Opinion
October 7, 1935.
1. STATUTES: Title of Act: Sewer Districts. The requirement of Section 28, Article IV of the Constitution that no Act of the General Assembly shall contain more than one subject clearly expressed in its title, means that matters which are incongruous, disconnected and without any natural relation to each other must not be joined in one bill; and the title must be a fair index of the subject matter of the bill.
Where an act provided for the establishment of sewer districts in counties of not less than 150,000 nor more than 400,000 inhabitants, it related to one subject clearly expressed in the title, the construction of sewers, though many details were contained in the act such as subdistricts, plans and specifications, the holding of elections to vote on bonds, levying of taxes to defray the expense of maintaining the district corporation and paying the principal and interest on bonds, the condemnation of land, the election of qualified trustees, etc.; all this related to the one subject fairly indexed in the title.
2. SEWER DISTRICTS: Municipal Indebtedness. Where an act providing for sewer districts authorized subdistricts to construct laterals and incur indebtedness in excess of the constitutional limit, to be paid by special assessments against property abutting upon such laterals as special benefits, it was not contrary to Section 12, Article X of the Constitution.
3. CONSTITUTIONAL LAW: Sewer Districts: Municipal Corporations. An act providing for the establishment of sewer districts in counties of not less than 150,000 nor more than 400,000 population, is not unconstitutional in that it attempts to create a new class of municipal corporations, contrary to Section 7, Article IX of the Constitution.
Such act does not diminish the corporate powers of a town or village which may be embraced within the sewer district.
4. CONSTITUTIONAL LAW: Local and Special Law. An act providing for the establishment of sewer districts in counties of a certain population is not unconstitutional as being a local or special law in conflict with subsections 2, 11, 12 or 15 of Section 53, Article IV of the Constitution.
While there was only one county in the State having a population within the limits mentioned, it is not a special local law because it applies to all counties which may hereafter have that population.
5. SEWER DISTRICTS: Due Process. An act providing for the establishment of sewer districts in certain counties for the proposed purpose of preserving the public health or public welfare does not deprive interested parties of their property without due process in violation of the Fourteenth Amendment to the Constitution of the United States, because those purposes relate to the proceedings leading up to the original incorporation of a district and do not involve the issuance of bonds or the levying of taxes.
The mere formation and incorporation of a drainage district with a power to tax for certain purposes, and the inclusion of one's land therein, does not of itself without more deprive such landowner of his property.
6. SEWER DISTRICTS: County Funds. An act providing for the establishment of sewer districts in certain counties is not unconsitutional, because it authorizes the expenditure of county funds, in violation of Section 46, Article IV of the Constitution.
The payment of election expenses of a newly created sewer district was not a gift or a grant to that district within the meaning of said Section 46, Article IV.
7. SEWER DISTRICTS: Constitutional Law: Delegation of Judicial Functions. An act authorizing the establishment of sewer districts in certain counties does not violate Articles III and IV of the Constitution in that it delegates judicial functions to the engineer of a sewer district, since the engineer must investigate and find that a proposed district would be for the preservation of health or public welfare, because he must report his finding in writing to the circuit court together with maps, etc. The mere report by the engineer of his conclusions with the facts upon which he bases the conclusions is not an improper exercise of judicial functions.
8. CONSTITUTIONAL LAW: Municipalities. An act authorizing the establishment of sewer districts in certain counties is not unconstitutional because it does not require the deduction of indebtedness incurred by a municipality located in whole or in part within such district.
In computing the existing bonded debt of a municipality to determine whether it exceeds the constitutional limit, it is proper to exclude obligations of another political subdivision whose territory is co-extensive in whole or in part with the municipality.
9. MUNICIPAL CORPORATIONS: Sewer Districts: Vote on Bonds. Where the vote authorizing bonds in a sewer district of an amount not greater than $800,000 for the purpose of constructing trunk line sewers, the proposition was not indefinitely stated because it left the board of trustees of the district an opportunity to build a sewer system with less than the amount mentioned, since the statute required that the engineer's report should describe the boundaries of the district and the plan of the system and his report be filed with the court to which objections might be made, and the court was required to approve or disapprove the plan. The amount of indebtedness therefore was limited to the $800,000 mentioned in the proposition.
PEREMPTORY WRIT OF MANDAMUS ISSUED.
Alva C. Trueblood, B.H. Charles and Carl Trauernicht for relator.
