City of St. Louis v. Tiefel

1. Water Commissioners — Water Licenses—Actions touching—Constitution—■ Statute — Subject Matter, how far must be embraced in title — Construction of l 32, art. 4, Const. Mo.—An act entitled “An act amendatory of an act to enable the city of St. Louis to procure a supply of wholesome water, approved March 13, 1867” (Adj. Bess. Acts Mo. 1868, p. 291), after authorizing the Board of 'Water Commissioners to require owners, etc., of buildings to take out water-licenses, goes on to provide, in substance, that parties who fail or neglect to comply with the provisions of tho section shall bo subject to the same penalties as tho parties who use the water of the city and fail' or refuse to pay the rate or assessment for the same; provided, however, that the Board of Health shall, in tho first instance, declare by resolution that in its judgment the use of water from the city water-works in the houses of such parlies is demanded as a sanitary measure for the preservation of the health of the inmates: Held, that tho section, although it confers extraordinary powers, relates clearly to tho subj oct intimated in the title, and is entirely congruous and connected with it, and is valid under section 32 of article 4 of tho constitution of this State. The only intention of that section of the constitution was to prevent the conjoining in the same act of incongruous matters, and of subjects having no legitimate connection or relation to each other; and if the title of an original act is sufficient to embrace the provisions contained in an amendatory act, it will bo good, and it need not be inquired whether the title of the amendatory act would of itself be sufficient. It is plain, however, that the use of the words “other purposes,” which have been extensively used in the title to acts to cover any and every thing, whether connected with ' the main question indicated by the title or not, can no longer be of any avail. 2. Police Court — Jurisdiction — Actions touching Water Licenses.—The St. Louis Police Court, being by the act establishing it limited to cases in which a justice of the peace would have had jurisdiction, or to those for violation of a city ordinance, or to cases of assault and battery, can have no jurisdiction over a complaint for violation of an act of the legislature in failing to take out a water-license; and, upon appeal to the Criminal Court, the ease, upon motion, was properly dismissed for want of jurisdiction.

Error to St. Louis Criminal Court. I. The two acts, the original and amendatory, ought to be construed together as making but one law; and looking at the two acts as one act, and regarding the provision of the second section of the amendatory act, no one can assert that the provisions of this section are not germain to the general object of the bill — the enabling the city of St. Louis to procure a supply of wholesome water. If á provision of a particular section of a law is within tho general scope, nature, and object of the law, then it is sufficient; and no constitutional objection lies that the nature of tho particular provision is not expressed in the title of the bill. Any other rule than this would make the title of a bill express not only the ££ subject” of the bill, but all the details, minutise, and machinery of the bill, making the title to the act as full and specific as the act itself. The other sections of this law all plainly and legitimately relate to the one subject. Look at the original law in the light of this objection. Its general title is as above quoted ; yet the first section creates a quasi corporation, charged with important and extensive duties, and vested with extraordinary powers. Nothing hereof is expressed in the title. The seventh section abolishes the offices of superintendent of water-Avorks and register of water-rates as formerly existing, and takes from the city all control of Avater-Avorks existing for a long Avhile previous, and vests such control in this neAV corporation. Nothing hereof is expressed in the title of the act. Another section makes particular provision for the taking and condemnation for public use of private property; provision is made for the issue of $3,500,000 of gold bonds. Nothing of this appears in the title, and so in very much of the matters of the act; yet no one Avould seriously argue that this laAV in any of its parts Avas inoperative and void by reason of this constitutional provision. The general scope, nature, and object of this law is sufficiently Avell-stated in the title to meet any constitutional objection, and it does not aid the defendant’s argument that this provision is found in another and an amendatory act — the acts being construed as one act. It is argued by counsel that £ £ an act which compels A. to pay for a Avater-license, whether he used the Avater or not, cannot be viewed as an act enabling B. to procure a supply of Avholesome water.” But an act which compels A. and B., property-owners, to use water Avhen it i's offered them, most assuredly is an act enabling the city of Avhich they are inhabitants to procure a supply of pure and Avholesome water if the Avater bo pure and wholesome. It is idle to call this measure an arbitrary tax, or unreasonable, harsh, or unnecessary. The first portion o£ the section undoubtedly is a part of a general plan for enabling the city of St. Louis to procure a supply of pure and wholesome water, and the proviso is added that the section shall not have force or effect unless the board of health shall do something. This is merely a proviso competent for the legislature to make, and there could be no necessity or propriety in expressing the subject of a proviso in the title to a bill. II. The act is assailed on the ground that the law is void as being against common right. In an act to provide the city of Brooklyn with water, passed April 