Owen v. Baer

SEPARATE OPINION.

GANTT, C. J.

In my opinion the discussion of the previous decisions of this court in the Dorr, Scarritt, Mumane and like cases, is .not necessary to the proper disposition of this case.

The Legislature of Missouri, in obedience to the plain constitutional mandate contained in section 7 of 'article 9 of the Constitution of 1875, provided for the organization and classification of cities and towns, and made four classes. Westport, by virtue of those laws became a city of the fourth class, and was such when the act of 1893 was enacted.

The title of the act of 1893 is as follows: “An Act concerning’ sewers and drains for cities in the State having special charters which now or hereafter contain more than two thousand and less than thirty thousand inhabitants, and for cities of the third and fourth class.” [Laws 1893, p. 101.]

Section 7 of article 9 of Constitution provides that “the power of each class” [of cities or towns] “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.”

This act is one which undertakes to grant powers to cities of the fourth class, which they did not possess under.their general statutory charter previous to 1893.

If the act of 1893 had omitted the proviso that cities of the fourth class could avail themselves of the power conferred only when two-thirds of the qualified voters of such cities voted in favor of adopting the provisions of the act, no one could doubt that the law was not only a general law, but that it also cqnformed to the constitutional requirement of legislation by classification.

Has the proviso enabled one or more cities of the fourth class to acquire powers not possessed by others of that class, and thus violated the command of section 7 of article 9 of the Constitution?

The proposition is that because Westport and other cities of the fourth class have voted to avail themselves of the power conferred by this act, whilst other cities of the fourth class have not, or may not elect to do so, the inevitable result is that cities of this same class do not have the same powers, and thereby the prohibited result has been indirectly reached.

It is admitted that the tax bill in this case was issued under the act of 1893 and not under the act of April 11, 1895, which is not open to the objection now being considered.

It must be conceded, I think, that if the act of the Legislature had on its face conferred upon Westport, alone, of all cities of the fourth class, this power to issue special tax bills in payment of district sewers and withheld that power from other cities of the fourth class, it would have been a palpable violation of section 7 of article 9 of the Constitution, which requires that all cities of the ■same class shall have the same powers and be subject to the same réstrictions.,,

The purpose of classification would be nullified if the Legislature could take one city out of its class and endue it with powers not granted to all the others. The object to be attained by the seventh section of article nine of the Constitution was well understood when the people adopted that instrument as the organic law of the State. In a word, it was to produce uniformity in the municipal charters of the State, so that the city officials and citizens-alike should know the law Applicable to municipal corporations and their limitations, and to prevent a multiplication of charter’s, each different from the others, and also to relieve the Legislature of a tribe of individual tmkerers who were constantly seeking changes in the charters of various cities and -towns, too -often for their own personal aggrandizement. Its design was that any citizen or any lawyer whether in or out of the State, who desired to know the powers and restrictions of a given city -could asoertain them by reading the general law of the State governing such class.

Section 7 of 'article 9 of the- Constitution was further re-enforced by section 53 of article 4 which placed certain limitations upon the general power of legislation otherwise conferred upon the legislative- branch of the State government, and expressly prohibited the Legislature from passing any local or special law “incorporating cities, -towns, villages, or changing their charters.”

D-oes this act destroy the uniformity of powers of cities of the fourth class? It is most strenuously insisted that because it is a general act and therefore not a violation of section 53 of article 4 of the Constitution, it is necessarily valid. I agree that it is now too late to disturb the long line of decisions in this State which uphold the power of the Legislature to enact a law which in itself is a -complete rule of conduct, but which only becomes applicable in a given county or city when such county or city elects by a vote of its electors to avail itself of the privileges granted by such a law. Such laws have long withstood the objection -that -they are an unauthorized delegation of the law-making power. [State v. Binder, 38 Mo. 450; Opinion of the Judges, 55 Mo. 295; State ex rel. v. Pond, 93 Mo. 606; Ex Parte Swann, 96 Mo. 44; State v. Moore, 107 Mo. 78; State v. Searcy, 111 Mo. 236; State v. Watts, 111 Mo. 553; State v. Wingfield, 115 Mo. 428.]

If there was no other provision of the Constitution governing the case in hand, I might well assent to the conclusion that this was a general law when it left the hands of the General Assembly and before any city had exercised its option of availing itself of the said act, but it seems to me with all due respect to my learned brother that the question here is not whether this is a special or general law, but whether conceding that it. is otherwise good as a general law, the question remains, does it violate that specific provision of the Constitution found in section Y of article 9 of the organic law which requires that all cities of the fourth class shall have the same powers and be subject to the same restrictions ?

