Opinion
No. 38046.
November 12, 1942.
1. PROHIBITION: Writ Will Not Issue to Prevent Error. If the circuit court has jurisdiction of the subject matter of the action and of the person of the parties thereto, the Supreme Court will not issue its writ of prohibition simply to prevent the judges of the circuit court from making an erroneous decision.
2. DRAINS: Ralph Sewer Act: Central Sewer District Validly Incorporated. The Central Sewer District was legally incorporated. A misdescription as to certain lands not involved would not render the entire incorporation void, and the error was properly corrected by a nunc pro tunc entry. Nor did the change in the name of the district render the proceedings invalid.
3. TAXATION: Constitutional Law: Ralph Sewer Act: Exemptions of Public Property Valid. The Ralph Sewer Act is not unconstitutional because it exempts from taxation the property of school districts, municipalities and other political and civil subdivisions.
4. TAXATION: Constitutional Law: Ralph Sewer Law: Area Tax Not in Violation of Sec. 4 of Art. X, Missouri Constitution. The preliminary organization tax of ten cents per square of one hundred square feet is not in violation of Sec. 4 of Art. X of the Missouri Constitution, requiring taxation in proportion to value, as this constitutional provision has no application to special local assessments of the kind here involved.
5. TAXATION: Constitutional Law: Ralph Sewer Act: Due Process Not Violated. The Ralph Act does not deprive relators of their property without due process of law because it provides a small preliminary organization tax on a basis of the amount of land without regard to its value.
6. DRAINS: Constitutional Law: Ralph Sewer Act: Provisions For Acquisition of Outlets Not Unconstitutional: Relators May Not Raise Question. Since no attempt has been made to acquire their property, relators may not raise the issue that the Ralph Act is unconstitutional because it permits the board of supervisors of the district to acquire without compensation property outside the district for outlets, nor does the act so provide.
7. DRAINS: Ralph Sewer Act: Liquidator Validly Appointed. The issuance of a single commission to the liquidator of each district under the provisions of the Liquidator Act following the repeal of the Ralph Act would not invalidate his appointment.
8. DRAINS: Constitutional Law: Ralph Sewer Act: Liquidator Act Not Invalid as Ex Post Facto or Retrospective Law. The Liquidator Act following the repeal of the Ralph Act was not invalid as an ex post facto or retrospective law. It impaired no vested rights.
9. STATUTES: Drains: Ralph Sewer Act: Title Not Defective. The title to the Ralph Act is not defective because it refers to sewer districts, but does not specify storm sewers, though combining legislation relating to storm sewers with legislation relating to sanitary sewers.
10. TAXATION: Drains: Ralph Sewer Act: Preliminary Tax Includes Lands Added to District. The preliminary organization tax applies to lands which were not within the district as originally organized, but were legally annexed to the district thereafter.
11. TAXATION: Limitations of Actions: Ralph Sewer Act: Section 20 Not a Limitations Provision. Section 20 of the Ralph Act, providing for institution of suits within a six-months' period, is procedural only, and not a limitations section.
12. PROHIBITION: Laches Will Not be Considered. The question of whether the actions are barred by laches is a matter lying wholly within the jurisdiction of the circuit court, and the Supreme Court will not interfere by prohibition.
13. PROHIBITION: Drains: Taxation: Ralph Sewer Law: Purpose of Tax Levy: Improper Issue. The question of whether provision should have been made for the tax proceeds to be used for certain purposes was a matter of discretion with the supervisors of the district, and is not a proper issue in a prohibition proceeding.
PRELIMINARY RULE DISCHARGED.
Alvan J. Goodbar, Henry T. Ferriss and Homer Hall for relators.
