then, that when territory is included within a city it becomes subject to municipal taxes just as all other real estate within said limits, and our Constitution absolutely requires uniformity of taxes within said city, and as this character of property does not fall within any of the exceptions enumerated in section 6 of article X of the Constitution, its attempted exemption is void. [Section 7, art. X, Constitution.]
It is contended, however, by the plaintiff that the decision of this court in Westport ex rel. v. McGee, 128 Mo. 152, 30 S.W. 523, greatly modified the views expressed in the Copeland case.
We think the distinction is obvious. In Copeland's case, the right of extension was predicated upon the unlawful exemption, and it was patent that but for the exemption the Legislature would not have granted the power. Whereas in the Westport case, we pointed out "that no condition is annexed, and no proviso added, by which the power of the city over any territory annexed is curtailed" under the act in that case under consideration. In that act there was an attempt to exempt not the lands sought to be included by extension only, but "all tracts of agricultural lands in said city, which exceeded five acres in area." We...
To continue reading
Request your trial