(1) The Sewer District Act, Laws 1933-34, Ex. Sess., p. 119, is not unconstitutional either: (a) Under Section 28, Article IV of the Constitution, because all of the provisions of the act are germane to the subject expressed in the title. State v. Price, 229 Mo. 670, 129 S.W. 650; Thomas v. Buchanan County, 330 Mo. 627, 51 S.W.2d 95; State v. Ward, 328 Mo. 658, 40 S.W.2d 1076. Nor is the act void as containing more than one subject; all the powers conferred by the act have reference to sewers; and the title of the act expresses the subject matter of the act. State ex inf. Attorney General v. Curtis, 319 Mo. 316, 4 S.W.2d 467. (b) Nor is the act unconstitutional as containing a provision for a tax levy to cover estimated expenses of maintaining the district corporation, when that provision is not mentioned in the title. It is not required of a title that it be a comprehensive index of the act. (c) Nor because sections 21 to 28 of the act provide for the subdivision of the district for the constructing of lateral sewers, for the issuance of sewer revenue bonds to cover the cost of laterals in such subdistricts and the raising of revenue funds by rental charges for the service of laterals; nor do said sections constitute a subject separate from the general subject of sewers. These sections amplify the act and provide an appropriate method of constructing local laterals after trunk-line sewers may have been constructed for the whole district. These sections cover the subject of sewers, as do the other sections of the act. (d) Nor is the act unconstitutional as being an attempt to provide for creating a new class of municipal corporation contrary to Section 7 of Article IX of the Constitution. State ex inf. Attorney General v. Curtis, 319 Mo. 316, 4 S.W.2d 467; Harris v. Bond Co., 244 Mo. 692, 149 S.W. 603. (e) Nor is it unconstitutional as diminishing the corporate powers of a city, town or village, any part of which may be embraced within the sewer district. State ex inf. Attorney General v. Curtis, 319 Mo. 316, 4 S.W.2d 467. (f) Nor is the act unconstitutional as being a special or local law in violation of Paragraphs (2), (11), (12) and (15) of Section 53, Article IV of the Constitution. (g) A law is not local nor special, within constitutional prohibitions, if applicable alike to all of a given class where the classification is not arbitrary nor unreasonable. Thomas v. Buchanan County, 330 Mo. 627, 51 S.W.2d 95; State v. McCann, 329 Mo. 748, 47 S.W.2d 95; Waterman v. Chicago Bridge Iron Works, 328 Mo. 668, 41 S.W.2d 575; Springfield v. Smith, 19 S.W.2d 1, 322 Mo. 1129. (h) Population is a proper basis for classification. State ex inf. Attorney General v. Curtis, 319 Mo. 316, 4 S.W.2d 467. (i) Nor is the act unconstitutional as depriving interested parties of property without due process of law by limiting the nature of objections to two propositions only; because the act contains no restrictions as to other objections. (j) This view is confirmed by the form the statutory notice set out in the next preceding section, where notice to property owners must be in a form to advise them that they may examine the petition and report and file exceptions "to all or any part thereof." (k) The proceedings for the formation and incorporation of the district do not of themselves deprive any property owner of his property. They merely create a legal entity. Garden of Eden Drain. Dist. v. Bartlett Trust Co., 50 S.W.2d 627, 330 Mo. 554; State v. Dawson, 284 Mo. 490, 225 S.W. 100; Buschling v. Ackley, 270 Mo. 165, 192 S.W. 729. (1) A public corporation may be created under an act which affords no hearing whatsoever. The creation of a public corporation is primarily a legislative act. A hearing is indeed required, under certain circumstances, with respect to the organization of benefit districts. But this act does not create benefit districts. Harris v. Bond Co., 244 Mo. 664, 149 S.W. 603; State ex rel. v. Thompson, 315 Mo. 66, 285 S.W. 57. (m) The payment of election expenses by the county is not in aid of this district, but is a payment made in fulfilling one of the governmental purposes of the county itself. State ex rel. v. Board of Education, 141 Mo. 49, 41 S.W. 924. (n) This situation is no different from that of a county or a school district or a road district which embraces a municipality. The county, the district and the municipality each has its separate debt limit. 6 McQuillin, Mun. Corp. (2 Ed.), sec. 2373; Stamford v. Stamford, 109 Conn. 596, 141 A. 894; 44 C.J., p. 1190, sec. 4161. (2) The fact that provision is made in Sections 21 to 28 of the act for the issuance, on a simple majority vote, of sewer revenue bonds payable from rentals derivable from lateral sewers, does not render the act unconstitutional. (a) Bonds of that class do not come within the provisions of Section 12, Article X of the Constitution. State ex inf. Attorney General v. Curtis, 319 Mo. 316, 4 S.W.2d 467; State ex rel. Hannibal v. Smith, 74 S.W.2d 367, 335 Mo. 825. (3) Even if there were any portions of the act that for any reason might be deemed unconstitutional, such provisions could be elided and a thoroughly workable act would remain. State ex rel. Audrain County v. Hackmann, 275 Mo. 534, 205 S.W. 12; State ex rel. McDonald v. Lollis, 326 Mo. 644, 33 S.W.2d 98; Kristanick v. Chevrolet Motor Co., 74 S.W.2d 890, 335 Mo. 60; State v. Hall, 75 S.W.2d 582. (a) The act itself, Section 40, Laws 1933-34, Ex. Sess., p. 135, is express authority therefor. Note, 73 L.Ed. 287-306. (4) "Proper disposition of sewerage is essential to public health and the passage of laws making such possible is obviously a proper exercise of the police power." State ex inf. Attorney General v. Curtis, 319 Mo. 326, 4 S.W.2d 467; Morrison v. Morey, 146 Mo. 562; Dillon on Mun. Corp., secs. 93-96; Cooley on Taxation (4 Ed.) 202. (5) The circuit court had jurisdiction to create the district. It is no valid objection to jurisdiction that the engineer's plan provided for two separate and distinct trunk line sewers to serve two watersheds, because the facts show that these two watersheds were really related parts of an area which, according to the engineer's plan, were both to be served by common outlet. Joplin v. Wilder, 217 Mo. 271, 116 S.W. 1081; Southworth v. Glasgow, 232 Mo. 128, 132 S.W. 1168; 57 C.J. 540; Pioneer v. Portland, 119 Or. 7, 247 P. 319. (6) Neither the act nor the authorities required that the amount of the proposed bond issue should be definitely stated in the proposition submitted to the voters of the district. Secs. 5, 7, Laws 1933-34, Ex. Sess., pp. 123, 124.
Roy McKittrick, Attorney General, Covell R. Hewitt, Assistant Attorney General, and John L. Graves for respondent.