(1) The Supreme Court of Missouri has jurisdiction of original proceedings in prohibition to keep the Circuit Court of St. Louis County within the limits of its jurisdiction and this court has jurisdiction of this cause, as is shown in the preceding paragraph on jurisdiction. Mo. Constitution, Sec. 3, Art. 6; Amend. 1890, Secs. 1, 3; R.S. 1939, secs. 1773-1781; State ex rel. General Mills, Inc. v. Waltner, 156 S.W.2d 664; State ex rel. v. Harris, 159 S.W.2d 799; State ex rel. v. Sartorius, 344 Mo. 919, 130 S.W.2d 541; State ex rel. Arthur v. Hammett, 151 S.W.2d 695, certiorari denied. (2) The assessments made by Central Sewer District and sued for in its name are a tax and the rule is universal that taxing statutes are to be strictly construed against the taxing authority and in favor of the taxpayers. The relators rely upon that rule and ask the court to apply it in this case. F. Burckhardt Mfg. Co. v. Coale, 345 Mo. 1131, 139 S.W.2d 502; In re Kansas City Star Co., 346 Mo. 658, 142 S.W.2d 1029; Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896; State ex rel. Ford Motor Co. v. Gehner, 325 Mo. 24, 29, 27 S.W.2d 1; Berry-Kofron, etc., Co. v. Smith, 345 Mo. 922, 137 S.W.2d 452; State ex rel. Kansas City P. L. Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; Bussen Realty Co. v. Benson, 159 S.W.2d 813. (3) The purported incorporation of Central Sewer District based upon the petition and publication of notice of Brentwood Sewer District was invalid and the respondents are without jurisdiction or authority to entertain or decide the suits for taxes assessed by Central Sewer District, and they should be prohibited from so doing. The requirements of the statutes with respect to service by publication must be strictly complied with and the purported incorporation of Central Sewer District based upon publication of notice of Brentwood Sewer District, was unauthorized and void especially when the boundary lines described an area in Central Sewer District different from that described in the petition and publication of notice of Brentwood Sewer District. State ex rel. v. Ryan, 337 Mo. 1180, 88 S.W.2d 157; In re Letcher, 269 Mo. 140; State to Use of Douglas v. Arcadia Timber Co., 178 S.W. 93; State ex rel. Ray v. Arcadia Timber Co., 274 Mo. 663. The publication of notice of the filing of and hearing on the petition for the incorporation of Brentwood Sewer District, if valid at all, constituted at most nothing more than constructive service as to any landowners within the boundary of such district, and could not have been notice to or binding upon the relators, none of whom owned any land within the boundaries of that district. None of the relators entered his appearance in any way whatever in any of the proceedings for the incorporation of Brentwood Sewer District or the purported Central Sewer District. State ex rel. v. Harris, 159 S.W.2d 799. (4) The circuit court had no authority to change and could not by the nunc pro tunc order of June 25, 1928, made at the May Term, change the order made on April 20, 1928, or on April 30, 1928, at the preceding January Term, 1928, of court, and the purported incorporation of Central Sewer District rests upon the orders and decree made at the January Term. Wiggins v. Perry, 343 Mo. 40, 119 S.W.2d 839; Freeman v. Joplin Water Works, 154 S.W.2d 744; Cross v. Greenaway, 151 S.W.2d 43; State ex rel. v. Hammett, 151 S.W.2d 695. (5) The Act of March 25, 1927 (the Sewer Law), should be held invalid in this proceeding for the reason that it is in violation of the Constitution of Missouri, in that it contains more than one subject, namely the disposal of sewage for sanitary purposes and the disposal of storm water, which subjects are not so related that they may be included in one act, and the purpose of the act to provide for disposal of storm water is not mentioned in the title to the act. The act is further invalid because it provides for taking and damaging property outside the sewer districts without providing for a hearing by the property owners, and that purpose is not clearly expressed in the title. (6) The Act of March 25, 1927, is unconstitutional and void as special class legislation in that it does not require that the property of public corporations which would be in need of and benefited by sewage disposal should be taxed the same as private property. Public property is liable to special assessment for public improvements and should have been made liable by the Act of March 25, 1927. State ex rel. v. Knight, 323 Mo. 1241, 21 S.W.2d 767; Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721; State ex rel. v. Hedrick, 294 Mo. 21, 241 S.W. 402; Normandy Consolidated School Dist. v. Wellston Sewer Dist., 77 S.W.2d 477. (7) The suits involved in this proceeding were not commenced within six months after December 31, 1931, the year for which the tax was levied, as required by Section 20 of the Sewer Law, and the liquidator has no right to prosecute them and respondents have no jurisdiction to try or decide them. First Natl. Bank v. Holt, 158 S.W.2d 229. (8) The Act of March 25, 1927, did not require that land included in an extension of the boundaries of an existing sewer district should be assessed the preliminary tax of ten cents per square of 100 square feet, but only provided that land in such extension should be "liable to taxation to pay the cost of making and maintaining such sewer improvements." The rule expressio unius est exclusio alterius is applicable and controlling in this cause and excludes the assessment of the preliminary tax against the lands of the relators, all of which are within the purported extension of the boundaries of Central Sewer District. Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896; State ex rel. v. Smith, 336 Mo. 810, 81 S.W.2d 613; Kansas City v. J.I. Case, etc., Co., 337 Mo. 913, 87 S.W.2d 195; State ex rel. v. Smith, 342 Mo. 75, 111 S.W.2d 513; State ex rel. v. Hunt, 152 S.W.2d 77; Cases cited under Point (3). (9) The Act of December 15, 1933 (Laws of Mo. Extra Session, 1933-1934, p. 117), the liquidation law, under the provisions of which the liquidator was substituted as plaintiff in the suits for the tax in question confers no right or authority upon the liquidator to prosecute said suits in his name, and the respondents are without jurisdiction to try or decide said suits. The Act of December 15, 1933, is unconstitutional because it is a local and special law applicable only to St. Louis County and regulating the affairs of that county, creating the office of liquidator of St. Louis County and prescribing the powers and duties of liquidator of St. Louis County, contrary to the provisions of Article 4, Section 53, Subsections (2) and (15), and contrary to the provisions of Article 4, Section 54 of the Constitution of Missouri, and of Section 10 of Article I and Section 1 of the Fourteenth Amendment to the Constitution of the United States. The Act of December 15, 1933, is an ex post facto law and retrospective in its operation and is violative of Article 2, Section 15 of the Constitution of Missouri, and of Article 1, Section 10 of the Constitution of the United States, and of Section 1 of the Fourteenth Amendment to the Constitution of the United States, in that it abridges the privileges and immunities of the relators who are citizens of the United States and deprives the relators and other persons of their property without due process of law, and denies to relators and other owners of land within the jurisdiction of the State of Missouri the equal protection of the laws. The Act of December 15, 1933 (the Liquidator Act) is invalid and violative of the Constitution of Missouri, Article 4, Section 53, paragraph 32, in that it is a special law, applicable and intended to apply only to St. Louis County. This view is fully supported by the decision of this court. State ex rel. v. Armstrong, 315 Mo. 298, 286 S.W. 705; Rose v. Smiley, 296 S.W. 815; Colley v. Jasper County, 337 Mo. 503, 85 S.W.2d 57; Massey-Harris Harvester Co. v. Federal Reserve Bank, 340 Mo. 1133, 104 S.W.2d 385, citing 242 Mo. 688, 129 Mo. 163. (10) The decisions of the court in prior cases under the Act of March 25, 1927, the sewer district law, are not controlling in this case for the reason that the questions now presented in this case were not presented or decided in those prior decisions. Siemens v. Shreeve, 317 Mo. 736, 296 S.W. 415; State ex rel. v. Trimble, 333 Mo. 207, 62 S.W.2d 756. (11) The court is not bound by and will not hesitate to depart from or to expressly overrule prior decisions which are erroneous or are found to be opposed to a fair and reasonable decision of the case under consideration and for this reason prior decisions of the court, whether involving the sewer district law or not, which might be opposed to the justice of this cause, ought to be disregarded. State v. Williams, 337 Mo. 884, 87 S.W.2d 175; Siemens v. Shreeve, 317 Mo. 736, 296 S.W. 415; City of Mountain View v. Farmers' Tel. Exchange Co., 294 Mo. 623, 243 S.W. 153.
T. Douglas Moore for respondents; Fordyce, White, Mayne, Williams Hartman of counsel.
(1) The preliminary rule in prohibition should be quashed, the relators' petition dismissed and the respondents discharged, because the relators are not entitled to relief in prohibition, for such is the wrong remedy. (a) Prohibition will not be granted to restrain a trial judge from exercising jurisdiction in a pending case before him unless the applicant for prohibition has previously challenged the jurisdiction of the trial judge in such case pending before him. Forsee v. Gates, 89 Mo. App. 577; State ex rel. Ferrocarrilas Nationales De Mexico v. Rutledge, 56 S.W.2d 28, 331 Mo. 1015. (b) Prohibition cannot be used or invoked to raise or challenge the unconstitutionality of an act of the Legislature. State ex rel. Chase v. Hall, 250 S.W. 64; State ex rel. Conran v. Duncan, 63 S.W.2d 135. (c) Relief in prohibition will not be granted unless the applicant therefor has exhausted all other existing and adequate legal remedies. State ex rel. Farmers Exchange Bank of Gallatin v. Beals, 55 S.W.2d 1005; State ex rel. Rice v. Porterfield, 253 S.W. 66; State ex rel. La Fon v. Riley, 4 S.W.2d 482. (d) Prohibition does not lie merely to escape or abrogate vexatious litigation or a multiplicity of suits. State ex rel. Terminal Railroad Assn. of St. Louis v. Tracy, 237 Mo. 109, 140 S.W. 888. (e) A writ of prohibition will not lie against mere errors and irregularities of a court if such court is acting within its jurisdiction and within the scope of the pleadings. State ex rel. Dawson v. Rombauer, 99 Mo. 216, 12 S.W. 661; State ex rel. McNamee v. Stobie, 194 Mo. 14, 92 S.W. 191. (2) The relators are not entitled to relief in prohibition, nor are they entitled to any other relief attacking the incorporation of the Central Sewer District, because they have slept on their rights and are guilty of laches. Graves v. Little Tarkio Drain. Dist., 134 S.W.2d 70; State ex rel. Brown v. Town of Westport, 22 S.W. 888; Stampler v. Roberts, 3 S.W. 214; Kircher v. Evers, 247 S.W. 251; Kabbeas v. Strumpf, 23 S.W.2d 203; 21 C.J. 193. (3) The formation of sewer or drainage districts is an exercise of the police power and the statutes providing for and governing their incorporation and organization are to be given a most liberal construction. In re Mingo District, 183 S.W. 611; State ex rel. v. Bugg, 224 Mo. 554, 128 S.W. 827; State ex rel. v. Bates, 235 Mo. 293, 138 S.W. 482. (4) The judgment of the Circuit Court of St. Louis County of April 30, 1928, which incorporated the Central Sewer District as a body corporate