Kansas City ex rel. North Park District v. Scarritt

• Citation: 29 S.W. 845,127 Mo. 642
• Parties: Kansas City ex rel. North Park District v. Scarritt et al., Appellants
• Decision Date: 19 March 1895
• Court: United States State Supreme Court of Missouri

29 S.W. 845

127 Mo. 642

Kansas City ex rel. North Park District v. Scarritt et al., Appellants

Supreme Court of Missouri

March 19, 1895

Rehearing Denied 127 Mo. 642 at 654.

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed and remanded.

W. C Scarritt and J. K. Griffith for appellants.

The court erred in overruling appellant's objection to the introduction of any testimony in this case, because the act of the legislature under and by virtue of which the proceeding is had is unconstitutional and void. First. Because the purposes of said act are not clearly defined in its title, and the act contains more than one object. Const of Mo., art. 4, sec. 28. Second. The act is at war with the following provision of article 9, section 17, of the constitution, by which the legislative powers of cities of the class to which the act in question refers is vested in two houses of legislation: Art. 9, sec. 17: "It shall be a feature of all such charters that they shall provide, among other things, for a mayor or chief magistrate, and two houses of legislation, one of which, at least, shall be elected by general ticket." Third. Said act is void, because it is special legislation, prohibited by section 53, article 4, of the constitution. Art. 4, sec. 53: "The general assembly shall not pass any local or special law * * * regulating the affairs of counties, cities, townships, wards or school districts * * * authorizing the laying out, opening, altering or maintaining roads, highways, streets or alleys, * * * relating to cemeteries, graveyards or public grounds not of the state, * * * regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before courts, justices of the peace, sheriffs, commissioners, arbitrators or other tribunals, or providing or changing methods for the collection of debts, or the enforcing of judgments, or prescribing the effect of judicial sales of real estate * * *." State ex rel. v. Herrmann, 75 Mo. 340; State ex rel. v. County Court, 89 Mo. 239; State ex rel. v. Tolle, 71 Mo. 650; State ex rel. v. Miller, 100 Mo. 448; Murnane v. St. Louis, 123 Mo. 479. a. The act applies to Kansas City alone, because carrying it into effect in at least a dozen instances the officers of the board of public works are required. And no other city in the state organized as a constitutional city has a board of public works. The provisions of the act show the evident intent and purpose of the framers of this law to have been to make a law applicable to Kansas City alone, and its provisions are so drawn that at this time it can not, and doubtless never will, apply to any other city. Murnane v. St. Louis, 123 Mo. 479. b. Even though the act may be held to apply to all cities that are hereafter to be organized under the provision of section 16, article 9, of the constitution, the act may, nevertheless, be held to be special legislation in that it attempts to regulate the practice or jurisdiction in judicial proceedings. Acts subject to this criticism can not be upheld on the theory that they apply to all cities of a particular classification. The rule in this particular is stated thus: "If they (the provisions of the act) operate upon the exercise of some power or duty of a municipality of the given class, or relate to some subject within the purposes of classification, they are general; otherwise they are local." In re Wyoming St., 137 Pa. St. 503; Weinman v. Railroad, 118 Pa. St. 192; In re Pittsburg, 138 Pa. St. 401; State ex rel. v. Field, 99 Mo. 356.

