State v. Kansas City

• Decision Date: 25 August 1925
• Docket Number: No. 26491.,26491.
• Citation: 276 S.W. 389
• Parties: STATE ex rel. OTTO, Atty. Gen., v. KANSAS CITY et al.
• Court: Missouri Supreme Court

276 S.W. 389

STATE ex rel. OTTO, Atty. Gen., v. KANSAS CITY et al.

No. 26491.

Supreme Court of Missouri, in Banc.

August 25, 1925.

Dissenting Opinion, October 5, 1925.

Rehearing Denied October 7, 1925.

Proceeding in nature of quo warranto by the State of Missouri, on the relation of Robert W. Otto, Attorney General, against Kansas City and others. Writ quashed, and proceeding dismissed.

R. E. Ball, Milton Schwind, and Harry Howard, all of Kansas City, for relator.

Solon T. Gilmore, City Counselor, Frank W. McAllister, Cyrus Crane, E. F. Halstead, B. N. Mosman, and J. S. Cannon, all of Kansas City, for respondents.

Wilbur F. Spottswood, amicus

Statement.

ATWOOD, J.

This proceeding is an information in the nature of quo warranto exhibited by the Attorney General ex officio against the present mayor and members of the upper and lower houses of the common council of Kansas City, Mo. It challenges the validity of the new charter of Kansas City, adopted February 24, 1925, and, among other things, charges that respondents "have usurped and now usurp and execute and threaten to execute" said new charter.

This charter consists of 488 sections. Section 486 thereof provides that sections 98, 108, 125, 417 to 425, both inclusive, 457, 458, 486, and 488, shall take effect immediately upon the adoption of said charter, and that the remaining 472 sections shall take effect at 10 a. m., April 10, 1926. Section 98 empowers the city council, as now constituted under the charter of 1908, by ordinance to authorize the comptroller to borrow money not to exceed 25 per cent. of the estimated general fund revenue for the fiscal year then outstanding and uncollected. By section 108 the city is authorized to issue bonds in any sum up to $3,000,000 for certain purposes therein specified. By section 125 provision is made against restoration to office of, or payment of salary or compensation to, any person, after February 24, 1925, claiming to have been unlawfully removed or discharged from any office or position In the competitive class of the civil service prior to the 1st day of January, 1925. Sections 417 to 425, both inclusive, provide for holding a municipal election for the choice of all municipal officers under the provisions of said new charter on the first Tuesday in November, 1925. Section 457 provides for a meeting of the first council elect within three weeks after the election. Section 458 provides for the appointment of a committee to draft an administrative code to be introduced as an ordinance after the council takes office. Section 488 declares said charter to be a public act, of which all courts shall take judicial notice.

Relator stands on his amended petition, alleging that said new charter is illegal and void for the following reasons:

(1) That section 486 violates section 16 of article 9 of the Constitution of Missouri.

(2) That the sections specially named in section 486 to become forthwith effective on the adoption of said charter are void as amendments to the charter of said city adopted in 1908, because the provisions of said charter of 1908, governing the submission of proposed amendments thereto, were not observed.

(3) That the election of February 26, 1924, submitting the question, "Shall a commission be chosen to frame a charter?" and at which 13 electors were presented as candidates for membership on the'proposed commission, was not provided for by ordinance as directed by section 29, art. 18, of the Charter of 1908.

(4) That said election of February 26, 1924, was void, because the question submitted whether a commission should be chosen to frame a charter and the names of the 13 candidates to become members of said commission were printed on the same ballot, and the voter was thereby remitted to the alternative of voting in the negative on said question or consenting that the 13 candidates become the commission to frame the charter.

(5) That said election was void because the proposition submitted thereat was double in that the ballot had printed thereon the question whether a commission should be chosen to frame a charter, and the names of the 13 candidates for membership on said commission.

(6) That said new charter was sought to be adopted under the provisions of section 16, art. 9, of the Constitution of Missouri, that said section is not self-executing, and the Legislature has not enacted an enabling statute.

(7) That said section 16 of article 9 of said Constitution is vague, indefinite, inconsistent, and unenforceable, in that one clause thereof provides that petition for the nomination of candidates to constitute a commission to frame a charter shall be signed by not less than 2 per cent. of the voters of such city, and another clause thereof provides that the signatures to such petition shall not be required to be more than 1,000.

