250 Mo. 588 | Mo. | 1913
Plaintiffs are resident owners of realty in a tract which the defendant city attempted in 1908 to bring within its limits by proceeding under section 5752, Revised Statutes 1899. An election was ordered . and held and the requisite majority favoring the extension, the result was by ordinance duly passed declared to be the addition to the city of the tract involved. City taxes were assessed against and levied upon property in the affected territory and the city officers were threatening and attempting to enforce their collection when this suit was begun by plaintiffs, for themselves and all others similarly interested and situated, to enjoin the city from proceeding further in that direction. The petition alleged that the extension was, on enumerated grounds, unreasonable and that section 5752, Revised Statutes 1899, was unconstitutional and void and that., consequently, the assessment and levy were void and the taxes unenforceable. It is also alleged that the effect of the extension is to work a fraud upon the rights of plaintiffs and others and, further, that resort to equity is necessary in order to prevent a multiplicity of suits.
The proviso in this section conflicts with constitutional provisions and is void. Whether its invalidity destroys all that part of the section concerning limit extensions is another question.
As has previously been pointed out (State ex rel. v. Wardell, 153 Mo. 319) the Legislature in 1889 repealed the then existing and valid section (Laws 1887, p. 66, sec. 2) authorizing cities of the third class to extend their limits, and made a futile effort to replace it with section 1466, Eevised Statutes 1889, in which the proviso by which it was attempted to exempt from taxation certain agricultural and pasture lands included in such extension was held to invalidate the whole of the provision authorizing limit extensions.
In City of Westport ex rel. v. McGee, 128 Mo. 152 and Birch v. Plattsburg, 180 Mo. 413, the constitutionality of section 1580, Eevised Statutes 1889, by which section cities of the fourth class were authorized to extend their limits, was drawn in question. That sec
In the cases cited the quoted portion of section 1580 was held unconstitutional but the court decided its invalidity did not affect the remainder of the section.
In the first of these cases the court, in discussing the effect of the partial invalidity of section 1580, said:
“It will be observed that no condition is annexed, and no proviso added, by which its powers over any territory thus annexed is curtailed.- In this respect it differs radically and substantially from the Act of 1887. But immediately following this provision is another which exempts,' not the lands included in the extension only, but ‘all tracts of agricultural or pastoral lands included within the corporate limits of the city,’ which exceed five acres in area. Standing thus, the two provisions are distinct, one relating to extension, the other to exemption from taxation without reference to extension.” The court then pointed out that this section first contained no exempting clause, that in 1879 it was amended by adding a sentence by which it was attempted to exempt “all agricultural or pastoral lands included in such extension” that in 1889 this was amended (Sec. 1580) so as to read “All agricultural and pastoral lands within the corporate limits of the city” and in 1891 the entire invalid provision was eliminated and proceeded.
“Can it be said, in view of this history of this provision, that the Legislature would have denied these cities the power to extend their limits, unless the unconstitutional provision had been inserted in the act? Nothing short of the most positive language should*595 lead us to such a conclusion. We do not-think this general exemption indicates an intention to deny the right of extension, but was simply an attempt of the Legislature to exempt such property generally, because we must go further than merely to hold that the power to extend the limits was dependent upon the exemption, because, as it now appears, we must hold that the Legislature would have denied the power of incorporation altogether where such tracts were included in the city limits, and this in the face of the unconstitutionally of the exemption, and the fact that all other cities were permitted to extend their limits without such a provision. Our conclusion is that the exemption is unconstitutional, and that the power of extension in this charter was not so dependent upon it that the ordinance incorporating defendant’s lands within the city should be held void.”
In discussing this same section in Birch v. Plattsburg, supra, this court after quoting the general rule that it is only “where the provisions are so interdependent that one may not operate without the other, or so related in substance and object that it is impossible to suppose that the Legislature would have passed the one without the other, the whole must fall” by reason of partial invalidity, said:
“Applying the rule to the legislation in hand (which has been set out at length to demonstrate the fact) the conclusion reached seems irresistible. The purpose of the Legislature by the section in question to confer upon cities of the fourth class the power to extend their limits, is manifest from the beginning, to the end thereof. It was conferred in the beginning, before this obnoxious exemption clause was injected into the section, and has been continued unimpaired since that clause was eliminated. [E. S. 1899, sec. 5895; Laws 1895, p. 65.] The clause itself is an independent one. The other provisions of the section are not dependent in any manner or form, on the clause,*596 nor is it dependent upon them, but may be stricken out, leaving the remainder of the section a law complete in itself, that may be executed according to the legislative intent.”