and a political subdivision of the State of Missouri, is immune to the collateral attack which the relators are making in this proceeding. The infirmities, if any, in the organization of the Central Sewer District can only be inquired into in a quo warranto proceeding at the instance of the State of Missouri. Kayser v. Trustees of Bremen, 16 Mo. 88; School District No. 35 v. Hodgins, 180 Mo. 70, 79 S.W. 148; Flynn v. City of Neosho, 114 Mo. 573, 21 S.W. 903; Pierce v. Lutesville, 25 Mo. App. 317; State ex rel. Consolidated School District No. 3 v. Miller, 33 S.W.2d 122; Honey Creek Drain. Dist. v. Farm City Inv. Co., 32 S.W.2d 753; State ex rel. v. Hoetz, 279 Mo. 229, 214 S.W. 376; Black v. Early, 208 Mo. 281, 106 S.W. 1014; Barnes v. Mo. Valley Const. Co., 257 Mo. 175, 165 S.W. 723; State ex rel. v. Blair, 245 Mo. 680, 151 S.W. 148; R.S. 1939, sec. 1239. (5) The incorporation of the Central Sewer District by the Circuit Court of St. Louis County was done in compliance with, and under the provisions of, the Act of May 25, 1927 (the sewer law), and the respondents have jurisdiction and authority to try and decide the suits for taxes pending before them. Honey Creek Drain. Dist. v. Farm City Inv. Co., 32 S.W.2d 753. (6) The Circuit Court of St. Louis County had the power and authority to render its order of June 25, 1928, amending its incorporating decree of April 30, 1928, since judgments may be amended after "term time" to correct any clerical error and to make the records speak the truth. Kansas City v. Woerishoeffer, 249 Mo. 1, 155 S.W. 779; In re Tompkins Estate, 50 S.W.2d 659; State ex rel. Grant v. Juden, 50 S.W.2d 702; Burton v. Burton, 228 Mo. 531, 232 S.W. 476. (7) The rules of law relating to substituted or constructive service in judicial proceedings are without application in proceedings to establish drainage or sewer districts, and such districts may be established without notice to the inhabitants and even against their will so far as the due process of law requirements are concerned. State v. Road District, 6 S.W.2d 594; Honey Creek Drainage District v. Farm City Investment Company, 32 S.W.2d 753; In re Little River Drainage District, 236 Mo. 94, 139 S.W. 330. (8) The fact that the incorporating decree of the Circuit Court of St. Louis County of April 30, 1928, included through clerical error a tract of land not included in the original petition for such incorporation, or in the notice of filing of same, cannot give relators any cause to complain since it is apparent that the relators did not own nor have any interest in such tract of land erroneously included. In re Mingo District, 183 S.W. 611. (9) The suits involved in this proceeding and pending before the respondents were filed within the five-year period of statutory limitations, which is all that is required. In any event, such contention is a defense that must be pleaded in the trial court and therein decided, and does not afford the relators any ground for relief in prohibition. Drainage District v. Bates County, 20 Mo. 718, 216 S.W. 949; St. Francis Levee District v. Timber Co., 215 Mo. App. 368, 253 S.W. 1078; State ex rel. v. Colman, 73 Mo. 684; State ex rel. v. Keithley, 204 S.W. 24; Norborne Land Drain. Dist. Co. v. Cherry Valley Twp. of Carroll County, 31 S.W.2d 201; State ex rel. Davidson v. Mo. State Life Ins. Co., 65 S.W.2d 182. (10) It is within the discretion of the Legislature in the passage of legislation providing for the making of local public improvements to require public property benefited by the improvements to pay its proportionate share of the expense thereof, or to exclude such property entirely. Normandy Consolidated School Dist. v. Wellston Sewer Dist., 77 S.W.2d 477. (11) The levying of a preliminary organization tax upon landowners in sewer or drainage districts is not a tax within the provisions of Section 4, Article X, of the Constitution of Missouri, and such a law is not unconstitutional merely because such land received no benefit therefrom. Houck v. Little River Drain. Dist., 239 U.S. 254, 36 S.Ct. 58, 60 L.Ed. 66; State ex rel. Gentry v. Curtis, 319 Mo. 316, 4 S.W.2d 467; Honey Creek Drain. Dist. v. Farm City Inv. Co., 32 S.W.2d 753. (12) The constitutionality of the original sewer law (March 25, 1927) has been upheld by this court. State ex rel. Gentry v. Curtis, 319 Mo. 316, 4 S.W.2d 467; State ex rel. Becker v. Wellston Sewer Dist., 58 S.W.2d 988. (13) The Act of December 15, 1933 (Laws of Missouri, Extra Session 1933-1934, page 117), commonly known as the liquidator law, applies only to sewer districts in counties having a population of not less than one hundred thousand inhabitants or more than four hundred thousand inhabitants, and such classification has been uniformly held to be a valid one and does not render such act a special or local law. Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721; State ex rel. Zoological Board v. St. Louis, 1 S.W.2d 1021; Thomas v. Buchanan County, 330 Mo. 627, 51 S.W.2d 95. (14) The Legislature has the power to create special taxing districts and to charge the cost of local improvements, in whole or in part, upon the property in such district by special assessments, either according to valuation, superficial area or frontage. Meier v. St. Louis, 79 S.W. 955; State ex rel. Gentry v. Curtis, 4 S.W.2d 467. (15) The act of December 15, 1933 (Laws of Missouri, Extra Session 1933-1934, page 117, Liquidator Law), does not require the liquidator to take a separate oath or file a separate bond for each sewer district in St. Louis County; for said act provides, "that in any County in which there is more than one sewer district the same liquidator shall act for all of said districts." Laws (Ex. Sess.), 1933-1934, p. 118, sec. 3. Williams, Nelson English and Charles Claflin Allen, Jr., amici curiae.
