State ex rel. Cranfill v. Smith

• Decision Date: 12 April 1932
• Docket Number: 31713
• Citation: 48 S.W.2d 891,330 Mo. 252
• Parties: State of Missouri at the relation of Evan L. Cranfill, C. F. Edwards, Homer Martin, Mary O. Seybold, and Edward White, Relators, v. Bryce B. Smith, Alfred N. Gossett, Charles H. Clark, James B. Shoemaker, Elliott H. Jones, Frank C. Beck, Frank M. Eviston, Byron Spencer, and Ruby D. Garrett
• Court: Missouri Supreme Court

48 S.W.2d 891

330 Mo. 252

State of Missouri at the relation of Evan L. Cranfill, C. F. Edwards, Homer Martin, Mary O. Seybold, and Edward White, Relators, v. Bryce B. Smith, Alfred N. Gossett, Charles H. Clark, James B. Shoemaker, Elliott H. Jones, Frank C. Beck, Frank M. Eviston, Byron Spencer, and Ruby D. Garrett

No. 31713

Supreme Court of Missouri

April 12, 1932

Alternative writ quashed.

H S. Julian for relators; James M. Johnson of counsel.

(1) Kansas City is empowered to exercise the power of eminent domain which carries with it power to condemn either real or personal property. It is an incident of sovereignty. Sec 128, Art. 6, of the Charter; 2 Lewis on Eminent Domain (3 Ed.) sec. 411; 20 C. J. 587; Sec. 9, Art. 1, of the Charter; Sec. 11, of Art. 1, of the Charter; Kansas City v. Marsh Oil Co., 140 Mo. 458; Fruin-Bambrick Construction Co. v. St. Louis Shovel Co., 211 Mo. 524; Brunn v Kansas City, 216 Mo. 108; Kansas City v. Ward, 134 Mo. 172; Southern Ill. Bridge Co. v. Stone, 174 Mo. 1. (2) This Ordinance complies with all of the requirements of Article 17, of the Charter of Kansas City. (3) Shares of stock of a corporation are nothing but personal property, and can be condemned and taken as other personal property. Offield v. N. Y. Railroad Co., 203 U.S. 372; N. Y. Railway Co. v. Offield, 78 Conn. 1; Spencer v. Seaboard Airlines Ry. Co., 137 N.C. 107; 2 Lewis on Eminent Domain (3 Ed.) sec. 413; Cincinnati v. L. & N. Railroad Co., 223 U.S. 390; Sec. 4549, R. S. 1929. (4) The situs of the stock of the Kansas City Public Service Company is in Jackson County, the home office of the company. The certificates of stock held by the various stockholders are simply evidence of their title. Amour Bros. v. The Bank, 113 Mo. 12; Caffery v. Cole, 95 Mo.App. 174; Aimese Estate, 50 Mo. 290; Cook on Stock & Stockholders, sec. 485; Richardson v. Busch, 198 Mo. l. c. 193; Jellenik v. Huron Copper Co., 117 U.S. 1. (5) The court will not go into the legal aspects of the ordinance until it becomes a law. Pittman v. Drabell, 267 Mo. 78; State ex rel. Kemper v. Carter, 257 Mo. 52; State ex rel. v. St. Louis, 5 S.W.2d 1081.

George Kingsley and Marcy K. Brown, Jr. for respondents.