(1) When the bond involved in this proceeding was presented to respondent for registration it became his duty to determine whether or not all of the conditions of law had been complied with in the issuance thereof. Secs. 2915, 2920, R.S. 1929. (2) In determining whether all conditions of the law had been complied with in the issuance of the bond, it was the duty of the respondent to determine, among other things, whether or not the bond was being issued by a legally organized entity. State ex rel. Burkley v. Thompson, 323 Mo. 248, 19 S.W.2d 714; State ex rel. School Dist. v. Thompson, 325 Mo. 1170, 30 S.W.2d 603. (3) Sections 21 to 25, inclusive, are unconstitutional and void in that said sections thereof provide for subdivision of any district, provide for the adoption of plans and specifications for lateral sewers, for the issuance of sewer revenue bonds by a majority vote for the purpose of anticipating the revenue of any subdistrict and other subjects pertinent thereto, because the subject matter constitutes a subject different and separate from the general subject covered by the act and was not referred to in the title thereto, contrary to the provisions of Section 28, Article IV of the Constitution, and Section 12, Article X of the Constitution of Missouri. Sec. 28, Art. IV, Const. of Mo.; State ex rel. v. Hackmann, 292 Mo. 31; State ex rel. v. Roach, 258 Mo. 560; State ex inf. Attorney General v. Armstrong, 286 S.W. 705. (a) Section 36 purports to authorize the organization of sewer districts for any contiguous area within and partly without or wholly without or wholly within one or more cities, towns or villages of the State of Missouri, located within any county now having a population of not less than 150,000 nor more than 400,000 inhabitants. Said provision is not embraced in the title and is germane thereto, and does not have a reasonable or natural connection with the subject named in the title, and is violative of Section 28, Article IV of the Constitution of Missouri. Sec. 28, Art. IV, Const. of Mo.; State ex rel. v. Hackmann, 292, Mo. 31; State ex rel. v. Roach, 258 Mo. 560. (b) Where the title is less comprehensive than the body of the act, so much of the law as is not embraced in or germane to the title is invalid. State v. Weber, 205 Mo. 44. (c) So much of the body of the act as goes outside of, beyond or adds to the purposes expressed in the title of the act, is unconstitutional. The subject must be single and clearly expressed in the title. Sec. 28, Art. IV, Const. of Mo.; State ex inf. v. Borden, 164 Mo. 236; Berry v. Majestic Milling Co., 284 Mo. 190; State v. Walker, 309 Mo. 108; State ex rel. v. Gordon, 268 Mo. 733; State v. Sloan, 258 Mo. 314; State v. Fulks, 207 Mo. 40; State ex rel. v. Schofield, 41 Mo. 41. (4) The construction of a system of sewers is clearly a municipal function, and any district organized for the purpose of constructing a system of sewers is a public municipal corporation. In re East Bottoms Drainage Levee Dist., 305 Mo. 577; Bates v. Comstock Realty Co., 306 Mo. 332; Donahoe v. Kansas City, 136 Mo. 667; Haeussler Inv. Co. v. Bates, 306 Mo. 411; 1 McQuillin, Mun. Corp., sec. 70, p. 153. (5) Cities, towns and villages and all political corporations or subdivisions of the State are prohibited by the Constitution from issuing bonds for any purpose unless authorized by the assent of two-thirds of the voters. By this act a sewer district could be formed and bonds for sewers could be issued upon a mere majority vote in violation of said constitutional provision. Sec. 12, Art. X, Const. of Mo. (6) Such sewer districts must be held to be political subdivisions of the State, municipal corporations and political corporations, and must be governed by the provisions of Section 12, Article X of the Constitution. Section 25 of the act is in violation of said section of the Constitution of Missouri in the following particulars: First. It authorizes the issuance of bonds of the subdistricts for the purpose of anticipating the revenues — for the cost of construction of said system of sewers, the total amount of said bonds, not to exceed the estimated cost of the chief engineer. Second. It authorizes the issuance of bonds of the district in excess of five per centum of the value of the taxable property in the district. Third. It authorizes the district to become indebted in a year to an amount in excess of the income and revenue provided for such year without the assent of two-thirds of the voters of the district voting at an election held for that purpose. Sec. 12, Art. X, Const. of Mo.; Union Trust Savings Bank v. Sedalia, 300 Mo. 410; State ex rel. v. Gordon, 265 Mo. 181; Steinbrenner v. St. Joseph, 285 Mo. 326. (7) This act is unconstitutional in that it changes and attempts to create more than four classes of cities, and to diminish the powers conferred by law on the various classes in regard to sewer systems. Secs. 7, 10, Art. IX, Const. of Mo.; State ex inf. v. Borden, 164 Mo. 235; Owen v. Baer, 154 Mo. 440; Kansas City v. Scarritt, 127 Mo. 652; In re East Bottoms Drainage District, 305 Mo. 590; St. Louis v. Dorr, 145 Mo. 466; Murnane v. St. Louis, 123 Mo. 489. (a) This act takes away from the municipalities in St. Louis County the power to construct and maintain sewers and the power to manage and supervise control over sewers. (b) The operation of another agency having broad municipal powers within a municipality limits or diminishes the exercise of like functions. (8) The submission of the proposition to authorize said district "to incur an indebtedness of said district, of an amount not greater than eight hundred thousand dollars ($800,000)," was indefinite and uncertain as to inform the taxpayer the specific amount of indebtedness proposed to be incurred. State ex rel. Lexington St. Louis Railroad Co. v. Saline County, 45 Mo. 242; Kerlin v. Devil's Lake, 25 N.D. 207, 141 N.W. 766; Stern v. Fargo, 122 N.W. 403; Smith v. Dublin, 39 S.E. 328. (a) The amount of the debt to be voted must be specified in definite amount in the notice of election or the bonds are illegal. Kerlin v. Devil's Lake, 25 N.D. 207; Stern v. Fargo, 122 N.W. 403.
