Hall v. City of Sedalia

FERRISS, J. 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 — 349 — wholly null and void plaintiff’s aforesaid contract and bond. Issues were made up, the case was tried hy the court, and judgment rendered for plaintiff granting the relief prayed for. Due proceedings were had, and the ease comes here hy appeal. 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, — 350 — before any performance or attempt to perform is shown. If a man makes a contract, and afterwards before beginning a performance, doubts its validity, he has his legal remedy. He may decide either to perform or refuse to perform, and take his chances in a court as to results. If this were a contest between individuals over a matter of private interest only, it would be a serious question whether the court would entertain the case at all. In view, however, of the public character of the contract in question, and in further view of the fact that the law invoked in this case cannot be regarded as being satisfactorily settled by the former decisions of this court, we have decided to pronounce judgment upon the questions involved; our action, however, not to be regarded as a precedent for suits of this character. 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’ — 351 — at bar. Three judges In Banc, Gantt, C. J., and Robinson and Valliant, JJ., held the Act of 1893 to be in violation of section 7 of article 9, upon the ground that this act enabled some cities of the fourth class to acquire powers not possessed by other cities of that class; that it created, in the language of Judge Gantt, who wrote the opinion, “a dissimilarity in the powers of cities of the fourth class.” 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 — 352 — Owen-Baer case. Upon the first proposition the separate opinion of Judge Gantt accepted the holding of Judge Marshall. Hence, a majority of the court agreed that the act did not violate section 53. of article 4. That proposition may be regarded as settled. 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 — 353 — power to one which, it denies to another? Does it impose restrictions upon any that do not apply to all? That the law does not take effect in any particular city until the people vote a desire for its application does not, in our opinion, affect the character of the law itself, provided that it may take effect in the same way and under the same conditions in every other, city of the same class. As was said by Wagner, J., in State ex rel. v. Wilcox, 45 Mo. 458, “The proposition cannot be successfully controverted that a law may be passed to take effect on the happening of a future event or contingency. The future event — the happening of the contingency, or the fulfillment of a condition — affords no additional efficacy to the law, but simply furnishes the occasion for the exercise of the power.” To the same effect is the reasoning of this court in the case of the Township Organization Law, 55 Mo. 295. The court had under consideration an act which provided: ‘ ‘ This act shall apply to and be in force in all counties adopting the act to provide for township organization, and takes effect from and after its passage,” and held it to be constitutional. The court said: “It is a general law made for the whole State, and by the terms of the act itself took effect from and after its passage.' Every county in the State may avail itself of the privileges offered by this law by a majority vote of its people. ... If a majority vote for it, such vote does not create the law, but places the county so voting within its provisions.” 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 — 354 — system. The possession of the power does not depend npon its exercise; it depends npon the general law; which is in force equally upon all cities of the class, whether or not it is invoked. 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 — 355 — fore voted to adopt the sewer scheme as set out in the Law of 1895, the enlarged powers given by such amendment to erect disposal plants, and that such enlarged powers could be acquired only by an affirmative vote of the people accepting the amendment. It is argued that the people, while willing to adopt a sewage scheme involving drains and sewers only, might refuse to approve one involving the increased expense of a disposal plant. 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 — 356 — neous construction of the law by tbe Legislature. [State ex inf. v. Goffee, 192, Mo. l. c. 688.] If, as a matter of law, the Act of 1895 authorized tbe construction of tbe plant in question, the fact that tbe Legislature erroneously regarded tbe act as insufficient, or doubtful, would not make it so. Furthermore, we are of tbe opinion that when tbe city adopted tbe Act of 1895 and tbe sewage plan thereby provided, it subjected itself to tbe general law then in force, and also to any amendments that the Legislature might thereafter enact. In accordance with tbe foregoing views, tbe judgment is reversed and tbe cause remanded, with instructions to dismiss tbe bill. All concur, but Valliant, G. J., who is absent, and Woodson, J., who dissents.