Ewing v. Hoblitzelle

• Decision Date: 13 May 1885
• Citation: 15 Mo.App. 441
• Parties: W. L. EWING, Appellant, v. C. L. HOBLITZELLE, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 441

W. L. EWING, Appellant,

v.C. L. HOBLITZELLE, Respondent.

St. Louis Court of Appeals, Missouri.

May 13, 1885.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and judgment.

LEVERETT BELL, for the appellant: The act contains two separate and independent subjects, and is hence unconstitutional.-- The State v. Persinger, 76 Mo. 346; Cooley's Const. Lim. (5th ed.) 178; The People v. Parks, 58 Cal. 624; Huber v. The People, 49 N. Y. 132; Murphy v. The State, 73 Tenn. 373; The State v. Barrett, 27 Kan. 213; Antonio v. Gould, 34 Texas, 49; Stewart v. Father Matthew Society, 41 Mich. 67. It is also a local and special law.-- The State, etc., v. Hermann, 75 Mo. 340; Devine v. Cook County, 84 Ill. 590. The legislature has no power to interfere with the local self-government of the city of St. Louis.-- The State v. Powers, 68 Mo. 320; St. Louis v. Sternberg, 69 Mo. 289; The State v. Walsh, 69 Mo. 409; St. Louis v. Green, 70 Mo. 563; The State v. Mayor, 73 Mo. 435; St. Louis v. Knox, 74 Mo. 79; Ex parte Hollwedell, 75 Mo. 395; St. Louis v. Richeson, 76 Mo. 470; St. Louis v. Bircher, 76 Mo. 431.

GLOVER & SHEPLEY for the respondent: The state legislature has power over all subjects on which its legislation is not prohibited.--15 N. Y. 303; 27 Barb. 593; 4 Mich. 244; 5 Mich. 257; 24 N. Y. 497, 504; 2 Park. Cr. 490; 15 La. Ann. 190; 18 Ind. 258; 17 Cal. 547; 17 Pa. St. 119; 19 Pa. St. 260; 52 Pa. St. 477; Cooley's Const. Lim. 1868, pp. 173, 174. Although the constitution of a state may recognize the municipal corporations of an important city by fixing the number of certain officers, and providing for their election, etc., yet this does not make the charter of the city a constitutional charter, conferring powers beyond the control of the legislature.--15 Md. 376 (1859); 4 Zabr. (24 N. J. L.) 385 (1854); The People v. Draper, 15 N. Y. 561. The general assembly may modify their franchises, increase or diminish their corporate powers, amend their charters, enlarge or reduce their privileges, or annul their corporate existence, as, in its judgment the general good requires, and irrespective of consent or objections on the part of the inhabitants of the municipality.--7 Wall. 1; 91 U. S. (1 Otto) 540; 27 Ark. 419; 42 Cal. 541; 51 Ill. 17; 31 Id. 58; 24 Iowa, 455, 476; 37 Md. 180; 44 Mo. 504; 52 Mo. 351; 36 N. J. L. 273; 20 N. J. Eq. 360; 2 Brews. 599; 2 Abbott's C. 1879, p. 399.LEWIS, P. J., delivered the opinion of the court.

The petition shows that the plaintiff is mayor of the city of St. Louis; that the charter of the city was framed and adopted pursuant to the provisions of sections 20 to 29 of article 9 of the state constitution; that it is provided by section 15 of article 2 of said charter that the mayor shall, at least ten days before every election held in the city, appoint four competent persons to act as judges of election, and two persons to act as clerks at each election district, under certain regulations therein prescribed; that such judges and clerks are essential and necessary in conducting an election, and no election can be held in said city without their aid; that among the offices created by the charter is the office of president of the board of assessors; that a vacancy having arisen in that office by the death of the former incumbent, a special election for the purpose of filling the same is ordered, pursuant to the provisions of the charter, to be held on the 23d day of October, 1883, and that the plaintiff, as mayor as aforesaid, is engaged in selecting and appointing the judges and clerks accordingly, as required by the charter. The petition then recites the provisions of an act of the general assembly, entitled “An act to provide for the registration of all voters in cities having a population of more than one hundred thousand inhabitants,” etc., approved March 31, 1883, whereby a recorder of voters is to be appointed by the governor, whose powers and duties are to include, among others, the appointment of judges and clerks of elections in such cities. It is averred that the act recited is unconstitutional and void; but that the defendant, nevertheless, having been appointed to and now holding the office of recorder of voters under the same threatens to proceed, under the act, to appoint the judges and clerks for the election mentioned, whereby great confusion, uncertainty, and injury to the public interest will necessarily result. The plaintiff prays that the defendant be enjoined from making the said appointments, as threatened, and for other proper relief. The defendant demurred to this petition, as not stating facts sufficient to constitute a cause of action, and his demurrer was sustained.

