Morrow v. Kansas City

• Decision Date: 28 February 1905
• Parties: MORROW v. KANSAS CITY, Appellant
• Court: Missouri Supreme Court

85 S.W. 572

186 Mo. 675

MORROW v. KANSAS CITY, Appellant

Supreme Court of Missouri

February 28, 1905

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Reversed.

R. J Ingraham and J. J. Williams for appellant.

(1) The power to make or grant a charter for a municipal corporation is a legislative power. Owen v. Baer, 154 Mo. 512; Sanders v. Railroad, 147 Mo. 426; State ex rel v. Railroad, 151 Mo. 188; Cooley, Const. Lim. (7 Ed.) pp. 131, 261-2. (2) Prior to the adoption of the Constitution of 1875, this power was vested solely in the General Assembly of the State. It was not expressed in terms in the Constitutions of 1820 and 1865, but resulted from the fact that, being legislative in its nature, it belonged to the legislative branch of the government. Cooley, Const. Lim. (7 Ed.), p. 266; 1 Dill. Mun. Corp. (4 Ed.), sec. 54; Copeland v. St. Joseph, 126 Mo. 431. (3) By the Constitution of 1875 this power, which had theretofore existed in the Legislature, to frame charters of cities having over 100,000 inhabitants, was expressly taken away from that body and transferred to the people of such cities. The Constitution of 1820 did not convey to the Legislature in terms the power to frame municipal charters. But, under a grant of general legislative power, the Legislature for over fifty years, uniformly, and with the approval of the courts, exercised the exclusive power to frame all such charters as a continuing power. Such was the law and usage when the Constitution of 1875 was framed. And its framers, by section 16, meant to and did take the power away from the Legislature, in specified cases, and vested it in the people of the city. Nothing in or between the lines of section 16 indicates any intention to change the nature or extent of the power. But its language clearly means that there should be a change in its repository -- a change so complete that no other body but the people of the city can frame or amend it. It is still a legislative power. A detailed definition in the Constitution of its nature and extent was wholly unnecessary, because its continuous use for more than half a century in this State had demonstrated its nature and extent, which were known alike to the Constitution-framers and the people. The then existing law and usage were present in their minds when they framed it and voted on it. Sec. 16, art. 9, Const. 1875; Dill. Mun. Corp. (4 Ed.), sec. 85; State ex rel. v. Kansas City, 99 Mo. 352; Scarritt v. Kansas City, 127 Mo. 642; Oil Co. v. Kansas City, 140 Mo. 458; State ex rel. v. Railroad, 151 Mo. 162; St. Louis v. Fisher, 167 Mo. 660; see, also, cases under point 5. (4) The power was given in express terms -- "to frame a charter." This power should be read and construed in the light of all preceding charters and in the light of the general legislation of the State and of the object of the people in erecting such municipalities. Dill. Mun. Corp. (4 Ed.), sec. 87. (5) Being of this legislative character, and expressed, it was "continuing" in its nature; that is, not to be understood as exhausted by the one exercise of it. It is not irrepealable, as it would not have been so if made by the Legislature. Cooley, Const. Lim. (7 Ed.), p. 295; Reeves v. Anderson, 13 Wash. 17; Dill. Mun. Corp. (4 Ed.), secs. 686 and 780; Farrar v. St. Louis, 80 Mo. 379; McCormack v. Patchen, 53 Mo. 37; Hoffman v. St. Louis, 15 Mo. 652; Skinker v. Herman, 148 Mo. 355; Estes v. Owen, 90 Mo. 115; Gosley v. Georgetown, 6 Wheat. 593. This is always so unless the prohibition against continued exercise of it is expressed in the grant itself. In other words, such a limitation will not be implied. 1 Smith's Modern Law Mun. Corp., sec. 408. (6) The delegation of this legislative function to the people of these cities does not violate the general rule that legislative power cannot be delegated. Owen v. Baer, 154 Mo. 412. The people -- the source of all constitutional power -- may do this. Sanders v. Railroad, 147 Mo. 426. (7) The express power having been granted, and being "continuing," it always exists. When this power is exercised, and a new charter made, it is provided, by the organic law, that "it shall supersede any existing charter and amendments thereof." This is an express power to repeal the old charter. Sec. 16, art. 9, Const. 1875. (8) Respondent's position is based wholly upon "implication." He asks that a prohibition against a second exercise of this express power be implied, or read into the Constitution, and that the method of amendment be inferred to be the exclusive method of changing the charter. To support either implication would do violence to established rules of construction laid down by this court. See authorities under point 5. (9) If the power "to frame a charter" was exhausted by the one exercise of it, by the same reasoning the power to "amend" has been exhausted by "once amending" it. Both powers are granted in the same terms, and unless they are both of a "continuing nature," Kansas City is irrevocably tied to the present charter, without power to either frame a new one, or amend the old. It is to such startling and absurd ends that the contention of respondent leads. Story, Const., sec. 451; sec. 16, art. 9, Const. 1875.

