The State ex rel. Dickason v. County Court of Marion County

• Decision Date: 21 May 1895
• Citation: 30 S.W. 103,31 S.W. 23,128 Mo. 427
• Parties: The State ex rel. Dickason et al. v. County Court of Marion County et al., Appellants
• Court: Missouri Supreme Court

30 S.W. 103

31 S.W. 23, 128 Mo. 427

The State ex rel. Dickason et al. v. County Court of Marion County et al., Appellants

Supreme Court of Missouri, First Division

May 21, 1895

Appeal from Hannibal Court of Common Pleas. -- Hon. Reuben F. Roy Judge.

Affirmed.

Thomas H. Bacon for appellants.

(1) Neither section 4575 nor its amendments alluded or applied to any railroad matter, or to any railroad aid bonds or indebtedness. (2) Neither section 4575 nor its amendments alluded to or applied to any unorganized township. Art. 9 sec. 8, const. Mo. 1875; ch. 162, art. 2, R. S. 1879; R. S 1889, sec. 8429; Laws, 1883, March 31, 1883, p. 171. (3) Section 4575 and its amendments, so far as effective, operate prospectively only and do not apply to already outstanding indebtedness. State, etc., v. Hays, 52 Mo. 578; State, etc., v. Ferguson, 62 Mo. 77; Riggs v. Goodrich, 74 Mo. 108; State v. Grant, 79 Mo. 113, p. 118. (4) The constitution of 1875 precludes section 4575 and its amendments from expressing application of county funds to payment of railroad aid bonds or indebtedness or to any other purpose, neither a state nor a county purpose, because such subject so expressed would be a distinct and separate subject amending a distinct and separate law, and devoid of any expression thereof in the title of the act. Art. 4, sec. 28; State, etc., v. Jackson, 102 Mo. 531. (5) The constitution of 1875 precludes section 4575 and its amendments from expressing application of county funds to payment of railroad aid bonds or indebtedness, because such law would be a special law and a local law. Art. 4, sec. 53. (6) The constitution of 1875 precludes the devotion of the funds in issue to payment of township railroad aid bonds. Art. 10, sec. 12, "Annual Tax." The alleged indebtedness in issue first became valid in Missouri through enactments and proceedings first therein arising under the constitution of 1875 (Webb v. Lafayette Co., 67 Mo. 353; State v. Holladay, 72 Mo. 499; Dallas, etc., v. Merrill, 77 Mo. 573; Laws, 1879, p. 48; Laws, 1887, p. 26) including popular election votes of two thirds of the voters of Mason township voting on proposition, and they are bound by the constitution of 1875, (State, etc., v. Walker, 85 Mo. 41, p. 46), and, under section 12 of article 10, these compromise or funding bonds could not be paid, except by an annual tax, (State, etc., v. Shortridge, 56 Mo. 126; State, etc., v. Macon, 68 Mo. 69), and under the scope of section 4575, dramshop licensem oney is not a tax (State, etc., v. Hudson, 78 Mo. 304; State, etc., v. Pond, 93 Mo. 606, p. 623) and is not and never was, in Missouri, an annual tax, but an every "six months" levy. R. S. 1889, sec. 4575. State, etc., v. Columbia, 111 Mo. 365, p. 376; Center, etc., v. St. Joseph, 108 Mo. 304; Barnard v. Knox Co., 105 Mo. 304. Appellants make the sharpest possible issue that this section 12 of article 10 governs these funding bonds. The federal constitution precludes the devotion of the funds in issue to payment of township railroad aid bonds. Art. 14, sec. 1, constitution of the United States; art. 15, sec. 2, constitution of the United States.