This is a mandamus action to compel the State Auditor to register certain bonds issued by the Webster Groves Sanitary Sewer District. Upon the filing of the application for the writ in this court, respondent waived the issuance of the writ, agreed that relator's application and petition might be considered as such writ and filed his return thereto. The return challenges the constitutionality of an Act of the Fifty-seventh General Assembly of Missouri entitled:
"An Act to provide for the establishment of sewer districts in counties now having or which may hereafter have a population of not less than one hundred fifty thousand nor more than four hundred thousand inhabitants, defining the powers and methods of government of such districts, providing for the appointment of engineers, attorneys and employees of such districts and their powers and duties, providing for the making of maps and profiles of such districts and holding of elections for the purpose of incurring indebtedness, the qualifications, powers, duties and manner of election of trustees of such districts, providing for the assessment, levy and collection of taxes for the design, maintenance and operation of sewers in such districts, authorizing the issuance of bonds, providing for the terms of such bonds and the manner of execution, sale and payment thereof, providing for the building, construction and maintenance of sewers in such districts and the method of contracting and paying thereof, the condemnation of lands for the purpose of such districts with an emergency clause." [Laws 1933-4, Ex. Sess., p. 119.]
Relator filed a motion for judgment on the pleadings. Relator's statement of the facts is clear and concise. Respondent adopts that statement. We will do likewise. Omitting formal parts it is as follows:
"Proceeding under this act a petition of more than one hundred (100) tax-paying citizens of St. Louis County residing within an area lying partly within and partly outside of the city of Webster Groves, and praying that this area be incorporated into a sewer district, was filed in the office of the Clerk of the Circuit Court of said St. Louis County. Thereupon, and pursuant to the act, the court appointed a competent sanitary engineer to lay out and define the boundaries of the proposed district and to report to the court as required by the act. Thereafter, said engineer duly qualified and in due time filed his report, including therein an estimate of eight hundred thousand dollars ($800,000) as the probable cost of the proposed improvements, but stating that the cost to the district might be greatly reduced below said estimate by a grant of funds from the Federal Emergency Administration of Public Works. Thereupon, after due notice as required by the act, and after hearings in open court on the petition and on certain objections thereto, the court did, on the 29th day of March, 1935, enter a decree wherein it was found that the court had jurisdiction, that the construction of a system of sanitary sewers for the contiguous area defined in said engineer's report was necessary for the preservation of the public health or public welfare or public utility or benefit and was advisable; and wherein the court also found in favor of the petitioners and in favor of making the improvements of the type and kind described in said petition, and that the estimated cost thereof, as reported by said engineer, was eight hundred thousand dollars ($800,000). And thereupon, said court, by its said decree, did incorporate the said district with the boundaries set out in said report, under the name of the Webster Groves Sanitary Sewer District, as a body corporate and political subdivision of the State of Missouri, with the corporate life of fifty years, and ordered the election commissioners of said county to call an election of the voters within the area defined in said decree, and as provided in said act, for the purpose of electing three (3) trustees of said district, and for the further purpose of voting upon a proposition to incur an indebtedness of said district in a sum not exceeding the amount of said estimate, for the purpose of constructing a system of sanitary trunk line sewers for said area.
"Thereafter, certified copies of said decree were filed in the office of the recorder of deeds of said county, in the office of the Secretary of State of Missouri, and with the election commissioners of said county, and thereupon, the said election commissioner did call an election as required by law and by said decree, and did appoint proper judges and clerks therefor, naming the polling places, and did give due and sufficient notice of said election in the manner required by the act. That, pursuant to said notice, an election was duly and regularly held on May 14, 1935, within the boundaries of said district, and thereafter the said Board of Election Commissioners did certify that at said election William J. Moore, Ward Goodloe and Wayne H. Brown had been duly elected trustees of said district for the respective terms of six, four and two years, and that the proposition to incur an indebtedness of said district, in an amount not to exceed eight hundred thousand dollars ($800,000) had received more than two-thirds of the votes cast at said election upon said proposition, namely two thousand four hundred and eighty-five (2485) votes for the incurring of said indebtedness and three hundred and thirty-six (336) against the incurring thereof.
"Thereafter, said Moore, Goodloe and Brown did qualify, as required by law, and organized the Board of Trustees for said district by electing said Moore as president thereof, said Goodloe as treasurer, and said Brown as secretary.
"Thereafter, on July 3, 1935, said Board of Trustees did duly adopt an order and resolution directing the issuance of eight hundred thousand dollars ($800,000) of bonds authorized at said election (said amount being within the constitutional and statutory debt limit of five per cent), and did, by said resolution request the county court of said county to levy annually an ad valorem tax upon all the taxable property of said district sufficient to pay the interest on and provide a sinking fund for the retirement of said bonds; and further by another resolution, and by the certificate of its secretary, did inform the said county court that as it was not intended to sell all of said bonds immediately, there would be required for the year 1936 only the sum of twenty thousand dollars ($20,000) to pay the interest upon such bonds as might be sold and to maintain the district's corporation with its necessary expenses, and did by said resolution request said county court to levy a tax sufficient to produce such sum for the year 1936. And thereupon, said county court did levy an ad valorem tax, pursuant to such request, sufficient to produce such sum during the year 1936 and did cause such rate to be extended upon the tax books against all taxable property in said district.