(1) The preliminary rule in prohibition should be quashed, relators' petition dismissed, and the respondents discharged because the relators are not entitled to relief in prohibition under the rules of this court. Rule 32, Supreme Court of Missouri, revised to June 11, 1940, with amendments to January 21, 1942. (2) The Circuit Court of St. Louis County en banc had authority to permit an amendment of the petition for the incorporation of the Central Sewer District and an amendment changing the name of the District did not invalidate the proceedings. Secs. 10745, 11034, R.S. 1929; State ex inf. v. Mississippi Fox River Drain. Dist., 292 Mo. 696, 238 S.W. 446. (3) The order extending the boundaries of the district to include the lands of relators constituted a judgment of the Circuit Court of the County of St. Louis and is res adjudicata as to relators in this proceeding. Secs. 10785, 11065, R.S. 1929; State ex rel. v. Holt, 135 Mo. 533, 37 S.W. 521; State ex rel. v. Taylor, 224 Mo. 393, 123 S.W. 892; Inter-River Drain. Dist. of Mo. v. Henson, 99 S.W.2d 865. (4) The land owned by relators is subject to the preliminary tax of 10c per square of 100 square feet under the terms of Section 11037, R.S. 1929. Secs. 11037, 11065, R.S. 1929. (5) The Liquidator Act, Laws 1933-34, Extra Session, page 117, Article II, Chapter 80, R.S. 1939, is not retrospective in its operation and does not violate Section 15 of Article II of the Constitution of Missouri.
Original proceeding in prohibition. The relators are defendants in certain suits for the collection of taxes brought by the Central Sewer District of St. Louis County, Missouri, in the Circuit Court of that County. The respondents are the Judges of said Court. Our preliminary rule was issued and the respondents filed a return thereto admitting certain of the allegations in the petition and denying others and set up some additional facts in defense. No reply to this return was filed nor was any evidence taken but the case was briefed, orally argued and submitted as if a motion for judgment on the pleadings had been filed. We will so consider it. In this state of the record we accept as the facts of the case the matters alleged in the petition and admitted or not denied in the return, together with such other facts as are pleaded in the return but not denied by the relators.
In April, 1927 a petition was filed in the Circuit Court of St. Louis County praying for the incorporation of a sewer district which should contain certain lands described in the petition. The proceeding was instituted under the authority of an Act approved March 25, 1927 [Laws of 1927, p. 439 et seq.], which we will hereafter refer to by its popular title as the Ralph Act. In the petition the proposed sewer district was called the Brentwood Sewer District. A notice was duly published [635] describing the boundaries of the district as they were set out in the original petition. After the publication of this notice the petitioners asked leave of the Circuit Court to amend the description of boundaries in order that the same might be clarified. Such amendment was permitted. Actually the amended description changed the boundaries stated in the original petition and included within the district a few acres of land which lay outside of the original description. At about the same time the petitioners also asked leave to amend, changing the name of the proposed district to the Central Sewer District and this amendment was also permitted. A final decree of incorporation was entered, setting out the boundaries of the district as the same had been described in the amended petition. It then became known that the description had been actually changed by the amendment and that lands not included in the publication notice had been inadvertently incorporated in the district by the decree. At the next term of court this decree was amended nunc pro tunc to make the description correspond to that contained in the original petition and the published notice. Shortly after this a petition of property owners was filed with the court seeking to annex to the district certain lands not originally contained therein and after due and proper publication a further decree was entered ordering the annexation as prayed. The lands owned by the relators in this case were not included in the original district nor in the small tract of land inadvertently added to the district by the original decree but are in the tract of land which was annexed to the district after the proceeding last mentioned. The board of supervisors of the district then proceeded to levy a preliminary organization tax under the authority of Sec. 7 of the Ralph Act upon all of the lands of the district, including those annexed thereto and of course including the lands of these relators. The amount of such tax was fixed at ten cents per square of one hundred square feet. Relators failed to pay this tax and, at a time more than six months subsequent to the tax becoming delinquent, the tax suits here involved were instituted for its collection.
