Summary
holding that a statute applying only to counties with 200,000 to 400,000 inhabitants was not a special law, despite only applying to St. Louis County at the time, because the act would apply to other counties that attain such a population in the future
Summary of this case from City of Normandy v. GreitensOpinion
No. 39048.
January 2, 1945.
1. CONSTITUTIONAL LAW: Statutes: Presumption of Validity: Fire Protection. The court will not declare an act unconstitutional unless it plainly contravenes the Constitution. And fire protection is a proper subject of legislation.
2. CONSTITUTIONAL LAW: Statutes: Fire Protection: Population Classification Proper. Classification on the basis of population is proper in a statute providing for fire protection in counties of 200,000 to 400,000 inhabitants, as the danger grows out of a density of population.
3. CONSTITUTIONAL LAW: Statutes: Fire Protection: Limitation to St. Louis County Not Invalid. The fact that the fire protection act can presently apply only to St. Louis County does not make the act a special or local law, as it will apply to other counties which may attain the same population in the future.
4. CONSTITUTIONAL LAW: Statutes: Fire Protection: Omission of Other Congested Areas: Act Not Arbitrary. The fire protection act is not arbitrary because it does not provide for protection of congested areas in other parts of the state. Conflicting holdings are overruled.
5. STATUTES: Constitutional Law: St. Louis County Fire Protection Act: Title Partly Insufficient. Since the title expresses the subject generally and then specifies particulars, any matter beyond the title is void. The section of the fire protection act which prohibits a city or village from annexing part of a fire district, or the incorporation of a city or village within a district, is beyond the title of the act and void.
6. STATUTES: Constitutional Law: Partial Invalidity: Effect of Separability Clause. Where an act provides that if any section is held unconstitutional the remainder of the act shall not be affected, if the invalid parts are separable the remainder will be upheld if it is complete in itself, sensible, and capable of being executed independent of that which is rejected.
7. STATUTES: Constitutional Law: Insufficient Title: Additional Sections Invalid: Remainder Upheld. Additional sections of the fire protection act are held void as not within the scope of the title, but the remainder of the act is upheld.
8. CONSTITUTIONAL LAW: Statutes: Fire Protection Act: Legislative Power Not Delegated. The fire protection act does not delegate to the circuit court legislative power to determine what facts should form the basis for creation of a fire district, as the legislature has prescribed the conditions under which the court shall approve the organization of the district.
9. CONSTITUTIONAL LAW: Municipal Corporations: Boundary Lines of Fire Districts: Due Process Not Violated. Due process is not violated by the provisions of the fire protection act which permit the petitioners to set out the proposed lines of the fire district because such boundaries become fixed only when approved by the court. And power is not delegated to private citizens to create a public agency.
10. CONSTITUTIONAL LAW: Municipal Corporations: Fire Protection Act: Organization and Debt Provisions Valid. The provisions of the fire protection act for the organization of a fire district and authorizing indebtedness after approval by the court and submission to the voters do not violate any constitutional rights. And the act does not violate constitutional provisions against the establishment of more than four classes of cities.
11. CONSTITUTIONAL LAW: Municipal Corporations: Bonds: Fire District Properly Organized: Registry of Bonds. The decree of the circuit court furnishes the required evidence to the State Auditor that the fire district has been properly organized and that the bonds should be registered.
12. STATUTES: Municipal Corporations: Fire District: Power to Purchase Station House. While the statute only refers to constructing a building to house the equipment of the fire district, it will be construed as authorizing the purchase of a building already constructed.
13. MANDAMUS: Municipal Corporations: Bonds: State Auditor Required to Register Bonds of Fire District. A peremptory writ of mandamus should be issued to require the State Auditor to register the bonds of the fire district.
PEREMPTORY WRIT ISSUED.
