| Mo. | Mar 15, 1850
Lead Opinion
The first question I shall examine in this case, is whether the 17th section of the 7th article of the charter of St. Louis, approved February 15, 1841, was continued in force bv the .act of February 8, 1843. The 24th section of the last article of the last named act contained this provision : “All acts and parts of acts, contrary to and inconsistent with the provisions of this act, or within the purview thereof, except the seventeenth section of the act entitled ‘an act to amend an act to incorporate the city of St. Louis,’ approved 8th Feb., 1839, are hereby repealed.”
The act of 1841, which is here referred to by its title, contains seven articles and three sections numbered seventeen. That the Legislature intended to re-enact or continue in force one of these three sectious is unquestionable, and if we can, with reasonable certainty, ascertain which of the three was intended, there can be no doubt of the duty of the court to carry out the intention of the Legislature. If, however, it is impossible to ascertain, with reasonable certainty, which of these sections was designed, the exception must fall, and the continuance in force of the 17th section of the 7th article of the charter of 1841, must then depend upon the question, whether it is inconsistent with, or contradictory to, or within the purview of the act of 1843.
The first section numbered seventeen in the act of 1841 occurs in the 2nd article, and is re-enacted word for word in the corresponding section of the corresponding article of the act of 1843. That section is clearly out of the question.. The second numbered seventeen is to be found in the 4th article of the act of 1841, and is as follows : “Whenever there shall be a tie in the election of city officers, the judges of election shall certify the same to the mayor, who shall issue his proclamation,” &c. This section is omitted in the corresponding article of the act of 1843 and the subject of a tie in the election of these city officers is not provided for. The only other 17th section in the act of 1841 occurs in the 7th article, and it is as follows : “The common council shall within twelve months from the passage of this act, cause to be graded and macadamized, the carriageway of Broadway, south Seventh, Washington avenue, and Market streets, twenty-five feet wide, from the boundaries of the city established by this act, to the nearest point macadamized within the present limits of the city, and until such carriageways aforesaid are made and completed, the lots and grounds beyond the present limits of the city shall not be taxed for city purposes, more than one-sixteenth of one per cent.”
We are satisfied that the last named section is the 17th section referred to in the act of 1843, and this opinion is not derived from mere conjecture, but as it seems to us, is attended with as much certainty as is requisite to authorize the courts to carry out the intentions of the Legislature in the construction of their acts.
In the first place, it is to be observed, that the section of the act of 1843 which makes the provision or reservation which is the subject of inquiry, is found in the last article of the act, under the head of miscellaneous provisions, and the 17th section of the act of 1841, which provides for the grading and paving of certain streets as a condition precedent to the exercise of the taxing powers of the city .beyond a certain limit over the citizens of the district annexed by that charter, is found in the corresponding article of the act of 1841, having the same caption. The 17th .section of article 4, in the act of 1841 related to a subject which had been legislated on in the corresponding article of the act of 1843. It would have been a strange and singular circumstance, for the Legislature in 1843, to have passed by the subject of a tie in an election, when legislating on the subject in the 4th article, and then at the conclusion of the law, and under the head of miscellaneous provisions, to insert a section, the object of which was to regulate a matter about which they
But again, the seventeenth section of the 4th article of the act of 1841 is an unimportant one; it is a provision for a contingency, which rarely happens and which is therefore very frequently left unprovided for in laws which relate to popular elections, and if the contingency should happen, no inconvenience or hut little is likely to result from the want of a special provision. General principles of law will point out the course which must be taken in such contingencies.