The Ralph Act was repealed by the General Assembly by an Act approved May 1, 1931 [Laws of 1931, p. 355]. But this law continued in force "All of the provisions of the law hereby repealed . . . for the purpose of paying all outstanding and lawfully incurred costs, obligations and liabilities of all sewer districts." By an Act of December 15, 1933 [Laws of Mo., Extra Session 1933-34, p. 117] the General Assembly provided that when any sewer district had been dissolved pursuant to law "The Governor shall appoint a liquidator of such sewer district." The act also provided that the liquidator so appointed should qualify by taking an oath and should give bond to be approved by the circuit court; that the Governor should have power to remove such liquidator and appoint a successor; that the liquidator should have all of the powers originally conferred on the board of supervisors and should take over the property of the district for the purpose of liquidation. This act contained an emergency clause putting it into effect immediately.
On January 20, 1934, the Governor appointed William H. Tegethoff as liquidator for the sewer districts of St. Louis County. Tegethoff was made a plaintiff in the tax suits here under consideration. Subsequently he resigned and Walter R. Mayne was appointed liquidator for the sewer districts of St. Louis County. He filed his oath and gave bond in the sum designated by the Circuit Court. Mayne was thereafter made a party plaintiff in the tax suits.
Relators seek to prohibit the respondents from proceeding further in these suits for the reason that they are alleged to be without jurisdiction thereof. We pass over without consideration the question of whether or not a single writ of prohibition should be issued to deal with a number of different proceedings in the court below if involving a different plaintiff. This question has not been raised by demurrer or motion and we therefore proceed to consider the merits of the case. In so doing we must have in mind the well established rule that the function of a writ of prohibition is to stop an inferior tribunal from considering a proceeding of which it has no jurisdiction or from taking an action in a case which is in excess of its jurisdiction. The writ of prohibition cannot be made a substitute for a writ of error. In other words if the court below has jurisdiction of the subject matter of the action and of the person of the parties thereto, our writ will not be issued simply to prevent the judges of the circuit court from making an [636] erroneous decision. [State ex rel. Dawson v. Rombauer, 99 Mo. 216, 12 S.W. 661; State ex rel. Bernero v. McQuillin, 246 Mo. 517, 152 S.W. 347; State ex rel. Terminal R. Assn. v. Tracy, 237 Mo. 109, 140 S.W. 888, 37 L.R.A. (N.S.) 448; McBaine, "The Extraordinary Writ of Prohibition in Missouri," Univ. of Mo. Bul., 32 L. Ser. 13; Rule 32 of this Court.]
It is asserted by the relators that the respondents are without jurisdiction of these tax suits because the Central Sewer District was never properly incorporated and hence never became a legal person capable of bringing a suit. Therefore they argue that there is no plaintiff in the present actions. In this connection the relators contend that the incorporation proceedings were so fatally defective as to be a complete nullity. It is true, as said by the relators, that the original decree attempted to place in the district certain lands which were not included in the description used in the publication notice. The effect of such inclusion, however, could not be to avoid the entire proceeding. At most it would simply be void as to the lands improperly included, and it is to be noted that none of the relators owned land in the tract thus inadvertently added. [Big Lake Drainage District v. Rolwing, 265 Mo. 450, 178 S.W. 110.] In any event, however, the misdescription in the decree was a mere clerical error which the court had power to correct and did correct by a nunc pro tunc entry. Such an entry could properly be based upon the original petition and the original order of publication which were a part of the record proper in the case.
Nor do we consider that the mere change in name of the sewer district was such an amendment as would be invalid after service by publication. The sewer district, as an entity, was of course not a party to the proceeding for incorporation. The parties were the petitioners on the one hand and the other landowners in the proposed district on the other. The rights of none of these parties could be prejudiced by the amendment permitting the change of name.
Relators contend that the proceedings for incorporation were void because the Ralph Act itself was unconstitutional. They argue that our prior decisions holding the act valid are not now controlling because they were not parties to those prior cases and because the constitutional issues now urged upon us were not involved therein. [Siemens v. Shreeve, 317 Mo. 736, 296 S.W. 415; State ex rel. Gatewood v. Trimble, 333 Mo. 207, 62 S.W.2d 756.] The present constitutional objections to the act are based upon the fact that, as construed by the St. Louis Court of Appeals in Normandy Consolidated School District v. Wellston Sewer District, 77 S.W.2d 477, it exempts from taxation for the purpose of the act the property of school districts, municipalities and other political and civil subdivisions located within its limits. It is said that such an exemption violates Secs. 3 and 4 of Art. X of the State Constitution. The first of these cited provisions requires that taxation shall be "uniform upon the same class of subjects." The second section provides that all property shall be taxed in proportion to its value.