"Thereupon, said Board of Trustees did submit to the respondent herein, executed bond No. 1, authorized to be issued by said resolution and order, together with a transcript of the court proceedings relating to the organization and creation of the said sewer district, and the orders and resolutions of said Board of Trustees directing the issuance of said bonds, said bond No. 1 being submitted to the respondent for the purpose of having the same registered by him as required by said act, and at the same time said trustees did tender the fee and compensation allowed said auditor by law; but the respondent refused and still refused to register said bond No. 1.
"The application for the alternative writ then avers that relator is without remedy in the premises, except and save by writ of mandamus, and prays the court to issue its writ requiring and commanding the respondent to register the said bond or to show good and sufficient cause why he should not do so.
"The respondent, waiving the issuance of the alternative writ of mandamus and pleading to the application for the alternative writ in lieu thereof, first admits the facts alleged in the application for the writ and then alleges, as reasons why the peremptory writ should not issue, that
"1. The relator has no legal existence because the act of the 57th General Assembly, Extra Session, approved January 13, 1934 (Laws 1933-34, Ex. Sess., p. 119), is unconstitutional because certain subjects covered by the act are not embraced within its title as required by Section 28 of Article IV of the Constitution; that the act contains more than one subject; that the subject of the act is not clearly expressed in the title; that the provision in the act for the levy of a tax to cover estimated expenses of maintaining the district corporation is not embraced in the title; that Sections 21 to 28 inclusive, of the act (providing for sub-districts for lateral sewers, the issuance of sewer revenue bonds, on a simple majority vote, to construct laterals, such bonds payable from rental charges for use of laterals, etc.) constitute a subject different from the general subject of the act not referred to in the title, and also attempted to authorize debt contrary to the limitation contained in Section 12 of Article X of the Constitution; also, that the act is unconstitutional in that it attempts to provide for the creation of a new class of municipal corporation contrary to Section 7 of Article IX of the Constitution; that said act diminishes the corporate powers of cities, towns or villages, any part or the whole of which may lie within a sewer district; also, that the act violates paragraphs (2), (11), (12) and (15) of Section 53 of Article IV of the Constitution, which forbids the enactment of special or local laws; that the act also violates Article XIV of the Amendments to the Constitution of the United States and Section 30 of Article II of the Constitution of Missouri, in that interested parties objecting to the organization of a proposed district are limited to a hearing on two propositions only, (a) that the proposed improvement is not necessary to the preservation of the public health and public welfare, and (b) that it would not be of public utility or benefit; also, that the act is unconstitutional in that it authorizes the expenditure of county funds in aid of districts created under the act in violation of Section 46 or Article IV of the Constitution; also, that it violates Articles III and IV in that it attempts to delegate judicial functions to the engineer; also, that the act violates the Constitution because the construction and maintenance of sewers is a proper function of municipalities, and the General Assembly has no power to deprive cities, towns or villages of their jurisdiction and control thereof; also, that the act is unconstitutional as attempting to permit the incurring of indebtedness for sewer purposes up to 5% of taxable values, without requiring the deduction of indebtedness incurred by a municipality located in whole or in part within the district. In other words, that it permits a duplication of overlapping debt which might aggregate more than 5%, contrary to Section 12 of Article X of the Constitution.
"2. That the relator has no legal corporate existence because the circuit court of St. Louis County was without jurisdiction to incorporate it because the act provides for the incorporation of a contiguous area for the purpose of establishing a `system of sewers,' whereas, the engineer's plan for sewers provides for two separate and distinct trunk line sewers serving two water sheds, both connected however, with a common outlet, being a large outfall sewer located in the city of St. Louis, provision being made in the engineer's estimate of cost for the payment to the city of St. Louis for the use of such common connecting outlet, and said trunk line sewers together serving a populous and contiguous area.
"3. That the bond presented to the respondent for registration was not lawfully authorized to be issued because in the submission of the proposition for the authorization of the bond issue, the amount of the proposed bonds was not definitely stated; the proposal being for `an amount not greater than eight hundred thousand dollars ($800,000);' and because the voters of the district were, therefore, not advised concerning the exact amount of indebtedness proposed to be incurred.
"To these defenses the relator pleads by way of a motion for judgment notwithstanding the respondent's return."
The act authorizes the organization of comparatively large areas into sewer districts in counties having a population of not less than 150,000 nor more than 400,000. A district must embrace contiguous territory which may be wholly within, wholly without or partially within and partially without the corporate boundaries of municipalities. A comprehensive system of "main line" sewers for an entire sewer district is provided for. The expense of the construction of the main line system is to be met by the issuance of bonds. Taxes are to be levied on all property within the district to pay the principal and interest on the bonds and the cost of maintenance of the system. After the "main line" system is laid out and adopted the district is to be divided into convenient subdistricts not larger than 1000 acres in extent. The cost of laterals and mains within the subdistricts other than the main line sewers are to be financed by the issuance of revenue bonds the principal and interest of which is to be paid by rentals received from persons owning property within the subdistrict abutting on the lateral sewers. The act is comprehensive. A great many of its provisions need not be stated here. Such as are necessary to a determination of the issues and which do not appear in the statement quoted, will be referred to in connection with the various points involved.
