Morrow v. Kansas City

• Citation: 186 Mo. 675,85 S.W. 572
• Parties: MORROW v. KANSAS CITY et al.
• Decision Date: 28 February 1905
• Court: United States State Supreme Court of Missouri

85 S.W. 572

186 Mo. 675

MORROW v. KANSAS CITY et al.

Supreme Court of Missouri.

February 28, 1905.

MUNICIPAL CORPORATIONS — FREEHOLDERS' CHARTER — ADOPTION — CONSTITUTIONAL POWER — EXERCISE.

Const. art. 9, § 16, provides that any city having a certain population may frame a charter for its own government, consistent with and subject to the Constitution and laws of the state, by causing a board of 13 freeholders, who shall have been for at least 5 years qualified voters thereof, to be elected by the qualified voters of such city at any general or special election, which board shall within 90 days after such election return to the chief magistrate of such city a draft of the charter, signed by the members of the board, or a majority thereof, etc. Held, that the power therein conferred was continuing, so that a city to which the section applied did not exhaust its constitutional grant by having once adopted a charter thereunder.

In Banc. Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Calvin J. Morrow, a taxpayer, against Kansas City and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

R. J. Ingraham and J. J. Williams, for appellants. Oscar Hochland and John W. Snyder, for respondent.

GANTT, J.

This is an appeal from a decree of the circuit court of Jackson county, perpetually enjoining Kansas City, and the auditor, comptroller, and treasurer of said city, from auditing and paying over to the election commissioners of said city the sum of $2,000 of the moneys belonging to and in the treasury of said city in pursuance of an ordinance of said city, numbered 26,800, adopted and approved September 23, 1904, entitled "An ordinance providing for a special election to elect a board of thirteen freeholders to draft a charter as provided by the Constitution of Missouri," for the purpose of paying the necessary expenses of said election. The plaintiff is, and was at the filing of his petition, a taxpayer of said city. The petition, in substance, alleged that Kansas City is a municipal corporation organized under sections 16 and 17 of article 9 of the Constitution of Missouri; that Leo E. Koehler is the duly elected, qualified, and acting city auditor of said Kansas City; that Andrew E. Gallagher is the duly appointed, qualified, and acting city comptroller of said city, and Albert E. Holmes is the duly elected, qualified, and acting city treasurer of said city; that on the 11th day of December. 1888, said Kansas City, pursuant to the provisions of section 16, art. 9, of the Constitution of Missouri, caused to be elected 13 freeholders for the purpose of framing a city charter for said city; that said freeholders proceeded to formulate and draft such charter, and the same was submitted to the qualified voters of said city at an election held on the 8th day of April, 1889; that such charter was duly and legally adopted at said election, receiving a four-sevenths majority of the votes cast at said election; that the said votes were duly canvassed, the result ascertained and certified, and all the provisions of section 16 of article 9 of the Constitution of Missouri complied with, and said charter thereupon became the charter and organic municipal law of Kansas City; that ever since the 9th of May, 1889, said charter, together with amendments thereto subsequently adopted as required by the Constitution, has been and is the charter of Kansas City; that on the 22d day of September, 1904, the common council of Kansas City passed an ordinance (No. 26,800), and on the 23d day of September, 1904, the mayor of said city approved said ordinance, entitled "An ordinance providing for a special election to elect a board of thirteen freeholders to draft a charter as provided by the Constitution of the state of Missouri," which said ordinance provided, among other things, that on the 8th day of November, 1904, a special election should be held for the election of 13 freeholders, each member of which said board shall have been for at least 5 years a qualified voter of Kansas City, Mo., and which said board should, within 90 days after the election thereof, return to the chief magistrate of Kansas City, Mo., a draft of a charter for said city, signed by the members of said board, or a majority thereof. It was further provided that the mayor should issue his proclamation for said special election, fixing the date as in said ordinance provided; and it also provided for due publication of said proclamation, calling said election and providing for the returns and canvassing the vote at said election under the supervision of the election commissioners of said city, and the form of the ballots, and the preparation thereof. The said ordinance further appropriated $2,000 out of the expense fund to meet the expenses of said election. The petition then alleged that the said city officers were about to pay out the $2,000 thus appropriated; that said act, if consummated, would be illegal, inasmuch as Kansas City has no power to elect said freeholders, or to frame or adopt a charter as proposed in said ordinance; that the expenditure of said money would be a useless waste of the public moneys of said city, to the damage of plaintiff; that he was without adequate remedy unless said officers and said city were enjoined from paying it out as proposed in said ordinance. Upon presentation of the petition a temporary restraining order was granted, and a rule to show cause entered. Defendants filed a joint answer, and admitted they were officers, and that Kansas City had adopted a freeholders' charter, as alleged, on the 9th day of May, 1889, and ever since that date said charter had been, and still was, the organic municipal law of said city; admitted the passage of said Ordinance 26,800, calling a special election to elect 13 freeholders to draft a new freeholders' charter; admitted the appropriation of $2,000 to pay the expenses of said election; but denied that said ordinance was illegal or in excess of the powers of said city, and alleged that said city had the requisite power and legal right to adopt a charter as proposed in said ordinance. Upon a final hearing, a perpetual injunction was granted as prayed. From that judgment defendants appealed to this court.