Oscar Hochland and John W. Snyder for respondent.

(1) A municipal corporation is a public corporation created by the government. It is merely an agency instituted by the sovereign for the purpose of carrying out in detail the objects of the government. Dillon, Mun. Corp. (4 Ed.), sec. 20. (2) While the Legislature may exercise such powers of government "as are not expressly or impliedly prohibited, the local authorities can exercise those only which are expressly or impliedly conferred." Cooley's Const. Lim. (5 Ed.), 229; Thompson v. Lee County, 3 Wall. 330; Wells v. Bain, 75 Pa. St. 53; Cooley's Const. Lim. (6 Ed.), 231. (3) Every people which has claimed the power to call at constitutional convention was a sovereign people -- the State. Wood's Appeal, 75 Pa. St. 65; Green v. Welles, 32 Miss. 684; Wells v. Bain, 75 Pa. St. 46. (4) There is no assertion, nor fair implication, in our State Constitution that our city was to call other constitutional conventions than the one provided for by the Constitution. Secs. 16 and 17, art. 9, Const. (5) The exact method provided by our Constitution for amending our charter excludes the claim that an unexpressed and sovereign method should likewise obtain. Secs. 16 and 17, supra; State v. Tooker, 15 Mont. 11; Blanchard v. Hartwell, 131 Cal. 263.

GANTT, J. Brace, C. J., Marshall, Burgess, Valliant and Fox, JJ., concur.

OPINION

In Banc.

GANTT J.

This is an appeal from the circuit court of Jackson county, perpetually enjoining Kansas City, and the auditor, comptroller and treasurer of said city, from auditing and paying over to the election commissioners of said city the sum of two thousand dollars of the moneys belonging to and in the treasury of said city, in pursuance of an ordinance of said city numbered 26800, adopted and approved September 23, 1904, entitled, "An ordinance providing for a special election to elect a board of thirteen freeholders to draft a charter as provided by the Constitution of Missouri," for the purpose of paying the necessary expenses of said election. The plaintiff is and was at the filing of his petition a taxpayer of said city.

The petition in substance alleged that Kansas City is a municipal corporation organized under sections 16 and 17 of article 9 of the Constitution of Missouri; that Leo E. Koehler is the duly elected, qualified and acting city auditor of said Kansas City; that Andrew E. Gallagher is the duly appointed qualified and acting city comptroller of said city, and Albert E. Holmes is the duly elected, qualified and acting city treasurer of said city; that on the eleventh day of December, 1888, said Kansas City, pursuant to the provisions of section 16 of article 9 of the Constitution of Missouri, caused to be elected thirteen freeholders for the purpose of framing a city charter for said city; that said freeholders proceeded to formulate and draft such charter and the same was submitted to the qualified voters of said city at an election held on the eighth day of April, 1889; that such charter was duly and legally adopted at said election, receiving a four-sevenths majority of the votes cast at said election; that the said votes were duly canvassed, the result ascertained and certified and all the provisions of section 16 of article 9 of the Constitution of Missouri complied with and said charter thereupon became the charter and organic municipal law of Kansas City; that ever since the ninth of May, 1899, said charter, together with amendments thereto subsequently adopted as required by the Constitution, has been and is the charter of Kansas City; that on the twenty-second day of September, 1904, the Common Council of Kansas City passed an ordinance, No. 26800, and on the twenty-third day of September, 1904, the mayor of said city approved said ordinance, entitled "An ordinance providing for a special election to elect a board of thirteen freeholders to draft a charter as provided by the Constitution of the State of Missouri," which said ordinance provided among other things that on the eighth day of November, 1904, a special election should be held for the election of thirteen freeholders, each member of which said board to have been for at least five years a qualified voter of Kansas City, Missouri, and which said board should, within ninety days after the election thereof, return to the chief magistrate of Kansas City, Missouri, a draft of a charter for said city, signed by the members of said board or a majority thereof. It was further provided that the mayor should issue his...