Kelly v. Meeks

• Decision Date: 31 October 1885
• Citation: 87 Mo. 396
• Parties: KELLY et al. Appellants, v. MEEKS.
• Court: Missouri Supreme Court

87 Mo. 396

KELLY et al. Appellants,

v.MEEKS.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Jackson Circuit Court.--HON. J. H. SLOVER, Judge.

AFFIRMED.

J. S. Brooks and Gage, Ladd & Small for appellants.

(1) The act of the general assembly in question (Laws 1885, p. 63), is a special and local law, and as such is prohibited by the constitution. Davis v. Clark (Pa.) Reporter, Nov. 9, 1884; People v. Chautauqua, 43 N. Y. 10; Brown v. Denver, 7 Col. 305. (2) The title of the act does not mention cities which might hereafter have more than twenty thousand and less than two hundred and fifty thousand, and hence leaves it ineffectual and void as to all cities except those mentioned in the title, and the simple question to be determined, is whether a law passed with reference to Kansas City and St. Joseph, and exclusive of every other city in the state, is a local or special law. (3) The act is void because the power to extend the corporate limits of a municipal corporation is a legislative function, and incapable of delegation. People v. Bennett, 29 Mich. 451; People v. Carpenter, 24 N. Y. 89; Lexington v. McQuillan, 9 Dana (Ky.) 513. (4) The act is also unconstitutional because it is an amendment by a local or special law to the charter of the City of Kansas. The charter is a public law, and cannot be amended in a manner different from other laws. Const., art. 4, sec. 34; Booth v. Woodbury, 32 Conn. 118. (5) The common council of a municipal corporation cannot pass ordinances or by-laws affecting people residing without the corporate bounds. People v. Keeler, 29 Hun, 175; In re Flatbush, 60 N. Y. 398.

E. L. Scarritt, W. A. Alderson, C. O. Tichenor, James Gibson and Jefferson Brumback for respondent.

(1) Every possible presumption exists in favor of the constitutionality of an act of the general assembly. State ex rel. v. Laughlin, 75 Mo. 147, 150; State v. Able,65 Mo. 357, 361; County Court v. Griswold, 58 Mo. 175, 192; State ex rel. v. The Cape Girardeau & St. L. R. R., 48 Mo. 468, 470; Stephens v. St. Louis National Bank, 43 Mo. 385, 390; Walker v. City of Cincinnati, 21 Ohio St. 14, 41; Bourland v. Hildreth, 26 Cal. 162, 183. (2) The act in question is not a local or special one. Rutherford v. Heddens, 82 Mo. 388; State ex rel. v. Hermann, 75 Mo. 340; State ex rel. v. Tolle, 71 Mo. 645. (3) The objection that the act is unconstitutional because its title is not broad enough, is not well taken. State v. Miller, 45 Mo. 497; City v. County, etc., 69 Mo. 574; Otoe Co. v. Baldwin, 111 U. S. 574; State ex rel. v. Ranson, 73 Mo. 86; State ex rel. v. Laughlin, 75 Mo. 367. (4) The legislature has inherent power to organize in the first instance, and at any time afterward enlarge the limits of any city. St. Louis v. Allen, 13 Mo. 400; Santa Rosa v. Coulter, 58 Cal. 537; County Com'rs v. Bladensburg, 51 Md. 465; Eagle v. Beard, 33 Ark. 497; Martin v. Dix, 52 Miss. 53; New Orleans v. Cazelar, 27 La. An. 156; Stilz v. Indianapolis, 55 Ind. 515; Wade v. Richmond, 18 Gratt. 583; Milwaukee v. Milwaukee, 12 Wis. 93. (5) And the limits of any city can be extended by the legislature without the consent of the people living within the territory thus incorporated, even though the persons within such new territory may be subjected to the payment of taxes for the liquidation of the indebtedness of such city previously accrued. County Com'rs v. Bladensburg, 51 Md. 465; Watson v. Com'rs, 82 N. C. 17; Eagle v. Beard, 33 Ark. 497; Martin v. Dix, 52 Miss. 53; Wade v. Richmond, 18 Gratt. 583; Milwaukee v. Milwaukee, 12 Wis. 93. (6) And the authority to thus extend the limits of any city may be delegated by the legislature to the common council of said city, or to some court. Gibony v. Cape Girardeau, 58 Mo. 141; Stilz v. Indianapolis, 55 Ind. 515; Burlington v. Leebrick, 43 Ia. 252; Taylor v. Ft.Wayne, 47 Ind. 274; Wade v. Richmond, 18 Gratt. 583.

HENRY, C. J.

This is an action commenced in the Jackson circuit court to recover from respondent certain cattle and damages for the unlawful detention thereof. The cause was tried at the September term, 1884, of said court, and there was a judgment for defendant, from which plaintiffs have appealed. The cows in controversy were impounded by defendant under an ordinance of the City of Kansas, authorizing the impounding of cattle running at large within the city. Plaintiffs' cows were not at large within the original limits of the city, but in the new territory added to the city by the recent extension of the city limits, and the validity of the act of the general assembly authorizing cities of a certain class to extend their limits is contested. There is no other question pressed upon our consideration.

Section seven, article nine, of the constitution of 1875, is as follows: “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.”

The general assembly, by an act approved April 21, 1877, made the classification required by the constitution and also provision by general law, whereby any city or town may elect to become subject to, and be governed by, that law, and the contention is, that the general assembly has no power, either by general or special law, to amend the charter of any city or town which has not elected to become subject to and be governed by the general law providing classes for cities, towns, and villages. The same question was before this court in the case of Rutherford v. Heddens, 82 Mo. 388. It was duly considered and distinctly passed upon, and without any re-argument of the question, we adhere to the doctrine therein announced. The legislature, ever since the adoption of the constitution of 1875, has understood it as construed in the case of Rutherford v. Heddens, supra.

The sewer act of 1881, which gave rise to the controversy in that case--the burial ground laws of 1881 and 1883, the road law of 1883, section fifty-seven, the registration act of 1881, the park law of 1879, and almost innumerable acts in relation to cities and towns, with special charters, are in direct conflict with the constitution of 1875, if that instrument is to be construed as appellants' counsel contends it should be. These above acts were all passed before the decision in the Heddens case was rendered. That case did not lead, but followed in that construction, and this court, in recognition of a doctrine which prevails everywhere in the United States, will not declare an act of the general assembly void, as in conflict with the constitution, unless it is so manifest as to leave no doubt on the subject. The State ex rel. Harris v. Laughlin, 75 Mo. 148. “In cases of doubt, every possible presumption, not directly and clearly inconsistent with the language and subject matter, is to be made in favor of the constitutionality of the act” State v. Able, 65 Mo. 362; Stephens v. St. Louis National Bank, 43 Mo. 385; 48 Mo. 468. The general assembly can enact any law not forbidden, either by the constitution of the state, or the constitution of the United States, and he who denies its authority, by general laws, to legislate for cities and towns, other than those which have elected to go into the classes provided by the general law, must point out the clause, or clauses, of that instrument by which such legislation is forbidden.

There can be no...