Opinion
September 3, 1940.
1. JURISDICTION. In an action under the declaratory judgment law to determine the constitutionality of a legislative act relating to the classification of certain cities and counties in the collection of taxes, the Supreme Court has jurisdiction of the appeal.
2. STATUTES. In an action under the declaratory judgment law to determine the constitutionality of an act relating to the collection of taxes where the Supreme Court has already held the act to be constitutional, in that the title to the act is sufficient, and the act is not a local and special law, the act is not discriminatory in that it applies only to the City of St. Louis and to St. Louis County.
The alleged fact that a greater percentage of delinquent taxes was collected under the law in the City and County of St. Louis and in the State at large than under the previous law which was substantially the same, such fact may properly serve as a basis for repeal, addressed to the General Assembly.
3. TAXATION: Classification. The rule is well settled that population may be properly used as the basis for classification in a general law regulating certain cities and counties when such classification is reasonable and germane to the purpose of the law.
4. TAXATION: Classification. Where a law providing for the collection of delinquent taxes merely by sale by the county collector was amended by an act providing that in cities which now or may hereafter have in excess of 700,000 inhabitants and in counties which now or may hereafter have not less than 200,000 or more than 400,000 inhabitants, the lien for delinquent taxes will be enforced by suit, although such amending act applies only to the City of St. Louis and to St. Louis County it does not make the act a special rather than a general law.
Appeal from Circuit Court of St. Louis County. — Hon. John J. Wolfe, Judge.
AFFIRMED.
John Q. Brown for appellants.
(1) The Act of the 60th General Assembly (Laws 1939, p. 879) violates the provisions of Article 4, Section 28, of the Constitution of Missouri and is void because it contains more than one subject clearly expressed in its title. (a) The title of an act is the index of its contents. State v. Crites, 277 Mo. 194; State ex rel. v. Roach, 258 Mo. 1008; State ex rel. v. Imhoff, 238 S.W. 122; State v. Sloan, 167 S.W. 500; State ex rel. Wells v. Walker, 326 Mo. 1233; Vice v. Kirksville, 280 Mo. 348. (2) The Act of the 60th General Assembly (Laws 1939, p. 879) violates Section 1 of the Fourteenth Amendment of the United States and violates the Constitution of Missouri, Article II, Section 30, because the act deprives plaintiffs of their property without due process of law. Truax v. Corrigan, 257 U.S. 312; Power Co. v. Sanders, 274 U.S. 495; Finance Co. v. Paramount Exchange, 262 U.S. 544; Dohany v. Rogers, 33 F.2d 918; San Francisco Bd. Education v. Ins. Co., 159 F. 994; In re French, 315 Mo. 82; In re Flukes, 157 Mo. 132; State ex rel. Ralston v. C., B. Q. Ry., 356 Mo. 512; McClung v. Pulitzer Publ. Co., 279 Mo. 370; Milton v. Barger Ry. Co., 103 Me. 218, 15 A.L.R. (N.S.) 203. (3) The Act of the 60th General Assembly (Laws 1939, p. 879) is a special or local law in violation of Article 4, Section 53, Subsection 32 of the Constitution of Missouri, because a general law can be made applicable. (a) Delinquent tax laws are general laws. Board of Commissioners v. Hammerly, 204 P. 445; City of Sapulpa v. Land, 219 P. 117; Atlantic F. Railroad Co. v. Wright, 13 S.E. 578; State of Nevada v. Consolidated Virginia Min. Co., 17 Nev. 446. (b) Whether a general law can be made applicable is a judicial question. Henderson v. Koenig, 168 Mo. 377; City of Spring v. Smith, 19 S.W.2d 1; State ex inf. Mueller v. Fry, 254 S.W. 1084. (c) Need alone will not justify the validation of special and local laws, if a general law can be made applicable. State ex rel. v. Roach, 258 Mo. 541; State ex inf. v. Armstrong, 315 Mo. 298; State ex rel. Moseley v. Lee, 319 Mo. 976; State ex rel. Maquire v. Draper, 47 Mo. 29. (d) The General Assembly, by the passage of the Jones-Munger Laws (Laws 1933, p. 425) decided whether a general law can be made applicable. 59 C.J., sec. 313, p. 726; State ex rel. v. Roach, 258 Mo. 565; State v. Anslinger, 171 Mo. 600; Henderson v. Koenig, 168 Mo. 356. (e) The Act of the 60th General Assembly (Laws 1939, p. 879) is a special and local law in violation of Article 4, Section 53, Subsection 33 of the Constitution of Missouri, because it attempts indirectly to enact a special or local law by the partial repeal of a general law, and is also void because it is a special law when a general law can be applicable. (4) The Act of the 60th General Assembly can affect only one city in the State, because the court judicially knows only one city is not with a county, irrespective of population. No other city than the City of St. Louis can ever be a city not within a county. No matter how populated, therefore, population is not a reasonable basis for the classification provided. State ex rel. Gentry v. Armstrong, 315 Mo. 298; Rose v. Sullivan, 296 S.W. 815; State v. Logan, 186 S.W. 979; State ex rel. v. Fry, 254 S.W. 1085. (5) The Act of the 60th General Assembly (Laws 1939, p. 879) is a special and local law providing for the collection of delinquent taxes in the City of St. Louis and St. Louis County by a different method in the rest of the State, in violation of Article X, Section 3 of the Constitution of Missouri, which provides that all taxes shall be levied and collected by general laws. State ex rel. Moseley v. Lee, 319 Mo. 976; State ex rel. v. Southern, 265 Mo. 275; Ruckert v. Richter, 127 Mo. App. 664; State v. Anslinger, 171 Mo. 600; State v. Logan, 186 S.W. 979.