T. Douglas Moore for relator.
(1) Mandamus is the proper remedy to compel the State Auditor to register the bonds of relator. State ex rel. City of Jefferson v. Hackmann, 287 Mo. 156, 229 S.W. 1082; State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W.2d 147. (2) Proper protection against fire is essential to public health and safety and the passage of laws making such possible is a proper exercise of the police power. State ex rel. Gentry v. Curtis, 4 S.W.2d 467; Morrison v. Morey, 146 Mo. 543, 48 S.W. 629; Dillon on Mun. Corp., secs. 93-96; Cooley on Taxation (4 Ed.), 202; State v. Layton, 160 Mo. 474, 61 S.W. 171, 62 L.R.A. 163, 83 Am. St. Rep. 487; State v. Cantwell, 179 Mo. 245, 78 S.W. 569; State ex rel. v. Murphy, 130 Mo. 10, 31 S.W. 594, 31 L.R.A. 798; Union Cemetery Assn. v. Kansas City, 252 Mo. 466, 161 S.W. 261; 12 C.J. 912; Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 628; Sec. 2, Art. II, Constitution of Mo.; Poole Creber Market Co. v. Breshears, 125 S.W.2d 23. (3) The title of the act is sufficient in that the subjects contained in the act are clearly expressed and thus is not violative of Section 28, Article IV of the State Constitution. Witzman v. Railroad, 131 Mo. 612, 33 S.W. 181; State ex rel. v. Revelle, 257 Mo. 529, 165 S.W. 1084; State ex rel. Gentry v. Curtis, 4 S.W.2d 467, 219 Mo. 316; Grossman v. Public Water Supply Dist. No. 1 of Clay County, 339 Mo. 344, 96 S.W.2d 701; State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W.2d 147; Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 30 S.W.2d 447; State v. Mullinix, 301 Mo. 385, 257 S.W. 121; State ex rel. Lorantos v. Terte, 324 Mo. 402, 23 S.W.2d 120; Willhite v. Rathburn, 332 Mo. 1208, 61 S.W.2d 708; Williams Lbr. Mfg. Co. v. Ginsburg, 347 Mo. 119, 146 S.W.2d 604. (4) The act involved is not a local or special law as prohibited by Section 53, Article IV of the State Constitution, but is a general law and the county classification is uniform. Thomas v. Buchanan County, 330 Mo. 627, 51 S.W.2d 95; State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W.2d 147; Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721; City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1; Thompson v. St. Louis-S.F. Ry. Co., 334 Mo. 958, 69 S.W.2d 936; St. Louis Union Trust Co. v. State, 348 Mo. 725, 155 S.W.2d 107; State ex rel. Hollaway v. Knight, 21 S.W.2d 767, 323 Mo. 1241. (5) The act does not attempt to provide nor does it provide for the creation of a new class of municipal corporations, nor does it unconstitutionally infringe or diminish the powers of existing municipal corporations. State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W.2d 147; State ex rel. Gentry v. Curtis, 4 S.W.2d 467. (6) The Fire District of Lemay, St. Louis County, Missouri, was regularly and legally organized and the bonds involved were approved by the voters of the district and legally issued. Laws 1941, p. 505. (7) The procedure of incorporation by the circuit court subject to the approval of the voters as prescribed by the Fire District of Lemay is constitutional. Art. 12, Chap. 79, R.S. 1939; Grossman v. Pub. Water Supply District of Clay County, 96 S.W.2d 701; State ex rel. Halferty v. Kansas City P. L. Co., 145 S.W.2d 116; State ex rel. Gentry v. Curtis, 4 S.W.2d 467.
Roy McKittrick, Attorney General, and Vane C. Thurlo, Assistant Attorney General, for respondent; Edwin Rader of counsel.
(1) The title to the Fire District Act (Laws 1941, p. 505) is insufficient to cover the following provisions of the Act: (a) Section 34, restricting the power of cities to enlarge their boundaries by requiring that all of a fire district be taken if any part is taken, and prohibiting the creation of cities or villages comprising a part only of the territory of a fire district. (b) Section 34, providing that a city or village which annexes a fire district shall assume all debts and obligations of the district and acquire all its property. (c) Sections 23, 24, 25 and 26, declaring the parking of vehicles within six feet of a fire hydrant in a fire district and the intentional interference with or obstruction of a fireman in the performance of his duties to be misdemeanor; providing for the prosecution and punishment of such misdemeanors; and vesting firemen with the power to make arrests. (2) The title, after stating generally that the act provides for the establishment and incorporation of fire districts, descends into particulars, listing ten particular matters; therefore the ten particular matters become the subject of the act. The act may not embrace matters not covered by the statement of particulars even though germane to fire districts. State ex rel. Niedermeyer v. Hackmann, 292 Mo. 27, 237 S.W. 742; State ex rel. Department of Penal Institutions v. Becker, 329 Mo. 1041, 47 S.W.2d 781; Woodward Hardware Co. v. Fisher, 269 Mo. 271, 190 S.W. 576; Fidelity