232 Mo. 344 | Mo. | 1911
Lead Opinion
This case comes here by appeal from the circuit court of Pettis county, where judgment was rendered in favor of respondent on May 21, 1910. The case arises upon the following faets:
The respondent, plaintiff below, entered into a written contract in March, 1910, with the city of Sedalia for the construction of a sewage disposal plant, and for the construction of sewer mains to be connected therewith, at a total cost of $36,000, and as security for the performance of such contract, plaintiff gave bond to the city in the sum of $8000. Before work was begun plaintiff was advised by counsel that the act of the Legislature under which the city was proceeding to erect this disposal plant was unconstitutional and void, and that the special taxbills that should be issued to the plaintiff in payment for the work done under his contract would not constitute a valid lien on the property in the district, and could not be collected by law; whereupon plaintiff filed his bill in equity praying the court to cancel, annul, and declare
Two questions arise upon the record:
1. It is contended by the plaintiff that the act of the Legislature passed in 1895- (Laws 1895, p. 58), providing a scheme of sewer construction for all cities of the third class which should, by a vote of the people, adopt the provisions of such act, violates section 7, article 9, of the Constitution, which provides that the powers of each class shall he defined by general laws, “so that all such municipal corporations of the same class shall possess the same powers and he subject to the same restrictions,” in that it permits certain cities, voting affirmatively, to acquire powers which are not common to all cities of the third class; and that it also violates section 53 of article 4, which forbids the General Assembly to pass any local or special law. This contention is based upon the case of Owen v. Baer, 154 Mo. 434.
2. It is also contended that even if the Act of 1895 is held to he constitutional, yet the contract in question is invalid because the power granted to the city to erect a disposal plant was not in the original act as voted upon hy the people, hut was granted hy an amendment to that act made hy the Legislature in 1909, which amendment had never been submitted to or voted upon hy the people, and that therefore the enlarged powers given to the city hy such amendment were not in force and effect, and could not he made effective without an affirmative vote hy the people.
I. Upon the threshold of this case arises the question whether a court of equity will entertain a hill to construe a contract, or to declare a contract invalid,
II. Constitutional questions of the character of those involved in the present case have been frequently before this court. They received a full discussion in Owen v. Baer, 154 Mo. 434. That case arose upon the Act of 1893 (Laws 1893, p. 101), which provided that “in every city 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,” etc., “in favor of adopting the provisions of this act, shall have power by ordinance to provide drains and sewers for the same,” etc. The aforesaid act is similar to the Act of 1895 in question, so far as the questions raised are concerned. Westport, a city of the fourth class, proceeded under said act to construct a sewer system, and issued tax-bills in payment thereof, and Owen v. Baer, supra, was a suit to cancel certain of these taxbills upon the ground that the act was in violation of section 7 of article 9, and section 53 of article 4, 5f the Constitution; presenting questions similar to those in the case’
Judge Sherwood, in a separate opinion, Judge Burgess concurring, held that the act was unconstitutional because it was not within those specific provisions of the Constitution which Judge Sherwood said provided “just when and where a vote of the people may be taken.”
Judge Marshall, in a separate opinion, held that the act was a valid one, violating no provision of the Constitution, and that the bill of plaintiff should be dismissed. Judge Brace concurred with Judge Marshall upon the proposition that the act did not violate section 7 of article 9.
Five of the judges concurred in holding the act invalid; three upon one ground; two upon another and different ground, and one upon a ground which does not appear.
The decision in Owen v. Baer settled that case, but it did not establish the judgment of this court upon the main proposition involved in the. case at bar; that is, that the act violates section 7 of article 9 of the Constitution.
The respondent contends, first, that the Act of 1895, now sections 9281 to 9298 inclusive, Revised Statutes 1909, violates section 53 of article 4 of the Constitution, in that it is a local or special law; second, that it. violates section 7 of article 9, in that it enables some cities of the fourth class to acquire powers not possessed.by all the cities of that class.
These two propositions were presented in the
As the second proposition received the approval of only three members of the court, it remained open so far as the case of Owen v. Baer goes, and so far as we are advised, is still an open question in this State.
The act in question provides: “In every city of the third class in this State, the acting municipal authorities thereof, upon a vote by ballot of two-thirds of the qualified voters,” etc., “shall have power by ordinance to provide drains and sewers,” etc.
Does this act violate section 7 of article 9 of the Constitution, which provides that “the power of each class [of cities] shall he defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and he subject to the same restrictions!” The act in question is complete in itself, and is uniform in its application to cities of the third class, and comprehends all cities of that class. Whether the law shall come into operation in any particular city depends upon a contingency, namely, an affirmative vote of the people of such city. But this applies to each and every city in the class. The law extends the same right, the same privilege, to each city in the class, and is therefore uniform. It is, in the language of the Constitution, a “general” law, and under it all the cities of the same class, as required by the Constitution, “possess the same powers” and are “subject to the same restrictions.”