There is however a third reason which must still more forcibly influence the judgment, in the conclusion, that the seventeenth section of the 7th article, and not the seventeenth section of the 4th article, was intended. The former is obviously in the nature of a stipulation or contract, in which the new cor-porators are deeply interested. The duties imposed by that section upon the corporation are manifestly the consideration which induces these citizens to consent to have their property taxed beyond their previous liabilities. At all events, it is the consideration which induces the Legislature to authorize the enlargement of the corporate limits and embrace these citizens within those limits, whether with or without their consent. Ho court would presume the repeal of such law. It cannot be repealed by mere implication. Statutes affecting the rights of private individuals must be construed strictly. A blunder of a clerk is not te deprive citizens of their rights solemnly guaranteed by express legislative enactments. Courts of justice have long since ceased to be hampered by such clerical blunders, where they can distinctly and with sufficient moral certainty perceive the real intent of the Legislature.
We think there is this moral certainty here. When wre see the great importance and solemn character of the 17th section of the 7th article in the act of 1841, affecting, as it does, individual rights and corporate responsibility, when we further compare it, with the trivial and entirely unimportant character of the other section numbered seventeen in the same act, and when we also consider the positions which these sections occupy, it is not a mere matter of conjecture as to which of the two was intended.
The grounds of the present complaint are, that the city has not complied with the obligations imposed upon it by this seventeenth section of the charter of 1841, but has nevertheless proceeded to levy and collect taxes upon the complainant and others who were brought into the corporation by this charter, greatly exceeding the limit fixed by this section. The city, in its answer, admits the levy of the taxes, but denies their failure to comply with the 17th section and asserts that the provision has been substantially complied with, and refers to the ordinances supposed to.carry out the obligations imposed by this provision of the charter. There is no proof on either side, but, for the purpose of this case, it will be sufficient to take the facts, as stated in the answer to be true.
Ordinance Ho. 845, is claimed to be a substantial compliance with section 17, article 7 of the act of 1841. That ordinance is as follows : Section 4 declares, “ south Seventh street extended southwardly shall be 30 feet in width on each side of a centre line, commencing at' the intersection of Seventh and Market streets, and thence southwardly running in a direct, line to the intersection of the centre of Soulard and Seventh as now established, thence in a direct line to the intersection of the centre lines of Park avenue, as laid out by an act of the Legislature, and south Market street of Soulard’s second addition to the city, and thence parallel to Oarondelet avenue, and with the centre line of said south Market street, as laid out in said addition, to Lafayette street in said addition, and thence eastwardly on said Lafayette street to Oarondelet avenue, and south on Oarondelet avenue, and with the same to the southern ■ boundary of the city, and west of the arsenal wall — which said south Market street and Lafayette street as afores'aid, and Oarondelet avenue from the inter
Other provisions are made in this ordinance for having this south Seventh street thus laid out as above, and the other streets named in the 17th section of the charter of 1841, graded and paved under the directions of the city engineer, and-upon the conditions specified in the above section 4; and the-answer asserts that this ordinance has been in fact, carried into effect, and’ the streets therein designated, have been graded and paved.
The seventeenth section of the 7th article of the charter of 1841,, expressly provided that the lands and lots beyond the limits of the city as they were defined previously to that charter, should not be taxed over the one-sixteenth of one per ceDt., until four carriageways or streets were graded and paved from the exterior limits as fixed by that charter to the nearest points within the old limits already graded and paved. The general course of these streets was indicated by calling them by the names of certain streets, already existing within the former limits of the city. They were four principal or leading thoroughfares, leading from different directions ; two of them, Market street and Washington avenue, coming in from the west at lines nearly parallel to each other ; and the other two, leading one from the north, and the other from the south.
We do not perceive any justice or propriety in giving this seventeenth section. a strict literal interpretation. Such an interpretation, it is obvious from a. glance at the map of the city, would thwart the intent of tbe Legislature and he productive of real injury to the parties who were intended to be benefited. A fair and bona fide compliance is all that is requisite. The motive which prompted the introduction of this provision into the charter, is quite apparent. The owners of tracts of land, at that time used as farms, or at all events, not laid off into city lots, were to he brought within the limits of the corporation and subjected to its taxing powers. Some equivalent for this important addition to the revenue of the city was though proper and just. The equivalent determined on, was the construction of these four roads or rather paved streets, running in different directions through the lands thus about to he subjected to taxation. The construction of these streets would enhance the value-of the lands over which they were built.