Adjustment Co. v. Cook, 339 Mo. 45, 95 S.W.2d 1162. (3) The subject matter of Section 34 of the act is boundary changes by cities and villages and the effect of such changes on the debts and property of the district, and the incorporation of new cities or villages. No indication is given in the title to the act that the right of cities and villages to extend their boundaries or to incorporate is restricted. State ex rel. Department of Penal Institutions v. Becker, 329 Mo. 1041, 47 S.W.2d 781; Woodward Hardware Co. v. Fisher, 269 Mo. 271, 190 S.W. 576; State v. Hurley, 258 Mo. 275, 167 S.W. 965; Fidelity Adjustment Co. v. Cook, 339 Mo. 45, 95 S.W.2d 1162. (4) Sections 23, 24 25 and 26 declare certain acts to be misdemeanors, provide for the prosecution of offenders and for their punishment, and grant to firemen the right to make arrests. The title includes "authorizing the Trustees to make rules and regulations for fire prevention and fire protection and providing for fire prevention and fire protection, and providing penalties for the violation thereof." The Act must be limited to the above. It may authorize the trustees to make regulations, and may provide penalties for the violation of such regulations and has done so in Sections 20 and 21. It cannot go further and declare certain acts to be misdemeanors. Woodward Hardware Co. v. Fisher, 269 Mo. 271, 190 S.W. 576; State v. Hurley, 258 Mo. 275, 167 S.W. 965. (5) A law, general in form, will be a special law, if the classification of the objects affected by the law is unnatural, unreasonable and arbitrary. The basis of a sound legislative classification is similarity of situation or condition with respect to the feature which renders the law appropriate. A law may not include less than all who are similarly situated. If it does it is special and, therefore, invalid, because it omits a part of those which in the nature of things the reason of the law includes. State ex rel. Webster Groves Sanitary Sewer Dist. v. Smith, 337 Mo. 855, 87 S.W.2d 147; Colley v. Jasper County, 337 Mo. 503, 85 S.W.2d 57; State v. Logan, 268 Mo. 169, 186 S.W. 979; State ex inf. Wallach v. Loesch, 169 S.W.2d 675. (6) The only basis for the segregation of counties of 200,000 to 400,000 population into a separate class for the purpose of the Fire District Act is the presumed existence in such counties and in such counties only of territory located without the corporate limits of any village or city where the erection of buildings has become so congested that destruction of such buildings by fire would be a danger to life and property and the presumed existence of densely populated areas without adequate fire prevention facilities. Laws 1941, p. 505, secs. 1, 42. (7) The act does not include all areas which may be thickly built up. Jackson County, containing Kansas City, is omitted, and such areas as in smaller counties are also omitted. It is, therefore, a special or local law. Colley v. Jasper County, 337 Mo. 503, 85 S.W.2d 57; Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721. (8) No reasonable connection exists between the need for the creation of a fire district to give fire protection to an area within a county and the population of the county. Reals v. Courson, 164 S.W.2d 306. (9) The population of a county is not a proper basis of classification where the act does not apply to the entire county. Reals v. Courson, 164 S.W.2d 306. (10) Article IV, Section 53, Paragraph 32, prohibits the enactment of a local or special law where a general law can be made applicable. The purpose of the fire district act could have been accomplished by the enactment of a general law providing for the creation of fire districts in any territory where the erection of buildings has become so congested that fire protection is needed. State ex inf. Gentry v. Armstrong, 315 Mo. 298, 286 S.W. 705; Reals v. Courson, 164 S.W.2d 306; State v. Logan, 268 Mo. 169, 186 S.W. 979. (11) The act vests in the circuit court, a judicial tribunal, the determination of what circumstances justify the creation of a fire district, which is a legislative power. Essentially the determination is whether in given circumstances and conditions the law should authorize the creation of a fire district. Such determination is legislative and cannot be delegated to any person exercising powers belonging to the judicial department. Woods ex rel. Rogers v. Henry, 55 Mo. 560; Hall v. De Armond, 46 Mo. App. 596; Searle v. Yensen, 118 Neb. 835, 226 N.W. 464, 69 A.L.R. 257; State ex rel. Luley v. Simons, 32 Minn. 540, 21 N.W. 750; Re Ridgefield Park, 54 N.J.L. 288, 23 A. 674; Re North Milwaukee, 93 Wis. 616, 67 N.W. 1033, 33 L.R.A. 638; Galesburg v. Hawkinson, 75 Ill. 152; Burnett v. Greene, 97 Fla. 1007, 122 So. 570, 67 L.R.A. 244; Funkhauser v. Randolph, 287 Ill. 94, 122 N.E. 144; North v. Board of Education, 313 Ill. 422, 145 N.E. 158; 11 