16,1859, the eighteenth section reads as follows: * * * “ Such rents (water-rents for the supply of water) shall be collected from the owners and occupants of all such buildings, respectively, which shall bo situated upon lots adjoining any street, avenue, lane, or court in said city, in which the distributing pipes have been laid, and from which they can be supplied with water, whether the water shall be used or not; such regular rates, together with all interest that may accrue thereon, shall be a lien upon such houses and lots respectively.” So in section 24: “The said water-board shall, in every year, by resolution, fix the price, which shall be assessed upon every vacant lot situated upon any street, lane, alley, or court, etc., etc.” Reference is made to this law simply to show that the act of March 23, 1868, is not an extraordinary law or peculiar to the legislature of this State—not to prove its constitutionality. Every act, and there are very many such, for the laying of water-pipe in cities, is upon the same principle of legislation. The very act under consideration, that of March 13, 1867, being the act to enable the city of St. Louis to procure a supply of pure and wholesome water, is based upon the same principle. The twenty-third section provides that whenever the city council shall, by a two-third vote, declare the laying of water-pipe to be necessary, the said board of water commissioners shall cause the same to be laid, and the cost of laying all such pipe shall be apportioned among the owners of property on such street, according to the fronting of their lots thereon, and be levied as a special tax, etc. Now, the principle of this legislation is precisely similar to that condemned by the St. Louis Criminal Court. A man, owner of property on a street, may not choose to use water from the public works; he may not like it; it may not agree with him; he has no necessity for it. Wherefore should he be compelled to pay for water-pipe laid in front of his ground, the’ water from which he will not use ? He does not want it. Why should he be compelled to pay for the laying of the pipe to the lot of his neighbor who does want it ? This is supposing he has a house with cisterns and wells supplying him with wholesome water. But if the lot is vacant, much greater is the injustice which the legislature imposes upon him ; for if, as owner, he is unable to build, of what possible use can the pipe be to his vacant lot, and why should he be compelled to pay a proportionate share of the cost thereof when, in any event, he never intends to use the pipe or water ? This is a mode, and a very proper mode, adopted by the law-making power to compel every landed proprietor to pay a due share of the burden or debt created by a needed and great public improvement. It should be remembered that there exists an absolute necessity for water in crowded cities, as a matter of comfort and health, indispensable in certain seasons to the well-being of the community. This necessity, being provided for, has to be paid for. While men planted a city by the side of the Mississippi river, nature did not thereafter carry this water into all the streets and avenues of that city, extending over an area of many miles ; and yet this is an important essential of the health of the city. The legislature says it shall be brought so as to be capable of being used in every house where the same is demanded, as a sanitary measure, or it shall be paid for as if brought in and used. HI. It is contended that the Police Court had no jurisdiction over this cause or proceeding. This leads us to an examination of the meaning of the language of the second section, to-wit: ‘ ‘ The parties who fail or neglect to comply with the provisions of this section shall be subject to the same penalties as parties who use the water of the city and fail or refuse to pay the rate or assessment for the same.” We are immediately referred hereby to other legislation to find out what are the penalties which parties are subject to who use the water of the city and fail or refuse to pay the rate or assessment for the same. Referring to the city ordinances we find that ‘ ‘ whoever shall, himself, or by any of his family, or any of his agents or servants, use the water from any part of the water-works, without license, shall forfeit and pay,” etc. Now, it is impossible to say that the legislature may not vest the police justice of the city of St. Louis with jurisdiction over the failure or neglect of parties to comply with the provisions of this section ; and if so, and if the legislature has vested this jurisdiction by this act with the police justice, it is idle to look further—as to the city charter of the city of St. Louis—for this grant of jurisdiction, for the act itself gives the jurisdiction. It is claimed.that the act of March 23/ 1868, is a penal statute, and must receive a strict construction. But we reply, it is the duty of the courts to uphold, wherever possible, the legislation of the land — ut res magis valeat quam pereat. Does the act contemplate after or subsequent action on the part of the city council before it could have effect? The reasonable, sensible, and proper interpretation of this act is this: Parties who fail or neglect to comply with the provisions of this section shall be subject to a penalty. That penalty is the same as is imposed upon parties who use the water of the city and fail or refuse to pay the rate or assessment; and, per consequence, and by indispensably necessary construction, through the same channel, by the same forum, in the same court. If the legislature had merely said “ and suable or collectable in the same manner,” or “to be enforced in the same manner or through the same jurisdiction,” there could have been no doubt; nor is there any more room for doubt on a fair and reasonable construction of the law as