126 Mo. 417 | Mo. | 1895
— This is a proceeding to enjoin the collection of city taxes for the year 1892, on a tract of eight acres of land, by the city of St. Joseph, and involves the constitutionality of an act of the general assembly of this state approved March 30, 1887 (Laws of 1887, sec. 5, p. 53), under which the limits of said city were extended and said tract brought within the said limits.
The petition avers that prior to the first day of July, 1889, and the passage of the ordinance hereinafter described by the defendant, plaintiff’s said real estate was situated outside of the corporate limits of the defendant; that on the first day of July, 1889, the common council of the city of St. Joseph passed an ordinance extending the corporate limits of said city of St. Joseph, so as to include within the corporate limits of said city the real estate of the plaintiff above described, which ordinance was, on the twelfth day of July, 1889, duly signed by the mayor of said city, and afterward published, as the law requires; that plaintiff’s said land is distant from the inhabited part of the said city; that his said land was, at all times herein mentioned, and is now, kept and alone used for farming and gardening purposes; that said real estate has not at any time, by recorded plat, or otherwise, been
The plaintiff’s said land and the residents thereon, or those residing in the immediate neighborhood thereof, did not, and do not now, need the police protection of the city, nor have they received any such police protection of the city, since said real estate was taken into the corporate limits of said city, nor any other benefit arising from said city government; that plaintiff’s said land is not capable of being used as city property, nor is it demanded for that purpose, nor does it possess any value based upon its adaptation for residence or business. No streets of the defendant or other town improvement extend to plaintiff’s land, and the line of the city settlement has not reached it, but on the other hand are far distant; it is not laid off for city uses; there is no settlement upon it; that plaintiff resides thereon with his family, and uses the same for farming and gardening; that the value of plaintiff’s land has not been increased by being taken into the corporate limits of said city, but on the contrary thereof it has been diminished in value thereby.
That plaintiff’s said land by being thus placed within the corporate limits of said city, and all of plaintiff’s personal property, he being a resident upon said real estate, has become subject to assessment and levy to taxes by the defendant for each and every municipal purpose, by which the plaintiff or his said land are in nowise benefited.
He charges that such extension was unreasonable;
The answer admitted that the defendant was a city of the second class, and. admitted the regular enactment of the ordinance extending the limits, and the assessment and levy of the tax for 1892, but denied every other allegation of the petition.
The evidence shows that the city limits were extended east opposite plaintiff’s lot a half a mile, but that plaintiff’s lot is considerably within this distance. The evidence further discloses that the Missouri river bluffs rise abruptly in an irregular formation extending north and south forming a barrier along about Fourteenth street, which is pierced by streets only at intervals where water-courses have made it possible. In the growth of the city the population has passed, through these gateways, and, at the time the ordinance was passed, was rapidly peopling the table land on the north, east and south, which could only be reached by these openings in the palisade of the bluffs.
The lands occupied by plaintiff and his immediate neighbors are subdivided into lots of four, five, eight and ten acres and are principally devoted to gardening.
When the * ordinance in question was passed, the city was growing very rapidly in an eastern and southern direction. Wyatt Park, to the north, then contained a large population beyond the old city limits. Parnell Place, South Park, and Hall’s Additions were compactly built up communities; Donnell and Saxton’s addition laid off in choice lots and all the lots built upon.
To the south of this tract was Gladstone Heights, an addition by Wm. G. Rush, Esq., who was, at the time of the trial, an alderman from this new territory.
It also appeared that the nearest route to the business part of the city from plaintiff’s property is north and west by streets through a thickly populated community, and which all the way from plaintiff’s lot is lighted by electricity furnished by the city at an annual cost for each light of about $85. Police have been furnished by the city to patrol this territory. The plaintiff admits that he registered and voted at the city election for the years 1890, 1891 and 1892.
During the pendency of this cause in the trial court, that court,- on appellant’s application, issued a temporary injunction, restraining the respondent from proceeding to enforce the payment of city taxes by appellant until the further order of said court. On the final hearing, the court dissolved the temporary injunction and dismissed appellant’s bill. Appellant moved for a new trial, which being denied, he brings the case to this court by appeal, having given bond to operate as a supersedeas.
On the trial the court was asked to give certain declarations of law. It refused those asked by plaintiff and gave those prayed by the city. ‘The two propositions relied upon to reverse the decree of the circuit court are, briefly, that the extension of the city limits was unconstitutional and void as to the plaintiff’s land and other tracts adjoining him similarly situated; secondly, if the act and ordinance are constitutional,
I. The constitutionality of the act of March 30, 1887 (Laws of Missouri, 1887, p. 53), and of section 5 thereof, is denied upon three grounds: First. It is asserted that the limits of the city could only be extended by local or special law after due notice given as required by section 54, article 4, of the constitution, and, as no such notice was given, it was void. Second. That the proviso contained in section 5 of said act is in conflict with the constitution in that it exempts a class of property from taxation for city purposes in violation of article 10, sections 1, 2, 3, 4, 6, 7. Third. That the proviso in section 5 of the act of 1887 was the essential condition upon which the power to extend their limits over agricultural lands was granted to cities of the second class and the proviso being unconstitutional the ordinance is void. Considering these in their order:
The act of 1887 in question is most clearly not a local or special law, and the objection that the general assembly could only extend the city limits by a local or special act is negatived by the constitution itself, article 4, section 53, clause 11, which prohibits the general assembly passing any special or local law, “incorporating cities, towns or villages, or changing their charters.”
