Barnes v. City of Kirksville

• Citation: 180 S.W. 545,266 Mo. 270
• Parties: C. W. BARNES, Appellant, v. CITY OF KIRKSVILLE
• Decision Date: 08 December 1915
• Court: United States State Supreme Court of Missouri

180 S.W. 545

266 Mo. 270

C. W. BARNES, Appellant, v. CITY OF KIRKSVILLE

Supreme Court of Missouri

December 8, 1915

Appeal from Adair Circuit Court. -- Hon. Charles D. Stewart, Judge.

Affirmed.

A Doneghy for appellant.

(1) The constitutional provisions contravened by the act are as follows: "No bill . . . shall contain more than one subject, which shall be clearly expressed in the title" -- Art. 4, sec. 28; "The General Assembly shall not pass any local or special law." -- Sec. 53, art. 4; "The General Assembly shall provide, by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the power of each class shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions." -- Sec. 7, art. 9. (2) The title of the act tells the members of the legislative body that it is an act which is to apply to all cities of the third class, and that it provides for the election of four councilmen at large in all such cities. The body of the act provides for two councilmen in cities of a certain population, three in another and four in certain others. Expressio unius, etc. And, in the body of the act (Sec. 2, p. 518), when it comes to provide for the number of councilmen, it reads "Cities having a population of three thousand and less than twelve thousand shall proceed to the election of a mayor and two councilmen;" twelve and less than twenty, mayor and three councilmen; and in cities having a population of twenty thousand and not more than thirty thousand, shall proceed to the election of a mayor and four councilmen. This section, and other sections, do not provide for cities that now have or may hereafter have a population of more than twenty and not more than thirty thousand population. This court judicially knows that, at the time of the passage of the act, the cities of Springfield and Joplin were each cities of the third class and each contained more than thirty thousand population, and therefore the act could not operate on them and they could not, under it, elect four councilmen at large; and this court also knows that there are now no cities in this State of more than twenty and not more than thirty thousand, so that the act itself does not provide for four councilmen in any existing city that can come under its influence. The title is therefore subject to the criticism that it does not clearly express the subject, and, more, it is misleading. Cooley, Con. Lim. (5 Ed.), p. 172. (3) It is a local or special law in that it can not operate alike on all cities that adopt it. Cities of different population will be subject to different laws and restrictions. Note, Secs. 2, 4, 5, 6, 7, 8, 9, 14, 16. Murname v. St. Louis, 123 Mo 470; Henderson v. Koenig, 168 Mo. 356. (4) It violates section seven of article nine of the Constitution in that it divides cities of the third class into different classes and thereby creates or attempts to create a prohibited class. Section one clearly indicates its purpose to be that cities that adopt it shall no longer belong to the constitutional class to which the Legislature had placed them, but "may become organized under the provisions of this act." And section 22 provides how a city that has once adopted it can throw aside its new uniform and regulations and go back and again drill in the class to which it formerly belonged or to which it may then be entitled to go into on account of population. The following sections of the act could only apply to cities of the third class having a population of less than thirty thousand; section two makes provisions for a mayor and four councilmen in cities having more than twenty and less than thirty thousand, and no provisions which can apply to cities of the third class which have thirty thousand or more. Section five provides different election machinery according to population. Section six provides for a different law-making body according to population; section nine provides a different scale of salaries and a different mode of prescribing the salary according to population; section fourteen, in regard to civil service rules, is subject to the same criticism; section sixteen prescribes different rules as to financial statements. That the act creates, or attempts to create a forbidden class of cities, is more readily seen when we come to apply it to a city of the fourth class, for when such a city organizes under the act it ceases to operate under any of the laws of a city of the fourth class, but is, from that time forward, without ever having in the manner prescribed by statute, elected to become a city of the third class, made subject to all laws applicable to cities of the third class, not repugnant to the act, and no longer subject to the statute in regard to fourth class cities. Under the provisions of the act in question it is impossible for all cities adopting it to be governed by the same laws and be subject to the same restrictions. State ex rel. v. Borden, 164 Mo. 221; St. Louis v. Dorr, 145 Mo. 466; Owen v. Baer, 154 Mo. 434; Hall v. Sedalia, 232 Mo. 344.

