State ex rel. O'Sullivan v. Coffee

• Citation: 59 Mo. 59
• Parties: STATE OF MISSOURI ex rel. PETER O'SULLIVAN, Defendant in Error, v. A. M. COFFEE, Plaintiff in Error.
• Decision Date: 31 January 1875
• Court: United States State Supreme Court of Missouri

59 Mo. 59

STATE OF MISSOURI ex rel. PETER O'SULLIVAN, Defendant in Error,

v.A. M. COFFEE, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1875.

Error to Johnson Court of Common Pleas.

Lay & Belch, with E. A. Nickerson, for Plaintiff in Error.

I. A charter can be amended by excluding part and adding new territory. (St. Louis vs. Russell, 9 Mo., 503; St. Louis vs. Allen, 13 Mo., 400; Dill. Mun Cor., §§ 35, 124.)

II. It is now admitted that the act of March, 1870, does not comprehend any part of the territory included in the act of 1859, but takes in territory lying south of the old corporate limits, and adjoining thereto. But the act of 1870 does not repeal the 1st section of the act of 1859. They are not repugnant, but make one complete, harmonious act. It may have been better had the whole boundary been described in the amendment; but the legislature may well have concluded that it was simply necessary to include in the amendment the additional territory to be added to the old corporate limits.

Eliot & Blodgett with W. N. Pickerell, for Defendant in Error.

I. The act of March, 1870, is not an amendment, in any sense, to the act of December, 1859. It is an attempt to create a new corporation, for town purposes by a special act, out of new territory, and is therefore in plain derogation of § 5, Art. VIII, of the constitution, which provides that “no municipal corporation except cities, shall be created by special act; and no city shall be incorporated with less than five thousand permanent inhabitants, nor unless the people thereof, by a direct vote upon the question shall have decided in favor of such incorporation.”

VORIES, Judge, delivered the opinion of the court.

This is an information in the natue of a quo warranto filed in the Johnson Court of Common Pleas by the Circuit attorney of the 22nd Judicial Circuit of this State, to inquire into the authority by which the defendant exercised the duties of the office of mayor of the town of Knob Noster, in said county of Johnson.

The petition is in the usual form, charging that the defendant, unlawfully and without authority of law, exercised and usurped the powers and duties of said office, by issuing warrants, etc., and otherwise assuming to act in said capacity, and prayed for a judgment of ouster, etc.

The defendant, by his return to the writ issued on this information, admits that he is exercising the powers and duties of the office of mayor of said town, and states that said town is a corporation organized under an act of the General Assembly of the State of Missouri, entitled “An Act to incorporate the town of Knob Noster in Johnson County, Missouri,” approved Dec. 14th, 1859, whereby all that district of county within the following boundaries was declared to be a body corporate, by the name and style of the town of Knob Noster, to-wit: beginning at the north-east corner of the northwest quarter of the north-west quarter of section fifteen, township forty-six, range twenty-four, thence west on the section line three-fourths of a mile, thence south one half mile, thence east three-fourths of a mile, thence north one half mile to the place of beginning;” and that said town so organized, was invested with all of the rights and privileges, and subject to all of the liabilities, of a municipal corporation.

The return of the defendant then states, that after the town was incorporated, several additions to said town had been laid out into lots, streets, etc., and plats thereof duly made and filed, by which the same had become additions to the said town of Knob Noster, all of which is set forth in detail, after which the return proceeds as follows:

“That by virtue of an act of the General Assembly of the State of Missouri, entitled “An Act amendatory of, and supplemental to an act entitled ‘An act to incorporate the town of Knob Noster, Johnson County, Missouri,’ approved Dec. 14th 1859, Approved March 16th, 1870,” all of the inhabitants of the said town of Knob Noster included within the district of country described by the following bounds according to the United States surveys to-wit: beginning at the north-east corner of the north-east quarter of the south-west quarter of section fifteen, township forty-six, of range twenty-four, running thence south one mile with sub-divisional section lines, thence west, three-fourths of a mile with the sub-divisional sectional lines, thence north one mile with sub-divisional section lines, thence east three-fourths of a mile with the sub-divisional sectional lines to the place of beginning, were constituted a body politic and corporate by the name and style of the town of Knob Noster, whereby they became entitled to all the rights, privileges and franchises, and were subject to all the liabilities of a municipal corporation. * * * * And by virtue of said act of Assembly amendatory to the act of Dec. 14th, 1859, approved March 16th, 1870, the inhabitants of said town were, on the 14th of December, 1859, ever since have been, and now are, a body politic and corporate de facto and de jure under the name and style of the town of Knob Noster, and did from the time aforesaid, and do now exercise all the rights and privileges of a municipal corporation established in conformity with the laws of this State; that by virtue of the second section of said amendatory act, approved March 16, 1870, the corporate powers and duties of said town of Knob Noster are united in a mayor, five councilmen, and subordinate officers; that at a legal election duly held in accordance with the provisions of the last above recited act, on the first Tuesday of April, for the year 1871, the said defendant was, by the qualified electors of said town, duly elected to the office of mayor of said town of Knob Noster and after having qualified, according to law, he then and there entered upon the discharge of his duties of his said office, and ever since has exercised and does now, by virtue of the authority conferred upon him as aforesaid, exercise and administer the office of mayor of said town; and by virtue of said office of mayor, and acting under the authority thereby given, this defendant has issued warrants for the arrest of all persons who have been guilty of violence, or charged with violating the ordinances of said town, and still claims to exercise, and does exercise all the rights, privileges and franchises, powers and authority appertaining to his said office as granted him by the said acts of incorporation and the ordinances thereunder enacted, etc.”

To this return plaintiff demurred and set forth as grounds therefor: 1st. that the return shows no legal defense to the facts charged in the information; 2nd. that said return shows on its face that no part of the town of Knob Noster, as the corporate limits are defined by the act of December, 1859, is embraced within the corporate limits of said town as defined in the act of March 16th, 1870, entitled “An act amendatory and supplemental to an act entitled ‘an act to incorporate the town of Knob Noster,” approved Dec. 14th, 1859; 4th. that that act of the General Assembly, approved March 16th, 1870, entitled “an act amendatory of and supplemental to an act entitled an act to incoporate the town of Knob Noster, Johnson County,” is contrary to the express provisions of the 5th section of the 8th article of the Constitution of the State of Missouri; that said act creates a new corporation instead of amending the charter of a corporation previously existing.

The demurrer was sustained by the court and judgment of ouster rendered against the defendant. The defendant sued out a writ of error and has brought the case to this court.

When this case was considered by this court at a previous term.^a1 it was considered with reference to the two acts of the legislature, one incorporating the town of Knob Noster, and the other amendatory and supplemental thereof, referred to in the defendant's return, as said acts were published in the published session acts of 1859 and 1870; by which it appears that a large portion of the same territory included in the boundaries of...