The power to change 'the limits of a city, and authorizing it to exercise the taxing power over territory not included in its original limits is “a change of its charter.” City of Westport v. Kansas City, 103 Mo. 141. Not being, then, a local or special law, the provisions as to notice in such cases have no application. State v. Orrick, 106 Mo. 111; State ex rel. v. Hughes, 104 Mo. 460; State ex rel. v. Field, 119 Mo. 593, 24 S. W. Rep. 752.
This brings us, then, to the point made that the exemption made in the above and foregoing proviso to section 5, is unconstitutional because by article 10, sections 1 to 7 inclusive, taxes are required to be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and all laws exempting property, other than that enumerated in the constitution, shall be void.
The act of 1887 amended the charter of cities of the second class as amended by the act of the general assembly approved March 12, 1885. By the first section of the act of 1885, cities of the second class could extend their limits without the restriction contained in the proviso to section 5 of the act of 1887.
This exemption in the proviso is in direct contra
The rule is well settled in this state that part of an act or section may be unconstitutional without necessarily invalidating the remainder of the act or section. County Court v. Griswold, 58 Mo. 175; Railroad v. Brick Company, 85 Mo. 307; State ex rel. v. Pond, 93 Mo. 635; Allen v. Louisiana, 103 U. S. 80; State ex rel. v. Field, 119 Mo. 593. Was, then, the proviso so inseparably connected in substance with that part of the act which is valid that it can not be supposed that the legislature would have passed the act at all without this exemption clause in it and therefore the whole act must fall because of this unconstitutional provision?
In determining, then, whether the general assembly of this state would have conferred upon cities of the second class the power to extend their limits without a clause exempting agricultural lands from municipal taxes, we may appropriately, we think, consider the course of legislation, on this particular subject. ' By the acts of 1885, page 51, cities of the second class were expressly empowered to extend their limits without any exemption clause whatever, and the same legislature
Again, the legislature which passed the act of 1887 authorized cities having a population of over one hundred thousand inhabitants to extend, without such exemption. Laws of 1887, page 49, section 41. It also conferred the same power on cities of the third class. Laws of 1887, p. 66, section 2. And in 1891 the same power was given cities of the fourth class. Laws, 1891, p. 62, section 1. And in 1889 the act of 1887 was amended by striking out the exemption clause now under consideration. R. S. 1889, p. 368, clause 43, section 1255.
In view of all this contemporaneous legislation showing conclusively that the legislature has not hesitated to confer upon cities of all grades this power of self-extension without attempting to exempt such lands, counsel for respondent argues that there is little left upon which to base a presumption that the legislature would have denied the power to cities of the second class, unless the proviso had been inserted in the act. We confess we can see no reason why this power should be denied one class of cities and be conferred upon all others. In either case it subjects the property so taken in, to municipal taxation.
On the other hand, it can not be doubted that the legislature had the unquestioned right to withhold the power of extension altogether, and necessarily the right to annex the conditions upon which it would confer the power, and the very fact that it granted the right to all other cities, and denied it to cities of the second class refutes the presumption that the proviso was immaterial or inadvertent. On the contrary it emphasizes the determination of the legislature to withhold the power unless these farming lands were exempted from munic
This was the conclusion reached, by the supreme court of Wisconsin in Slauson v. Racine, 13 Wis. 398; and of this court in Kansas City v. Cook, 69 Mo. 127. We hold, then, that section 5 of the act of 1887, page 53, was, and is, unconstitutional, and, therefore, void. What, then, is the result? As already said, the charters of cities of the second class, as amended by the laws of 1885, section 1, page 51, contained this power to extend their limits unhampered by the proviso found in the act of 1887. Conceding, then, that the proviso rendered the whole of section 5 of the act of 1887 void, then, inasmuch as the act of 1887, section 17, page 57, only repealed “all sections, parts of sections, acts or parts of acts, laws or parts of laws, inconsistent with, or in conflict with, the above act, as section 5 of the act of 1887 is void, then there is nothing in the first section of the act of 1885 repugnant to the act of 1887 and section 1 of the act of 1885 remained in full force and effect. ' Shephardson v. Railroad, 6 Wis. 605.
In the case just cited, the supreme court of Wisconsin say: “As the act amending the charter of the company only repeals such parts of the former charter as are inconsistent with the provisions contained in the amendment, and as those provisions are repugnant to the constitution, and, therefore, inoperative, it follows'conclusively that the provisions contained in the former charter of the company upon the subject are unaffected by the repealing clause contained in the amendment.” State ex rel. v. County Court, 11 Wis. 50; Tims v. The
Where the repealing clause of an unconstitutional law is made applicable only to laws inconsistent with its • operative provisions, then the former law is not repealed. Devoy v. Mayor, 36 N. Y. 449; Stephens v. Ballou, 27 Kan. 594. With these questions as to the validity of the law authorizing the extension of its limits resolved in favor* of the city, the important question still remains, did the city exercise its power in such an unreasonable and arbitrary manner that the courts should declare the ordinance void solely on this ground.