it is. The case of The Town o'f Fishkill v. The Fishkill and Beekman Plank Road Company, 22 Barb. 634, decides nothing as to our own act. The court below properly dismissed the case, if there was no jurisdiction either of the subject matter or over the person of defendant in the Police Court. (Webb v. Tweedie ct al., 30 Mo. 488.) I. There was no jurisdiction in the Police Court over the subject matter of the complaint. The jurisdiction of this court is fixed by statute. “ The pólice justice” * * * “ shall havé the same jurisdiction as a justice of the peace, within the limits of the city, in all State cases; he shall have jurisdiction over all cases arising under any ordinance of the city, and in all cases of assault and battery arising within said city, subject to appeal,” etc. (Sess. Acts 1867, p. 69, § 18.) It is an inferior court, and “ courts of inferior jurisdiction cannot go beyond the authority conferred on them by statute. They can assume no power by implication, but must keep within the powers expressly given them, and if they go beyond them their acts are void.” (Cow. Tr. § 650, with numerous citations.) “And the ground of their jurisdiction must appear upon the face of their proceedings.” (State v. Metzger, 26 Mo. 65, and authorities there cited.) 1. The case at bar is not one arising under any city ordinance. On the Gontary, it alleges “ the violation of an act of the General Assembly of the State of Missouri,” for which the penalty is sought to be recovered. 2. As this is no case of assault and battery, then: 3, if the Police Court-had jurisdiction at all, it must be by virtue of the power delegated to it in common with justices of the peace in State cases. But the jurisdiction of justices of the peace in State cases extends only (a.) To cases of misdemeanor punishable by fine not exceeding one hundred dollars. (Adj. Sess. Acts 1868, p. 82, § 6.) This authority appears, however, in St. Louis county, to be vested exclusively in the Court of Criminal Correction of St. Louis county. (Adj. Sess. Acts ’68, p. 268, § 13.) (6.) To preliminary examinations in cases of crime. (Gen. Stat. 1865, chaps. 208, 209.) (c.) To actions for penalties, not exceeding one hundred dollars, given by any statute of this State. (Gen. Stat. 1865, chap. 177, § 2.) This being clearly no case of misdemeanor punishable by fino not exceeding one hundred dollars, nor an action for a penalty not exceeding one hundred dollars (because the act recited fixes neither punishment nor penalty, while the penalty sued for exceeds one hundred dollars), nor yet a preliminary examination in case of crime, it follows that the Police Court had, in no aspect of the case whatever, jurisdiction of the subject matter. II. The act alleged to he violated (Act of March 23, 1868) is unconstitutional and void. £ ‘ No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title.” (Const. Mo. art. 4, § 32.) That act has the following title: “Anact to amend an act entitled ‘An act to enable the city of St. Louis to procure a supply of wholesome water,’ approved March 13, 1867.” (Sess. Acts 1867, p. 184.) 1. The subject matter of section 1 is indicated in the title. But the complaint is for a violation of section 2, the provisions of which are not expressed nor even hinted at in the title of the act. This section contemplates simply a compulsory process, which may be regarded as the levy of a tax upon certain individuals without having an object for such taxation expressed, or as a precautionary measure for the preservation of the health of a particular neighborhood, neither of which subjects is consistent with or expressed in the title. If the title of an act contemplates the grant of a benefit to a community, as it does in the present instance, a section of the act which compels certain individuals to pay for the privilege of such a benefit, whether they enjoy it or not, surely must contain a subject not expressed in the title. How can the imposition of this arbitrary tax upon certain individuals be consistent with the title of the act, when the purpose of the act—namely: the gain of a supply of wholesome water— may have been accomplished by the other provisions concerning the laying of pipes, and by the ordinances relating to the use of water and payment for licenses ? And it will be observed that the provisions of the section in question do not depend upon the contingency of a failure to accomplish the purposes of the act through the operation of the other seotions, but stand alone — harsh, arbitrary, unreasonable, and unnecessary. The total departure of the second section from the scope of the act becomes apparent, beyond cavil, when we regard its sanitary features. A provision for the health of a particular neighborhood is not necessarily a provision which can enable a community to enjoy a general privilege. The section in question belongs properly, or should have been inserted originally, in the act creating 'the board of health, approved March 9,1867. (Sess. Acts 1867, p. 179.) Section 2 divests of power the board of water commissioners. To give them authority the act was passed, and grants power to the board of health, who have a different status, and labor for ends wholly foreign to those pursued by the first-named board. Surely a section which accomplishes this result does not contain a subject which is expressed in the title. The constitution of New York provided that “no private or local- bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” In 1854 the legislature of New York passed an act entitled “An act to release the Eishldll and Beekman Plank Road Company from the construction of part of their road, and for other purposes.” This act contained eight sections. The first was consistent with the title. The second and third contemplated an evasion of responsibility by the company in certain cases. The words “and for other