We consider the uniformity requirement contained in Sec. 3, supra, and the like requirement of the equal protection clause of the 14th Amendment to the Federal Constitution together. No absolute requirement of uniformity in taxation is therein contained. The only requirement is that the taxation of subjects which fall in the same class or category be uniform. Such has been the construction of similar clauses in the constitutions of many of our sister states. [M., K. T. Ry. Co. v. Miami County (Kan.), 73 P. 103; State ex rel. Lewis v. Smith (Ind.), 63 N.E. 25, 63 L.R.A. 116; Commonwealth v. Bank (Pa.), 31 A. 1065; State Board of Assessors v. Central Railroad Co., 48 N.J. Law 146.] The General Assembly is thus left with large powers to create different classes or categories of subjects for the purpose of taxation. Of course, in so doing the principle of classification adopted must have a reasonable justification. [Michigan Central R. Co. v. Powers, 201 U.S. 245, 26 Sup. Ct. 459, 50 L.Ed. 744.] Obviously a classification based upon the fact that certain property is owned by public governmental units is a reasonable one. It has always been the policy of the common law to exempt from taxation property belonging to such governmental agencies. There is a fundamental inconsistency in a system which under the guise of taxation would take from one agency of government property which it had acquired through taxation and give it to another agency of government. We [637] therefore hold that the uniformity requirements of the State and Federal Constitutions are not violated by the exemption of school districts and municipal property.
But it is said that the preliminary organization tax of ten cents per square of one hundred square feet is not taxation in proportion to value and hence violates Sec. 4 of Art. X of the State Constitution. This constitutional provision, however, applies only to what are known as property taxes. It has no application to special local assessments of the kind here involved. [Garrett v. St. Louis, 25 Mo. 505, 69 Am. Dec. 475; Morrison v. Morey, 146 Mo. 543, 48 S.W. 629; Ranney v. Cape Girardeau, 255 Mo. 514, 164 S.W. 582; State ex rel. Broughton v. Oliver, 273 Mo. 537, 201 S.W. 868; (some of these cases were decided under the provisions of our former constitutions but these were substantially similar to Sec. 4, supra).]
It is stated by the relators that these taxation features of the Ralph Act deprived them of their property without due process of law in violation of the Fourteenth Amendment to the Federal Constitution. No authority, however, is cited for this proposition. Like any other taxing statute this law takes away property of the taxpayer but it does not deprive him of such property without due process. The act itself is a valid exercise of the police power of the state and the taxes levied thereunder are necessary to implement the law itself. Nor is there any fundamental injustice in assessing this small preliminary organization tax on a basis of the amount of land without regard to its value. All of the lands in the district are necessarily benefited by the creation of the district itself. The principal tax to be used in constructing the engineering works contemplated must be assessed under the law on a basis of benefits and damages to the individual landowner, but the very process of such assessment would necessarily require the expenditure of money which can only be raised through the small initial organization tax here in question. There is no deprivation of property involved in assessing such tax by the simple method of computing the extent of land in each tract.
But it is said by the relators that the act is unconstitutional because it permits the board of supervisors of the district to acquire certain property outside of the district for outlets, etc. It would be a sufficient answer to say that this district has not attempted to acquire any of relators' property in that manner and that relators are therefore not in a position to raise the constitutional question. However, a reading of the act discloses that it was not the intention of the legislature to permit the supervisors to acquire such property without paying for it. Certainly they would be required to purchase the property by ordinary contract or to acquire it through condemnation, in which event no one's property would be taken without due process.
It is next contended by the relators that, even though the Central Sewer District was properly incorporated in the first instance, the liquidator who is now proceeding with the action was not properly appointed and has no right to carry it on. This argument is based upon the fact that the Governor appointed both Mr. Tegethoff and Mr. Mayne as liquidators for all of the sewer districts in St. Louis County. Reduced to its simplest terms the argument is this: That the Governor should have issued to the liquidator separate commissions for each of the several sewer districts in the county and not simply one commission including them all, and that the liquidator should have subscribed to separate although identical oaths in the cases of the different sewer districts and should have posted separate bonds and not one bond covering all of the districts. Sec. 3 of the Act of December 15, 1933, provides: "In any county in which there are now or hereafter shall exist more than one district to which this act is or shall become applicable, the Governor shall appoint the same liquidator for all of such districts." Whether it would have been better practice to have issued a number of different commissions to the same man in lieu of one commission and to have required separate although identical oaths and bonds we do not say. But at most the failure to do so was a mere irregularity which could not affect the validity of the appointment. Admittedly the liquidator was appointed by the Governor who had the statutory power so to act. Admittedly he has taken the oath of office and he has filed a bond in an amount determined by the circuit court to be sufficient to safeguard the handling of the funds of all of these districts. Surely the substance of the law has been complied with and his authority is not open to attack in this proceeding.