Owing to the public interest involved, the appeal was advanced by this court, and the cause heard on October 25, 1904, and the judgment was reversed; opinion to be filed.

The sole and only question involved in this appeal is whether Kansas City, having in 1889 adopted a freeholders' charter under the provisions of section 16, art. 9, of the Constitution of this state, has the power to adopt a new freeholders' charter by virtue of said section 16 of article 9 of the Constitution. The contention of the plaintiff is that when Kansas City availed itself of the right given by said section 16 of article 9 of the Constitution, and adopted a freeholders' charter, in 1889, it exhausted its constitutional grant, and that the only power left to it under that section is to amend said charter from time to time in accordance with said section. The city, on the other hand, asserts that the power to frame and adopt a freeholders' charter under section 16 of article 9 is a continuing one, and was not exhausted by the adoption of the charter of 1889, nor prohibited by the Constitution. The question is one of first impression in this state.

Prior to the adoption of the Constitution of 1875, charters of municipal corporations in Missouri were granted by the Legislature; and it was the settled law that, unless restricted by the Constitution, the General Assembly could alter, amend, or abolish city and town charters, and the courts could not interfere with this legislative prerogative. Copeland v. City of St. Joseph, 126 Mo. 431, 29 S. W. 281; St. Louis v. Russell, 9 Mo. 507; Giboney v. Cape Girardeau, 58 Mo. 141. The power to grant these municipal charters was nowhere expressly granted in either the Constitution of 1820 or that of 1865, but it was upheld on the ground that it fell within the general grant of the legislative power, which was plenary, save where restricted by some constitutional prohibition; and, as there were no such inhibitions, it was construed to be an unquestioned and continuing power. The powers of legislation conferred upon these municipal corporations to regulate and manage their local municipal affairs in conformity to ordinances adopted by themselves were held no infringement upon the maxim that legislative power could not be delegated. State v. Field, 17 Mo. 529, 59 Am. Dec. 275; 1 Dillon, Mun. Corp. § 308, and cases cited; Metcalf v. City, 11 Mo. 103; State ex rel. v. Francis, 95 Mo. 49, 8 S. W. 1.

Keeping in view, then, that the power to create a municipal corporation and to define its powers is a legislative function, and that prior to the Constitution of 1875 it was vested exclusively in the legislative branch of our state government by the general grant of legislative power, we can the more readily grasp the full meaning and scope of section 16 of article 9 of the Constitution of Missouri of 1875, which provides: "Any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government consistent with and subject to the Constitution and laws of this state by causing a board of thirteen freeholders who shall have been at least five years qualified voters thereof, to be elected by the qualified voters of such city at any general or special election," etc. It is obvious that the power...