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State ex rel. v. Gordon.

Constitution nor the applicatory part of section 1 of the Fourteenth Amendment to the Constitution of the United States (both of which are limitations upon power, the latter upon that of the States as wielded by the Legislature and the former upon the Legislature directly) forbids the levy of a general tax for public purposes, even though in expending the moneys accruing from such tax some individuals may not be directly and personally benefited. There can be no difference in the principle involved even though the case here is but a public road in a county but outside of an incorporated town, which road urban dwellers are taxed to maintain. What difference is there in principle between taxing a whole State to build good roads and that involved here of taxing a whole county?

In the case of Bauman v. Ross, 167 U. S. 1. c. 589, it was said: "But it is for the Legislature, and not for the judiciary, to determine whether the expense of a public improvement should be borne by the whole State, or by the district or neighborhood immediately benefited. The case, in this respect, comes within the principle upon which this court held that the Legislature of Alabama might charge the county of Mobile with the whole cost of an extensive improvement of Mobile harbor; and, speaking by Mr. Justice FIELD, said: "The objection urged is that it fastens upon one county the expense of an improvement for the benefit of the whole State. Assuming this to be so, it is not an objection which destroys its validity. When any public work is authorized, it rests with the Legislature, unless restrained by constitutional provisions, to determine in what manner the means to defray its costs shall be raised. It may apportion the burden ratably among all the counties or other particular subdivisions of the State, or lay the greater share or the whole upon that county or

State ex rel. v. Gordon.

portion of the State specially and immediately benefited by the expenditure.' [Mobile County v. Kimball, 102 U. S. 691, 703, 704.]"

In the late case of Lamar Township v. Lamar, 261 Mo. 1. c. 185, upon a state of facts rendering the principle here involved practically identical therewith, we took occasion to say: "That is to say, the taxing of the citizens of Lamar, a separate municipality, for the benefit of Lamar township, would be to require the citizens of Lamar to bear this burden without securing any benefit. The court thinks that counsel overlooks the fact that every citizen of Lamar is a citizen of Lamar township and has the right to participate in the administration of the affairs of the township. The improvement of the public highways is as important to the citizens of Lamar as the citizens living outside of Lamar in the township, but it is not true that the citizens of Lamar township are citizens of Lamar, or have anything to do with or control over, the administration of the affairs of the city. The property-owners who choose to live in a city or town, must bear the burden of taxation for the support of the city government, as well as State, county and township government. This may not seem fair, but it is the law."

So much has been said upon the respondent's theory that building a road in a county between one incorporated town and another is of no visible or direct benefit to the urban dweller and taxpayer. Let us consider if respondent's theory be in fact true. It is obvious that so far from a lack of such benefit accruing to the city dweller, it is present in equal measure to that enjoyed by the rural dweller.

Where must a public road be placed so that A may be said to be directly benefited by it? Must it start from his door-step, or be at furthest in front of his premises? If this were the test the majority

State ex rel. v. Gordon.

of the farmers and other rural residents would not be benefited and could logically be here complaining. The test is whether the municipal subdivision, to-wit, the county, is benefited by good roads. We have seen that the answer to this is in the affirmative. Since no sort of feasible system of public roads could be devised which would serve to put a public paved highway in front of the residence of every farmer, and obviate thus the necessary use by him of private or unimproved roads till he reaches the improved ways connecting these incorporated towns with each other, it is difficult to see wherein the urban dweller is in worse condition than the rural dweller. The farmer may construct a private way of ingress from his farm to the public paved highway which the road bonds here are to bring into being and use; likewise the urban dweller and his neighbors may construct ways of ingress to these roads and call them streets and alleys. Such paved or gravelled public roads will be built with this tax in front of the doors of many farmers, but manifestly not in front of the doors of all; such roads will be likewise built in front of the doors of many of these urban dwellers, but not of all. Obviously, the difference in the conditions of the two classes are not sufficient to make void this law upon such a ground. [In re Mingo Drainage Dist., 267 Mo. 268.] Besides, the contrary view assumes a wall to be built about an incorporated town which shuts it off from the surrounding county and its neighboring towns and villages; assumes that while the rural population of any given county has much use for roads to travel from country to town and to travel between towns, the urban dweller does not need or desire to issue forth from his corporate limits, or to go to other towns, or to travel into the country upon business or health bent. Such an assumption is an obvious false premise. A few poets

State ex rel. v. Gordon.

and some orators have given time and thought to a more or less beautiful expression of a wholly contrary view, which robbed of its oratorical tinsel and simply expressed is, to-wit, that while the rural regions may exist without towns, or cities, the city may not live without the country. History admonishes us that time was when there were no towns, and none was needed; how far the demands of complex society may have changed the rule, we need not inquire.

We think, however, 'upon no theory should this contention be upheld. We find no constitutional invalidity which will serve to render void a proper issue of road bonds under a proper election held pursuant to the act of March 19, 1907. [Laws 1907, p. 411.] The regularity of this election is, however, conceded. Touching the constitutional necessity of casting aside sections 4 and 5 of the act, which provide details for constructing roads and bridges, and the ensuing lack of such provisions to govern the construction of these improvements, it suffices to say, as forecast above, that there are probably to be found other provisions of the road law, under which such funds may be expended; or failing in these, the general statutory powers of the several county courts to make contracts on behalf of their counties may apply. But on this we do not pass, since it is not intimately involved here. Since, it is sufficient upon this phase of constitutionality vel non of the act to say that there were such provisions in existence when the act here in question was passed. Whether in the repeated repeal and re-enaction of the road law in 1909 (Laws 1909, p. 766), and in subsequent sessions of the Legislature, such provisions have been lost, we are not here called on to inquire.

VIII. Regardless of the constitutional goodness of the law under which the bonds offered for regis

Different
Issues of Bonds

State ex rel. v. Gordon.

tration were issued, respondent contends that the two issues proffered here for registration ought not to be registered, because (a) they are not of the denominations fixed by statute, and (b) because a fixed day of maturity, prior to which they may not be called for payment, is set forth in them.

In both these contentions we are compelled by the terms of the act to acquiesce. The statute is badly drawn, and loosely speaks of one issue of bonds, which are required to have one-half thereof of the denomination of $100. Beyond this expression there is not a word in the act even remotely sustaining the position of relators. No reason can be seen why there should be more than one issue of these bonds. Another part of the sections provides that no more of said bonds shall be sold than is necessary to construct the roads contracted for, or about so to be. So far the above provision is not contrary to the view of more than one issue. It is colorless in determining whether there may be more than one issue or not, and is equally as good in argument pro or con. But the last part of the sentence and the section seems to settle the question in favor of the view that but one issue is contemplated. For it says that "whenever any bond shall be delivered the county clerk shall detach therefrom all matured interest coupons." If more than one issue is allowed there would be no matured coupons to be detached. But be this as may be, no reason can be seen why the Legislature should have taken the trouble to enact that onehalf at least of one issue of bonds shall be in denominations of one hundred dollars or less, if it isas it is on any other view, or on the view of relator -easy to evade this provision by making one issue of $20,000, as was here done and of issuing $2,980,000

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