[638] Relators attack the constitutionality of the Liquidator Act of Dec. 15, 1933, upon the ground that it is retrospective and thus violates Sec. 15 of Art. II of the State Constitution. In this connection they state that it is an ex post facto law. As used in both the State and Federal Constitutions the term ex post facto law applies only to criminal legislation; that is, to laws which denounce as crimes acts which were innocent when committed or which change the penalties to be imposed for criminal violations after the date of the violation. The term retrospective law, however, in the State Constitution has a wider significance and the provision last cited is closely analogous to the obligation of contracts clause of Sec. 10, Art. I of the Constitution of the United States. Both of these provisions apply to laws which take away the vested rights of individuals after those rights have been acquired. [McManus v. Park, 287 Mo. 109, 229 S.W. 211; Gibson v. Chicago, Great Western R. Co., 225 Mo. 473, 125 S.W. 453; Clark v. Kansas City, St. L. C.R. Co., 219 Mo. 524, 118 S.W. 40.] It is impossible to see how any vested rights were impaired by this Liquidator Act. As we have noted above, the law which repealed the Ralph Act continued it in force for the purpose of paying off and discharging obligations which had been incurred thereunder. The Liquidator Law simply sought to carry into effect these provisions by providing proper machinery therefor. Nor can we say that the Ralph Act itself or the Liquidator Act created any special privilege or immunity in violation of Sec. 15 of Art. II of the State Constitution. These prohibited special privileges are those granted to private individuals not to public governmental bodies.
Relators contend that the title to the Ralph Act is defective in that it refers to sewer districts but does not specify storm sewers and that the act itself combines legislation relating to storm sewers with legislation relating to sanitary sewers. It is quite obvious, however, that the two subjects are so closely connected that it is not only proper but almost inevitable that they be covered in the same legislation.
Relators next contend that under the terms of the Ralph Act the Board of Supervisors had no power to levy the preliminary organization tax on lands which were not within the district as originally organized but were annexed to the district thereafter. Sec. 7 of the Ralph Act provides for the imposition of such tax "upon all the lands within such district." Now, clearly, lands which are legally annexed to the district are lands within it and hence are subject to the tax here in question.
As we have stated above the tax here levied had become delinquent more than six months prior to the bringing of these tax suits. Sec. 7 of the Ralph Act provided that the preliminary organization tax should be collected in the same manner as the annual installment taxes thereafter provided for. Sec. 20, which refers to the collection of the annual installment tax by suit, provided that actions thereon "shall be instituted in the circuit court without regard to the amount of the claim within six months after December 31st of the year for which said taxes were levied." Relators argue that this is a limitation section and that the institution of a suit more than six months after December 31 is too late. In the first place, a statute of limitations bars the remedy but does not destroy the right. It is procedural only. Advantage of it must be taken by a demurrer if the running of the statute appears on the face of the petition, or by a special plea if it does not. The question, therefore, is not one of jurisdiction. It is not properly raised by a petition for prohibition. However, since the matter is now before us it will be well to dispose of this contention also. Provisions almost identical with the one here involved are contained in a number of other tax laws and we have held that they are directory and not mandatory. They are not statutes of limitations and may not be so construed. [Drainage District v. Bates County, 269 Mo. 78, 189 S.W. 1176.]
Closely connected with the question of limitations is that of laches. These suits have been pending without trial for many years. The circuit judges before whom they are pending would undoubtedly have a right, if they so saw fit, to dismiss them for failure to prosecute. But this is a matter lying wholly within the jurisdiction of the circuit court. We cannot interfere by prohibition with the exercise of such discretion.
Finally it is contended that the taxes here sought to be collected were improperly levied because no provision was made for the use of the money derived [639] therefrom for paying damages assessed against lands in the district. This again is a question which goes to the merits of the proceeding and not to the jurisdiction of the trial court. However, it is clear that Sec. 7 of the Ralph Act provides that the funds derived from this preliminary tax may be used for four different purposes. Because they were used for some and not all of these purposes the tax itself does not become invalid. This is a matter of discretion with the supervisors of the district. Even the trial court would not be authorized to substitute its judgment for theirs. Certainly this court in a prohibition proceeding cannot do so.
Certain other contentions and objections are raised by the relators in their petition, but they have not been briefed or argued and we are not called upon to pass upon them. It will be sufficient to say that after a careful examination of the whole record it is our conclusion that the respondent judges have jurisdiction of the various tax suits here involved and have not attempted to exceed their jurisdiction in any act they have taken or threatened to take.
It follows, therefore, that our Preliminary Rule was improvidently issued and must be discharged. It is so ordered.
All concur except Gantt, J., absent.