The State ex rel. Otto v. Kansas City

• Citation: 276 S.W. 389,310 Mo. 542
• Decision Date: 07 October 1925
• Docket Number: 26491
• Parties: THE STATE ex rel. ROBERT OTTO, Attorney-General, v. KANSAS CITY and ALBERT I. BEACH et al
• Court: United States State Supreme Court of Missouri

276 S.W. 389

310 Mo. 542

THE STATE ex rel. ROBERT OTTO, Attorney-General, v. KANSAS CITY and ALBERT I. BEACH et al

No. 26491

Supreme Court of Missouri

October 7, 1925

Original Opinion of October 7, 1925, Reported at 310 Mo. 542. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Reported at 310 Mo. 542 at 585.

Atwood, J. Blair, C. J., and White and Ragland, JJ., concur; Graves, Walker and Woodson, JJ., dissent.

OPINION

ATWOOD

ON MOTION FOR REHEARING.

In support of relator's motion for rehearing it is urged that the new charter is invalid because reported by ten instead of all thirteen of the members of the charter commission, one member having died, one having resigned because of illness, and a third being absent from Kansas City at the time the charter was signed and reported, though he telegraphed his approval of the work. This is relator's objection numbered 16, and he is entitled to a statement of our reasons for overruling same. It is claimed that the charter commission should not be governed by the same rules relating to a quorum which govern a legislative body or trustees of a public trust, though the implied distinction is not advanced on reason or authority. Whatever else it might have been, certainly the charter commission was a deliberative body. It was charged with the public duty of deliberating upon and reporting a form of new charter. The fundamental law authorizing the creation of such a body did not define a quorum or delegate the power to such body. We must look then to the common law as to what in such case would constitute a quorum, and the rule here clearly applicable is thus stated in 29 Cyc. 1688:

"Where a quorum is not fixed by the constitution or statute creating a deliberative body, consisting of a definite number, the general rule is that a quorum is a majority of all the members of the body."

The rule announced has been invoked in Seiler v. O'Maley, 227 S.W. 141, l. c. 142, and in Heiskell v. City of Baltimore, 4 A. (Md.) 116, l. c. 119. The principle is recognized as a part of the common law of England in Blacket v. Blizard, decided by Court of King's Bench in 1829, and reported in 9 Barnwell & Cresswell's Reports at page 851. The practical wisdom of such a rule is apparent particularly in a case like this where the Constitution makes no provision for the filling of vacancies. Neither in terms nor by intendment does the written law suggest that the labors of the charter commission should come to naught through the death of a single member before the completion of the work.

Relator also argues again his objection numbered 20, that the new districts have no legal existence and therefore, new charter Sections 417-425, both inclusive, providing for the election of councilmen on the first Tuesday in November, 1925, are void. We have previously dealt with this objection at length but it may be here suggested that relator, in the vigor of his attack upon our holding that charter Section 7 for the purposes of this election effectually fixes the district boundaries, either overlooks or ignores the express provision of charter Section 425 that: "The nomination and election of officers to serve for terms commencing April 10, 1926,...