The city was then bound to comply fairly and in good faith with this provision, before undertaking to increase the tax over one-sixteenth of one per cent. But these streets, designated as south Seventh, Broadway, Washington avenue and Market street, had no' existence even on paper at the time this charter was passed, beyond the former limits of the city. How then are we to fix upon the exact course ? Who is to determine this matter ? An examination of the map or plat of the city, shows that the continuance of south Seventh street in a direct line from the former limits of the city would carry that street to the river, and it would never reach the southern limits of the city, under the charter of 1843. This was a matter, as we think, within the sound discretion of the corporate authorities. The exact course of the streets was not provided for in the 17th section, and it was for the city authorities, to carry out by their general powers the spirit and intent of the section, as nearly as prac'ticable. Nor do we think it important that the continuation of these old streets through the new territory, should be known or called by the same names with the former streets. This was a matter of fancy not affecting the rights of any one. It matters not, that the common council have thought proper to abolish the names of south Market street and Lafayette street and Carondelet avenue, and designate them all as south Seventh street; if these streets constituted a natural, convenient and proper continuation of Seventh street, which was confined to the old limits, we can see no propriety in interfering with these matters. The newly added citizens, for whose benefit the
Again, the ordinance Ho. 845, contained a proviso, that the owners of lots and lands adjoining Seventh street should relinquish to the city so much ground as was requisite for constructing said street. This relinquishment of course the owners were not bound to make. Undoubtedly it is in the power of the corporate authorities, generally, to cause streets to be opened on the best terms they can make, and to decline the improvement, if the lot-holders •will not accede to the proposed terms. Such a course may he generally a prudent and safe course for the interest of the city. But when they assume an obligation, as they did by the charter of 1841, to open and macadamize certain specified streets and their rights of taxation depend upon the fulfillment of this obligation, they cannot impose upon the owners of the lands adjacent to such contemplated streets the additional duty of relinquishing a portion of their land'without compensation, and upon the refusal of such proprietors to part with their land without compensation, relieve themselves from the obligation they have assumed. The streets must he opened and paved before they can exercise the power of taxation. This is their contract and it must be performed. The law has invested them with ample powers to proceed ■with the opening and paving of the streets, whether the proprietors of the grounds adjacent, think proper to give them the land or not. The sixth article declares that whenever it may be necessary to take private property for opening, widening or altering public streets, the corporation shall make a just compensation to the person whose property is taken, and if the amount of such compensation cannot be agreed on, the mayor shall cause the same to he ascertained by a jury. The corporation of St. Lonis had ample power then to cause all the streets specified in the 17th section of the 7th article of the charter of 1841 to he constructed, and it was the duty of the corporation to have these streets made as directed by that section, without reference to the consent or refusal of the proprietors to give up portions of their land without compensation. However, the proviso of this ordinance 845, is not important in this case, if in fact the streets were laid off and macadamized as directed by the charter.