Am. Jur., Const. Law, sec. 227, p. 941; 37 Am. Jur., Mun. Corp., sec. 8, p. 628; 1 McQuillin, Mun. Corp. (2d Ed. Rev.), sec. 161, pp. 473-476. (12) The illegality of the delegation of legislative power to the court is not affected by the fact that ultimately an election must be had on the proposition of incorporation. Searle v. Yensen, 118 Neb. 835, 226 N.W. 464, 69 A.L.R. 257; Elliott v. Wille, 112 Neb. 78, 200 N.W. 347; Re North Milwaukee, 93 Wis. 616, 67 N.W. 1033, 13 L.R.A. 638. (13) Laws of Missouri 1941, page 505 (the fire district act), illegally delegates to private individuals the right to fix the boundaries of the proposed district, contrary to Article IV, Section 1, of the Missouri Constitution, vesting legislative power in the General Assembly, and Article II, Section 30, prohibiting the taking of property without due process of law. There is no power granted to the court or any public body to modify the boundaries set forth in the petition. State ex rel. Jones v. Benson, 338 Mo. 448, 92 S.W.2d 718; Cavanaugh v. Gerk, 313 Mo. 375, 280 S.W. 51; Rowe v. Ray, 120 Neb. 118, 231 N.W. 689, 70 A.L.R. 1056; State ex rel. Merriman v. Ball, 116 Tex. 527, 296 S.W. 1085; Browning v. Hooper, 269 U.S. 396, 46 Sup. Ct. 141, 70 L.Ed. 330; Merchants Exchange of St. Louis v. Knott, 212 Mo. 616, 111 S.W. 565. (14) The power to determine whether a political corporation and subdivision shall take steps to incur indebtedness and the power to determine the maximum amount of such indebtedness are governmental powers that cannot be delegated to private individuals. State ex rel. Jones v. Brown, 338 Mo. 448, 92 S.W.2d 718; Rowe v. Ray, 120 Neb. 118, 231 N.W. 689, 70 A.L.R. 1056; State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 2 S.W.2d 713. (15) The power to determine whether a political corporation and subdivision shall take steps to incur indebtedness and to determine the amount of such indebtedness are legislative powers and cannot be left in the discretion of a circuit court. Const. of Missouri, Art. III. (16) The act contains no guide to the exercise of the court's discretion in approving the proposal to submit at the election a proposition to incur indebtedness or in fixing, within the maximum limit set out in the petition, the amount of the indebtedness to be so submitted. Laws 1941, p. 505. (17) No hearing is provided upon any phase of the question of incurring indebtedness. Laws 1941, p. 505, sec. 3. (18) The objections which may be filed by property owners are limited to the necessity or advisability of incorporating the district and cannot include objections relating to the incurrence of indebtedness. Laws 1941, p. 505, sec. 3. (19) Laws, Missouri, 1941, p. 505, violates Article IX, Section 7, of the Constitution of Missouri (directing that the Legislature provide for the organization and classification of cities and towns by general law and limiting the number of classes to four). The act grants to fire districts organized under it, powers of a municipal nature, including police powers. Thus in effect a fifth class of cities is created. Laws 1941, p. 505, secs. 20, 21, 23; People ex rel. Yost v. Becker, 203 N.Y. 201. (20) The act attempts to grant to fire districts organized under it all rights, powers, privileges and police power granted to a city of the fourth class in the exercise and use of its fire department. Laws 1941, p. 505, sec. 28. (21) The act operates as an amendment of the general laws respecting Municipal Cororations (R.S. 1939, Chap. 38) by imposing limitations on the power of certain cities to extend their boundaries. Laws 1941, p. 505, sec. 28. (22) The State Auditor may not register bonds unless the record shows that the issuing district or subdivision is properly organized. State ex rel. Buckley v. Thompson, 323 Mo. 248, 19 S.W.2d 714; State ex rel. Consolidated School Dist. No. 9 of New Madrid County v. Thompson, 325 Mo. 1170, 30 S.W.2d 603; State ex rel. School District of Affton v. Smith, 336 Mo. 703, 80 S.W.2d 858; State ex rel. Consolidated School Dist. No. 13, New Madrid County v. Smith, 337 Mo. 874, 86 S.W.2d 943; R.S. 1939, sec. 3306. (23) In an action of mandamus to require the State Auditor to register bonds, his objection that the district was not lawfully created is not a collateral attack on the proceedings of incorporation. See cases cited under (22) supra. (24) While the circuit court is ordinarily a court of general jurisdiction, in establishing a fire district it exercises only a special jurisdiction, statutory in origin, limited in extent, and not according to the course of the common law; no presumption exists in favor of the validity of its acts. St. Louis v. Gleason, 89 Mo. 67, 147 S.W. 768; St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596. (25) The petition filed in the Circuit Court of St. Louis County was insufficient to vest the Court with jurisdiction to