State v. Town of Westport

• Decision Date: 13 June 1893
• Citation: 22 S.W. 888,116 Mo. 582
• Parties: STATE ex rel. BROWN, Prosecuting Attorney, v. TOWN OF WESTPORT et al.
• Court: Missouri Supreme Court

22 S.W. 888

116 Mo. 582

STATE ex rel. BROWN, Prosecuting Attorney, v. TOWN OF WESTPORT et al.

Supreme Court of Missouri, Division No. 2.

June 13, 1893.

CITIES — INCORPORATION — QUO WARRANTO — EXTENSION OF LIMITS.

1. An election, in a town incorporated under a special law, to determine whether it will become incorporated under the General Laws of the state, as permitted by Rev. St. 1889, § 977, is not rendered void by the fact that but one voting place for the entire town was designated by the ordinance calling the election, instead of one in each ward in the town.

2. After 12 years from the organization of a city, and continued recognition of its existence by the courts and the state during that time, quo warranto proceedings cannot be instituted by the state to oust the municipality and its officers of their franchises because of irregularity in its organization, the state having been guilty of laches in waiting so long.

3. Under Rev. St. 1889, § 1580, which empowers the mayor and board of aldermen of a city of the fourth class, with the consent of a majority of the legal voters of the city voting at an election therefor, to extend the corporate limits over adjacent territory, it is immaterial whether the vote is taken before or after the passage of the ordinance extending the limits; and the ratification of such an ordinance by a majority of the qualified voters at an election provided for therein is a substantial compliance with the statute.

4. Though proof of the giving of notice of an election for the extension of the city limits is defective, yet the polling of a large vote at such election, taken in connection with the defective proof, authorizes the conclusion that notice was duly given.

5. The failure of the mayor, immediately after the election, to issue his proclamation extending the city limits, as required by the ordinance, is immaterial, where an ordinance is subsequently passed, recognizing the added territory as a part of the city.

6. Irregularities in proceedings to extend city limits, of an innocent character, and free from fraud, will not invalidate the extension.

Quo warranto by the state ex rel. Marcy K. Brown, prosecuting attorney for Jackson county, Mo., against the town of Westport, alias the city of Westport, and others, to oust the city and some of its aldermen of their franchises. Writ denied.

Johnson & Lucas and R. H. Field, for relator. W. A. Alderson, W. C. Scarritt, Gage, Ladd & Small, and J. C. Rieger, for respondents.

BURGESS, J.

This is a proceeding in the nature of a quo warranto. The petition is in two counts. The first count charges that the city of Westport and the defendant aldermen are unlawfully exercising the functions of a city of the fourth class; that the town of Westport was incorporated under an act of the legislature passed in 1857, (see Acts 1856-57, p. 373;) and that such town has not become a city of the fourth class in the manner provided by the statutes to accomplish that end. The second count of the information or petition charges that the mayor and aldermen of said city, without the consent of the majority of the legal voters of Westport, passed an ordinance extending the limits of said city, and that the defendant aldermen are residents of the territory included in such new limits; and, as one of the qualifications of an alderman is that he shall reside within the city, such aldermen are usurping, and unlawfully executing, the office of aldermen of such city. The claim of the relator upon the first count is that the proceeding by which the town of Westport attempted to change its corporate character from that defined by the act of the legislature of 1857 to that of a city of the fourth class, under the General Statutes of the state, is void, because — First, the proposition passed by the council of such town did not contain an express declaration of the intention of the council to change the limits of the town; second, because the ordinance submitting the proposition to the people, for their votes thereon, stated that such vote should be taken at the town hall, and did not provide that the people of each ward should vote in their respective wards on such proposition, the town then being divided into four wards. The proposition relied upon by the relator in the second count is that the limits of the city of Westport, as extended by ordinance of 1891, are void, because such extension was made without the consent of a majority of the legal voters of such city; the contention of the relator being that the vote must be taken by the people before the passage of the ordinance, in order to comply with the language of the statute, which gives the mayor and board of aldermen power to extend the corporate limits of the city, with the consent of a majority of the legal voters of such city.