Arthur U. Simmons for respondents.
(1) The amended petition of the plaintiffs fails to state a cause of action under the Declaratory Judgment Act (Laws 1935, p. 218) for the reason that the amended petition alleges the unconstitutionality of a statute and the record fails to show that the Attorney General of the State was served with a copy of said proceedings or was given an opportunity to be heard in said case. Laws 1935, sec. 11, p. 219; School District of Kansas City v. Smith, 111 S.W.2d 167. (2) The sufficiency of the appellants' amended petition as to whether or not said amended petition states a cause of action is to be determined solely from the facts alleged in said amended petition. School District of Kansas City v. Smith, 111 S.W.2d 167; Public Serv. Comm. v. K.C.P. L. Co., 325 Mo. 1217, 31 S.W.2d 67. (3) The respondents' demurrer to appellants' amended petition was rightfully sustained because appellants' amended petition fails to state a cause of action against the respondents. (a) The Act of the 60th General Assembly (Laws 1939, p. 879) is not unconstitutional because the bill contains more than one subject which is not clearly expressed in the title, because this specific question of constitutionality has been determined by this court, in which determination the act was held not to be unconstitutional on this ground. Hull v. Baumann, 131 S.W.2d 721. (b) The Act of the 60th General Assembly (Laws 1939, p. 879) is not unconstitutional, as alleged in appellants' amended petition, because said act violates the Fourteenth Amendment of the United States Constitution, or Article II, Section 30 of the Constitution of Missouri, by depriving the appellants of their property without due process of law, because this specific question of unconstitutionality of said act has been determined by this court, in which determination the constitutionality of the act was upheld. Hull v. Baumann, 131 S.W.2d 721. (c) The Act of the 60th General Assembly (Laws 1939, p. 879) is not a special or local law because of the classification in the act, because the constitutionality of the classification in the act has been determined by this court, in which decision this court held the act not to be a local or special law. Hull v. Baumann, 131 S.W.2d 721. (d) The Act of the 60th General Assembly (Laws 1939, p. 879) is not a special law in violation of Article IV, Section 53, Subsection 32, of the Constitution of Missouri, because it has previously been held otherwise by this court. Hull v. Baumann, 131 S.W.2d 721.
In 1933 certain provisions of the statutes pertaining to the collection of delinquent taxes (Art. IX, Chap. 59, R.S. 1929) were amended by an act called the Jones-Munger Law. [Laws 1933, p. 425, Ann. Stat., sec. 9945 et seq., p. 7988 et seq.] The effect of this law was to provide for the enforcement of liens for delinquent taxes merely by sale by the county collector who gave a certificate of purchase rather than by suit in court and sale upon execution after judgment.
Then in 1939 the Jones-Munger Law was amended by an act known as House Bill 677 (Laws 1939, p. 878, Ann. Stat., sec. 9952A-1 et seq., p. 7995). This act provides that in cities (not in a county) and in counties which now or may hereafter have in excess of 700,000 inhabitants and in counties which now or may hereafter have not less than 200,000 and not more than 400,000 inhabitants the lien for delinquent taxes should again be enforced by suit. By such classification this act at the present time applies only to the City and County of St. Louis. The act also provides for attorney's and abstracter's fees and for costs.