incorporate the district. The petition does not allege that the area or territory sought to be incorporated as a fire district complies with the requirements of the statute, but states merely "that the erection of buildings within the territory of the proposed fire district has caused the greater part of said proposed district to become congested." Laws, Missouri 1941, p. 505, does not authorize the filing of a petition to incorporate a fire district by residents of congested territory plus other territory not congested. Laws 1941, p. 505, sec. 1; State ex inf. Black ex rel. Scott v. Gooch, 175 Mo. App. 270, 157 S.W. 846; State ex rel. Major v. Wood, 233 Mo. 357, 135 S.W. 932; State ex rel. Attorney General v. Hyde, 2 S.W.2d 212. (26) The proposition for the incurrence of indebtedness and the issuance of bonds was not lawfully submitted to the voters and the consent of the voters was not lawfully obtained. The petition prays that the court submit "a proposition to incur indebtedness in the sum of ($25,000) Twenty-five Thousand Dollars for the purchase of equipment and apparatus and buildings for housing the same." The act permits the incurrence of indebtedness only "for the purpose of purchasing equipment and constructing a building or buildings for the purpose of housing said equipment"; it does not authorize debt to purchase buildings. Laws 1941, p. 505, sec. 6. (27) The court was without power under the act to submit any proposition other than that requested in the petition. State ex rel. City of Blue Springs v. McWilliams, 335 Mo. 816, 74 S.W.2d 363; Gordon v. Hammel, 38 N.M. 93, 28 P.2d 522; Muscatine Lighting Co. v. City of Muscatine, 205 Iowa 82, 217 N.W. 468; Thornburgh v. School District No. 3, 175 Mo. 12, 75 S.W. 81; State ex rel. Chillicothe v. Wilder, 200 Mo. 97, 98 S.W. 465; Harrington v. Hopkins, 288 Mo. 1, 231 S.W. 263; State ex rel. Marlowe v. Himmelberger-Harrison Lbr. Co., 332 Mo. 379, 58 S.W.2d 750; Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 443; Horsefall v. School Dist. City of Salem, 143 Mo. App. 541, 128 S.W. 33. (28) The proposition to authorize the District to incur indebtedness "not to exceed Twenty-five Thousand Dollars ($25,000)" was indefinite and uncertain and failed to inform the taxpayer the specific amount of indebtedness proposed to be incurred. St. Louis S.F. Ry. Co. v. Apperson, 97 Mo. 300, 10 S.W. 478; State ex rel. Lexington St. Louis Railroad Co. v. Saline County, 45 Mo. 242; Kerlin v. City of Devil's Lake, 25 N.D. 207, 141 N.W. 756; Stern v. City of Fargo, 122 N.W. 403; Smith v. City of Dublin, 39 S.E. 327. (29) 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. City of Devil's Lake, 25 N.D. 207, Stern v. City of Fargo, 122 N.W. 403. (30) The Board of Trustees of the Fire District of Lemay has no legal existence. Two of the three members receiving the highest number of votes failed to take the required oath of office, thereby creating a vacancy in two of the offices. The remaining trustee attempted to fill such vacancies by appointment but the subsequent revocation of his certificate of election rendered this act void. Laws 1941, p. 505, sec. 17.
Charles Trauernicht and Seward McKittrick, amici curiae.
(1) A decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law, but that it never was the law. To this the courts have established the exception that where a constitutional or statute law has received a given construction by the courts of last resort and contracts have been made and rights acquired under and in accordance with such construction, such contracts may not be invalidated, nor vested rights acquired under them impaired, by a change of construction made by a subsequent decision. This rule has been applied to municipal bonds in the following cases: Douglas v. County of Pike, 101 U.S. 677, 25 L.Ed. 968; County of Ralls v. Douglas, 105 U.S. 728, 26 L.Ed. 957; Taylor v. Ypsilanti, 105 U.S. 60, 26 L.Ed. 1008; Alcott v. Fond du Lac County, 83 U.S. 678, 21 L.Ed. 382; Anderson v. Santa Anna, 116 U.S. 356, 29 L.Ed. 633, 6 S.Ct. 413; Gelpcke v. City of Dubuque, 68 U.S. 175, 17 L.Ed. 520; Loeb v. Columbia Township Trustees, 179 U.S. 472, 45 L.Ed. 280, 25 S.Ct. 182; Thompson v. Lee County, 70 U.S. 327, 18 L.Ed. 177; State ex rel. Clyde v. Mayor, etc., of City of Bristol, 109 Tenn. 315, 70 S.W. 1031; Richardson v. Marshall County, 100 Tenn. 346, 45 S.W. 440; Eagle v. Corbin, 275 Ky. 808, 122 S.W.2d 798; City of Middleboro v. Kentucky Utilities Co., 284 Ky. 833, 146 S.W.2d l.c. 54; State ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298. (2) We find no decision of the court dealing with this question in relation either to municipal bonds or to public corporations or subdivisions. We feel that this Court has, however, recognized and applied the general rule in the following decisions: Klocke v. Klocke, 276 Mo. 572, 208 S.W. 825; Eberle v. Koplar, 85 S.W.2d 919; State ex rel. May Department Stores v. Haid, 327 Mo. 567; State ex rel. Midwest Pipe Supply Co. v. Haid, 330 Mo. 1093; State ex rel. Blackmer Post Pipe Co. v. Rosskopf, 55 S.W.2d 287. (3) If a decision overruling the Webster Groves Sanitary Sewer District case is given a prospective effect, then the many districts created under the Sewer District law will be continued in existence. This must be the result if the obligation of the contract evidenced by the bonds is not to be impaired. A destruction of the means of payment is a clear impairment of the obligation. 