State ex inf. Major v. Kansas City

• Decision Date: 02 March 1911
• Parties: THE STATE ex inf. ELLIOTT W. MAJOR, Attorney-General, v. KANSAS CITY
• Court: Missouri Supreme Court

134 S.W. 1007

233 Mo. 162

THE STATE ex inf. ELLIOTT W. MAJOR, Attorney-General, v. KANSAS CITY

Supreme Court of Missouri

March 2, 1911

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Writ denied.

Elliott W. Major, Attorney-General, Dana, Cowherd & Ingraham, R. E Ball and Edw. J. White for informant; Martin L. Clardy of counsel.

(1) The extension ordinance was not ratified by the requisite number of qualified voters of Kansas City, as provided by the Constitution of Missouri. The Constitution provides that same should be accepted "by three-fifths of the qualified voters of such city, voting at a general or special election and not otherwise." The undisputed evidence shows that the city had over 55,000 qualified voters when the extension ordinance was voted on, and the return admits that the population of the city was 325,000 and that the vote on said extension was only 12,560 votes for and 1041 votes against said extension, or less than one fourth of the "qualified voters of such city." Under the language of the Constitution, it was essential that the amendment extending the corporate limits of Kansas City should be adopted by three fifths of all the qualified voters of the city -- who should express their choice by vote, at a general or special election -- and it was not sufficient that simply three fifths of the few who voted on the proposition, should ratify the proposed extension. State ex rel. v. Sutterfield, 54 Mo. 396; State ex rel. v. Francis, 95 Mo. 44; State ex rel. v. Brassfield, 67 Mo. 331; State ex rel. v. Mayor, 73 Mo. 435; State ex rel. v. Wilkelmeier, 35 Mo. 103; State ex rel. v. McGowan, 138 Mo. 187; School Dist. v. Oellien, 209 Mo. 464; Westport v. Kansas City, 103 Mo. 145; Dunn v. Lott, 67 Ark. 591; Blair v. Brooks, 22 L. R. A. (N. S.) 478; In re Denny, 156 Ind. 104; People ex rel. v. Brown, 11 Ill. 478. (2) Whether the vote on the extension came up to the constitutional requirement or not, it was clearly not in accord with the charter requirement of the respondent. The Charter of Kansas City required that the extension should be accepted "by three fifths of the qualified voters of Kansas City, at a general or special election." The charter is the constitution of the city and has the force and effect of organic provisions and legislative acts for the government of the city, and the respondent is estopped from denying the binding effect of any of the provisions of its charter. Morrow v. Kansas City, 186 Mo. 684; State ex rel. v. Field, 99 Mo. 356; St. Louis v. Fisher, 167 Mo. 660; Meier v. St. Louis, 180 Mo. 409. If the Constitution could be construed as requiring a less number of voters than the Charter required, it would be held to be a mere limitation upon the legislative power of the respondent, in no manner affecting its right to adopt a higher requisite, as to the number of votes required to amend its charter, and the requirement of the Charter, in this respect, would constitute no conflict with the Constitution. R. S. 1899, sec. 6399; State ex rel. v. White, 162 Mo. 533; Alexander v. People, 7 Colo. 155; Vance v. Ansill, 45 Ark. 400; Sanders v. Erwin, 49 Ark. 376; Dunn v. Lott, 67 Ark. 591. (3) The city extension in this instance is unreasonable and illegal in attempting to include forty-two square miles of territory, because the farming and timber land adjacent to the Blue river, on the east, and the 2600 acres in the east bottom of the Missouri river, are not needed for proper city uses and are not adaptable for prospective city purposes. The evidence shows that a district of farming country, for six miles, on either side of the Blue river, lying several miles east of the built up portion of Kansas City, and an arid uninhabited tract of 2600 acres, in the bend of the Missouri river, on the north, were included in this proposed extension. The courts of this State, or of any other, have never recognized the right of a municipality to include such a vast amount of farming and undeveloped land in any city extension, and if such a right can be recognized, on the part of a municipality, then there is no limitation, in law, upon their ability to expand, based upon the uses and character and adaptability of the territory included. The courts of this and other States have placed a limitation upon the right of municipalities to expand in such cases and denied the right in cases analogous to this proposed extension. State ex rel. v. McReynolds, 61 Mo. 203; State ex inf. v. Bellflower, 129 Mo.App. 138; State ex rel. v. Small, 131 Mo.App. 470; Vestal v. Little Rock, 54 Ark. 321; Latonia v. Hopkins, 47 S.W. 248; Hartington v. Luge, 33 Neb. 623; Langworthy v. Dubuque, 13 Iowa 86; Williamstown v. Mathews, 103 Ky. 121; Evans v. Council Bluffs, 65 Iowa 238; Dieman v. Fort Madison, 30 Iowa 543; Denver v. Coulehand, 27 L. R. A. (Colo.) 751.

