210 S.W. 392 (Mo. 1919), The State ex rel. Kansas City v. Orear

Citation210 S.W. 392, 277 Mo. 303
Opinion JudgeFARIS, J. --
Party NameTHE STATE ex rel. KANSAS CITY v. ED. T. OREAR, City Comptroller
AttorneyE. M. Harber, M. A. Fyke, and A. F. Smith for petitioner. Charles M. Howell and Lathrop, Morrow, Fox & Moore for respondent.
Judge PanelFARIS, J. Woodson, J., dissents in a separate opinion. WOODSON WOODSON, J. (dissenting.)
Case DateMarch 15, 1919
CourtSupreme Court of Missouri

Page 392

210 S.W. 392 (Mo. 1919)

277 Mo. 303

THE STATE ex rel. KANSAS CITY

v.

ED. T. OREAR, City Comptroller

Supreme Court of Missouri

March 15, 1919

Writ quashed (as to first count of petition). Alternative writ made peremptory (as to second count).

E. M. Harber, M. A. Fyke, and A. F. Smith for petitioner.

(1) Under the provisions of the Constitution a two-thirds vote of the qualified voters of the city was not necessary to carry the bonds, but two-thirds only of the voters thereof voting at the election held for that purpose. State ex inf. v. Kansas City, 233 Mo. 162. The voters voting at said general election were not voting at said bond election unless they saw fit to vote at the election held for that purpose. County of Cass v. Johnson, 95 U.S. 360. (2) A proper construction of the Statute is that before publication is required to be made in a newspaper printed in the German language, there must exist such paper which has been published for fifty-two weeks next before such publication. To be eligible to publish the notice, the German paper must have been published for fifty-two weeks, etc. And unless such paper had been so published, notice therein is not required by the act. Moreover, to give the construction contended for by respondent, would discriminate between cities wherein such German paper was published, and cities wherein no such paper exited. In one class bonds could be voted; in the other, no bonds could be voted because there would be no means of giving legal notice. State ex inf. v. Borden, 164 Mo. 221. The object of publication is to give notice, and if the requirements as to notice are substantially complied with it is sufficient. John v. Connell, 71 Neb. 10. (3) The provisions of the Kansas City Charter give the city the undoubted right to issue bonds to acquire or construct a Municipal Ice Plant, and to furnish to the inhabitants of the city ice. Nothing in this day and age is more necessary to the health, comfort and welfare of the inhabitants of the city than a sufficient supply of ice at reasonable prices. It is quite fully as necessary as the supply of water in its unfrozen state, or the supply of gas or electricity. There in no provision of the constitution or statute prohibiting the city from acquiring, constructing and maintaining an Ice Plant. Water Co. v. City of Aurora, 129 Mo. 575. Or electric light plants selling current to private persons. State ex rel. v. Allen, 178 Mo. 577. Innumerable instances might be suggested to show that the health, comfort and welfare of the inhabitants depend as much on an adequate supply of ice as upon any other thing, which may be supplied by the city. A kindred question has been considered and pass upon by the Supreme Court of Georgia. Holton v. City of Camilla, 134 Ga. 560; Jones v. City of Portland, 245 U.S. 217; Laughlin et al. v. City of Portland, 111 Me. 486. A case exactly in point here is Saunders v. Mayor of Arlington, 94 S.E. 1024.

Charles M. Howell and Lathrop, Morrow, Fox & Moore for respondent.