The questions presented by respondent will be taken up in the order in which they appear in the return. Those relating to the sufficiency of the title of the act will be considered as one point. Briefly stated they are: First, that Sections 21 to 28 inclusive, providing for the creation of subdistricts, the adoption of plans and specifications for the construction of lateral and branch sewers within the subdistricts, the voting of bonds to finance the construction of subdistrict sewers and the provision for the levy of a tax to defray the expense of maintaining the district corporation, are not embraced within the title and are not so related to the subject matter of the title that the title can be said to properly refer to them. Also, that several subjects are included in the act which are not related to each other. Second, — that the subject of the act is not clearly expressed in the title. If either proposition is correct then the act violates Section 28 of Article IV of the Constitution which is as follows:
"Sec. 28. Bills must contain but one subject — exceptions — title. No bill (except general appropriation bills, which may embrace the various subjects and accounts for and on account of which moneys are appropriated, and except bills passed under the third subdivision of section forty-four of this article) shall contain more than one subject, which shall be clearly expressed in its title."
The rule to be applied in determining whether the subject matter of an act is embraced in the title and whether the act contains more than one subject has been frequently stated by this court. One of the leading cases is State ex rel. v. Miller, 100 Mo. 439, l.c. 444, 13 S.W. 677, where it was said:
"Its demands (Sec. 28, ante) are that matters which are incongruous, disconnected and without any natural relation to each other must not be joined in one bill; and the title must be a fair index of the subject-matter of the bill. A very strict and literal interpretation would lead to many separate acts relating to the same general subject, and thus produce an evil quite as great as the mischief intended to be remedied; hence a liberal interpretation and application must be allowed."
With that rule as a guide, we see no infirmity in the title of the act on those grounds.
Is the subject matter of the act clearly expressed in the title? We think it is. The entire act relates to but one general subject, namely, the construction of sewers. Many details are contained in the act such as the establishment of sewer districts and subdistricts, the making of plans and specifications, the holding of elections to vote on the issuance of bonds, providing for the levy of taxes to defray the expense of maintaining the corporation and paying the principal and interest on bonds, the condemnation of land, and the election and qualification of trustees to administer the affairs of the districts. All relate to the one subject. That subject is fully and fairly indexed in the title. As stated in State v. Ward, 328 Mo. 658, l.c. 665, 40 S.W.2d 1074, l.c. 1076: "The title need not refer literally to all details suggested by the general subject."
It is next contended that Sections 21 to 28 inclusive are unconstitutional because authority is there given subdistricts to incur an indebtedness beyond annual income on a majority vote and in excess of five per cent of the value of the taxable property therein, contrary to Section 12 of Article X of the Constitution.
It is provided in Section 25 of the act that "only those otherwise qualified voters in said subdistrict who own real estate therein, which real estate . . . will directly abut the lateral sewers contemplated . . . shall be entitled to vote" on the question of the issuance of subdistrict bonds. Section 26 provides that an annual rental charge shall be collected "from the owners of real estate abutting said lateral sewers" sufficient to pay the interest and sinking fund on said subdistrict bonds plus the estimated cost of maintenance of the lateral sewers. It is therefore apparent that these subdistrict bonds are to be issued against special assessments to be collected from the owners of real estate which directly abuts the lateral sewers. No general obligation is imposed upon all property owners within the district or subdistrict to pay these bonds or any part thereof.
In the case of State ex inf. Atty. Gen. v. Curtis, 319 Mo. 316, 4 S.W.2d 467, we held that bonds issued in benefit districts against special assessments are not indebtedness within the meaning of Section 12, Article X.
In the case of Embree v. Road District, 257 Mo. 593, l.c. 618, 166 S.W. 282, when passing upon the right of a special road district to issue bonds in excess of the above-stated constitutional limitation we said: "The assessments authorized by said Article VII of the statute are for the payment of local improvements, denominated special benefits to the land against which the assessments are made; and for that reason this court has uniformly held that such assessments do not constitute an indebtedness within the meaning of the constitutional provision just quoted." In that case it was argued, as it might have been here, that it was the duty of the road district (subdistrict in this case) to issue its bonds and that therefore the indebtedness which the bonds represent must be that of the district and consequently paid by it. It was conceded that if the bonds represented the obligation of the road district the constitutional limit of indebtedness by the district had been exceeded. We held then that those bonds were not the obligation of the district and were valid. For the same reason the bonds of the subdistricts may be valid. They will not be valid unless they are only payable out of the rental charges provided for in the act and are not general obligations of the subdistrict. [Embree v. Road District, supra, l.c. 621.] It will be borne in mind that the bond which has been presented to respondent for registration is not a subdistrict bond. Relator calls attention to the fact that a subdistrict bond may not be issued. Since the constitutionality of that part of the act relating to subdistrict bonds was raised we decide it now rather than await the probable presentation of the question later.
We do not think that the act is unconstitutional because, as asserted by respondents, it attempts to provide for the creation of a new class of municipal corporations contrary to Section 7 of Article IX of the Constitution. Nor does it diminish the corporate powers of a city, town or village which may be embraced within the sewer district. Both of these questions were discussed at length in State ex inf. Attorney General v. Curtis, 319 Mo. l.c. 327, 4 S.W.2d 467, and decided contrary to respondent's contention.
Respondent contends that the act violates subdivisions two (2), eleven (11), twelve (12) and fifteen of Section 53, Article IV of the Constitution which are as follows:
"The General Assembly shall not pass any local or special law:
"(2) Regulating the affairs of counties, cities, townships, wards or school districts: . . .
"(11) Incorporating cities, towns or villages, or changing their charters:
"(12) For the opening and conducting of elections, or fixing or changing the places of voting: . . .