Prior to the adoption of the constitution of 1875, it was the settled law of this state that the legislature, unless restricted by the constitution, could alter, amend, or abolish city and town charters of incorporations, and that the courts could not interfere with this legislative prerogative. St. Louis v. Russell, 9 Mo. 502; St. Louis v. Allen, 13 Mo. 400; State ex rel. v. McReynolds, 61 Mo. 203; Giboney v Cape Girardeau, 58 Mo. 141. But by the present constitution, cities are required to be classified and general laws enacted for their government. While it is true, as a general proposition, that the legislature can not delegate its legislative powers, it is- now well settled that in the absence of constitutional restrictions the legislature may confer upon municipal corporations the power to extend their corporate limits, the reasonableness or unreasonableness of their acts in this behalf being subject to judicial inquiry and correction. Kelly v. Meeks, 87 Mo. 396.
Such ordinances in this regard are subject to the same tests as other corporate legislation. St. Louis v. Weber, 44 Mo. 547; Corrigan v. Gage, 68 Mo. 541; Cape Girardeau v. Riley, 72 Mo. 220; Plattsburg v. Riley, 42 Mo. App. 18. In arriving at a proper con
“That city limits may reasonably and properly be extended so as to take in contiguous lands, (1) when they are platted and held for sale or use as town lots; (2) whether platted or not, if they are held to be brought on the market and sold as town property when they reach a value corresponding with the views of the owner; (3) when they furnish the abode for a densely settled community, or represent the actual growth of the town beyond its legal boundary; (4) when they are needed for any proper town purpose, as for the extension of its streets, or sewer, gas or water system, or to supply places for the abode or business of its residents, or for the extension of needed police regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses.”
Applying these rules, the supreme court of Arkansas, in that case, held that lands across the Arkansas river were contiguous to Little Rock, and the order of annexation was not unreasonable because it included forty acres which was low, flat and wet, covered with timber and had not been platted, but platted lands of Argenta, an unincorporated town, touched it on two sides, but held that the forty acres of Yestal, which was from a half to three quarters of a mile distant from said unincorporated town of Argenta and on the opposite side of the river from Little Rock, and which was not platted, and to which no streets or other improvements extended, and on which there were no settlements, but was used entirely by the owner in his business as a farmer and florist, could not be annexed to the city.
In Ferguson v. Snohomish, 36 Pac. Rep. 969, it was held not illegal to include two hundred and forty acres of land which was contiguous to the town, and occupied by its owner as a dairy farm. It appeared that a portion of the tract abutted on the block on which the courthouse stood and on the north and west of it were several additions to the town containing sixty inhabitants.
In a recent case in Texas, McClesky v. State ex rel. Cottrell, 23 S. W. Rep. 518, the rule in that state is thus summarized: “Under the decisions of our supreme court, we understand the correct rule to be that the incorporation will be held valid, although a reasonable amount of land not in actual occupation be included; but if the excess be such as, in effect, to evidence an attempted fraud upon the law, and territory be embraced that can not fairly be termed a part of the town, it will be annulled.” State ex rel. v. Eidson, 76 Texas, 302; State ex rel. v. Baird, 15 S. W. Rep. 98.
The legislature having conferred the power upon the city the presumption is in favor of official conduct. St. Joseph increased from thirty-three thousand in 1880 to nearly fifty-five thousand in 1890. Its boundaries had been fixed in 1875 by its charter and it had outgrown them. When the ordinance was passed, Wyatt Park, itself a city in numbers, had sprung up to the east, and Gladstone Heights, south of plaintiff’s land, had been platted, and so had Stiger’s, though the latter was rejected because not approved. Most clearly, however, both Gladstone Heights and Stiger’s Addition at that time were considered by their owners good urban
Mr. Rush admits he was estopped because he urged the extension. The number of acres taken in is not so disproportioned to the apparent demand therefor and to the size of the city to which they were annexed as would justify us at this distance in overruling the action of the city council, and the judgment of the circuit court, both of which tribunals understood the relation of the city to the plaintiff’s tract better than we can.
There is nothing to indicate fraud on the part of the city in extending its limits. It appears that it at once furnished electric lights to the new territory, worked the adjacent streets, and provided policemen for the district. There is nothing to show that the city obtained any great advantage in the amount of taxes received in this territory over the necessary expenditures it must make to furnish lights, streets, and police protection. Street car lines from the heart of the city approach very near to Glad stone Heights and through Wyatt Park to Oak Hill and the south.
That subsequent events have retarded the building up of this immediate section is true, but this fact alone does not impeach the good faith or the reasonableness of the ordinance in question. The appellant acquiesced in the extension, registered and voted for city officers at the elections in 1890, 1891 and 1892, and paid his municipal taxes for two years without protest.
All the circumstances considered, we do not think