The law by which the town of Westport attempted to change from a town existing by virtue of the act of the legislature incorporating it to a city of the fourth class is found in section 977, Rev. St. 1889: "Any * * * town in this state, existing by virtue of * * * any local or special law, may elect to become a city of the class to which its population would entitle it, under the provisions of this article, by passing * * * a proposition, and submitting the same to the legal voters of such * * * town at an election held for that purpose, not less than twenty nor more than thirty days after the passage of such * * * proposition; and if a majority of such voters, voting at such election, shall ratify such * * * proposition, the mayor * * * of such * * * town shall issue his proclamation declaring the result of such an election, and thereafter such * * * town shall, by virtue of such vote, be incorporated under the provisions of the general law provided for the government of the class to which such city belongs." The petition prays judgment of ouster.

The town of Westport was duly incorporated by an act of the legislature in 1857. On the 10th day of May, 1881, there was passed by its council, and approved by its mayor, the following ordinance, to wit: "Ordinance to submit to the legal voters of the town of Westport, Jackson county, Mo., a proposition to become a city of the fourth class, under the statute. Be it ordained by the mayor and council of the town of Westport, that the proposition to become a `city of the fourth class,' as the same is classified and defined in article one (1) of chapter thirty-nine (39) of the Revised Statutes of Missouri, shall be submitted to the legal voters of said town of Westport at an election to be held for that purpose alone. Sec. 2. Said election shall be at the town hall of the town of Westport on the 4th day of June, 1881, at which every person entitled to vote under the charter and ordinances now in force shall be entitled to vote for the adoption or rejection of said proposition; and said election shall be conducted, and the returns thereof made, in all respects, according to the ordinances or ordinance now in force regulating the election of mayor of said town of Westport. Sec. 3. The ballots used at said election shall be in the following form: `To become a city of the fourth class — Yes. To become a city of the fourth class — No;' and the voter will erase the clause he does not favor. If both clauses be erased, or if neither clause be erased, the ballot shall not be counted. Sec. 4. If, upon canvassing the votes, it is found that a majority of the legal voters voting at said election voted in favor of said proposition, the mayor shall immediately issue his proclamation declaring the result of said election. Sec. 5. This ordinance shall take effect and be in force from and after its passage." It is claimed by the relator that before a town can become a city of the fourth class the first step to be taken, required by the statute, is that the corporate authorities of the town shall elect to become a city of the fourth class by passing an ordinance to that effect, and that the mayor and council of the town of Westport never at any time elected to become a city of the fourth class, in any ordinance or proposition passed by them. In other words, that no decision was expressed by the council and mayor, in the ordinance quoted, to become a city of the fourth class; that the ordinance, in terms and by implication, merely called for the sentiments of the people upon the subject of becoming a city of the fourth class, and lacked the corporate action required by the statute. Section 977, Rev. St., supra, provides that any town in this state may elect to become a city of the class to which the population would entitle it * * * by passing an ordinance or proposition, and submitting the same to the legal voters of such city or town at an election to be held for that purpose, * * * and if a majority of such voters, voting at such election, shall ratify such ordinance or proposition, the mayor or chief officer of such city or town shall issue his proclamation declaring the result of such election, and thereafter such city or town shall, by virtue of such vote, be incorporated under the provisions of the general law provided for the government of the class to which such city belongs." The first section of the ordinance now under consideration provides that the proposition to become a "city of the fourth class" shall be submitted to the legal voters of the town of Westport at an election to be held for that purpose on the 4th day of June, 1881. In pursuance of this ordinance an election was held at the town hall, and a majority of those voting voted in favor of the proposition, whereupon the mayor issued his proclamation declaring Westport to be a city of the fourth class. At the time of the election there were four wards in the town of Westport, and it is contended by counsel for relator that there were four separate election districts, and that the law required each voter to vote in the ward in which he lived; and in that there was but...