State ex rel. Attorney-Gen. v. McKee

• Decision Date: 30 April 1879
• Citation: 69 Mo. 504
• Parties: THE STATE ex rel. ATTORNEY-GENERAL v. MCKEE.
• Court: Missouri Supreme Court

69 Mo. 504

THE STATE ex rel. ATTORNEY-GENERAL

v.MCKEE.

Supreme Court of Missouri.

April Term, 1879.

Original Quo Warranto.

Castleman, Ewing & Pope for relator.

Frank K. Ryan for respondents.

HENRY, J.

This is a proceeding by quo warranto, in which it is alleged that defendants are unlawfully acting as constables in the first and seventeenth wards of the city of St. Louis. The defendants filed separate answers, which do not differ materially, alleging that, by an ordinance, No. 10,744, of the municipal assembly of the city of St. Louis, approved March 11th, 1878, the first and seventeenth wards of said city were constituted a district for the election of constables, and by the said ordinance it was provided, that, at the general election to be held in November, 1878, and every four years thereafter, three constables should be elected in and for said district, and that, at the general election in 1878, they were severally elected constables. To this answer there was a demurrer. The validity of the ordinance No. 10,744, is the only question to be determined. If the municipal assembly had authority to pass that ordinance, the defendants are entitled to the offices; otherwise a judgment of ouster should be rendered against them.

An act of the General Assembly, approved March 24th, 1875, provided as follows: “Section 1. At the general election in the year 1878, and every four years thereafter, the qualified voters of the township of St. Louis, in said county, shall elect two constables for the township of St. Louis, outside of the limits of the city of St. Louis, and one for every other township in the county of St. Louis, and one constable for each ward in the city of St. Louis, and one for each additional ward, as the same may be created, whose residence shall be within the limits for which he may be elected by the qualified voters within said limits respectively. Section 2. All constables now in office, in the county of St. Louis, shall hold their respective offices until the general election, to be holden in the year 1878, and until their successors are duly elected and qualified.” This statute was in force when ordinance No. 10,744 was adopted by the municipal assembly of the city of St. Louis, and if that assembly had authority, under the constitution of this State, to repeal the act of March 24th, 1875, so far as it applied to the city of St. Louis, the respondents were duly elected, and are entitled to hold their offices. Had the municipal assembly any such power? Conceding that the charter conferred the power, was there anything in the constitution authorizing the freeholders to adopt a charter conferring such power upon the municipal assembly?

By the express provisions of the constitution, (section 20, article 9,) the scheme, when adopted, became the organic law of the county and city, and the charter, when adopted, became the organic law of the city, and, at the expiration of sixty days thereafter, took the place of and superseded the charter of St. Louis, and all amendments thereof, and all special laws relating to St. Louis county inconsistent with such scheme. The scheme, under the constitution, could only provide for the enlargement of the boundaries of the city, the re-organization of the government of the county, and the adjustment of the relations between the city, thus enlarged, and the residue of St. Louis county. Under none of these heads can be classed the appointment or election of constables within the city of St. Louis. All special laws relating to St. Louis county which are inconsistent with the scheme, were superseded, but the act of 1875, providing for the election of constables, is not inconsistent with anything which the scheme might constitutionally contain. If the boundaries of the city were enlarged, the act of 1875 provided for the election of a constable in any new ward that might be created in the attached territory. It is clear, therefore, that the ordinance in question cannot be upheld on the ground that the act of 1875 is in conflict with any provision in the scheme, which the freeholders had the right to insert in that instrument.

Was there any authority conferred upon them by the constitution to adopt a charter giving the municipal assembly the power to pass ordinance No. 10,744? By section 23, of article 9, of the constitution, the charter and...