D. J. Haff, C. S. Palmer and C. O. Tichenor for respondent.

(1) The act does not violate article 9, section 17, of the constitution and does not infringe upon the legislative powers of the common council. No legislative power proper is by this act vested in the board of park and boulevard commissioners, but, even if that were true, said section of the constitution does not say that the charter of a constitutional city, or the legislature may not vest some discretion in other agents of the city besides the "two houses of legislation," and, in fact, the charters of all the cities in this state, as well as the general law governing classified cities, do vest discretion in other agents than city councils. No more discretion is vested in the board of park and boulevard commissioners under this act than is given the board of public works, or public improvements in cities existing under special charters (Charter of Kansas City, 1889, article 6), and this provision of the constitution, or any other provision, does not prohibit the legislature from authorizing the appointment in such cities of special agents to discharge particular duties, for example, such as those to be discharged usually by the park commissioners, and such agents as park commissioners may be authorized to purchase lands for parks and to levy assessments to pay therefor. State v. District Court, 33 Minn. 235; People v. Walsh, 96 Ill. 232; Astor v. Mayor, 62 N.Y. 567. (2) First. The act in question is a general law, under the rules established by the decisions of this state. "A legislative act which applies to all persons who are in, or who may come into, like situations and circumstances, is general and not special." Humes v. Railroad, 82 Mo. 231; Rutherford v. Heddens, 82 Mo. 388; Kelly v. Meeks, 87 Mo. 396. Second. "Section 7 of article 9 does not prevent the application of general laws to cities having special charters. The latter cities were not affected by the constitutional provision referred to, as is apparent from its language." Barclay, J., in Rutherford v. Hamilton, 97 Mo., page 547. The act in question applies to all cities "which are now or may hereafter be organized under and by virtue of the provisions of section 16, article 9, of the constitution of this state," and to all cities, therefore, "which are in, or may come into, like situations and circumstances," and is, therefore, in form and in spirit a "general law." See Laws of Missouri, 1893, p. 43. Third. There are no officers referred to in said act which did not already exist, or which were not provided for prior to the passage of this act, in cities existing under special charters, by virtue of section 16 of article 9 of the constitution. Laws of 1893, p. 36, sec. 3. State ex rel v. Field, 99 Mo. 352; Ewing v. Hoblitzelle, 85 Mo. 64. (3) The statute under which this proceeding was brought (Laws of Mo., 1893, page 43), is not open to the charge that it is special legislation. It is in form and spirit a general law and not in conflict with section 53, article 4, of the constitution. (4) The act in controversy does not create a class of cities; it is for a class fixed by the constitution itself. It regulates a matter purely municipal, for which some legislation is not only proper, but necessary. There is not only an excuse for the act, but there is also a necessity which arises from the peculiarities of the case. It is not gotten up to evade constitutional limitations. It neither interferes with any law of the state, nor with any person or property outside of the class which it governs; it evidently is for a class and not for certain persons or things of a class.

Barclay, J. Brace, C. J., and Gantt, Macfarlane and Robinson, JJ., concur. Sherwood, J., concurs in reversing and remanding. Burgess, J., concurs in the result, but does not wish to be understood as approving the decision in the Murnane case.

OPINION

In Banc.

Barclay J.

-- This is a proceeding, begun June 7, 1894, to subject to public use for a park a tract of some sixty acres of land in Kansas City, Missouri.

The plaintiff is "Kansas City at the relation and to the use of the North Park District."

The defendants are Mr. Nathan Scarritt and a number of other parties owning parts of, or interests in, the land sought to be taken for the park.

The trial court found for the plaintiff, and entered judgment of condemnation, from which certain of the defendants appealed after the usual preliminaries.

The proceeding is grounded upon the provisions of an act, approved April 1, 1893, entitled: "An act empowering every city in this state which is now or may hereafter be organized under and by virtue of the provisions of section 16, article 9, of the constitution of this state, to establish and maintain for such city a system of parks and boulevards, to be under the control and management of a board known as board of park and boulevard commissioners, and defining the powers and duties of such commissioners." Laws, 1893, p. 43.

The objections to the result reached on the circuit do not refer to any matters of detail in the condemnation suit. They go deeper, and question the validity of the whole enactment.

It is claimed that the act is not in consonance with the organic law for several reasons; only one of which it is necessary to discuss.

The act in view undertakes to confer on every city of the sort indicated by its title certain charter powers for the establishment of a system of parks and boulevards.

It opens in this fashion:

"Section 1. Every city in this state which is now or may hereafter be organized under the provisions of section 16, article 9, of the constitution of this state, is hereby empowered to establish for such city a system of parks and boulevards, which shall be under the control and management of a board known as board of park and boulevard commissioners. Said board of park and boulevard commissioners shall be composed of three freeholders of such city, well known for their intelligence and integrity, who shall be appointed by the mayor without confirmation, and whose term of office shall continue for a period of three years," etc.

The act then provides for the organization of the...