"(15) Creating offices, or prescribing the powers and duties of officers in counties, cities, townships, election or school districts:"
In Thomas v. Buchanan County, 330 Mo. 627, l.c. 637, 51 S.W.2d 95, we said:
"The next point made by certain of the respondents is that the law is local and special in violation of subdivisions 2, 15 and 32 of Section 53, Article IV of the Constitution, in that it singles out Buchanan County and attempts to regulate its affairs, creates a special board of estimate, and makes the county court a purchasing agent. It is true the only county in the State which, at this time, has a population between 95,000 and 150,000 is Buchanan County. But this does not make the law local, because the act applies as well to all counties which may hereafter have that population. In other words, the class is fixed, but the counties that fall within it may change as their population flunctuates. That such legislation is not local is established by numerous decisions of this court: Davis v. Jasper County, 318 Mo. 248, 253, 300 S.W. 493, 495; State ex rel. Moseley v. Lee, 319 Mo. 976, 993, 5 S.W.2d 83, 90."
The act before us does not define the powers or territorial limits of cities nor determine the conduct of city elections in any manner, therefore subdivision eleven (11) and twelve (12) of Section 53, supra, are not involved. This point must be ruled against respondent.
A further objection to the act is that Section 4 thereof limits the nature of the objection of an interested party to two propositions, namely: that "the proposed improvement is not necessary for the preservation of the public health or public welfare or will not be of public utility or benefit." It is contended that this limitation of the scope of the authorized objections results in depriving interested parties of their property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States and Section 30 of Article II of the Constitution of Missouri.
Section 4 of the act provides for objections to the original petition for incorporation. These objections relate to the proceedings leading up to the original incorporation of the district. They do not involve the issuance of bonds or the levy of taxes but contemplate only the determination of the general question of the propriety of the formation of the district.
In a recent case involving the same question we said:
"As we have noted, defendants' objections to the constitutionality of the present drainage act goes only to the provisions relating to the formation and incorporation of the drainage district. Yet it is the settled law that the mere formation and incorporation of a drainage district, with power to tax for certain purposes, and the inclusion of defendants' land therein, does not of itself and without more deprive such landowner of his property, much less does so without due process of law. The formation of such corporation merely creates a legal entity with power to tax. It is the exercise of this power which constitutes the taking of property and violates the due process of law clause, if at all." [Garden of Eden Drain. Dist. v. Bartlett Trust Co., 330 Mo. 554, l.c. 565, 50 S.W.2d 627.]
Under the act before us the issuance or nonissuance of bonds and the levy of taxes is to be determined later at an election at which a two-thirds vote is required to authorize the issuance of district bonds. The act further provides that no taxes shall be levied or collected for the payment of any indebtedness incurred by the district unless and until the voters authorize the issuance of the district bonds. This assignment is therefore overruled.
It is next contended that the act is unconstitutional because it authorizes the expenditure of county funds in aid of sewer districts in violation of Section 46 of Article IV of the Constitution of Missouri.
Section 5 of the act provides that after the incorporation of a sewer district by the circuit court it shall be the duty of the circuit court to order the county court or the election commissioners, if there be election commissioners in the county, to call and hold an election within sixty days after the issuance of the order for the purpose of electing a board of trustees and voting on a proposition to incur indebtedness by the district for the construction of district sewers. Section 7b provides that the expense of elections held prior to the issuance of bonds and the levy of taxes by the district shall be paid out of the general revenues of the county. This section also provides that all indebtedness incurred by the district prior to the issuance of bonds may be paid out of funds received from the sale of bonds. It is the payment of these election expenses by the county which furnishes the grounds for this objection to the act. Relator contends that Section 7b clearly contemplates the repayment of the election expenses to the county out of the proceeds of the sale of bonds and that since in the case at bar the election resulted in an authorization to issue the bonds, the question is a moot one. We will not so consider it. Situations may arise where the election was unfavorable to the issuance of bonds in which event there could be no repayment.
No authority is cited by respondent in support of his position. Relator cites the case of State ex rel. Lynn v. The Board of Education, 141 Mo. 45, 41 S.W. 924, in support of this provision of the act. In that case the same objection was made to an act of the Legislature requiring the city of St. Louis to pay the expense of a school election held within the city. We sustained the validity of the statute. Again in the recent case of State ex rel. Russell v. State Highway Commission, 328 Mo. 942, l.c. 963, 42 S.W.2d 196, we held that a statute authorizing the State Highway Commission to build state highways through municipalities with state funds was not a gift or grant to such municipalities within the meaning of Section 46 of Article IV. We see no difference in principle between those cases and the situation before us. The payment of the election expense of the newly created sewer district was not a gift or grant to that district within the meaning of Section 46 of Article IV of the Constitution.
Respondent contends that the act violates Articles III and IV of the Constitution in that it delegates judicial functions to the engineer of the sewer district.
Section 2 provides for the appointment of a sanitary engineer by the circuit court, requires that the engineer make all necessary investigations, surveys and maps to determine the feasibility of the plan proposed by the petitioners and further that "if the engineer finds the proposed sewer system would be for the preservation of the public health or public welfare or will be of public utility or benefit he shall so report. . . ." The engineer must report his finding in writing to the circuit court together with such maps, profiles, drawings and other data as are necessary to advise the court in the premises. Although the briefs do not disclose what particular part of the act the objection is made to, we assume the objection is directed to that part quoted above. The mere report by the engineer of his conclusion coupled with the facts upon which he bases that conclusion is not an improper exercise of a judicial function by an administrative officer. [State ex rel. v. Taylor, 224 Mo. 393, l.c. 475, 123 S.W. 892.]