There can be no serious objections to the general course of south Seventh street as laid out by ordinance 845, from the poiut where it leaves the city limits until it reaches Lafayette street. It is true, that at its intersection with Park avenue, it diverges a little more southwardly than its previous course does, and becomes identified with a street in Soulard’s second addition previously known as south Market — but this was rendered necessary,' or at least proper, by .the plan of Soulard’s addition. Upon reaching Lafayette street, it is turned at right angles to its former course, and identified with this cross-street, until it reaches Oarondelet avenue, thus falling back one square east of its previous course. This appears somewhat singular, and is thus explained in the answer : “The section of the charter relating to streets, in its strictest signification, was carried out as to all the streets but south Seventh street. That street was carried as far as it could be in the new limits, by continuing southwardly its general direction, as such direction existed in the old limits ; but wheh the northern lino of what is called the ‘little prairie field lots,’ was nearly reached, the city then not being able to agree with the proprietors of said field lots so as to continue the same direction through the same, deflected south Seventh street eastwardly one block to what was called Oarondelet avenue, and graded and paved Oarondelet avenue to the southern limits, calling the whole street Seventh street,” &c. If we are to take the above as indicating the true and sole reason for this singular “deflection” of Seventh street, from the south to an cast course, until it fell into the public
The power of the city of St. Louis to sell lands and lots for non-payment of taxes, was considered and decided affirmatively in the case of Russell v. St. Louis. We admit, that the power to levy and collect taxes, when given to a corporation, does not necessarily imply a power to sell lands for the non-payment of the taxes thereon.' There are other modes of collecting a tax than by an immediate sale of the land. Suit may he brought, judgment obtained and. execution issued as for other debts. But it must also be admitted that the ordinary method of 'collecting taxes on land and the only one resorted to by the State herself, is by a direct sale of the property taxed. The words “levy and collect” therefore, though not of necessity implying a power of sale, and consequently, not to be conceded to a municipal corporation by mere implication, are yet capable of receiving such a construction, and when the Legislature in the same charter insert other provisions distinctly and unequivocally assuming the existence of such power, we regard such subsequent assumption or admission as a legislative interpretation of the previous language.
The constitutional power of the Legislature to pass the act of 1841, and of 1843, extending’ the limits of the former corporation of St. Louis so as to embrace a portion of our citizens within the corporate limits without their consent, was determined affirmatively in the case of Russell v. St. Louis, heretofore referred to. The question has again been discussed at great length and with great ability. I shall not undertake an examination of all tlie positions assumed, on behalf of the complainant, much loss a refutation of them. In most of the general propositions advanced I fully concur, but I cannot accede to the conclusions which have been drawn from them.
The whole argument of the learned counsel for the complainant may be resolved into a single proposition, and that proposition is a denial of the power of the Legislature to create a municipal corporation, except by the consent of the persons or a majority of them, included within such corporation. If the right to create the corporation in the first instance, without reference to the wishes of the citizens therein embraced be admitted, the right to enlarge its limits subsequently, so as to bring within its jurisdiction other citizens, without their consent, must follow as a neessáry consequence. There is no conceivable abuse to which the latter power is liable that may not with equal propriety be predicated of the former. It is impossible to distinguish them and they must both stand or fall together.
This proposition may be still further narrowed. It must resolve itself into a strict prohibition or denial of power, on the part of our Legislature, to create a municipal corporation, without the consent of every man within its limits. It.will not do to admit that a majority may consent, and that such consent will give the power. Such an admission concedes the unqualified power. If a citizen of this State cannot be forced into such a corporation without his consent — if this right of his is protected by the Oonstitution or those great fundamental principles which are incidental to every free government, whether expressly guaranteed by written constitutions or not, then the consent of every other man in the State cannot and ought not to deprive him of this right. Constitutions are made to protect the rights of minorities and individuals. Majorities can protect themselves; the consent or acquiescence of a majority
If it be conceded then, that a majority of the people living in the proposed addition to the city of St. Louis in 1841, could by their assent sanction the charter which the Legislature in that year passed, the corporation as I think yields the power absolutely without qualification. If the proposition however, be established, that the Legislature have not the power or the right to create a corporation of this kind, without the consent of the corporators, that consent must proceed from every individual to be affected, and the assent of a bare majority will not confer'the power. And this is doubtless a correct proposition when applied to private corporations, or any kind of corporations not established for the mere municipal organization of the people of the State. It is no doubt usual in every case of this kind for legislative action to await the wishes of a majority of those who are to be affected by it. The Legislature have no inducement to impose corporate governments upon her citizens, or any portion of them, when the citizens concerned do not desire it. This, however is obviously a matter of expediency ; a circumstance which has and ought to have great weight in determining the passage of such laws, but not a circumstance which touches the question of power.