12 Am. Jur., Const. Law, sec. 418, p. 50. (4) Section 12642, R.S. 1939, provides that sewer districts be incorporated by a decree of the circuit court entered after notice and a hearing. This is a legitimate function of the circuit court. Birmingham Drainage District v. Chicago, B. Q.R. Co., 274 Mo. 140, 202 S.W. 404; Schwab v. St. Louis, 310 Mo. 116, 274 S.W. 1058. (5) When the circuit court incorporated each of the districts the decree of incorporation necessarily included an implied determination that the court had power and authority to enter the decree. The validity of the act was directly and fundamentally involved in each proceeding. Schwab v. St. Louis, 310 Mo. 116, 274 S.W. 1058. (6) Two cases in which the court, when overruling a prior decision, expressly held that the effect of the new decision was prospective only. State ex rel. May Department Stores v. Haid, 327 Mo. 567, 38 S.W.2d 44; Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371.
This is an original proceeding in mandamus to compel the State Auditor to register bonds in the amount of $25,000 issued by the Fire District of Lemay in St. Louis County. The auditor refused registration on the ground the act authorizing the incorporation of the fire district and the issuance of the bonds is unconstitutional. We find the act is constitutional and the bonds should be registered.
The act (Laws 1941, p. 505) provides for the incorporation of fire districts in counties of 200,000 to 400,000 inhabitants with the power to tax, issue bonds, acquire fire-fighting apparatus, and employ firemen.
An act of the Legislature carries the presumption of constitutionality. [595] The court will not declare an act unconstitutional unless it plainly contravenes the Constitution. Furthermore, the act embraces a proper subject of legislation because fire protection for the public safety is within the police power of the State.
Article IV, Section 53 of the Constitution provides: ". . . Where a general law can be made applicable, no local or special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined, without regard to any legislative assertion on that subject."
Is the act a local or special law because it applies only to counties of 200,000 to 400,000 inhabitants? According to its terms the act applies: "Whenever the erection of buildings in any territory located without the corporate limits of any village or city becomes so congested that destruction of said buildings by fire becomes a danger to life and property and that fire prevention measures become a public necessity or benefit, if any such area may be within any county in the State of Missouri, now or hereafter having a population not less than two hundred thousand (200,000), nor more than four hundred thousand (400,000) inhabitants, according to the last United States decennial census, said area may establish and incorporate a fire district under this act in the manner hereinafter provided."
The question of classification is primarily for the Legislature. If there is any reasonable basis for the classification made the court must sustain it. Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721.
Population furnishes a proper basis for classification in a general law regulating counties which fall within the class when such classification is reasonable and germane to the purpose of the law. Roberts v. Benson, 346 Mo. 676, 142 S.W.2d 1058. Classification on the basis of population is proper here because population is germane to the purpose of the act, fire protection, in view of the greater likelihood of the spread of fire with the resulting increase in danger and loss in thickly populated areas. The danger against which the act seeks to protect grows out of a density of population. Without exception, so far as we know, fire protection is supplied by incorporated communities. The congested unincorporated areas have the same need for it.
St. Louis County is the only county now within the population bracket stated in the act. Such fact alone does not make the act a special law for the reason the act will also apply to other counties which will attain the same population in the future. Where an act is potentially applicable to other counties which may come into the same class it is not a local law. Roberts v. Benson, 346 Mo. 676, 142 S.W.2d 1058, supra.
