The State ex rel. Kansas City v. Lucas

• Decision Date: 31 May 1927
• Docket Number: 27543
• Citation: 296 S.W. 781,317 Mo. 255
• Parties: The State ex rel. Kansas City v. O. A. Lucas, Judge of Circuit Court
• Court: Missouri Supreme Court

296 S.W. 781

317 Mo. 255

The State ex rel. Kansas City v. O. A. Lucas, Judge of Circuit Court

No. 27543

Supreme Court of Missouri

May 31, 1927

Motion for Rehearing Overruled June 27, 1927.

Preliminary rule made permanent.

John T Barker and J. C. Petherbridge for relator.

(1) The charter of Kansas City provides that the order of publication and notice to the property owners, in city condemnation proceedings, shall be published in the newspaper in Kansas City at the time doing the city printing under a contract with the city therefor. Sec. 134, Charter of Kansas City (1925). (2) The "Kansas City Daily Democrat" was and is now the newspaper in Kansas City under contract with the city to do its printing, and not the "Daily Record." Therefore, the order of respondent directing that the order of publication be published in the Daily Record was and is erroneous and void, and confers no jurisdiction on respondent as judge of the circuit court to hear, try and determine the proceedings pending in his court. In re Land v. Boruff, 295 Mo. 28, 46. (3) The condemnation of private property for public use by Kansas City is purely a local matter governed by its charter provisions relating thereto. In re Land v. Boruff, 295 Mo. 28, 46. (4) The charter provisions of Kansas City relating to city condemnation proceedings do not conflict with the statutes of this State. State ex rel. v Seehorn, 246 Mo. 557. (5) In all purely local municipal matters the provisions of the Kansas City charter govern and control over a state statute. Kansas City v. Marsh Oil Co., 140 Mo. 458; Brunn v. Kansas City, 216 Mo 108, 117; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Scarritt, 127 Mo. 642; Stanton v. Thompson, 234 Mo. 11; Kansas City v. Field, 270 Mo. 513; State ex rel. v. Seehorn, 246 Mo. 557; Ex parte Smith, 231 Mo. 122; State ex rel. v. Telephone Co., 189 Mo. 99; Attorney-General v. Detroit, 196 N.W. 392; 2 McQuillin's Municipal Corporations, sec. 841, p. 1799; 1 Dillon's Municipal Corporations (5 Ed.) sec. 63, p. 116; Fruin-Bambrick Const. Co. v. Shovel Co., 211 Mo. 524; St. Louis v. DeLassus, 205 Mo. 584; 7 McQuillin's Supplement, secs. 840, 841, p. 7019; 28 Cyc. 286.

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

(1) It is not within the power of Kansas City to provide for publication in a newspaper other than that provided for by statute. The Laws of 1923 are controlling and the newspaper designated in pursuance thereof is the only paper in which a valid order of publication can be made. (a) The powers of the city under a special charter were controlled by Secs. 16 and 17, Art. IX, of the Constitution. By these sections Kansas City was authorized to adopt a charter for its "own government, consistent with and subject to the Constitution and laws of this State," with the further provision: "But such charter shall always be in harmony with and subject to the Constitution and laws of the State." This constitutional provision and the old charter in force at the time of the passing of the ordinance were still in force when the Act of 1923 was passed. By this Act three old sections of the statutes were repealed and new ones enacted, Secs. 10405, 10406, 10407, Laws 1923. Under the express provisions of the Constitution the ordinance was invalid as authorizing the designation of a paper in which the order of publication in question may be published, contrary to, and out of harmony with the Act of 1923. (b) Sections 16 and 17, Article IX, of the Constitution have been superseded by the new sections adopted by the amendments of 1920, Laws 1921, pp. 701 to 703. New Section 16 authorizes cities of the class of Kansas City to adopt a charter for their "own government, consistent with, and subject to the Constitution and laws of the State." But it does not contain the language of the old Section 16 "but such charter shall always be in harmony with, and subject to the Constitution and laws of the State." The present charter of Kansas City was adopted under the new constitutional provision. The omission of the language quoted from the new Section 16 does not in any way enlarge the power of Kansas City, but under no view has Kansas City the power to designate a newspaper for the publication in question other than a newspaper designated pursuant to the Acts of 1923. All charter provisions, ordinances and acts of officials attempting to so designate a paper for publication are invalid and beyond the power of the city. (c) The Constitution does not delegate any power to adopt a charter which shall provide for anything other than the city's "own government." Nor could the Constitution validly do so. A city can be granted no sovereign power by the State. It can be granted only the power to make laws for and regulate its own business. Municipal Corporations, 19 R. C. L. Sec. 54. The designation of a newspaper for the publication of the order of publication in question is not a matter pertaining to "municipal affairs," but is one within the jurisdiction of the State. 19 R. C. L. 750, 751. (d) This court, in State ex rel. v. Field, 99 Mo. 352; Kansas City v. Scarritt, 127 Mo. 642; Kansas City v. Marsh Oil Co., 140 Mo. 458; Brunn v. Kansas City, 216 Mo. 119, and State ex rel. v. Seehorn, 246 Mo. 557, in approving various charter provisions in respect to condemnation cases, was influenced either wholly or in part by the provision of the Enabling Act, Laws 1887, p. 42. In none of the cases was presented a real conflict between charter provisions and State law. The Act of 1923 repealed the Act of 1887 and enacted three new ones. By Section 10406 a large discretion was placed in the circuit judges, and by Section 10405 it was provided that the newspaper should be one "of general circulation therein (in the city) and published for at least one year." The one year provision has been construed by this court to refer to the length of time the newspaper has been in existence and published, rather than to the duration of any particular publication. State ex rel. v. Schmoll, 282 S.W. 702. (e) The old law, in so far as it affected publications in Kansas City, related only to the rates of publication and constituted a safeguard to the public, only in respect to this matter; whereas, the new law announces the policy of this State that in cities of over one hundred thousand inhabitants no order of publication can be validly published in any paper not one of general circulation and not having been previously published in the city for one year. (2) There was no award or contract by the city in compliance with the ordinance of 1910. (3) If there was a contract, it has expired by limitation.

OPINION

Atwood, J.

This is an original proceeding by prohibition to restrain respondent as Judge of Division Number Two of the Circuit Court of Jackson County, Missouri, from hearing and determining a condemnation suit instituted before him by Kansas City, Missouri, to condemn land under the provisions of its new charter for the purpose of widening Locust Street from Gillham Road to 27th 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 is sue. 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, Missouri, 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, Missouri, 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, pages 324 and 325, being three new sections taking the place of repealed Sections 10405, 10406 and 10407, Revised Statutes 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...