This is an action under the declaratory judgment law to determine the constitutionality of this act (House Bill 677). Such issue vests jurisdiction in this court. The plaintiffs are two taxpayers, delinquent in state and county taxes, who own property in St. Louis County. The defendants are the collector of revenue, the attorney for the collector, and a title company employed as abstracter. Defendants filed a demurrer which was sustained. Plaintiffs refused to plead further and have appealed from the dismissal of their petition.
Plaintiffs in their petition set out a number of reasons for their claim that the act is unconstitutional. These reasons also serve as the assignments of error and as the points asserted in the brief. They are:
1. The title to the act contains more than one subject in violation of Sec. 28, Art. IV of the Constitution.
2. The act is a local and special law and therefore violates Sec. 53, Art. IV of the Constitution because it can apply only to the City and County of St. Louis; because it singles out the City of St. Louis which is the only city not in a county; and because population is not a reasonable basis for classification.
3. The act is discriminatory and takes property without due process in violation of Sec. 1, XIV Amendment of the United States Constitution and Sec. 30, Art. II of our Constitution.
This act has already been considered by Division Two of this Court in the case of Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721, in an action to prevent its enforcement by the Collector of the City of St. Louis on the ground of unconstitutionality. In a thoughtful opinion by Judge TIPTON this court held the act constitutional and in doing so ruled on the same contentions appellants are now asserting. In that opinion it was held that:
1. The title to the act is sufficient and proper.
2. The act is not a local and special law because the population of the City and County of St. Louis are such that the act applies only to them for the reason the act will apply to all other cities or counties of the same population, or because the fact that St. Louis is the only city not in a county as the city in this connection is regarded as a county, and the act also applies to counties which may have the same population, and all this is so for the reason that under the necessities of the conditions involved population is a natural and reasonable basis for classification.
3. The act is not discriminatory for the reason that it includes the entire class of delinquent taxpayers resident in certain populous areas of the State and there is a reasonable ground for such classification.
Appellants argue that the facts in this case differ materially from those in the Hull case. We find only two facts pleaded. One of these is that a greater percentage of delinquent taxes was collected under the Jones-Munger Law in the City and County of St. Louis and in the State at large than under the previous law which was substantially the same as this act. This fact may properly serve as a basis for an argument to repeal the new act but it must be addressed to the General Assembly. Furthermore, in the Hull case it was pointed out that the City of St. Louis expended $199,454.02 in buying property sold under the Jones-Munger Law in order to protect the lien for taxes because there were no other substantial bids. Sales to private parties in the City of St. Louis and St. Louis County were approximately two per cent and eight per cent respectively and in other counties the average was thirty-eight per cent. It could not have been the intention of the Legislature to place this added burden in collecting taxes on a city or county in the more populous areas even though more taxes may have been collected. The only other fact which is new to this case is plaintiffs' allegation that titles obtained by sale under the Jones-Munger Law have uniformly been approved by title examiners. This is a minor factor and is not sufficient for us to change the ruling in the Hull case. There, it was agreed that because of the provisions of the Jones-Munger Law a general market for the property to be sold could not be had and that future sales of property which might be sold under its provisions were precluded. One of the reasons advanced for such condition was that the major title insurance companies would not insure titles acquired under such sales.
The chief facts in the Hull case advanced to show the need for the classification used in this act arose from the conditions found in urban localities. We may notice that according to the census the city with the greatest population in this State is St. Louis. Furthermore, of the next seventeen cities ranking in population there are six found in St. Louis County, with one of them ranking sixth in the State.
The rule is sound and is well settled that population may be properly used as the basis for classification in a general law regulating certain cities and counties when such classification is reasonable and germane to the purpose of the law. [State ex rel. Gentry v. Curtis, 319 Mo. 316, 4 S.W.2d 467.] We found in the Hull case that population was a natural and reasonable basis for the classification used in the act under consideration for the reason that the Jones-Munger Law does not function in all respects in more populous centers.
Although this act may apply at the time of its enactment only to one county or to one city because of such classification on population, such fact alone does not make the act a special rather than a general law. [Hull v. Baumann, supra.]
The contentions advanced by appellants are identical with those in the Hull case and have been fully considered. They have been decided contrary to appellants' position. We have held the act to be a general law based on reasonable classifications and therefore not repugnant to constitutional provisions. We adhere to that ruling.
Other objections raised by appellants are relevant only if the act is held to be a special law and in view of our conclusion, need not be considered.
The judgment is affirmed. All concur.