State ex rel. Greene County v. Gideon

PARÍS, J. The County of Greene, as relator, brought this action by mandamus' in the Circuit Court of- Greene County against the respondents herein, who constitute the mayor and the commissioners, respectively,. of the city of Springfield, said city being under a commission form of government. Upon a trial nisi plaintiff lost, and after the .conventional procedure has appealed. The facts of the case are few and simple. In 1917 the Legislature amended a certain section of the’ chapter of the Revised Statutes of Missouri which governs cities of the second class, in such wise, it is averred and contended by appellant, as to require cities of the second class — such as the' city, of Springfield is— to "pay to the county wherein such a city is located the sum of $400 per annum for every dramshop license issued. This action is brought by Greene County for the purpose of compelling respondents to audit and pay to that county the sum of $5900, which is caeteris paribus its proportionate part of all the dramshop license taxes which were collected by the city of Springfield 'during the period embraced in this' controversy. Respondents- havng refused to pay the above sum of $5900, which is conceded to be correct if the act under which the samé is demanded is valid, Greene County instituted this action and, as stated, having lost below, has appealed. — 361 — The defenses, among others nrged by respondents, as excusing their refusal to pay the amount demanded, are that the act under which appellant bottoms its demand for payment is unconstitutional. The grounds of unconstitutionality of the Act of 1917 so urged by respondent are, (a) because the act is in conflict with Section 28 of Article 4 of the Constitution, which provides that “no bill shall contain more than one subject, which shall be clearly expressed in its title ”; (b) because said act violates Sections 1 and 10 of Article 10 of the Constitution, in that it levies a direct tax upon cities of the second class of $400 per year for the benefit of the county in which a city of the seconjd class is located, for each and every saloon license issued by such city, and (e) because, if such levy of the tax aforesaid is not in fact a tax, then the Act of 1917 is a grant of the public money of the city by the Legislature to the county in which the city is located, contrary to Sections 46 and 47 of Article 4 of the Constitution of Missouri. Other contentions, as forecast, are made, but since one of these at least has already been decided against respondent, and as in the view we take of the case mention of others is unnecessary, we content ourselves with the above recital of respondents’ contentions. We think the above facts, together with such others as we shall find it necessary to refer to in our discussion of the points made in the case, will be sufficient to an understanding thereof. Title. To Act. Appellant bottoms its right to demand from the city of Springfield payment of the sum here in dispute upon Subdivision 40 of Section 8 of “An Act to amend an act approved on the 26th day of March, 1915, entitled, ‘An act to amend section 8 of an act, approved on the 25th day of March, 1913, entitled, “An act to repeal article 3 of chapter 84 of the Revised Statutes of Missouri of 1909, with all amendments thereto, said article being entitled ‘Cities of the second class,’ and to enact in lieu thereof a — 362 — new article providing for the government of cities of the second class,” ’ by repealing subdivision fortieth of said act and enacting a new subdivision in lieu thereof.” [Laws 1917, p. 357.] Subdivision 40 above referred to and herein relied on by appellant as furnishing its sole right to the money demanded from respondent city, reads thus: “Fortieth. — To have the exclusive power to define, regulate, restrain, suppress, license and tax dramshops and to revoke dramshop licenses, and to regulate and control the giving or selling of intoxicating liquors at any place or places in such cities: Provided that for every dramshop license issued by a city of the second class it shall pay to the State the sum of $400 per annum in quarterly installments; to the county,_ for county purposes, the sum of $400 per annum in quarterly installments; and to any special road district in which said city may be located $550 per annum in quarterly installments, and the balance shall be paid into the treasury of such city, for municipal purposes. Provided, further, that no special road district within which such county [city] may be located shall be entitled to any part of the amount paid by such city to the county.” [Laws 1917, sec. 8. p. 367.] It is clear that appellant is entitled to the money demanded and should prevail, if Subdivision Fortieth is valid. But respondent, admitting so much, urges that for numerous reasons said subdivision is invalid, becaue its provisions are in irreconcilable conflict with other provisions of the amended act, and because both its title and contents offend against express provisions of the Constitution. In the view which we are constrained to take of this case we need burden the books with but one of respondents’ contentions touching the unconstitutionality of the act. That one is that “it conflicts with that provision of the Constitution which reads: . ‘No bill shall contain more than one subject, which shall be clearly expressed in its- title.’ ” [Section 28, Art. — 363 — 4, Const.] Whether this contention is well taken may he demonstrated by a reference to the legislative history and career (the latter of which must be conceded to have been a veritable “Comedy of Errors”) of said Subdivision 40. In 1913 the Legislature passed an act entitled: “An Act to repeal article 3 of chapter 84 of the Revised Statutes of Missouri of 1909, with all amendments thereto, said article being entitled, ‘Cities of the second class,’ and to enact in lieu thereof a new article providing for the government of cities of the second class.” [Laws 1913, p. 420.] The above act contained in Section 8 thereof a subdivision numbered Fortieth, which, setting forth some of the powers of a city of the second class, read in full, thus: “Fortieth. To have the exclusive power to restrain, suppress, regulate, license and tax dramshops, and to revoke dramshop licenses.” [Laws 1913, p. 434.] In 1915 the Legislature undertook to modify’ the thoroughgoing and exclusive - power of licensing and taxing dramshops, which was conferred upon cities of the second class pursuant to the above quoted provisions of the Act of 1913, supra, by an amendment which added to said Subdivision 40 certain further provisions designating the manner in which the money derived from licenses and taxes on dramshops should be divided [Laws 1915, p. 353.] The latter provision was by this court declared unenforceable, for that no method or means was provided “to fix what part of the dramshop license shall be paid to the State and county, or to designate a means by which that part can be ascertained.” [State ex rel. v. Gideon, 273 Mo. 79.] Thereafter in 1917, as we state above, the act now before us in the instant case was passed by the Legislature. [Laws 1917, p. 357 et seq.] Obviously, this was done in an effort to correct the omission in the Act of 1915 pointed out by us [State ex rel. v. Gideon, supra.] In the beginning of our discussion we set forth in full both the title to the Act of 1917, and Subdivision — 364 — 40 thereof, herein relied on. Even a casual examination of the title to this amendatory act shows that it makes no reference to the fact that it attempts to provide for the payment, by all cities of the second class to the county where such a city is located, of the sum of four hundred dollars per year for each and every dramshop which such a city may see fit to license. Obviously such a provision is in diametrical conflict with the provision of the Act of 1913, whereby cities of the second class were given exclusive power to license and tax dramshops. For if, as the provisions of said Subdivision 40 now; require the county in which a city of the second class is located is to collect from such city the sum of four hundred dollars, per year, and the State the further sum of, four hundred dollars, and special road districts, if such there be, the further sum of five hundred and fifty dollars, but little is left of the so-called exclusive power to tax and license which the original act conferred upon cities of the second class. For while ostensibly possessing exclusive power to tax and license dramshops and to fix the rates thereof, this power is by the amendment curtailed by the necessity of fixing the license tax at not' less than $1350 per year. It is too plain for argument that an amendment which thus, either taxes a city for the benefit of the county, State and special road district on each dram-shop license which it issues, or makes such a city the agent of the county, State and special road district for the collection of licenses and taxes on dramshops, is (to say no more) so far a departure from and an engrafting upon the original act of matters not germane thereto as to require specific mention of such a purpose in the title of the act. [State ex rel. v. Revelle, 257 Mo. 529; Williams v. Railroad, 233 Mo. 676; Shively v. Lankford, 174 Mo. l. c. 544; Wolf v. Taylor, 13 So. 688; Thompson v. Luverne, 29 So. 326; State ex rel. v. Gordon, 233 Mo. 383; State v. Parker Distilling Co., 236 Mo. 219.] This was not done and we think the contention of respondents that the title to — 365 — the Act of 1917, Laws 1917, p. 357, is violative of Section 28 of Article 4 of the Constitution is well taken and should he sustained. Other grounds of alleged unconstitutionality of the act under consideration are urged, some of which may well prove to he well-taken. But since the point discussed disposes of the whole case, no occasion arises to lengthen our views by a discussion of other points, even though such may seem upon a merely casual view to be well-founded. It results that the case must be affirmed. Let it be so ordered. All concur except Blair and Williams, JJ., who dissent.