It is contended for the plaintiff that the act of March 31, 1883, is in violation of section 53, article 4, of the state constitution, which prohibits the passage of any local or special law “regulating the affairs of counties, cities, townships, wards, or school districts,” * * * or “creating offices, or prescribing the powers and duties of officers in counties, cities, townships, election or school districts,” * * * or “incorporating cities, towns, or villages, or changing their charters.” That, notwithstanding its disguise in the habiliments of a general law, in a reference to “all voters in cities having a population of more than one hundred thousand inhabitants,” the act is local and special in fact, since it is matter of judicial cognizance that St. Louis is the only city in the state which fits that description.

That such is the true conclusion seems to be settled in The State ex rel. v. Hermann (75 Mo. 340). After quoting from a number of decisions in other states, whose constitutions contain provisions similar to the one here in view, the court there said: “Taking judicial notice then, as we must, of the official records of the census, we find that St. Louis was the only city in the state possessing one hundred thousand inhabitants at the time of the passage of the act, or which by the usual increase of population could be expected to have that number when the act took effect. This then being ascertained, the city of St. Louis, under the authority cited, is to be regarded as the city intended, as much so as if called by name. But if St. Louis had been thus directly designated no one would have the temerity to contend that such a law could withstand the charge of being a special law.” The opinion proceeds to say that the section of the act under discussion “is to be regarded as a special law for the additional reason that it can by no sort of possibility apply, except as to an existing state of facts,” which facts concern certain relations of the particular persons who are to be affected by the provisions of the law. It is then shown that the statute relates to “particular persons of a class,” and is, therefore, special. It seems to be for this reason, chiefly, that the court finds the act before it unconstitutional. But as this ground is introduced as additional, and not as only contributory to the fatal force of the first, we must regard the first objection touching the description by population as conclusive against the validity of the law.

In the case just referred to, however, nothing was said about certain constitutional provisions which are here supposed to deny any application of that decision to the present case. A general inhibition against the passage of special laws must yield to a special authority given in the same instrument, to pass special laws of a particular kind. The State ex rel. v. Shields, 4 Mo. App. 259. It is argued that such a special authority, applicable to the present case, may be found in section 7, article 9, of our state constitution, which reads thus: “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. The general assembly shall also make provisions, by general law, whereby any city, town, or village, existing by virtue of any special or local law, may elect to become subject to, and be governed by, the general laws relating to such corporations.” From this it is argued that the general assembly may pass laws which shall be applicable to any one class only of such cities, whether that class may contain but one city or a dozen. That the legislature, acting under this authority, has (Rev. Stats., sect. 4380) declared that “all cities and towns in this state containing one hundred thousand inhabitants or more shall be cities of the first class.” That the reference in the act under consideration to “cities having a population of more than one hundred thousand ininhabitants” is, in effect, a description of cities of the first class, and the legislation is, therefore, competent, even if there be only one such city in the state. The argument is more plausible than sound. It is clear that neither the constitutional provision nor the legislation under it can be applied to the city of St. Louis. The giving of an election to “any city * * * existing by virtue of any special or local law,” whether it will come under or stand aloof from the proposed regulations, is conclusive that, until such election be made, all such cities will remain independent of the provisions. A different interpretation would wholly supersede the existing charter of St. Louis, as adopted by the freeholders, and substitute for the city's government the whole of Revised Statutes (ch. 89, art. II.), relating to cities of the first class. No one, so far as we are aware, has ever supposed such a substitution possible.

Another constitutional provision to which our attention is called in this connection is section 5 of article 8: “The general assembly shall provide, by law, for the...