It is urged that it is inconsistent to say that it is a general law 'and yet unconstitutional because it violates section Y of article 9 of the Constitution, but my understanding is that full force and effect must be given to all parts of .the organic law, and while the law may be general in form, still if in another particular it collides with another express provision of the Constitution, 'there is no inconsistency in holding it invalid because of the latter vice..

In support of the act of 1893 it is said when it left the hands of the Legislature it conferred the same powers upon all cities of the fourth class, but is it not plain that this is true only until such time as one of said cities adopted its privileges, and the moment it availed itself of the act, that instant i-t became possessed of powers different from others of its class? It is true that if no city of the fourth class ever adopted it no diversity of powers would follow its enactment, but just as soon as Westport or any other city of the fourth class acting for itself chose to avail itself of the privilege granted to construct sewers and make their cost a special improvement tax chargeable upon the individual taxpayers of the designated sewer district, such city brought about that difference in the powers of cities of its class which the Constitution forbade.

Gan the Legislature in this indirect way accomplish what the Constitution prohibits it from doing directly?

Such a construction imports an exception into the Constitution which its framers refused to permit. When the Constitution says that all municipal corporations of the same class shall have the same powers it means what it says, and not that all of the same class shall have the same powers except such as elect to have different powers, the Legislature consenting thereto.. The limitation was placed on the Legislature and is expressed as clearly as language can define human thought and purpose.

That the result of all legislation for the several classes of cities was the object which the convention had in view is obvious. It says “the power of each class shall be defined by general laws,” so that “all municipal corporations of the same class shall have the same powers.” In a word; pass general laws for the government of each class, but see to it that when your laws go into effect, the consequence shall be that each class shall at all times have the same powers and be subject to the same provisions, that is to sav, you shall not go ■through the form of passing general laws which nominally confer the same powers upon a given class, but which inevitably produce diverse powers the moment such laws are put into practical operation. How can it be said that when this act went into effect in Westport, and did not go into operation in all those cities of the fourth class which declined to avail themselves of it, that it was- uniform in all cities of the fourth class. It certainly can not he saved by the suggestion that it was possible for all cities -of that class to adopt it and thereby again bring about -the uniformity which the adoption by some and neglect to adopt by others had destroyed.

The purpose of -the Constitution was that the laws enacted for each class should have uniform operation, not uniformity only so long as they should, lie dormant and unexecuted. The uniformity of the laws for each class was not to be 1-eft to the chance that all of the same class would adopt them, but the command of the Constitution was and is that the uniformity should be produced by a fixed rule prescribed by the Legislature which would operate alike in every city of the same class.

Such is the construction of similar provisions in other states. Thus in People ex rel. v. Cooper, 83 Ill. loc. cit. 590, 591, Mr. Justice Schofield, speaking for the court said, “We think it necessary to add, that it is the substance, and .not the mere form given to the enactment, which must determine its constitutionality. If the act must necessarily produce a result clearly and unquestionably forbidden by the Constitution, it can not be upheld, whatever may be its form or profession. It is not admissible, either by the letter or the spirit of the Constitution, that dissimilarity in character of organization or powers, in municipalities of the same class or grade, shall be created or perpetuated by enactments of the General Assembly.” See, also, McConihe v. State ex rel. McMurray, 17 Fla. 238; State ex rel. v. Copeland, (Minn.) 69 N. W. Rep. 27.

In my opinion therefore the Act- of 1893 is unconstitutional and creates a dissimilarity in the powers of cities of the fourth class, in defiance of section 7 of article 9 of the Constitution, requiring uniformity in the laws governing each class of cities.

Moreover, the Act of 1893, creates a new or fifth class of cities, to-wit, that class which should exercise its option to avail itself of the Act of 1893, and thereby have the powers therein granted 'and necessarily different from Ml the other cities of its previous class which did not exercise that option, •whereas the Constitution limits the power of the Legislature to the creation of four classes only.

I do not agree to the conclusions my brother Marshall draws from the decisions of this court. I do not agree that the Legislature can pass a special or local act amending the charter of a city as to its municipal affairs by conforming to section 54 of article 4 of the Constitution as to notices, etc. On the contrary I think section 53 of said article positively prohibits such an act under any circumstances.

Having considered the ease as best I could in the time I have had, I think the judgment of the circuit court holding the tax-bills void, should be affirmed.

Robinson and Yalliant, JJ., concur in my views.