(1) Respondents were vested with a discretion as to whether or not this ordinance should be submitted to the people. Sec. 7191, R. S. 1919; Sec. 428, Charter of Kansas City; Article 17, Charter of Kansas City; State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 907; State ex rel. v. Bird, 195 Mo. 351; Thompson v. Board of Trustees, 77 P. 951, 144 Cal. 283, 951; City of Denver v. Londoner, 80 P. 117, 33 Colo. 104, 121; Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, 193 Iowa 117, 188 N.W. 921; State of Nevada ex rel. v. White, 136 P. 111, 36 Nev. 334; Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656; State ex rel. v. Mayor, 40 N. J. L. 74; Hindman v. Boyd, 84 P. 609, 41 Wash. 28; St. Louis v. Handlan, 242 Mo. 88; Baker Mfg. Co. v. Richmond, 198 S.W. (Mo. App.) 1128; State ex inf. Barker v. Gas Co., 154 Mo. 515; State ex rel. v. Dickey, 280 Mo. 548; State ex rel. Bigham v. State Board, 297 Mo. 607, 613; State ex rel. Gehner v. Thompson, 316 Mo. 1186; State ex rel. Asotsky v. Regan, 317 Mo. 1221. (2) The ordinance would as enacted be unconstitutional and void on many grounds. (a) It is a violation of Sec. 47, Art. 4, of the Constitution of Missouri. Sec. 47, Art. 4 of the Constitution provides that no city shall "become stockholder" in any corporation, association or company. Tamm v. Kellogg, 49 Mo. 118; Webb v. County, 67 Mo. 353; State ex rel. v. Walker, 85 Mo. 41; Dysart v. City of St. Louis, 321 Mo. 514. (b) The proposed ordinance violates Section 12 of Article 10 of the Constitution of Missouri with reference to condemnation proceedings for the purpose of acquiring street railway systems by cities with a population of 75,000 or more, and the city charter. Sec. 12, Art. X, Constitution of Missouri; Kansas City Charter, Secs. 404-16, 128-223; Kansas City v. Oil Co., 140 Mo. 472; Kansas City v. Bacon, 147 Mo. 272; Morrow v. Kansas City, 186 Mo. 684; Kansas City v. Mastin, 169 Mo. 88; Brunn v. Kansas City, 216 Mo. 108; Orrick School District v. Dorton, 125 Mo. 444; St. Louis v. Koch, 169 Mo. 591; Light Co. v. Scheurich, 174 Mo. 241; Chicago, etc., Railroad Co. v. McCooey, 200 S.W. 61; Cincinnati v. Vester, 281 U.S. 448. (c) The proposed ordinance would violate Sec. 10, Art. 1 of the Constitution of the United States and Sec. 408, Art. XV of the Charter of Kansas City. Constitution of the United States, Art. 1; Constitution of the United States, Sec. 10, Art. 1; Constitution of Missouri, Sec. 12, Art. 10; Charter of Kansas City, Sec. 408, Art. XV. (d) The proposed ordinance violates Sec. 12, Art. 10 of the Constitution of Missouri, and Secs. 100, 106, 107 and 109 of the Charter of Kansas City. Constitution of Missouri, Sec. 12, Art. 10, and Secs. 106, 107 and 109; Speas v. Kansas City, 44 S.W.2d 108; State ex rel. v. Gordon, 251 Mo. 303; State ex rel. v. Gordon, 265 Mo. 181; State ex rel. v. Neosho, 203 Mo. 40. (e) The proposed ordinance violates Sec. 11, Art. 10 of the Constitution of Missouri. Constitution of Missouri, Sec. 11, Art. 10; Charter of Kansas City, Sec. 151. (f) The ordinance is further void in that it requires an impossibility in the condemnation of stock owned by nonresidents. Lohman v. K. C. So. Ry. Co., 326 Mo. 819; Disconto-Gesellschaft v. United States Steel Corp., 300 F. 741; First Nat'l. Bank v. State of Maine, 76 L.Ed. advance sheets pp. 211, 217. (g) The ordinance is void in the it would require Kansas City to operate a public utility in the State of Kansas. Speas v. Kansas City, 44 S.W.2d 108; Langdon v. Walla Walla, 112 Wash. 446. (h) The proposed ordinance is void in that it constitutes a delegation of legislative powers. Charter of Kansas City, Sec. 21; Charter of Kansas City, Sec. 25. (i) The proposed ordinance violates Section 3 of Article X of the Constitution of Missouri. Constitution of Missouri, Sec. 3, Art. X; City v. Gates, 110 Mo. 374; Glasgow v. Rowse, 43 Mo. 479; State ex rel. v. Implement Co., 278 Mo. 310; Ex parte Asotsky, 319 Mo. 810; State ex rel. v. Switzler, 143 Mo. 287.

OPINION

Henwood, J.

This is an original mandamus proceeding, wherein relators, as a committee of petitioners for the adoption of an ordinance under the initiative provision of the charter of Kansas City, seek to compel respondents, as members of the council of Kansas City, to submit the ordinance to the electors of the city at a special election on April 12, 1932. The ordinance provides for the acquisition by Kansas City of the street railway system of the city now owned and operated by the Kansas City Public Service Company, a Missouri corporation, by condemning the capital stock of the company under the city's power of eminent domain.

The alternative writ has been issued, respondents have filed their return, and relators have filed a motion for judgment on the pleadings.

In their return to the alternative writ, respondents admit the authority of relators to act officially as a committee of petitioners for the adoption of the ordinance, and further admit that relators have met all requirements of the city's charter for the submission of the ordinance to the electors of the city, but respondents say that the ordinance, if adopted, would be unconstitutional and of no force or effect, for various reasons specified in the return, and that they should not be compelled, by a mandate of this court, to do a useless thing and to burden the taxpayers of the city with the expense of a useless special election.

Section 428 of Article XVII of the city's charter provides the course to be followed in submitting a proposed ordinance to the electors of the city, and that, upon compliance with such provisions, "the Council shall submit the proposed ordinance at a special election to be held on such date (the date designated by the petitioners)."

Relators contend that when, as in this instance, there has been a compliance with the provisions of the city's charter for the submission of a proposed ordinance to the electors of the city, the council has no discretion in the matter, and must, as a ministerial act, submit the ordinance to the electors of the city. And relators further contend that this court "will not go into the legal aspect, of the ordinance until it becomes a law."

Respondents contend that this court, "in the exercise of its discretionary power in the premises, should determine whether or not the proposed ordinance would be valid if adopted, and grant or deny the writ accordingly." And respondents further contend that the city is without authority, under its charter or the general laws of this State, to acquire the property of the Kansas City Public Service Company by condemning the capital stock of the company, and that, for this and various other reasons, the proposed ordinance, if adopted, would be unconstitutional and of no force or effect.

I. In determining whether the writ should be granted or denied, we need not decide whether the provision in the city's charter for the submission of a proposed ordinance to the electors is mandatory or merely directory, nor are we controlled by the general rule that courts will not inquire into the validity of an act of legislation until after it has become fait accompli and is clothed with the outward forms of law. Mandamus is not a writ of right. Its issuance lies in the sound judicial discretion of the court. Before granting the writ the court will look to the public interest which may be concerned, and act in view of all the existing facts and with due regard to the consequences. And the writ will be refused where, if granted, it would be unavailing, or where the act to be performed would be unlawful,...