State v. Lucas

• Decision Date: 31 May 1927
• Docket Number: No. 27543.,27543.
• Citation: 296 S.W. 781
• Parties: STATE ex rel. KANSAS CITY v. LUCAS, Circuit Judge.
• Court: Missouri Supreme Court

296 S.W. 781

STATE ex rel. KANSAS CITY v. LUCAS, Circuit Judge.

No. 27543.

Supreme Court of Missouri, in Banc.

May 31, 1927.

Motion for Rehearing Overruled June 27, 1927.

Original proceedings by the State of Missouri, at the relation of Kansas City, Mo., a municipal corporation, against O. A. Lucas, Judge of Division No. 2 of the Circuit Court of Jackson County, to restrain respondent from hearing and determining a condemnation suit instituted before him by relator. Preliminary rule for writ made permanent.

John T. Barker, City Counselor, J. C. Petherbridge, Asst. City Counselor, and R. J. Ingraham, all of Kansas City, for relator.

Frank W. McAllister, L. E. Durham, Henry S. Conrad, and Hale Houts, all of Kansas City, for respondent.

ATWOOD, J.

This is an original proceeding by prohibition to restrain respondent, as judge of division No. 2 of the circuit court of Jackson county, Mo., from hearing and determining a condemnation suit instituted before him by Kansas City, Mo., to condemn land under the provisions of its new charter for the purpose of widening Locust street from Gillham Road to Twenty-Seventh street in Kansas City. Respondent filed answer and return, waived service of notice and copy of petition and suggestions in support thereof, and waived time and consented that the preliminary rule issue. Relator filed reply, and from all the pleadings in the case we understand the conceded facts and issues joined to be as follows:

Respondent having directed that the order of publication and notice to the property owners affected by this condemnation proceeding be published in the Daily Record, a newspaper published in Kansas City, Mo., but having no contract with the city to do the city printing, it is the position of relator that such publication of the order and notice does not give respondent jurisdiction of the parties interested in said proceeding, and that the same should have been printed and published in the Kansas City Daily Democrat, which was the newspaper in Kansas City, Mo., at the time doing the city printing, citing section 134 of the new charter of Kansas City relating to such matters, as follows:

"Publication of Order.—A copy of such order shall be published in the newspaper in Kansas City, Missouri, at the time doing the city printing (if there be such, and if there be no existing contract with any newspaper for such city printing, then in any daily newspaper published in the city), on each day of issue of such newspaper for ten days, the last insertion to be not more than one week prior to the day set for said hearing."

The Daily Record is a newspaper which has been published in Kansas City for a number of years and was designated by the judges of the circuit court of Jackson county, under the provisions of the laws of 1923, pp. 324 and 325, being three new sections taking the place of repealed sections 10405, 10406, and 10407, R. S. 1919, as a newspaper in which public notices and advertisements directed by any court, or required by law to be published in cities of 100,000 inhabitants or more, should be published.

At the time the publication in question was ordered, a newspaper referred to in relator's petition as the Kansas City Daily Democrat, and in respondent's return as the Missouri Democrat, had been published as a weekly newspaper by James T. Bradshaw for more than one year, but the Kansas City Daily Democrat had been published by him as a daily newspaper in Kansas City much less than a year. On June 11, 1926, there was executed by James T. Bradshaw, doing business as The Kansas City, Missouri, Daily Democrat, and Kansas City, by W. J. Teffey, commissioner of purchases and sales of Kansas City, what purported to be a contract providing that the city printing should be done in the Kansas City Daily Democrat "for a period ending July 1, 1926, and until a new contract is made therefor. * * *"

Relator contends that said purported contract was entered into pursuant to an award made by a board consisting of the commissioner of purchases and supplies, the director of public works, and the city counselor under a certain ordinance of Kansas City, No. 5180, approved May 23, 1910; said ordinance providing:

"That all printing required by the city charter, or any ordinance, to be done by the newspaper doing the city printing, and all printing to be done under and in pursuance of any ordinance of Kansas City, shall be done under yearly contract for the same, to be made by the purchasing agent of the city on behalf of the city, in the manner hereinafter provided. Every such contract shall terminate on the first day of July of each year, or as soon thereafter as the contract for the ensuing year shall become in force. * * *"

Said ordinance further provided that all such contracts should be made upon an award made by "the members of the board of public works, the city counselor and the city purchasing agent" sitting as a "board of award."