In passing upon the constitutionality of this law, we must look at it as it leaves the Legislature. Is it complete, effective, and universal in its application to cities of the third class! Does it give a privilege or
Certainly, the validity of the law cannot depend upon whether one or all the cities choose to exercise the power which the act confers upon all. This act gives the same power to all the cities of the class. It does not confer one sewer system upon some of the citizens and another system upon others; but all the cities have the same power to adopt the same sewer
An admirable review and discussion of the decisions of this court, as well as of the law elsewhere, pertaining to this question,, is found in the exhaustive opinion of Judge Marshall in the Owen-Baer case, supra. That opinion may be resorted to for the learning on this subject.
It is the judgment of this court that the act in question is constitutional and valid.
III. A further question is presented in this record-one not hitherto before the court. It arises concerning an amendment made in 1909 to. the aforesaid. Act of 1895. '
The situation is this: On April 1,1902, the people of Sedalia, by an affirmative vote sufficiently large, adopted the provisions of the Act of 1895. At that time the act, in its first section, authorized the city, after the adoption of the act by the people, to provide “drains and sewers,” and throughout the subsequent sections these words, “drains” and “sewers,” are used with the additional words “connections” and ‘“appurtenances.”
So the law stood when the people of Sedalia adopted its provisions. In 1909 the law was amended by. inserting after the words “drains and sewers” the additional words ‘ ‘ and all necessary plants for the disposal of sewage; ’ ’ and so the law stood when, without further vote by the people adopting this amendment,this contract was entered into by respondent to construct a disposal plant for sewage and connecting mains therewith. ’ ,
It is claimed by respondent that the amendment, of 1909 did not confer upon cities which had thereto
In our opinion, the right of the city of Sedalia to construct a disposal plant does not depend on the amendment of 1909. Section 1 of the original act provides for “sewers and drains” and “connections therewith.” Section 2 provides that “sewers may be constructed and maintained with inlets, laterals, branches and appurtenances.” Section 15 provides that “any sewers heretofore or hereafter constructed may be changed, diminished, enlarged or extended, and shall have all the necessary laterals, inlets and other appurtenances which may be required. ’ ’ .
The contract in question is based upon an ordinance of the city authorizing an enlargement and extension of the sewer system by adding thereto a disposal plant in the shape of the septic tank and mains connected therewith. A sewer system without a place to dispose of the contents would be useless. A septic plant for such disposition, with its connections, would be naturally appurtenant to, if not an integral part of, the system. The amendment of 1909, with its emergency clause, may be regarded as a legislative declaration that the original act was not broad enough to include disposal plants, and as such it is entitled to respectful consideration. We do not find that this amendment was occasioned by any ruling of this court holding the original act insufficient. The amendment was made, perhaps, to settle any question of doubt. However that may be, we are not bound by an erro
In accordance with tbe foregoing views, tbe judgment is reversed and tbe cause remanded, with instructions to dismiss tbe bill.
Dissenting Opinion
DISSENTING OPINION.
I dissent from tbe first paragraph of this opinion, for the reason that there- is no equity in tbe bill. Tbe opinion itself concedes this fact; but notwithstanding that fact, this court entertains tbe appeal and adjudicates the cause upon its merits as though a court of equity bad jurisdiction of tbe same.
Tbe only excuse offered for this anomalous proceeding is found in tbe bare statement of tbe opinion that it is not to be taken as a precedent.
Notwithstanding that statement, it is a precedent, or rather it will- become so just as soon as tbe opinion is banded down; and must be followed when a like casé is presented, or it must be overruled.' If overruled, which the opinion intimates will be done when another case of like character is presented, then this court will justly be charged with partiality and discrimination. If, upon tbe other band, the opinion should be
This opinion, like many others found in the books, shows the greatest danger which threatens the perpetuity of all forms of government, namely: the seeming necessity for the lodgment of absolute and final power in some individual officer or officers, who assume and exercise powers not delegated to them by the law, and yet there is no remedy because of said final and absolute power.
That excessive exercise of power is the rock upon which the ship of state of all nations has been or will be wrecked, and it will just as surely wreck those of the present and future nations as it has wrecked those of the past. The only salvation there is, if any, from wreck and ruin, rests with a wise pilot who will steer the ship clear of the breakers by wisely exercising only the powers entrusted to him within the true spirit and meaning of his grant of power.
A court has no more legal or moral right to exercise power in excess of its true jurisdiction simply because of its unrestrained physical power than an individual has to violate the laws of the land simply because he has the physical power to so do. The difference being, the latter’s conduct is subject to review, while the former’s is not. In-the long run, however, the disastrous results of the former will be more detri
This case within itself may be of little importance, but when considered in connection with the jurisprudence of a great State it may at some future time cut an important figure. As was said by Napoleon in speaking of the Russian "War, “No events are trifling with regard to nations and sovereigns, for their destinies are controlled by the most inconsiderable circumstances.” He then went on to state what trivial things brought about the war, which ultimately involved all Europe, and finally resulted, if I remember correctly, in his downfall at Waterloo.
It is just such opinions as this that upset and keep the law in an unsettled condition, and render its administration difficult and uncertain, and lay the foundation for further usurpation.
I express no opinion as to the other paragraphs