State ex rel. Attorney General v. Dolan
| Decision Date | 19 December 1887 |
| Parties | The State ex rel. the Attorney General v. Dolan |
| Court | Missouri Supreme Court |
Judgment of ouster awarded.
B. G Boone, Attorney General, J. W. Wofford, O. H. Dean and James Hagerman for relator.
(1) Courts will take judicial notice of the population of cities as shown by census. State ex rel. v. Herman, 75 Mo 340; Devine v. Cook, 84 Ill. 590; 1 Greenl. Evid sec. 56. (2) Kansas City having a population of more than one hundred thousand inhabitants, the appointment of John C. Hope, by the Governor, was, under the act of 1883 (Laws, p. 38-47) legal, and had the effect of abolishing the office of supervisor of registration, as created by article ten, of the city charter. Laws 1875, p. 257; Ewing v. Hoblitzelle, 85 Mo. 64. (3) In determining the question whether the respondent has a right to hold the office of supervisor of registration of Kansas City, this court can and must adjudicate the right of Hope to the office of recorder of voters, because it is necessarily involved in the determination of the issue between the state and the respondent. High's Ext. Leg. Rem., sec. 712; People v. Miles, 2 Mich. 348; State v. Bole, 46 Mo. 528; State v. McDiarmid, 27 Ark. 176.
R. W. Quarles and W. A. Alderson for respondent.
(1) The census taken under the city ordinance was not for a general, but for a special, purpose, that is, to secure "such other incorporation as its population may entitle it (the City of Kansas) to under the constitution and laws of the state." Laws 1885, p. 64, sec. 9. (2) The census was taken nearly two years before the act of March 10, 1887. (3) Section fifteen of said act is unconstitutional, being in conflict with section twenty-eight, article four of the constitution, which provides that "no bill shall contain more than one subject, which shall be clearly expressed in its title." (4) The registration act of 1883, being a general law, and the charter of the City of Kansas being a special law, the latter must prevail over the former, and the registration of 1883 is inapplicable to the City of Kansas, conceding, for this argument, that the City of Kansas has a population of more than one hundred thousand inhabitants. State v. Binder, 38 Mo. 450; Mauro v. Buffington, 26 Mo. 184; State v. MacDonald, 38 Mo. 529; State v. Fiala, 47 Mo. 310; St. Louis v. Ins. Co., 47 Mo. 146; Finney v. Brant, 19 Mo. 42; Speilman v. Shook, 11 Mo. 340; State v. DeBar, 58 Mo. 395; McVey v. McVey, 51 Mo. 406; Railroad v. Cass County, 53 Mo. 17; St. Louis v. Ins. Co., 53 Mo. 466; Smith v. Clark County, 54 Mo. 58; State v. Clark, 54 Mo. 17; State v. Green, 87 Mo. 583; Sedg. Const. of Stat. and Const. Law (2 Ed.)
Quo Warranto.
This is an original proceeding by quo warranto which challenges the right of John Dolan to the office of supervisor of registration in and for the City of Kansas, and it is averred in the information that said city has a population of more than one hundred thousand inhabitants, and that, by reason of that fact, and an act of the legislature "to provide for the registration of all voters in cities having a population of more than one hundred thousand inhabitants, and to govern elections in such cities, and to create the office of recorder of voters," etc., approved March 31, 1883 (Acts 1883, p. 38), that so much of the tenth article of the charter of said city, creating the office of supervisor of registration, was repealed, and that all the duties and functions of the office were devolved upon one John C. Hope, who had been appointed and commissioned by the Governor, in pursuance of the provisions of said act of 1883, recorder of voters for said city, and who had duly qualified under said appointment.
The said Dolan is called upon, by the information, to show cause why he should not be ousted from said office, and in his answer denies that the City of Kansas has or ever had a population of more than one hundred thousand inhabitants, denies that he is an intruder in said office, and avers that he is rightfully in said office and performing his duties; that, at the general election held in said city in April, 1887, he was, in pursuance of article ten, of the charter of said city, duly elected, by a majority of the votes cast at said election, supervisor of registration for one year; that he secured his certificate of election, and took the oath of office prescribed, before entering upon its duties. The issues thus made up present for our determination two questions of fact, and one of law, viz., did the City of Kansas, at the time alleged, have a population of more than one hundred thousand? The question of law is: If it had such population does the said act of March 31, 1883, creating the office of recorder of voters in cities containing that population, repeal, either expressly or by necessary implication, so much of article ten of the charter of said city as created the office of supervisor of registration? An affirmative answer must be returned to both questions before a writ of ouster can issue, and a negative answer to either one denies the writ.
To establish the disputed fact, the state has put in evidence an ordinance of the city, approved September 17, 1885, requiring the enumeration or census of the inhabitants of the City of Kansas to be taken, and providing the manner and time in which the same shall be done, and appropriating the sum of two thousand dollars out of the expense fund to pay for the same. It is also in evidence that, under said ordinance, T. R. Tinsley was appointed to take said census, and that he did take it, and on the second day of November, 1885, reported the result to a regular meeting of the common council, all the members being present, and the following entry was made on the record, viz., "Report of T. R. Tinsley, supervisor of the census, showing the population of Kansas City to be 105,042, was read and filed." The enumeration set forth in said report is as follows:
Total number of males
65,680
Total number of females
39,362
Total number of whites
93,568
Total number of colored
11,328
Total number of Chinese
146
Grand total number of actual inhabitants.
The passage of said ordinance requiring the enumeration or census to be taken, was fully authorized by section 9, of an act "to authorize any city containing more than twenty thousand, and less than two hundred and fifty thousand inhabitants, existing by local or special law, to extend its limits, * * * and cause an enumeration of its inhabitants to be made and its population ascertained." Acts, 1885, p 63. Said section 9 is as follows: "Any such city may, at any time, by an ordinance, and at the expense of the city cause an enumeration of its inhabitants to be made and its population ascertained, and such census, when so taken, shall have...
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