(8) That articles 2 and 3 of said new charter are in violation of article 3 of the Constitution of Missouri, relating to the distribution of powers, and also are in violation of sections 8842 to 8849, both inclusive, R. S. 1919.

(9) That said new charter, in so far as it vests all the powers of the city in one house of the common council, with authority to delegate its authority and power to a city manager, is in violation of section 16 of article 9 of said Constitution, in that said section does not authorize said city to so vest its powers.

(10) That said new charter is not consistent with article 3 of said Constitution, and with sections 8842 to 8849, both inclusive, R. S. 1919, in that the powers of government are not distributed as there required, and section 16 of article 9 of said Constitution, being only an amendment to the Constitution of Missouri, adopted November 2, 1920, should not be construed as authorizing said city to frame a charter not consistent with and subject to the Constitution and laws of Missouri.

(11) That the election of February 29, 1924, is void because no notice thereof was published for at least 3 weeks in a newspaper printed in said city having at the date of such publication a circulation of 2,000 copies of each issue; nor was such notice published for said period of the election held on February 24, 1925.

(12) That articles 9 and 10 of said new charter are in violation of section 1 of article 14 of the Amendments to the Constitution of the United States, providing that no person shall be deprived of life, liberty, or property without due process of law, or denied the equal protection of the laws.

(13) That the election of February 26, 1924, is void because it submitted, at the same time, at the same election, and on the same ballot, the question whether certain offices should be created and the names of those who would fill such offices.

(14) That section 16 of article 9 of said Constitution is void, unenforceable, and not selfexecuting, for the reason that its terms are vague, uncertain, indefinite, and unworkable, and it is insufficient to provide suitable machinery for political action of the electors in the free choice of separate issues necessary to be submitted.

(15) That section 125 of said new charter is in violation of sections 10, 15, and 30, art. 2, of the Constitution of the state of Missouri, and section 1 of article 14 of the Amendments to the Constitution of the United States.

(16) That said new charter was framed by 10 instead of 13 electors, and it is therefore not in compliance with section 16, art. 9, of said Constitution.

(17) That said election of February 24, 1925, was not preceded by an intermediate registration as required by section 35 of an Act approved March 14, 1921 (Laws of Missouri, 1921, p. 355), as amended by an Act approved November 28, 1921 (Laws Second Extra Session, 1921, pp. 34 and 35); nor were the provisions of section 8887, R. S. 1919, complied with.

(18) That said new charter and the constitutional amendment approved November 2, 1920, now sections 16 and 17 of article 9, Constitution of Missouri, are not consistent with sections 1 and 2 of article 15 of the Constitution of Missouri, and are inconsistent with section 5912, R. S. 1919.

(19) That said new charter and section 16 of article 9 of said Constitution are invalid and inconsistent with section 28 of article 4 of said Constitution.

(20) That sections 417 to 425, both inclusive, of said new charter, providing for election of councilmen from certain districts of said city on the first Tuesday in November, 1925, are void because said districts have no legal existence.

Filed and exhibited with relator's petition is a printed copy of said new charter, marked Exhibit A.

Respondents in their answer and return admit that Kansas City is a municipal corporation, that it has been governed by a special charter adopted August 4, 1908, that respondent Albert I. Reach is mayor and the other respondents are members of the upper and lower houses of the common council of said city, deny that they are unlawfully usurp jug powers and functions, and on the contrary claim that respondent Kansas City, at a special election held in said city on February 24, 1925, adopted a new charter, which appears printed in relator's Exhibit A, and state:

That said new charter was adopted as the charter of said Kansas City in all respects as required by law, and as provided by the Constitution of Missouri, and particularly section 16 of article 9 of said Constitution as amended November 2, 1920. That on December 22, 1923, there was presented for filing to the board of election commissioners of Kansas City a petition praying for a special election for submission to the voters of Kansas City, Mo., of the question, "Shall a commission be chosen to frame a charter?" said petition (omitting signatures) being as follows:

"We, the undersigned, qualified voters of Kansas City, Mo., do hereby request that a special election be held in Kansas City, Mo., for the purpose of submitting to the electors of saiciscity the question, `Shall a commission be...