O'Dell v. Scranton

• Decision Date: 03 June 1907
• Citation: 126 Mo. App. 19,103 S.W. 570
• Parties: O'DELL et al. v. SCRANTON et al.
• Court: Missouri Court of Appeals

103 S.W. 570

126 Mo. App. 19

O'DELL et al. v. SCRANTON et al.

Kansas City Court of Appeals. Missouri.

June 3, 1907.

Rehearing Denied July 8, 1907.

Concurring Opinion June 14, 1907.

MUNICIPAL CORPORATIONS — VALIDITY OF WARRANTS — WARRANTS EXCEEDING AMOUNT IN TREASURY.

Under Rev. St. 1899, § 5954 [Ann. St. 1906, p. 3008], relating to cities of the fourth class, providing that no warrant shall be drawn on the treasurer unless there is an unexpended balance to the credit of the city in the fund in the treasury upon which it is drawn to meet the warrant, the act of the board of aldermen in issuing a warrant for a sum in excess of the amount in the treasury is void.

Appeal from Circuit Court, Carroll County; Jno. P. Butler, Judge.

Action by John O'Dell and others against C. T. Scranton and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Lozier, Morris & Atwood, for appellants. Jones & Conklin, for respondents.

JOHNSON, J.

This action was brought in the circuit court of Carroll county by certain taxpaying citizens of Hale, a city of the fourth class, to enjoin the issue and payment of a certain warrant. Defendant Ballew is the mayor of the city, defendants Selby, Watson, and Tracy comprise the board of aldermen, and defendant Scranton is the treasurer. They filed answer and motion to dissolve the writ of injunction. Afterward plaintiffs demurred to the answer, and, on hearing, the demurrer was sustained, and, defendants refusing to plead further, the injunction was made perpetual and defendants appealed. There are two counts in the petition, but the cause of action pleaded in the second count is not made a subject of controversy here by the parties, and our sole concern is with the issues involved in the cause pleaded in the first.

The facts before us for consideration thus may be stated: The ordinances of the city relating to the regulation and control of the sale of intoxicating liquors and to the suppression of gambling were being secretly and continuously violated to an extent subversive of the peace and good order of the community, but, owing to the manner of these violations of law, the constituted authorities of the city were unable to discover the violators and to break up the practices. The mayor, to meet the exigencies of the situation which confronted them, employed two persons to act as detectives in ferreting out these nuisances and in obtaining evidence against those who maintained them, so that the disorderly places might be suppressed and the offenders punished. In this he acted without formal authority from the board of aldermen, for the reason that the giving of such authority necessarily would warn the lawbreakers and tend to defeat the object in view. The efforts of the detectives thus employed resulted in the discovery of the disorderly places, their suppression by the city, and in the arrest and conviction of a number of persons who had violated the ordinances. Among the latter was the proprietor of a clandestine liquor shop, who had been selling intoxicating liquors without a license, and a number of gamblers connected with secret gambling places. Fines aggregating $175 were collected from the gamblers and a fine of $350 assessed against the keeper of the illicit dramshop. The compensation earned by the detectives for their services amounted to $219, and this sum was paid to them by the mayor, who thereafter reported what he had done to the board of aldermen. Thereupon the board, in regular session, formally ratified and approved the action of the mayor and issued to him a warrant on the treasurer for the sum of $219 to reimburse him for the amount so expended. At the time this was done the available funds in the treasury amounted to but $185.50, not enough to pay the warrant in full. Before this action was brought the mayor presented the warrant to the treasurer, and received thereon the said sum of $185.50. The remainder was unpaid when the writ of injunction was served on defendants.

1. The fact that the mayor incurred the liability in question without formal authority from the board of aldermen will be disregarded for the present; and the first part of our discussion will deal with the question of the power of a city of the fourth class to make a contract with private persons for services to be rendered in the detection and punishment of offenses against the municipal ordinances. Approaching the subject from the standpoint that the ratification by the board of aldermen related back and clothed the mayor from the beginning with all the authority that could have been conferred by ordinance in the first place, the fundamental principles by which we are to be guided are aptly expressed in this quotation from 1 Dillon on Municipal Corporations, § 89 (4th Ed.): "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void." Recognition of the soundness of these principles has been so general in this and other jurisdictions that we deem it unnecessary to cite other authorities to sustain them. It is conceded the statutes relating to cities of the fourth class do not contain an express grant to such municipalities of the power to employ other agencies for the detection of violations of the municipal laws and for the apprehension of the violators thereof, than those afforded by the constituted machinery of the city government; but it is argued by defendants that the right to exercise such power is a necessary and indispensable incident to the delegation of legislative jurisdiction. In other words, when the Legislature of the state delegated to each city of the fourth class the power to deal as a Legislature with certain classes of subjects peculiarly of local interest, and to prescribe and inflict penalties for violations of the ordinances it might enact with reference thereto, the delegated power of necessity was as broad as that originally possessed by the delegating authority.

Preliminary to a consideration of this proposition, let us see what are the express grants on which is founded this claim of incidental power. Pertinent sections of the statutes (Rev. St. 1899) are as follows: Section 5957 [Ann. St. 1906, p. 3009]: "The mayor and board of aldermen of each city governed by this article shall have the care, management and control of the city and its finances, and shall have power to enact and ordain any and all ordinances not repugnant to the Constitution and laws of this state, and such as they shall deem expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be deemed necessary to carry such powers into effect, and to alter, modify or repeal the same." Section 5958 [Ann. St. 1906, p. 3010]: "The board of aldermen shall enact ordinances to prohibit and suppress houses of prostitution and other disorderly houses and practices, including gambling and gambling houses, and all other kinds of public indecencies," etc. Section 6000 [Ann. St. 1906, p. 3029]: "For any purpose or purposes mentioned in the preceding sections, the board of aldermen shall have power to enact and make all necessary ordinances, rules and regulations; and they shall also have power to enact and make all such ordinances and rules, not inconsistent with the laws of the state, as may be expedient for maintaining the peace and good government and welfare of the city and its trade and commerce; and all ordinances may be enforced by prescribing and inflicting upon its inhabitants, or other persons violating the same, such fine not exceeding one hundred dollars, and such imprisonment not exceeding three months, or both such fine and imprisonment, as may be just, for any offense, recoverable with costs of suit, together with judgment of imprisonment until the fine and costs are paid or satisfied; and any person committed for the non-payment of fine and costs, or either, may be compelled to work out the same as hereinbefore provided: provided, that such city shall have power, in any case wherein the penalty for an offense is fixed by statute, to affix the penalty by ordinance, and no other, for the punishment of such offense, except that imprisonments, when made under city ordinances, may be in the city prison or workhouse instead of the county jail." Section 5924 [Ann. St. 1906, p. 2998]: "The mayor and police judge shall be a conservator of the peace and shall have exclusive original jurisdiction to hear and determine all offenses against the ordinances of the city," etc. Under these provisions express power is given for the establishment and maintenance of municipal courts to try and determine causes arising from the violation of municipal ordinances, for the suppression by ordinance of disorderly places that menace the peace and morals of the community, and for the exercise of such incidental rights as may be indispensable to the proper and effectual performance of the principal powers conferred. Gambling houses and gambling are expressly classed as "disorderly houses and practices"; and, though no special reference is made to illicit...