The plaintiff is then bound to maintain that the right of the Legislature to create these city or town corporations is dependent upon the will of every citizen who is proposed to be embraced within their limits. I am unable to perceive any material distinction between legislation of this character and that which has been and continues to bo exercised in the organization of counties. I see no inconvenience, no hardship or abuse which can occur in one class of legislation, which is not equally liable to happen in the other. The general purposes of the Legislature are the same. In the organization of counties, it is true, that the tribunals intrusted with their local administration, do not have any police powers, and there is more uniformity in the extent of the power of taxation which is given to them by the Legislature. But this results from a uniformity of interest and situation, which does not exist in reference to the various towns and cities scattered throughout the State. The latter vary so much in population, in wealth, commercial importance and in many other respects, that a uniform system of government would not be practicable or desirable. It is not to be denied, that in either class of legislation, to which we have alluded, great abuses will sometimes occur — but the correction of these abuses is as readily attained at the ballot box, as it would be by subjecting it to judicial revision. A citizen, or a number of citizens, may be subtracted from a county, free from debt, having no taxation for county purposes, and added to an adjacent one, whose debts are heavy, and whose taxing powers are exercised to the utmost extent allowed by law, and this too without consulting their wishes. It is done every day. Perhaps a majority of the people thus annexed to an adjacent or thrown into a new county by the division of an old one, may have petitioned the Legislature for this change— but this is no relief to the out-voted minority or the individual who deems himself oppressed and vexed by the change. Must we then to prevent such occasional hardships deny the power entirely ?
It must be borne in mind that these corporations, whether established over cities, towns or counties or townships (where such incorporated subdivisions exist), are never .intrusted, and can never be intrusted, with any legislative power inconsistent or conflicting with the general laws of the land, or derogatory to those rights, either of persons or property, which the Constitution and the general laws guarantee. They are strictly ^subordinate to the general laws, and merely created to carry out the purposes of those laws with more certainty and efficiency. They may be, and sometimes are intrusted with powers which properly appertain to private corporations, and in such matters, their character as mere municipal corporations ceases. The corporation of St. Louis might be intrusted with powers to borrow money and with the funds thus procured, enter upon some great scheme of improvement supposed to be beneficial to the city and the State. It must then, to this extent and for this purpose, be like any other incorporated company estab-
I do not consider the English cases applicable here. The violations of city charters complained of in that kingdom proceeded from the Crown. In the contests between the Parliament and the Crown, under the Stuarts, the incorporated cities and towns of England were found mostly on the side of the Parliament, and the right of the King to alter or abolish the charters and impose new ones was strenuously resisted by the Parliament and ultimately repudiated by the courts. But it was never doubted in England that the'Parliament —that the three estates, could abolish or alter at pleasure the city charters, and although we do not pretend that our Legislature possesses the theoretical omnipotence of the British Parliament, its powers are certainly more analogous to the actual and acknowledged practical powers of that body than to the prerogatives exercised by the Crown. I conclude then that the act of 1841, for incorporating the city of St. Louis, was a legitimate exercise of legislative power, and in this conclusion I understand my colleagues to concur.(
(a) See St. Louis v. Russell, 9 Mo. R. 507; Wells v. City of Weston, 22 Mo. R. 390. Also, Chaony v. Hooser, 9 B. Mon. 330" court="Ky. Ct. App." date_filed="1848-02-01" href="https://app.midpage.ai/document/cheaney-v-hooser-7129170?utm_source=webapp" opinion_id="7129170">9 B. Mon. 330; Fulton v. City of Davenport, 17 Iowa R.
Concurrence Opinion
Without feeling called upon to express any opinion here, respecting the legislative competency to pass the act in question, I concur in the judgment agreed upon by my colleagues.