W. M. Boulware with H. C. Heather, Prosecuting Attorney, also for appellants.

(1) The proviso attached to section 7 of the dramshop law (Laws, 1891, p. 128) has special and significant operation outside all relation to the sale of liquors and the licensing or taxing the same. According to plaintiff's contention, it introduces a new and pregnant matter -- the matter of existing township railroad aid bonds and their payment -- and by provision made in regard thereto amends the Township Aid act of 1868 by the repeal of sections 2, 3, and 4 and the substitution in their place of a new provision for payment. This subject is not expressed, and this operation is not suggested, by the title of the act, and the proviso is invalidated by article 4, section 28, constitution, 1875. (2) If the form of the words employed in the proviso render necessary the construction applying it to the then existing state of the case, then the proviso is a special act and falls within the inhibition of section 53 of article 4 of the constitution of 1875 and is inoperative and void. The difference in the time of the accrual of a township indebtedness, as being before or after the passage of the law, furnishes no reasonable ground or necessity for distinction as to rights, and is not a permissible basis for legislative classification. State ex rel. v. Miller, 100 Mo. 439; State v. Loomis, 115 Mo. 307. (3) As applicable to the bonds in question the general assembly did not have the power to give to said proviso the operative force of law. First. If said proviso should be considered as relating back to, and forming part of, the act of 1868 (which is not possible), then the fact that no election in regard thereto was held in the county of Marion will bring the proviso clearly within the inhibition of section 14 of article 11 of the constitution of 1865. From this conclusion there is no escape. State ex rel. v. Walker, 85 Mo. 45; Webb v. Lafayette Co., 67 Mo. 353. Second. The proviso diverts county public funds and applies them to a purpose which, as to the county, is individual and private. This is true, whether the bonds be considered to represent an indebtedness of Mason township as a quasi municipal body, or as representing an indebtedness of taxpayers or a charge upon the lands therein. The power so to do did not exist under either of the former constitutions of the state. (4) By the proviso, the contract involved in the act of 1868 and expressed by the bonds, is subverted; after full performance on one part, a new recourse for payment is instituted on the other part by the creation of a new obligation and the substitution of a new paymaster, and vested rights of property are abrogated and either transferred or destroyed. A statute operating to affect an existing contract or divest an existing property right, must so do, either by declaring the rule of right applicable to a preexisting state of facts, or by the destruction of the right itself. In the former case the function exercised is judicial, in the latter the act is simply an arbitrary edict -- a wanton expression of despotic power. In neither is it a law. The principle of limitations on legislative power as arising from the source, nature, and office of government, furnishes an all sufficient and ever abiding guaranty of the liberty and property of the citizen. It can not with safety be either set aside or obscured. As recognizing the principle the court is cited to the following authorities: Sec. 32, art. 2, const. 1875; Deal v. Mississippi Co., 107 Mo. 464; St. Charles v. Nolle, 51 Mo. 124; Ass'n v. Topeka, 2 Cent. Law. Jour. 156; Cooley, Constitutional Limitations, [6 Ed.] 484; State v. Loomis, 115 Mo. 307; Gebhow v. Railroad, 17 Blatch. Cir. Ct. 416; Powell v. Sims, 5 W.Va. 1; University v. Williams, 9 Gill & Johns. 365; People v. Marx, 99 N.Y. 377; s. c., 52 Am. Rep. 34; Hams v. McClaws, 1 Bay (S. C.) 98. (5) The proviso falls under the expressed inhibitions of section 15 of article 2 of constitution of 1875. First, it impairs the obligation of the contract involved in section 2 of the aid act of 1868 and expressed in the bonds and, second, it is retrospective in its operation, and affects property rights arising and existing under section 4 of said act. The previous discussion and citation are of significance as bearing upon this point. (6) The proviso is clearly within the inhibition of section 19 of article 12 of the constitution, and also within section 10 of article 1 of the constitution of the United States.

Geo. A. Mahan and F. L. Schofield for respondents.

(1) Although the act of 1868, under which the original township bonds were issued, has been declared unconstitutional (Webb v. Lafayette County, 67 Mo. 353; State ex rel. v. Walker, 85 Mo. 41), still it will hardly be disputed that the bonds now in question are compromise funding bonds issued under valid acts, and therefore represent a valid subsisting indebtedness of Mason township. Sec. 4575 is founded on sec. 4290 R. S. 1879, and sec. 835 R S. 1889; State ex rel. v. Railroad, 101 Mo. 136. (2) But appellants urge that "Neither section 4575 nor its amendments alluded or applied to any railroad matter, or to any railroad aid bonds or indebtedness." The statute itself, we think, sufficiently meets this objection. The language of the statute is "any township that is indebted." It is a mere refinement to argue that an unorganized township can not have an indebtedness, that these railroad compromise funding bonds are not a debt but a mere charge. The legislature manifestly used the words "indebted" and "indebtedness," having in mind this very character of obligation, it being the only obligation for which an unorganized township could be bound. (3) Again, it is contended that "section 4575 and its amendments, so far as effective, operate prospectively only, and do not apply to already outstanding indebtedness." On the contrary we submit that the section, by its very terms, is limited to existing outstanding indebtedness. (4) It is maintained by appellants fourthly that the law in question is violative of artcle 4, section 28, of the constitution, which provides that "no bill * * * shall contain more than one subject, which shall be clearly expressed in the title." This contention has very recently been adjudged against appellants in a case where this section, under the same challenge, passed under review of this court. Lynch v. Murphy, 119 Mo. 163; St. Louis v. Tiefel, 42 Mo. 578; St. Louis v. Green, 7 Mo.App. 468; s. c., 70 Mo. 562; State ex rel. v. Ransom, 73 Mo. 78; Hannibal v. Marion Co., 69 Mo. 571; State ex rel. v. Dolan, 93 Mo. 467; State ex...