State ex rel. Thompson v. Roberts

• Decision Date: 08 February 1954
• Docket Number: No. 44021,No. 2,44021,2
• Citation: 264 S.W.2d 314
• Parties: STATE ex rel. THOMPSON et al. v. ROBERTS et al
• Court: Missouri Supreme Court

Page 314

264 S.W.2d 314

STATE ex rel. THOMPSON et al. v. ROBERTS et al.

No. 44021.

Supreme Court of Missouri, Division No. 2.

Feb. 8, 1954.

J. Dorr Ewing, Montgomery L. Wilson, Maryville, for appellants.

James P. Dalton, Maryville, for respondents.

BARRETT, Commissioner.

The purpose of this proceeding in mandamus, instituted in the Circuit Court of Nodaway County, is to compel the respondent-appellants as officials and councilmen of the City of Maryville to canvass the votes cast in a special election, to certify the results to the Secretary of State and the County Clerk, and to call another special election for the purpose of electing city officials under the city manager form of government, the proposition voted upon at the special election. After separate alternative motions to quash the alternative writ of mandamus, or to strike portions of the writ, and answers, a hearing was had and the circuit court made the following 'finding,' "Finding for Relator. Alternative writ of mandamus made absolute as to Clyde Roberts, Charles Baird and H. B. Cushman, and quashed as to Zena Hainey." Thereafter the appellants, Roberts and Baird, the mayor and a councilman, filed their motion for a new trial which is not set out in the transcript. The motion was overruled and they have prosecuted an appeal to this court.

The Maryville Civic Improvement Coordinating Council, consisting of representatives of a large number of civic 'service clubs' sponsored the election. This proceeding was instituted by 'Gene Thompson the duly elected, qualified and acting Prosecuting attorney within and for the County of Nodaway and State of Missouri, and Gene Thompson as a duly qualified elector, voter and tax payor of the City of Maryville.' Among other things, the petition for mandamus alleges that the City of Maryville in 1919 had a population of more than 3000 and less than 10,000 entitling it to become a city of the third class, and that at a special election held in the year 1919 the city adopted the commission form of government. The appellant-respondents, in their pleadings, set forth the fact that Maryville adopted the commission form of government in 1919, but they said, 'Maryville was a City of the fourth class with a population of more than 3,000. The law did not specify that a City of the fourth class that adopted the Commission Form of Government would thereby become a City of the third class. One of the questions now in controversy is 'did Maryville become a City of the third class when it adopted the Commission Form of Government?' That question is important as the law also provides that only Cities of the third class can adopt the City Manager Form of Government. Therefore, if Maryville is still a City of the fourth class it cannot legally adopt the City Manager Form of Government and any election held to adopt that Form of Government would be illegal.' At another point in their pleadings they state that on March 18, 1880 Maryville became a city of the fourth class and that at no time since that date has there been a proposition submitted to the voters to become a city of the third class, particularly under Sections 72.030 and 72.070, RSMo 1949, V.A.M.S. In short, the issue between the parties is whether Maryville is or became a city of the third class by reason of its having adopted the commission form of government in 1919.

The appellant-respondents have not set forth in their briefs 'a concise statement of the grounds on which the jurisdiction of the review court is invoked'. Supreme Court Rule 1.08(a)(1), 42 V.A.M.S. The points relied on in their brief, which are to be taken as their 'allegations of error' (Supreme Court Rule 1.08(a)(3), are (1) that the writ being directed to individuals instead of to those persons in their official capacity is a fatal defect of parties, (2) that a city of the fourth class, with a population entitling it to become a city of the third class, does not by electing to adopt the alternative form of commission government, thereby become a city of the third class, (3) that the 1919 special city election did not fairly submit to the electors the proposition of electing to become a city of the third class and did not thereby change the classification of the city, (4) that the 1919 special election was illegal and void because there was submitted to the voters a double proposition of (a) electing to become a city of the third class and (b) adopting alternative form of city government, and (5) there being no authority of law for a city of the fourth class to adopt city manager form of government the 1953 city manager election was void. In the respondent's brief it is said that the question for decision is 'whether it was the intention of the Legislature, in enacting the Act of 1913 (Laws Mo.1913, p. 517), to allow a city of the fourth class, with a population entitling it to become a city of the third class, to adopt the alternative commission form established in said Act, thereby acquiring the powers of a city of the third class and remain a city of the fourth class.' It is said that the determination of this question depends on whether such an intent and interpretation is or can be constitutional under Article IX, Sec. 7 of the 1875 Constitution. 'Because the issues on this appeal cannot be resolved without a judicial determination of this constitutional question, the appeal is taken to this court and the appellate jurisdiction of this court is invoked by both appellants and respondents by reason of the constitutional questions involved. The jurisdiction of the Supreme Court invoked here is the same as in Barnes v. City of Kirksville,' 266 Mo. 270, 180 S.W. 545.

It may be that this appeal involves some of the same problems presented in Barnes v. City of Kirksville, but the reasons for invoking this court's jurisdiction are far from being the same. In that case reference to the official reports reveals that the parties briefed and argued the constitutional questions relied upon. Reference to the original files reveals that the parties raised the constitutional questions at the earliest possible period, in the plaintiff's reply to the answer, 'for further reply plaintiff states that the said Act of the 47th General Assembly, plead by defendant, is null and void and conferred no authority on defendant to...