There is this difference between the section (5752, R. S. 1899) under consideration and that dealt with in the cases mentioned, that though both purport to exempt all agricultural and pasture lands of certain area within the entire city limits and not merely those within the extension, yet in section 1580, Revised Statutes 1889, the exempting clause consisted of a separate, distinct and unconnected sentence, while in section 5752, Revised Statutes 1899, that clause is an ordinary proviso, connected with the preceding sentence by the words “provided, however.”
If the conclusion reached in the cases quoted is accepted as correct there remains only the question whether this difference renders inapplicable the rule they announce. It is established law that the mere fact the valid and invalid provisions are found in the same section is not conclusive on the question. In fact their occurrence in the same sentence would not be so. The question is “whether they are essentially and inseparably connected in substance.” [1 Lewis’ Sutherland on Statutory Construction, sec. 296.]
It is clear enough that the section contains valid provisions sufficiently complete to be capable of enforcement though the invalid proviso had been omitted, and it is also clear that there is no such essential and inseparable connection in substance between the subjects of extension of limits and the taxation, or exemption from taxation, of agricultural lands in the city at large that the two cannot be legislated upon separately. It would hardly be suggested that if the exempting clause appeared in another section it would invalidate the provisions as to extensions, and, as shown above, it has been expressly held not to do so when it appeared in a distinct sentence in the same sec
The right to extend their limits, without exemptions from taxation, previously had been accorded to cities of the third and other classes and is accorded them now. Provisos are usually held to refer to the immediately preceding subject-matter, but the substance of the proviso in section 5752, in so far as it affects agricultural lands within the unextended city, bears no real relation to the idea of extension at all. The preceding part of the section deals with the jurisdiction and limits of the unextended city as well as extension of the limits, and the language of the proviso is as applicable to the original as to the extended limits. Is it reasonable to say the section means that all lands, agricultural and others, in cities of the third class are to be taxed alike until the limits are extended and then designated agricultural and pasture lands, previously taxed, in the original limits as well as within the extension, are to be exempted? This is the meaning which must be given it if the proviso is limited strictly to the preceding sentence and construed as a condition upon which the Legislature granted such cities power to extend their limits. The more natural construction seems to be that the Legislature simply undertook to exempt certain lands from taxation whether the limits were extended or remained unchanged — a general exemption to be applicable at all times in cities of the third class.
Accepting this as the more reasonable construction, and keeping in mind the fact that by section 5752 the Legislature was providing for the continuation and incorporation as well as the extension of cities of the third class, it does not seem reasonable to say, iu view of what seems to have been the dominant legisla
The ordinance siibmitting to the voters the question as to the proposed extension is not in the record and it will be presumed it followed the valid portion of
2. It is argued that the extension was unreasonable and therefore invalid.
In State ex inf. v. Kansas City, 233 Mo. l. c. 213, this court approved the conclusions of law arrived at by the commissioner, Judge Kimbrough Stone, wherein, quoting from a case he pointed out had theretofore been approved by this court, he held that the rule to he applied in determining the reasonableness of an extension of city limits is:
“1. That the 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 toAvn 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 need*600 ed police regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses. ...”
These questions were proper ones for consideration by the council and it will be presumed to have passed upon them in reaching its conclusion to submit the proposed extension to the voters and will be presumed to have concluded on the existing facts that for
This suit was actually begun March 1, 1909, and in considering the evidence of delay in improving, lighting and policing the extension during the six months between the passage of the ordinance declaring the result of the election and the commencement of this suit it better accords with the presumption of right action to ascribe that delay to the public agitation against the extension and the threatened and impending suit to test its validity than to fraud on the part of the council, even if it be conceded a delay for six months might under other circumstances justify an inference of fraud. The trial court did not draw the inference of fraud and there is no good reason for holding it erred in failing to do so.
PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.