(1) Where propositions to increase the bonded indebtedness of Kansas City are submitted under Section 31, Article 18, of the Charter, at a general election, it is necessary that such proposition have the assent of two-thirds of the voters voting at such general election. Sec. 12, Art. 10, Mo. Const; State ex rel. v. Mayor St. Louis, 73 Mo. 435; State v. Winkelmeier, 35 Mo. 105; State ex rel. v. Satterfield, 54 Mo. 391; State ex rel. v. White, 162 Mo. 533; State ex rel. v. McGowan, 138 Mo. 187; State ex rel. v. Wilson, 129 Mo.App. 243; State ex inf. v. Kansas City, 233 Mo. 162; School Dist. v. Oellien, 209 Mo. 464; State ex rel. v. Francis, 95 Mo. 51; State ex rel. v. Brassfield, 67 Mo. 331; State ex rel. Cope v. Foraker, 47 Ohio St. 667; State ex rel. v. McClurg, 48 L. R. A. 652; Belknap v. Louisville, 34 L. R. A. (Ky.) 256; People v. Wiant, 48 Ill. 263; Everett v. Smith, 22 Minn. 53; State v. Bechel, 22 Neb. 158; State ex rel. v. Benton, 29 Neb. 460; Bryan v. Stephenson, 35 L. R. A. (Neb.) 752; Stebbins v. Judge, 108 Mich. 693. (2) The extent of the city's power should be determined in the light of the settled judicial view of this court. (a) A municipal corporation has no powers, except those granted by its charter expressly, or by necessary implication. City of St. Louis v. Bell Telephone Company, 96 Mo. 628; City of Independence v. Cleveland, 167 Mo. 388; St. Louis v. Dreisoerner, 243 Mo. 223; City of Joplin v. Leckie, 78 Mo.App. 11; City of St. Louis v. Laughlin, 49 Mo. 563; State ex rel. v. Associated Press, 159 Mo. 467; State v. Scuchmann, 173 Mo. 111; Knapp v. Kansas City, 48 Mo.App. 492; Sedalia Gas Light Company v. Mercer, 48 Mo.App. 644; Houstonia v. Grubbs, 80 Mo.App. 437; Kansas City v. Lorber, 64 Mo.App. 608; White v. Railway Company, 44 Mo.App. 540. (b) An ordinance even if literally authorized by the charter, is void if it is unreasonable in its purpose or effect. Corrigan v. Gage, 68 Mo. 541; Union Cemetery Association v. Kansas City, 252 Mo. 500; American Tobacco Company v. St. Louis, 247 Mo. 374; State ex rel. Kansas City v. Kansas City Terminal Railway Company, 260 Mo. 489. (c) Not even the sovereign Legislature, much less a municipal corporation, can, by fiat, make that public which is in fact private. State v. Loomis, 115 Mo. 320; State ex rel. v. Ashbrook, 154 Mo. 375; State ex rel. v. Associated Press, 159 Mo. 410; State v. Public Service Commission, 205 S.W. 37. (3) The charter of Kansas City does not expressly authorize the municipality to engage in the ice business for itself or for the purpose of manufacturing or distributing ice to the inhabitants of the city; nor would such business or industry constitute a public purpose for which the city charter could constitutionally authorize the city to levy taxes, vote bonds or expend the public moneys. 3 Dillon on Municipal Corporations, sec. 1292, p. 2096; Cooley on Taxation (2 Ed.), Chap. 4, pp. 115-118; Opinion of the Justices, 155 Mass. 598; Opinion of the Justices, 182 Mass. 605; Baker v. Grand Rapids, 142 Mich. 687; Union Ice Co. v. Ruston, 135 La. 898; Los Angeles v. Lewis, 167 P. 390.

FARIS, J. Woodson, J., dissents in a separate opinion.

OPINION

[277 Mo. 308] In Banc

Mandamus.

FARIS, J. --

This is an original proceeding by mandamus in two counts, whereby it is sought to compel respondent as City Comptroller of Kansas City to prepare, sign and arrange for the sale of two certain issues of municipal bonds heretofore authorized, as it is alleged, by elections held for those purposes.

The petition filed herein sets forth, as stated above, two separate causes of action in two separate counts. By the first count of the petition it is sought to compel respondent to perform his official duties above named with reference to a certain proposed issue of $ 400,000, par value, of municipal ice-plant bonds (so-called to distinguish them and for brevity), which bonds it is alleged were duly authorized by an election to be issued and sold and the proceeds thereof used "for the manufacture, sale and distribution of ice to the different municipal departments of the city, and for the manufacture, sale and distribution of ice to the inhabitants of the city."

By the second count of the petition herein it is sought to compel respondent to perform his official duties in the preparation, signing and sale of an issue of $ 200,000, par value, of fire-protection bonds, which likewise were, it is alleged, duly authorized to be issued by an election and which are to be used in the "purchase and construction of improvements

Page 393

and betterments for [277 Mo. 309] the city's system of detecting, preventing and extinguishing fires."

Upon the making here by relator of the application for the issuance of our writ of mandamus, the respondent entered his appearance; waived the issuance of our alternative writ, and agreed that the petition filed herein should stand for and be treated in all respects as the alternative writ of mandamus, and that the respondent should plead thereto as if to such alternative writ.

Thereupon, the respondent, for his return to both the first and second counts of the petition herein, demurred generally thereto, for that said counts and each of them failed to state facts sufficient to entitle the relator to the relief prayed for. After demurring generally, respondent further alleged by way of answer and for his further excuse in law for failing to perform his official duty as aforesaid, that the elections held to authorize the issuance of the bonds were invalid, for that (a) two-thirds of the voters voting at the elections therefor did not vote in favor of the issuance thereof, and (b) that the notice of the elections was not published, as the statute requires, for at least three weeks in a daily newspaper published in the City of Kansas City and printed in the German language, and having a bona-fide circulation in Kansas City of at least 2000 copies of each issue and which had been continuously published in said city for at least fifty-two weeks next before such elections.

Upon the first point, the conceded facts show that the elections upon both of the proposals to issue bonds were held at the same time and place as the general election for federal, state and county officers was held, to-wit, on the 5th day of November, 1918, and at the regular polling places; that the total number of votes cast at this election for such federal, state and county officers was 43,405, but that there were cast on the proposals to issue the bonds in question only 34,902 votes, of which number 26,988 voted in favor of issuing said bonds, and 7,914 against the issuance thereof.

[277 Mo. 310] Upon the second point of contention, the facts show that the notice of said elections, while not...

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