purposes ” are held to have no meaning, and the act is declared void as to all sections except the first. (Fishkill v. Eish. & Beek. PL R. Co., 22 Barb. 634; see also 1 Seld. 285, 297.) Now, the amendatory act of March 23, 1868, has a restricted title, if there ever was one in the history of legislation. Having read the original act, approved March 13,1867, and having found that certain powers are exercised under it by certain officers, would any one imagine, from reading the title of the amendatory act, that it contained a section depriving such officers of authority in-fact, and departing widely from the purpose of the original act ? The provision of the constitution is not an idle measure. It was adopted by the people to put an end to a vicious system of legislation, which makes one act a cover for a number of different and inconsistent schemes. The objectionable features of the section in question may have escaped the attention of many members of the General Assembly — the title of the act being employed simply as the cover for a measure conferring upon a local board of officials extraordinary and dangerous powers. The act under consideration purports to delegate a part of the legislative power to an inferior tribunal. It provides that “ the parties who fail or neglect to comply with the provisions of this section shall be subject to the same penalties as parties who use the water of the city and fail or refuse to pay the rate or assessment for the same.” It is not contended here that the legislature has no authority to delegate to municipal corporations such legislative power as- may enable them to regulate their municipal and police affairs and impose penalties for the violation of the regulations as made (The State v. Simonds, 3 Mo. 414) ; but it has clearly no authority to delegate to an inferior body the power to fix the penalty for an offense created by itself — which is exactly what is attempted to be done in the act before us — by making the penalty dependent upon the action of the city council, which may make it five dollars to-day, and five hundred dollars to-morrow. “ The legislative power shall be vested in a General Assembly, which shall consist of a senate and house of representatives.” (Const. Mo. art. 4, § 1.) If it were? conceded that the General Assembly has the power to vest either the city of St. Louis, or the board of water commissioners, or board of health, with authority to compel the citizens of the city to pay for the water from the city water-works under the circumstances set forth in the act, it would by no means follow that, having clothed either of these corporations with such power, it could delegate to another the authority to fix the penalty for disobedience to its orders. The power to impose a penalty for disobedience should accompany, as a necessary concomitant, the power to make the regulation. But in the case at bar the General Assembly has itself imposed the regulation, and none but itself can fix the penalty. The penal provision referring to the acts of another body to determine the punishment for a violation of a statute is therefore void. The General Assembly has no authority to clothe either of the corporations before mentioned with the power to exact from the citizens so exorbitant and unjust a tax as .that contemplated by the act under consideration. That it is a tax in support of the water-works system of St. Louis which is contemplated by this act, rather than the enforcement of a sanitary police regulation, is plainly apparent from the phraseology of the act itself. The action of the board of health (which is intrusted with the sanitary police powers of the city) is in no wise binding upon the board of water commissioners. It is not the board of health which “may require the proprietors” * * “to take out licenses for the use of water, etc.,” but the board of water commissioners'. Nor is it the use of the water from the city waterworks that is made compulsory, but only the payment of a license for the use of such water. Under the act, as it now stands, no person can be punished for the use of water from any cistern or well, or for compelling the tenants in his house to use the same, no matter how thoroughly the board of health may be convinced of the deleterious quality of such water, provided he pays his license to the board of water commissioners. The preservation of the health of the citizens, by compelling them to use the water from the city water-works in lieu of what the board of health may deem injurious or unwholesome cistern or well water, is not the ultimate or paramount object of the act; for it neither secures this nor pretends to secure it. To ascribe such an object to this act would be to place a very low estimate upon the intelligence of the framers; but, if permitted to stand, it very effectually secures another object, to-wit: the payment of a water-tax into the city treasury, whether the person paying uses the water or not. If the legislature, then, intended to empower the board of water commissioners to levy a tax on all the proprietors of houses along such streets as they are ready to supply with water, it ought to be a uniform tax, according to the value of the property upon which it is levied. “All property subject to taxation ought to be taxed in proportion to its value” (Const. Mo. art 1, § 30) ; and it ought to be assessed upon all the property on such streets, not alone upon such as maybe improved. “No property, real or personal, shall be exempt from taxation.” (Const. Mo. art. 11, § 16.) The oppression and injustice which may be inflicted upon citizens under (he operation of the act as it now stands is obvious. It is in violation not only of the constitution, but of every principle of justice and equality before the law, and ought not to be permitted to remain in force. (Garrett v. City of St. Louis, 25 Mo. 505.)