Respondent's next attack on the constitutionality of the act is stated as follows:
"That the aforesaid act is further unconstitutional and void in that said act attempts to permit the incurring of indebtedness for sewer purposes to an amount not exceeding five per cent (5%) of the assessed valuation of taxable property within the district (as ascertained by the next before the last completed assessment) without requiring the deduction of indebtedness incurred by a municipality or municipalities located in whole or in part within such district. The act, in effect, attempts to authorize the incurring of an indebtedness for sewer purposes up to five per cent (5%) of the assessed valuation of taxable property within the district, despite the fact that a municipality or municipalities included within the district may already have outstanding bonded indebtedness which, when added to the indebtedness incurred by such district, would result in an aggregate debt amounting to more than five per cent (5%) of the assessed valuation of taxable property in that part of such district as may be overlapped by a municipality or municipalities, and thereby said act violates Section 12 of Article X of the Constitution of Missouri."
Respondent cites no authority in support of this proposition. Relator briefs the point and cites 6 McQuillin, Municipal Corporations (2 Ed.), section 2372 (2214); Stamford v. Stamford, 107 Conn. 596, 141 A. 891, and 44 Corpus Juris, page 1190, section 4161, in support of the validity of the act. All of those authorities hold that in computing the existing bonded indebtedness of a municipality for the purpose of determining whether it equals or exceeds the constitutional limit it is proper to exclude obligations of another political subdivision whose territory is co-extensive in whole or in part with the municipality. Our own research discloses that the principle involved has been decided by this court in the case of State ex rel. School District No. 1 v. Hackmann, 277 Mo. 56, 209 S.W. 92. In that case a consolidated school district was formed which included parts of several common school districts. The common school districts had bonds outstanding amounting to $4500. The consolidated district voted bonds for $5000 to erect a school building. The consolidated district's bond issue was assailed upon the ground that it exceeded the constitutional limit. The assessed value of the property within the consolidated district justified the issuance of $5000 in bonds but did not authorize the issuance of $9500. It was contended that the bonds of the common school districts should be considered as obligations of the consolidated district in determining the amount of bonds the latter district might issue. We held that since under the facts in that case there was no obligation on the part of the consolidated district to pay the common school district bonds, the amount of those bonds should be excluded in computing the indebtedness of the consolidated district. That rule applies here. Respondent does not contend that a sewer district authorized by this act is actually obligated in its corporate capacity to pay any obligation of a municipality which might lie within or partially within the boundaries of the sewer district. Absent such responsibility the debts of the municipality should not be considered the debts of the sewer district within the meaning of Section 12 of Article X of the Constitution.
Respondent asserts in his return that the circuit court was without jurisdiction to incorporate the Webster Groves Sanitary Sewer District because, quoting from the return, "the aforesaid act provides for the incorporation of a contiguous area for the purpose of establishing a `system of sewers' for such area, whereas Relator's plan for the construction of sewers, as disclosed by the report of the engineer, provides for two separate and distinct trunk line sewers serving two water sheds, both connected, however, with a common outlet, being a large outfall sewer located in the City of St. Louis, and together serving a populous and contiguous area." No mention is made of this point in respondent's brief. We will not burden this opinion with a discussion of an abandoned point.
Finally, respondent asserts that the bonds presented to him for registration were not lawfully authorized because in the submission of the proposition for the authorization of the bond issue, the amount of the proposed bonds was not definitely stated.
The ballot used was as follows:
"To authorize Webster Groves Sanitary Sewer District of St. Louis County, Missouri, to incur an indebtedness of said District, of an amount not greater than Eight Hundred Thousand Dollars ($800,000) for the purpose of constructing a system of sanitary trunk line sewers for said District, and to evidence such indebtedness by the issuance of bonds in said amount for said purposes.
"Yes
"For Incurring Indebtedness
"No
"Instructions to Voters:
"To cast a ballot in favor of the proposition submitted upon this ballot place a cross (X) mark in the square opposite the word `Yes'; to vote against the proposition submitted upon this ballot place a cross (X) mark in the square opposite the word `No'."
The statute providing for the election is, in part, as follows:
"In the order of such election the Court shall also provide for submitting at such election a proposition to incur indebtedness by the District in an amount not greater than the estimate of the cost of constructing a system of sewers as provided in the report of the engineer." [Laws 1933-34, Ex. Sess., sec. 5, p. 123.]
Respondent argues that the use of the words "an amount not greater than $800,000" leaves to the board of trustees the opportunity to build a sewer system much less extensive than could be built with $800,000, which might not meet the needs of the district and be unacceptable to the voters. We are not impressed with the force of this argument. The statute requires that the engineer's report should describe the boundaries of the district and the plan of the sewer system to be constructed; that the engineer's report be filed with the court; that objections to the report might be made, in which event hearings should be held on the objections. Thereafter the court was required to formally approve or disapprove the plan. It is then and not until then that the statute provides for the bond election. In providing for the calling of the election the statute carefully provides that the election shall be called for the purpose of "submitting at such election a proposition to incur indebtedness by the District in an amount not greater than the estimate of the cost of constructing a system of sewers as provided in the report of the engineer." The record discloses that all of these statuory requirements were carefully followed. The ballot, above set out, definitely stated that the election was being held to determine whether an indebtedness should be incurred "for the purpose of constructing a system of sanitary trunk line sewers for said District." The system described in the engineer's report was the only system of sewers the district had or could have had in prospect. It would be an unreasonable presumption to assume that any voter did not understand that he or she was voting for or against an indebtedness to construct the proposed sewer system. The amount of indebtedness to be incurred was therefore limited to the maximum amount of $800,000 (the engineer's estimate) and a minimum equal to the best contact price which could be obtained for the construction of the improvement specified in the engineer's report and was stated with sufficient definiteness in the submission to the voters.
For the reasons stated, our peremptory writ of mandamus should issue. It is so ordered. All concur.