It is further contended by relator that this ordinance remained in force under the present charter of Kansas City adopted in February, 1925, by reason of section 456 thereof, as follows:

"All ordinances, regulations and resolutions in force at the time this charter takes effect, and not inconsistent with provisions of this charter, shall remain and be in force until altered, modified or repealed by or under authority of this charter or ordinance."

It is a further contention of relator that the director of public works took the place of the members of the board of public works under said ordinance for the purpose of making the award by reason of the fact that under the new charter the functions and duties generally of the board of public works have been delegated to the director of public works.

It is the position of respondent that the Laws of 1923, above cited, control as against the present charter, and that the publication can be made only in a newspaper designated by the circuit judges under the provisions of said statutes. Respondent also insists that no valid contract was entered into by the city with the Kansas City Daily Democrat, because the director of public works could not take the place of the members of the board of public works mentioned in the ordinance of 1910 for the purpose of making up a board of award for the city printing; and, further, that even if the contract was valid when made it had expired by, limitation, that the contract under the ordinance of 1910 expired on July 1, 1926, and at the time this publication was ordered said contract was no longer in force and effect, and especially so in view of the fact that the ordinance provided for a yearly contract and even at this late date no steps had been taken for the awarding of a contract for the year ending July 1, 1927.

Looking first to respondent's position that the above-cited statutes relating to public notices and advertisements, and found on pages 324, 325 of the Laws of 1923, control as against the provisions of the present city charter, we are met with relator's assertion that the Supreme Court in banc has already decided this very question contrary to this respondent's contention in a case styled In re Condemnation of Land v. Boruff, 295 Mo. 28 loc. cit. 46, 243 S. W. 167, 172, decided June 26, 1922, where the court, speaking through Judge Graves, said:

"It is further argued, but with less vehemence, that there was no publication, because the notice was published in the Daily Record instead of the Out-West Review. The latter was the paper designated for legal publications by the circuit judges under section 10405, Revised Statutes 1919. The former was the paper doing the city printing, and the charter provided that such notices as is here involved should be published in the paper doing the city printing. First, it may be said that the charter provision does not necessarily conflict with the state law, supra, nor the Constitution. (State ex rel. v. Seehorn, 246 Mo. loc. cit. 557 and the cases there cited.)

"The cases cited in this Seehorn Case are Kansas City cases, and go to the doctrine that by virtue of constitutional provisions Kansas City may by charter regulate purely local affairs in the matter of condemnation proceedings. To this the writer did not then agree to the extent that such city could erect a court in which such cases could be tried. Five members of this court held that it could. It is true that two of the five ruled reluctantly, and for a special reason assigned, yet it was so ruled. The doctrine announced in that case is conclusive here, and for like reasons."

This phase of the Boruff Case being expressly ruled on the authority of State ex rel. v. Seehorn, 246 Mo. 541, 151 S. W. 716, we turn to the opinion in that case for a statement of the facts and principles there involved. Article 6 of the charter of Kansas City, adopted in 1908 and continued in force until the adoption of the present new charter, purported to confer jurisdiction upon the municipal court in proceedings to condemn private property "for straightening, opening, widening, extending or altering, for Public use, any street, avenue, alley," etc., and also jurisdiction in supplemental proceedings for the same purposes in case of an error or defect in original proceedings. Section 1 of article 6 of the Constitution is as follows:

"The judicial power of the state, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in a Supreme Court, the St. Louis Court of Appeals, circuit courts, criminal courts, probate courts, county courts and municipal corporation courts."

Section 16 of article 9 of the same instrument vests in cities of over 100,000 inhabitants power to adopt a charter for its own government "consistent with * * * the Constitution and laws of this state."

It was urged by relators that as the Constitution does not define the jurisdiction of "municipal corporation courts," and that as section 22 of article 6 thereof...