John G. Park for respondent; F. F. Rozzelle and John T. Harding of counsel.

(1) The burden of proof is upon informant. State ex rel. v Talbott, 123 Mo. 69; State ex inf. v. Standard Oil Co., 218 Mo. 324; State ex rel. v. Grimm, 220 Mo. 494. The presumption is in favor of the validity of the proceedings extending the city limits. State ex rel. v. Birch, 186 Mo. 221. Relator was given the right to open and close upon the theory that the burden was upon him. (2) (a) The proposal to amend the charter by extending the city limits was accepted by the majority required by the Constitution, enabling act and charter. "Such charter, so adopted, may be amended . . . and accepted by three fifths of the qualified voters of such city, voting at a general or special election, and not otherwise." Constitution, art. 9, sec. 16. "The ordinance extending the limits shall . . . be in the form of a proposed amendment to the charter and . . . accepted by three fifths of the qualified voters of such city voting at a general or special election." R. S. 1899, sec. 6399. "This charter may be amended at any time by a proposal . . . accepted by three fifths of the qualified voters of the city voting at a general or special election." Charter of Kansas City, art. 18, sec. 34. The proposals were accepted at a special election held April 16, 1909, at which 12,560 votes were cast in favor of, and 1041 votes against, the extension. This was the only question voted on. Under the foregoing provisions of the Constitution, statutes and Charter, it was not necessary that three fifths of all the qualified voters of the city should assent, but it was sufficient if three fifths of those who voted assented. The words "voting at an election" are words of qualification reducing the number upon which the computation is to be made to those present and voting. State ex rel. v. McGowan, 138 Mo. 187; State ex rel. v. Mayor, 73 Mo. 435; State ex rel. v. Mayor, 37 Mo. 270; State ex rel. v. Brassfield, 67 Mo. 331; State ex rel. v. Wilson, 129 Mo.App. 242; School District v. Oellien, 209 Mo. 469; Belknap v. Louisville, 99 Ky. 474; Seward v. Water Co., 201 Mass. 453; Fritz v. San Francisco, 132 Cal. 373; Metcalfe v. Seattle, 1 Wash. 297; State ex rel. v. Lancaster County, 6 Neb. 474; Craig v. The Church, 88 Pa. St. 42. (b) Article 9, section 16, of the Constitution sets forth a complete, specific and exclusive method of amending the charter. Kansas City v. Stegmiller, 151 Mo. 189; Kansas City ex rel. v. Scarritt, 127 Mo. 650; St. Louis v. Dorr, 145 Mo. 466. "The city is denied the right to amend its own charter in any other way." City of Westport v. Kansas City, 103 Mo. 148. This section confers a power conditioned upon only two things, adoption by three fifths of the qualified voters voting at an election, and that the charter so amended shall always be in harmony with and subject to the laws of the State. Kansas City v. Stegmiller, 151 Mo. 200. This power so conferred cannot be curtailed. Kansas City v. Oil Co., 140 Mo. 467; Cooley on Const. Lim. (5 Ed.), p. 78. The section provides that charters so adopted may be amended in this way and not otherwise. The words "and not otherwise" are mandatory. Kansas City ex rel. v. Scarritt, 127 Mo. 658; Henderson v. Koenig, 168 Mo. 369; State ex rel. v. Stobie, 194 Mo. 57. The statute (R. S. 1899, sec. 6399) is compiled within this vote. Article 1, section 7, of the Charter, purports to require an acceptance "by three fifths of the qualified voters of Kansas City at a general or special election." To enforce it literally is to make it override article 9, section 16, of the Constitution, Sec. 6399, R. S. 1899, and article 18, section 34, of the Charter, a later and more potent provision. Where the Constitution provides that a city charter may be amended, bonds assented to, or public improvements ordered, by a certain majority "of the qualified voters voting at an election," and the statute requires the proposal to be agreed to by that majority of the qualified voters, there is a conflict between the Constitution and the statute in which the statute must give way. State v. Denny, 4 Wash. 135; Frost v. Central City, 134 Ky. 434; Duperier v. Viator, 35 La. Ann. 957; Dick v. Scarborough, 73 S.C. 150. The establishment of a rule for the extension of the limits of a self-governing city is not a matter of "purely local municipal concern." It involves the relations between the city and the State at large. It is a State governmental matter. People v. Los Angeles, 154 Cal. 224. Article 1, section 7, of the Charter, which, in terms, prescribes a different rule from that laid down in the Constitution and En abling Act, must be disregarded. Section 7, of article 1, must yield to a later section on the same subject, section 34 of article 18. 26 Am. & Eng. Ency. Law (2 Ed.), 619; City of Westport ex rel. v. Jackson, 69 Mo.App. 148; Brown v. Commissioners, 21 Pa. St. 42; Harrington v. Trustees, 10...