Respondent argues the Legislature does not give the right of organizing fire districts to all the congested areas that need it, but only to those areas in counties covered by the act and for that reason the act is arbitrary, and contrary to the rule expressed in State ex rel. Hollaway v. Knight, 323 Mo. 1241, 21 S.W.2d 767 and quoted in Hull v. Baumann, supra, as follows: "But a law general so far as population is concerned may be a special law if the classification made therein is unnatural, unreasonable, and arbitrary so that the act does not apply to all persons, objects, or places similarly situated." This statement is too broad and is not supported by the decisions. Where, as here, population is a reasonable basis for classification it is only necessary that the act apply to all places of the same population designated in the law. The fact there may be congested areas in counties having a different population does not make the act a special law. The discussions leading to opposite conclusions in State ex inf. Gentry v. Armstrong, 315 Mo. 298, 286 S.W. 705; Rose v. Smiley (Mo.), 296 S.W. 815; and State ex rel. Gentry v. Curtis, 319 Mo. 316, 4 S.W.2d 467 are not in harmony with the prevailing rule. Reals v. Courson, 349 Mo. 1193, 164 S.W.2d 306 is not pertinent because the law discussed there was applicable to a single county only and not even potentially applicable to any other.
The act we are considering applies generally to all congested areas similarly situated, that is — situated in counties of the same population bracket. Because there are other congested areas to which the same act might have been applied does not stamp the classification as unreasonable. See City of Lebanon v. Schneider, 349 Mo. 712, 163 S.W.2d 588; State v. [596] Gritzner, 134 Mo. 512, 36 S.W. 39; State ex inf. Crow v. Aetna Insurance Co., 150 Mo. 113, 51 S.W. 413; "The line [of demarcation] must be drawn somewhere." Ex parte Lucas, 160 Mo. 218, 61 S.W. 218; Ex parte Loving, 178 Mo. 194, 77 S.W. 508. "The Legislature in the exercise of its power to classify is not required to trace with a hair line the boundaries of the class to which the resulting enactment shall apply." Hawkins v. Smith, 242 Mo. 688, 147 S.W. 1042. The question of classification is a practical one. A law may be directed to that class which is deemed to have the greater need for it. There may be omissions from the application of the law; the entire possible field does not have to be covered. There is bound to be some inequality resulting from any classification but unless it is unreasonable and arbitrary the classification must be approved. We hold the act in question does not violate the constitutional prohibition against local or special laws.
The title to the act is also under fire. It reads:
"An Act to provide for the establishment and incorporation of fire districts in counties now having, or which may hereafter have, a population of not less than two hundred thousand (200,000) nor more than four hundred thousand (400,000), defining the powers and method of government of said district; providing for the election, qualifications, powers and duties of the Trustees thereof; providing for the assessment levy and collection of taxes for the maintenance, operation and the payment of the indebtedness of said district; authorizing the issuance of bonds and providing for the terms, manner of execution, sale and payment thereof, and the holding of elections for the purpose of approving the issuance thereof; authorizing the Trustees to make rules and regulations for fire prevention and fire protection, and providing for fire prevention and fire protection, and providing penalties for the violation thereof; providing for the acquisition, maintenance and operation of fire fighting apparatus and auxiliary equipment, water supply and fire alarm and signal system; providing for the acquisition, construction, maintenance and disposition of real and personal property; authorizing the execution of contracts; granting to the district and its agents municipal and police powers; and providing for the extension, consolidation and disincorporation of the districts, with an emergency clause."
It is plain on its face the title expresses the subject generally and then specifies particulars. Where the title of an act descends to particulars, the particulars stated ordinarily become the subject of the act and the act must conform to the title as expressed by the particulars. Where the title goes into such detail as would reasonably lead to the belief that nothing was included except that which is specified then any matter not specified is not within the title. Any such matter beyond the title is void because of Section 28, Article IV of the Constitution. Hunt v. Armour Co., 345 Mo. 677, 136 S.W.2d 312; Fidelity Adjustment Co. v. Cook, 339 Mo. 45, 95 S.W.2d 1162; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543.
Section 34 of the Act prohibits any city or village from annexing any part of a fire district. The district as a whole must be taken together with all obligations. The same section provides that no city or village shall be incorporated within a district unless the entire area is included. The incorporation of cities and the extension of their limits are the subjects of other statutory provisions. These subjects not being included in the particulars are beyond the title of the act and Section 34 is thereby rendered void.
The act provides if any section is held unconstitutional the remainder of the act shall not be affected. We obey such a legislative declaration where the invalid parts are separable and that which is left is complete in itself, sensible, capable of being executed and independent of that which is rejected. 59 C.J., Statutes, sec. 225; State ex rel. Bier v. Bigger, 352 Mo. 502, 178 S.W.2d 347.