Weatherby & Frank for respondent.

(1) The courts before pronouncing a statute unconstitutional, should be satisfied beyond a reasonable doubt of its vice, all presumptions being in favor of its constitutionality. Bank v. Clark, 252 Mo. 20; State v. Buente, 256 Mo. 227; Bledsoe v. Stallard, 250 Mo. 154; State ex rel. v. Kirby, 168 S.W. 746; Kansas City v. Land Co., 169 S.W. 62. (2) The act of the Forty-seventh General Assembly does not violate section 28 of article 4 of the Constitution which provides, "No bill . . . shall contain more than one subject, which shall be clearly expressed in the title." State ex rel. v. Miller, 100 Mo. 439; Lynch v. Murphy, 119 Mo. 163; State ex rel. v. County Court, 128 Mo. 441; State ex rel. v. Vandiver, 222 Mo. 221; O'Brien v. Ash, 169 Mo. 299; Ex parte Loving, 178 Mo. 194. (3) The act in question does not violate section 53 of article 4 of the Constitution which provides, "The General Assembly shall not pass any local or special law." State ex rel. v. Pond, 93 Mo. 606; Ex parte Swan, 96 Mo. 44; State v. Moore, 107 Mo. 78; Cole v. Dorr, 22 L. R. A. (N. S.) 534; State ex rel. v. Mankato, 41 L. R. A. (N. S.) 111; State ex rel. v. Clayton, 226 Mo. 292. (4) The act in question does not violate section 7 of article 9 of the Constitution which provides, "The General Assembly shall provide by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four and the power of each class shall be defined by general laws so that all such municipal corporations of the same class shall possess the same powers and be subject to the same laws." Laws 1913, sec. 1, p. 517; State ex rel. v. Clayton, 226 Mo. 292. (5) All cities and towns in the State, containing 3,000 and less than 30,000 inhabitants which shall elect to be a city of the third class, shall be cities of the third class. R. S. 1909, secs. 8526, 8529. (6) Any third class city in the State of Missouri, or any city acting under a special charter, although they may have a population of more than 30,000 inhabitants, nevertheless remain third class cities until they elect otherwise.

BOND J. Woodson, C. J., dissents.

OPINION

In Banc.

BOND, J.

-- This is a suit for salary alleged to be due plaintiff as marshal of the city of Kirksville. The defendant, the city of Kirksville, answered that on the 10th of March, 1914, at an election duly held, it adopted the provisions of the act of the General Assembly (Laws 1913, p. 517) permitting cities of the third class and others to organize thereunder and to exercise the powers of government therein specified; that it became duly organized and officered as provided in said act and vested with all the powers and privileges granted thereby; that in the exercise of such powers and duties its mayor and councilmen passed a resolution on April 13, 1914, terminating the office of plaintiff as marshal of said city and elected another in his place who has since discharged the duties of the office.

Plaintiff replied that said act providing for such organization was void under section 53, article 4, of the Constitution in that it was a local or special law, and also under section 7, article 9, of the Constitution in that it provided for more than four classes of cities.

Upon the issues joined the cause was submitted to the court upon the following agreed statement of facts:

"For the purpose of dispensing with the introduction of evidence in the trial of the above cause, it is agreed, subject to the objection of either party hereto for incompetency, that the plaintiff was on the day of April, 1913, duly elected and commissioned to the office of marshal for a term of two years and entered upon the discharge of the duties of said office and discharged the duties thereof until the 13th day of April, 1914; that on the day of June, 1892, said city of Kirksville was organized as a city of the third class, and divided into four wards; that said city has refused to pay plaintiff the salary of the marshal's office ever since the 13th day of April, 1914; that ordinance No. 1862 was passed by the council and approved by the mayor prior to the election and commission of plaintiff and was at said time in full force and effect, and provided a salary of fifty dollars per month; that on the 10th day of March, 1914 pursuant to a petition of the electors of said city of Kirksville equal in number to more than twenty-five per centum of the votes cast for all candidates for mayor at the last preceding city election of said city prior to the filing of said petition, and pursuant...