City of Westport v. Kansas City
| Decision Date | 19 January 1891 |
| Citation | 15 S.W. 68,103 Mo. 141 |
| Parties | City of Westport, Appellant, v. Kansas City |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court.
Reversed.
C. O Tichenor for appellant.
(1) The ordinance in question is an amendment of the Kansas City charter. Norris v. Mayor, 1 Swan, 167; Gray v Crockett, 30 Kan. 145; Smith v. Sherry, 30 Wis 210; City v. Harkinson, 75 Ill. 156; Morford v. Wiger, 8 Ia. 82. (2) The constitution (art. 9, sec. 16) permits the charter to be amended by submitting a proposal therefor to the voters of Kansas City, and the matter not having been voted on by said voters the ordinance is invalid.
R. L. Yeager and L. C. Slavens for respondent.
(1) Section 16, article 9, of the constitution, authorizes any city of over one hundred thousand inhabitants, subject to certain regulations and restrictions, to frame its own charter. The last clause of that section is as follows: "Such charter, so adopted, may be amended by a proposal therefor, made by the law-making authorities of such city, published for at least thirty days in three newspapers of largest circulation in such city, one of which shall be a newspaper printed in the German language, and accepted by three-fifths of the qualified voters of such city, voting at a general or special election, and not otherwise; but such charter shall always be in harmony with, and subject to, the constitution and laws of the state." If it be held that the extension of the city limits is an amendment of the charter, within the meaning of the above section of the constitution, then we submit that the clause of said section above quoted only means that the city, by itself, of its own motion, and independent of legislative authority, shall amend its charter only as therein provided. It does not mean that such city shall no longer be subject to legislative control. It does not mean that the legislature shall never amend such charter, nor authorize the city to amend it in a different manner; otherwise, the provision that the charter shall always be in harmony with, and subject to, the laws of the state, would mean nothing. Ewing v. Hoblitzelle, 85 Mo. 76, 77 and 78. (2) But we submit that the extension of the city limits is not an amendment of the charter within the meaning of the constitutional provision above quoted. If it is, then the act of the legislature of 1885, empowering cities of over one hundred thousand inhabitants to extend their limits, was a delegation of legislative power, and, therefore, void. But this court, in Kelly v. Meeks, 87 Mo. 396, held that it was not, and sustained the extension of its limits by this city, under that act. Moreover, the general law of the state governing villages (R. S. 1889, sec. 1666) authorizes their incorporation by the county court upon petition of the inhabitants "setting forth the metes and bounds of their village and commons." The charter of such villages is that provided by the general law, article 6 of the Revised Statutes of 1889, entitled "villages." Of necessity the description of the village boundary is no part of the charter. So, when the City of Kansas framed its present charter, under section 16, article 9, of this constitution, it need not have defined the boundaries of the city in the new charter. Such boundary, at the time, was not defined by the old charter. The city had by ordinance changed and extended the city limits, under the law of 1885, so that to ascertain its then limits, we must look, not at the old charter, but at the ordinance of the city whereby the limits were extended. The constitution gave the city, as its boundaries then existed, the power to make its own charter, and in so doing, it had no right to enlarge or diminish those boundaries. The declaration of the boundaries of the city in section 2, article 1, of the present city charter, has, therefore, no original force. It is merely declaratory. Those boundaries would have constituted the boundaries of the city, if the whole of section 2, article 1, had been omitted from the present charter. That section is, therefore, not an essential part of the charter. If it had been entirely omitted, could not the legislature have authorized the city to extend its limits, as it did in 1885? And since that section of the charter has no original force, but is merely declaratory, why has not the legislature the same power to authorize the city to so extend its limits as it would have had, if said section 2, article 1, of the present charter had been entirely omitted therefrom?
In form, this is an action of ejectment to recover possession of a market house, town hall and jail; but the real object of the suit is to test the validity of an ordinance of Kansas City, extending the limits thereof so as to include the city of Westport, which is a city of the fourth class.
Since May 8, 1889, Kansas City has been governed by a special charter, adopted by the voters thereof under the provisions of sections 16 and 17, of article 9, of the constitution, and pursuant to an act of the legislature of the tenth of March, 1887, entitled, "An act providing that any city, having a population of more than one hundred thousand inhabitants, may frame a charter for its own government, and regulating the same." Acts, 1887, p. 42. The first section of the adopted charter changes the name of the city from the City of Kansas to Kansas City. The second section fixes and specifically defines the territorial boundaries of the city, and they are the same as those of the City of Kansas. The ordinance in question was passed and approved by the legislative department of Kansas City on the fourth of December, 1889, and it extends the limits of the city, as defined in the adopted charter, so as to add about twelve thousand, five hundred and eighty-five acres of land, including the city of Westport, which has a corporate territory of about two hundred and eighty-five acres. More than four-sevenths of the qualified voters of Westport voted for the proposed extension, but the proposition was never submitted to the voters of Kansas City for their approval or rejection.
Section 16, of article 9, of the constitution, provides that any city having a population of one hundred thousand inhabitants may frame a charter for its own government, by causing a board of freeholders to be elected, who shall prepare a draft of such charter to be submitted to the voters of such city, and, if approved by four-sevenths of the qualified voters, voting at the election, then it shall become the charter of such city and supersede any existing charter. "Such charter, so adopted, may be amended by a proposal therefor made by the law-making authorities of such city, published for at least thirty days * * * and accepted by three-fifths of the qualified voters of such city, * * * and not otherwise." The seventeenth section declares that it shall be a feature of all such charters that they shall provide for two houses of legislation, one of which shall be elected by general ticket.
The act of the legislature of March 10, 1887, was designated to aid cities in organizing under the above sections of the constitution. The forty-first section of that act provides that "Any such city, after the taking effect of such charter, may at any time or times extend its limits by ordinance;" provided, that before such city shall extend its limits so as to include any incorporated city, town or village, four-sevenths of the qualified voters of the included city, town or village shall vote in favor of the proposition, and, if they do so vote, then the city making the extension "may proceed to extend its limits as provided in this section." This act, it will be seen, makes no provision for the approval of the proposed extension by the voters of the city making the same, and it seems to contemplate that the limits may be extended without such a vote.
From what has been said, it will be seen that we must determine these questions: First, whether the ordinance extending the limits of Kansas City is an amendment to the adopted charter; second, if it is an amendment, then whether Kansas City can, with or without legislative aid, amend its own charter without submitting the question to the qualified voters for their approval or rejection?
On the first question the argument of Kansas City is, in substance this: That the constitution gave the city a right to adopt a charter for its own government; that, if nothing had been said in the new charter about boundaries, the territorial jurisdiction would have remained as before; that the section of the new charter defining the boundaries was unnecessary, not an essential, part of the charter, and should be disregarded. In looking through this adopted charter we find a vast number of sect...
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