Although the subjects of Section 34 may be highly desirable ones for the orderly and proper conduct of the business affairs of a fire district, their desirability is a matter of policy for the Legislature and not for the courts.
Respondent also points out that Sections 23, 24 and 25 are beyond the title of the act. Section 23 declares that anyone parking within six feet of a fire hydrant shall be guilty of a misdemeanor. Section 24 declares anyone interfering with a fireman while performing his duties shall be guilty of a misdemeanor. Section [597] 25 provides for the prosecution and punishment of such misdemeanors. Section 26 empowers firemen to make arrests. These sections, not being included in the title, are void for the same reason.
We hold Sections 23, 24, 25, 26 and 34 are separable. After they are stricken from the act the remainder is complete and capable of being executed and is valid. In view of the legislative declaration we are not in a position to say the Legislature would not have passed the act with these sections omitted.
Respondent also contends the act offends Article III of the Constitution dividing the powers of government into three branches in that it delegates to the circuit court legislative power to determine what facts should form the basis for creation of a fire district. We do not find this to be so. The Legislature has prescribed the conditions which must exist before the rights under the act may be exercised. They are "whenever the erection of buildings . . . becomes so congested that destruction of said buildings by fire becomes a danger to life and property and that fire prevention measures become a public necessity or benefit." In such a case fifty or more residents may petition the circuit court for the organization of a fire district. A hearing is had and evidence produced. The court then approves the organization of the district if it "finds the proposed fire district is necessary." Sec. 3, Laws 1941, p. 505. The provision authorizing the court to determine the necessity for the organization of a district must be read with the conditions set out as precedents to the right to form such a district and means that if the court finds the prescribed conditions exist then it shall approve the organization of the district. A court is authorized to do this under the established principle that the Legislature lays down the general rule and the court decides the rights of the parties under the rule. Rhodes v. Bell, 230 Mo. 138, 130 S.W. 465. "No delegation of legislative functions is involved, in general laws providing for the incorporation of municipal corporations, fixing the conditions on which they may be created, and leaving to some officer or official body the duty of determining whether such conditions exist. . . . It is generally held that the legislature, in enacting general statutes governing the incorporation of municipal corporations, which describe the conditions precedent to incorporation, may confer upon the court or other agency the power and duty to ascertain the existence of the facts set forth in the statute upon which it will become effective." 37 Am. Jur. Municipal Corporations, sec. 8.
In the scheme for organizing a fire district the petitioners set out the proposed boundary lines of the district. This does not violate the due process clause of either the State or Federal Constitutions because such boundaries become fixed only when approved by the court. Nor does the law delegate to private citizens the power to create a public agency of the State as found to be the case in State ex rel. Jones v. Brown, 338 Mo. 448, 92 S.W.2d 718.
After the court approves the district, the question of its organization is finally submitted to the legal voters of the district. At the same election a proposition for incurring an indebtedness in an amount not greater than that set out in the petition for incorporation may be submitted. The court must first find the proposition to incur such indebtedness is reasonable and proper. We do not find that the fact the petitioners first propose the amount of indebtedness, later approved by the court, and then by the voters violates any provision of the Constitution. Nor does the act disobey Section 7 of Article IX of the Constitution which prohibits the establishment of more than four classes of cities. State ex inf. Gentry v. Curtis, 319 Mo. 316, 4 S.W.2d 467.
Respondent questions the legality of the organization of the district and the submission of the question of indebtedness to the voters. We held in State ex rel. Buckley v. Thompson, 323 Mo. 248, 19 S.W.2d 714 that since the State Auditor is required to register bonds only when all the conditions of the law have been complied with, he must be furnished with evidence of the proper organization of the municipal corporation seeking to issue the bonds and of the compliance with the conditions imposed for the issuance of the bonds. In this case the decree of the circuit court finds all the steps required for the organization of the district and issuance of the bonds have been taken and all of the conditions complied with. It also shows the selection of the trustees was proper.
We must give a reasonable construction to Section 6 of the act which [598] states that the district may incur an indebtedness "for the purpose of purchasing equipment and constructing a building or buildings for the purpose of housing such equipment." The legislative intent as clearly expressed is to authorize the district to provide housing for its equipment. The district is not limited to constructing such housing but may acquire it by purchasing a building already constructed. Such power is plainly implied and is as much a part of the act as if expressed.
The record in the case does not sustain the many objections raised as to the pleadings, the organization of the district, the proposal for incurring the debt and the issuance of the bonds. It would serve no useful purpose to discuss them. All are ruled against respondent.
Respondent should register the bonds. For that purpose our alternative writ of mandamus is made peremptory and ordered issued. All concur except Ellison, J., absent.