Vice v. City of Kirksville

• Decision Date: 06 January 1920
• Citation: 217 S.W. 77,280 Mo. 348
• Parties: GEORGE T. VICE et ux., Appellants, v. CITY OF KIRKSVILLE
• Court: Missouri Supreme Court

217 S.W. 77

280 Mo. 348

GEORGE T. VICE et ux., Appellants, v. CITY OF KIRKSVILLE

Supreme Court of Missouri, Second Division

January 6, 1920

Appeal from Adair Circuit Court. -- Hon. James A. Cooley, Judge.

Reversed and remanded (with directions).

A. G Knight and W. K. Amick for appellant.

(1) The title of said Act of 1905 gave notice only that it was an act providing for the acquisitions of waterworks systems by cities of certain classes, and under certain charters, having certain populations, and a mode of paying therefor by the issuance of bonds and the like, and gave no notice, and not a word of warning or intimation, that such cities and waterworks commissioners would by this Section 21 be relieved of their negligence, and relieved from all acts of tort. This was in violation of Section 28 of Article 4 of the Constitution. Williams v. Railroad, 233 Mo. 677; State v. Burgdoerfer, 107 Mo. 30; State v. Great Western Coffee & Tea Co., 171 Mo. 643; Kansas City v. Payne, 71 Mo. 162; St. Louis v. Weitzel, 130 Mo. 616; State v. Distilling Co., 237 Mo. 103; State v. Gordon, 268 Mo. 713; State v Fulks, 207 Mo. 26; St. Louis v. Wortman, 213 Mo. 131; State v. Rawlings, 232 Mo. 557; State ex rel. Schofield, 41 Mo. 39; State v. Persinger, 76 Mo. 346; Witzman v. Railroad, 131 Mo. 617. (2) By the Constitution of Missouri, Article 10, Section 6, the property exempt from taxation is enumerated, and by Section 7 all laws excluding property from taxation other than the property above enumerated, shall be void, and bonds are not enumerated in Sec. 6, and therefore Sec. 9944, R. S. 1999, exempting waterworks bonds from taxation, is clearly void. State ex rel. St. Louis Co. v. Gordon, 268 Mo. 713; State v. Bengsch, 170 Mo. 81. The city is liable in this case. Stifel v. City of St. Louis, 181 S.W. 577, 579; Curran v. St. Joseph, 264 Mo. 656; Riley v. Independence, 258 Mo. 671; Benton v. St. Louis, 248 Mo. 98; Benton v. St. Louis, 217 Mo. 687; 129 Am. St. 561; Barree v. City of Cape Girardeau, 197 Mo. 382-389, 6 L.R.A. (N.S.) 1090, 114 Am. St. 763; Drake v. Kansas City, 190 Mo. 370-384, 109 Am. St. 759; Conner v. City of Nevada, 188 Mo. 148, 107 Am. St. 314; Ely v. City of St. Louis, 181 Mo. 723; Straub v. City of St. Louis, 175 Mo. 413; Rice v. City of St. Louis, 165 Mo. 636; Dammann v. St. Louis, 152 Mo. 186-196; Donahoe v. Kansas City, 136 Mo. 657; Fuchs v. St. Louis, 133 Mo. 168, 34 L.R.A. 118; Walker v. City of Kansas, 99 Mo. 647.

Campbell & Ellison and A. Doneghy for respondent.

(1) It will be readily conceded that the last subdivision of Section 21 of the Act of 1905, Laws 1905, p. 85, is null and void for the reason that it is in the teeth of Section 6, Article 10, of the Constitution. But it does not follow as a conclusion from such admission that the entire section is void, as the subdivisions are clearly divisible, and one does not depend on the other. The subdivision which makes the bonds non-taxable is clearly divisible from the one which exempts the city from negligence in the operation of the waterworks system. State ex rel. St. Louis v. Gordon, 268 Mo. 713. (2) The title of the act is amply sufficient to cover the provision exempting the city or board of water commissioners from negligence in the operation of the waterworks. The constitutional mandate in regard to the title of a statute does not require a table of contents as a caption to a law. It is sufficient if the title does not mislead as to the chief topic of the act, and that the minor features of it have a reasonable and natural connection with the subject named in the title. State ex rel. v. County Court, 128 Mo. 441; State ex rel. Garresche v. Roach, 258 Mo. 541; O'Connor v. Transit Co., 198 Mo. 622. (3) The subject of the Act is to provide for the acquisition of waterworks by cities, and the title contains only matters germane to the subject, and a provision in the Act exempting the City and the Board of Commissioners from negligence in the operation of the plant, is merely one of the incidents which the Legislature deemed expedient "for the preservation of its revenues," as set forth in the title. Authorities supra. (4) The demurrer was properly sustained for the reason, if none other, that the law (at the time of the alleged injury) was that the city, in the operation of the waterworks (which the petition discloses was part and parcel of the fire department), was not engaged in an imperative ministerial act for private corporate gain, but in a discretionary governmental capacity for the public good, health and safety. In 1909 the positive law of the State declared the waterworks to be a public utility. R. S. 1909, sec. 9914; Laws 1911, p. 352; Commonwealth v. City of Covington, 107 S.W. 231; Mendel v. Wheeling, 28 W.Va. 233, 57 Am. Rep. 665; Cassidy v. St. Joseph, 247 Mo. 197; Stater v. Joplin, 189 Mo.App. 383; McKenna v. St. Louis, 6 Mo.App. 320.

