Ward v. Robert J. Boyd Paving & Contracting Co.

• Decision Date: 04 January 1897
• Court: U.S. District Court — Western District of Missouri
• Parties: WARD v. ROBERT J. BOYD PAVING & CONTRACTING CO. et al.

79 F. 390

WARD v. ROBERT J. BOYD PAVING & CONTRACTING CO. et al.

United States Circuit Court, W.D. Missouri, Western Division.

January 4, 1897

Wash Adams and Hugh C. Ward, for complainant.

Karnes Holmes & Krauthoff, for defendants.

PHILIPS District Judge.

This is a bill in equity to enjoin the collection of certain tax bills issued by the city of Westport, in Jackson county, Mo as a special tax assessed against complainant's property for the construction of a district sewer. The city of Westport is alleged to be a city of the fourth class organized under the statutes of the state. The construction of the sewer in question was directed by an ordinance of the city, duly adopted, and the imposition of the special tax for the payment thereof was also authorized by ordinance of the city. This tax is claimed, by the holder of the certificates therefor, to be a special lien on a large amount of real estate in the hands of the complainant, as receiver of the Mastin estate, which it is alleged the respondents are threatening to enforce, and which constitutes a cloud upon the title to said property. It is further alleged in the bill that the basis of the action taken by said city in having said work done and said tax certificates issued is an act of the general assembly of the state of Missouri, entitled 'An act concerning sewers and drains for cities in the state having a special charter which now or hereafter contains more than 2,000 and less than 30,000 inhabitants and for cities of the third and fourth classes,' approved March 18, 1893. The contention of complainant is that this act is in contravention of the constitution of the state, and he therefore seeks to enjoin the collection of and have the tax certificates declared invalid. To this bill the paving company has interposed a demurrer, which has been submitted to the court on briefs of counsel.

Section 7 of article 9 of the state constitution is as follows:

'Sec. 7. Cities and Towns, Organization and Classification. The general assembly shall provide by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the power of each class shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. The general assembly shall also make provisions, by general law, whereby any city, town or village existing by virtue of any special or local law, may elect to become subject to and be governed by, the general laws relating to such corporations.'

This provision of the constitution is both mandatory and prohibitory. Its command is not only that the legislature shall provide for the organization and classification of all cities in the state, but such provision must be by general laws, not special enactments. It then commands the classification of such cities, and interdicts the creation of more than four classes. It further commands, not only that the legislature shall define the restrictions and powers of each of said classes, but also that this shall be done by general law. It then proceeds to declare the purpose of the convention in making this requirement to be 'so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. ' The clear intent of which is to prevent the multiplication of classes of municipalities, and the giving to one within the same class different powers or functions, and imposing upon any one restrictions different from those in the same class or division. In short, it is to secure absolute uniformity, by general law, applicable to all the given classes, respecting the faculties with which they might be endowed, and the limitations placed upon their functions by the legislature; so that any person, anywhere, desiring to ascertain what are the powers and restrictions of any one city of a given class in the state, could be advised thereof by looking at the 'general law' defining such powers and restrictions.

The legislature, in conformity with the constitutional requirement, proceeded to make the classification found in chapter 30, p. 303, Rev. St. Mo. 1889, as follows:

'Sec. 972. Cities of First Class. All cities and towns in this state containing one hundred thousand inhabitants or more shall be cities of the first class.

'Sec. 973. Cities of Second Class. All cities and towns in this state containing thirty thousand and less than one hundred thousand inhabitants shall be cities of the second class.

'Sec. 974. Cities of Third Class. All cities and towns in this state containing three thousand and less than thirty thousand inhabitants, which shall elect to be a city of the third class, shall be cities of the third class.

'Sec. 975. Fourth Class. All cities and towns in this state containing five hundred and less than three thousand inhabitants, and all towns existing under any special law, and having less than five hundred inhabitants, which shall elect to be cities of the fourth class, shall be cities of the fourth class.

'Sec. 976. Villages. All towns not now incorporated in this state containing less than five hundred inhabitants are hereby declared to be villages.' Section 977 makes provision for cities existing by virtue of the present general law, or by local or special law, electing to become of the class to which its population entitles it, under the provisions of this article.

It is admitted that the city of Westport is a city of the fourth class, organized under the statute of the state. The statute (article 4 of said chapter) makes detailed provision concerning the construction of sewers in cities of the third class. Article 5, which makes general provision for the government of cities of the fourth class, is quite meager as to any detailed provisions on the subject of sewers. The power to construct them arises by implication, or rather seems to have been assumed by the legislature. Section 1589, after enumerating various powers to be exercised by the city, contains this clause, 'To pass such ordinances, not inconsistent with this article, as may be expedient in maintaining the peace and good government, health and welfare of the city,' from which, possibly, it might be assumed that as, by general consensus, the construction of sewers and proper drainage is essential to maintain the public health, authority to construct them is within the terms of the grant. Section 1592 declares, inter alia, that 'all special tax bills issued as herein provided for special assessments for paving, macadamizing, curbing, guttering, grading, excavating, building, and repairing streets, alleys, avenues, and sidewalks, as well as sewers,' etc. On the 11th day of April, 1895 (Laws Mo. 1895, p. 66, which went into effect on the date of adoption), the legislature enacted a general law respecting the government of cities of the fourth class, which sets out in detail the powers of such cities, conferring in express terms the power, in section 75, to cause a general sewer system to be established, composed of three classes of sewers, to wit, public sewers shall be constructed, and as to their dimensions, and further provides for the levying of a tax on all property made taxable for said purpose over the whole city to pay therefor; and the succeeding sections provide for a system of district sewers, and the mode of construction, and the manner of paying therefor. So that this act and the one in question were in force at the time of the adoption of the ordinances of the city of Westport under which it is alleged the work in question was inaugurated.

The bill charges, and the arguments of both parties concede, that said ordinances were adopted pursuant to the provisions of said act of 1893. The first section of this latter act declares that:

'In every city in this state having a special charter which now or hereafter contains more than two thousand and less than thirty thousand inhabitants, and in every city in this in this state of either the third class or of the fourth class, the acting municipal authorities thereof, upon a vote by ballot of two-thirds of the qualified voters of such city, voting at an election held for that purpose, in favor of adopting the provisions of this act, shall have the power by ordinance to provide drains and sewers for the same, and to enforce and regulate connections therewith; and every such city shall, on the written petition of the resident owners of a majority of the front feet of ground in sewer districts to be established as hereinafter provided, or when such municipal authorities shall deem any sewer necessary for the protection of the public health, have power to accept and acquire by gift, devise, purchase of by condemnation proceedings, both within and beyond the territorial boundaries of such city, the right of way for drains or sewers, and the use of natural water courses of drainage for public drainage and sewer and purposes for such city.'

In disregard of the provisions of said section 977 of the Revised Statutes, and regardless of the special charters under which cities may have been organized, the powers thereby conferred, and the restrictions thereby imposed, the first section of the act of 1893, by way of amendment to such special charters, declares that, in every city having a special charter which now or hereafter contains more than 2,000 and less than 30,000 inhabitants, authority is given by a vote of two-thirds of the qualified voters to construct sewers, with all the powers and privileges conferred by this special act; thus, in effect, creating a fifth class composed of special chartered cities of a special population. In the...