RAILEY, C. Mozley and White, CC., concur.

OPINION

RAILEY, C.

This action was commenced in the Circuit Court of Adair County, Missouri, on March 30th, 1917, by the filing of following petition, to-wit:

"Plaintiffs for their cause of action against the defendant state the following facts:

"That the defendant, the City of Kirksville, at all times in this petition mentioned and now is a municipal corporation and body corporate under the laws of the State of Missouri, and as such is entitled to sue and be sued in the courts of this State, and as such municipal corporation has the legal right to and does own real and personal property, exercising the rights and franchises and performing the functions, offices duties, responsibilities and liabilities of municipal corporations in this State, of the class to which said city belongs and is and was at all times a city of the third class, operating a city government, known as the City of Kirksville, and attempting to exercise the franchises, functions and obligations of such city.

"That plaintiffs are husband and wife and are now and were such at all times in this petition mentioned; that they are the parents of Murle Vice, deceased.

"That said Murle Vice was the infant daughter of the said George T. Vice and Musie L. Vice, plaintiffs, and that said Murle Vice lost her life by drowning in one of defendant's reservoirs in and near the City of Kirksville, Adair County, Missouri, on the 2nd day of April, 1916, and that this suit is prosecuted to recover damages for the loss of the life of the plaintiffs' said child and daughter, Murle Vice, by said plaintiffs, as the parents, to-wit, the father and mother, of said Murle Vice, they being the persons entitled to sue under the laws of this State for the death of the said Murle Vice, caused as alleged by plaintiffs, by the carelessness and negligence of the defendant.

"That the said Murle Vice was a youth of tender years, to-wit, of the age of eleven years at the time of her death. That on the said 2nd day of April, 1916, and long prior thereto, the defendant was the owner and in possession of a certain plot or body of ground, consisting of about five acres, situated about two miles northwest of the center of said City of Kirksville, which was used in a general way as a water plant or part of a water system which was used in the pumping, retaining, clarifying and furnishing of the water and water supply for said city. Said water plant, in addition to being used by said city for fire protection and city purposes, was likewise used, at all times in this petition mentioned, as a private water system and private business enterprise in a proprietary capacity in furnishing water for private consumers for domestic and commercial purposes and to its private citizens, at a stipulated price and water rental, which said private use and proprietary employment yielded said city large sums of money and large income and revenues derived in that manner, and for such use and source and income. That said plot of ground had located thereon a pumping station, and a large reservoir or retaining basin into which the water was pumped by the defendant, connected with other wells and basins and reservoirs which were used for clarifying, and in which the water was treated chemically and piped from one reservoir to others, which said reservoirs, basins and wells were made in the ground and lined, curbed and walled with cement; that one of said reservoirs or basins was called a coagulating reservoir or dead water basin or bin; that the same was practically square and forty or fifty feet across either way and about eight or ten feet in depth and walled with a smooth cement wall sloping slightly to the inside thereof; that said premises was located between the right of way of the Quincy, Omaha & Kansas City Railroad Company on the north side thereof, and the public road running east and west on the south side of said premises; that said premises were unenclosed and were so constructed as to be inviting to children and other persons visiting said premises, and was dangerous to the lives of children frequenting said premises, as well as other persons.

"That plaintiffs' daughter was drowned in what was known as said coagulating reservoir or dead water basin or bin, which will hereafter be designated as the dead water basin.

"That said premises were frequented by many people of said city and others as an outing resort and place of pleasure and amusement and was open to the public and much used and frequented by the public -- men, women and children -- and was so known to the defendant, and had been so frequented visited and used long prior to the said 2nd day of April, 1916, and the defendant, its officers, agents and servants had full knowledge of such uses and habits as hereinbefore alleged and stated. That said reservoirs and water basins and...