The State ex rel. Otto v. Kansas City
| Decision Date | 07 October 1925 |
| Docket Number | 26491 |
| Citation | 276 S.W. 389,310 Mo. 542 |
| Parties | THE STATE ex rel. ROBERT OTTO, Attorney-General, v. KANSAS CITY and ALBERT I. BEACH et al |
| Court | Missouri Supreme Court |
Rehearing Granted, Reported at 310 Mo. 542 at 585.
Writ quashed.
R. E Ball and Milton Schwind for relator.
(1) The status of the city in the scheme of state government is clearly subordinate. People ex rel. v. Coler, 166 N.Y. 13, 52 L. R. A. 819; 2 Kent's Commentaries, 275; Heller v. Stremmel, 52 Mo. 311; Chillicothe v Henry, 136 Mo.App. 468; St. Louis v Dreisoerner, 243 Mo. 217; Trenton v. State of New Jersey, 262 U.S. 182. (2) The question of the validity of an amendment, or its consistency with the Constitution and laws of the State, is a judicial and not a political question. State v. McBride, 4 Mo. 307; Gabbert v. Railroad, 171 Mo. 97; State ex inf. Atty. Gen. v. Maitland, 296 Mo. 359; Cooley Cons. Lim., p. 875; Calland v. Springfield, 264 Mo. 296; State v. Harvell, 77 Miss. 543, 48 L. R. A. 625. (3) A form of government alien to our laws is here set up. Its validity to be determined by the organic law. Mo. Constitution, Art. III; sec. 20, Art. IX; State v. McBride, 4 Mo. 307; 1 Bryce's Am. Commonwealth, p. 477 et seq. (MacMillan, 1895); Story Com. on Const., secs. 548-570. (4) The bicameral system is established in our history; and the need of two houses of legislation is an axiom of political science. Bryce's American Commonwealth, supra. (5) New Section 16, Article IX, is inoperative and void in respect to providing a certain and workable method for nominating candidates for a charter commission, as it contains two provisions, both of which are plain in meaning, but when read together are in irreconcilable conflict and are mutually destructive of each other. 12 C. J. 808, sec. 240; McBee v. Brady, 100 P. 97 (Idaho) ; Gabbert v. Railroad, 171 Mo. 97; State v. Butler, 70 Fla. 102. (6) New Section 16, Article IX, is in conflict with Section 2, Article XV, of the Constitution, in that it submits more than one subject improperly joined: (a) Two distinct and separate methods of initiating a charter election, one by ordinance and one by initiative; (b) it requires a submission of the question whether new offices shall be created and the names of persons to fill such proposed offices at the same election. State ex rel. v. Maitland, 296 Mo. 338; Gabbert v. Railroad, 171 Mo. 84. (7) The election of February 26, 1924, was void, because under the form of the official ballot used at said election the elector was not permitted to express himself freely upon separate and distinct subjects, namely, the question whether a commission should be named to frame a charter, and the question of suitable persons to constitute such commission. Authorities supra. (8) New Section 16, Article IX, denies to the elector rights guaranteed by the Constitution, both state and national. State ex rel. v. Maitland, 296 Mo. 358; State ex rel. v. St. Louis, 216 Mo. 47; Mo. Constitution, Art. 2, sec. 30; 14 Amendment, U.S. Constitution, sec. 1; Mo. Constitution, Art. 9, sec. 14; State ex rel v. Gordon, 268 Mo. 321; State v. Moody, 230 P. 574; 9 R. C. L. sec. 76, p. 1059; Lewis v. Comm., 12 Kan. 213; Supervisors v. Railroad, 21 Ill. 374; Gabbert v. Railroad, 171 Mo. 84. (9) Under new Section 16, Article IX, a new charter can fix but one single time for its effective date, at which time it must go into operation in its entirety, and supersede any existing charter and amendments thereof. The Charter of 1925 is inoperative in that it violates this requirement. Laws 1921, pp. 701, 702; Rice v. Railroad, 63 Mo. 314; Perry v. Gross, 156 P. 1031; Commissioners v. Hiner, 54 Kan. 334; Finnegan v. Sale, 54 Kan. 420; Sec. 3, Art. 15, Sec. 20, Art. 9, Mo. Cons. (10) The ordinary rules of construction applicable to statutes apply to constitutions. State v. Dirckx, 211 Mo. 584; State v. Imel, 242 Mo. 293; Calland v. Springfield, 264 Mo. 301; State v. Moody, 230 P. 575. (11) To determine the meaning of a phrase in a constitutional provision, this court will look at other provisions as well as provisions previously effective, where the same or a similar word or phrase occurs. Union Tr. & Sav. Bank v. Sedalia, 254 S.W. 30. (12) And so by analogy, the term of a charter is like the term of an office. State ex rel. Withers v. Stonestreet, 99 Mo. 361; State ex rel. Sikes v. Williams, 22 Mo. 268; State v. Spitz, 127 Mo. 252; State v. Corcoran, 206 Mo. 1; State ex rel. v. Smiley, 263 S.W. 827; State ex rel. Cosgrove v. Perkins, 139 Mo. 106. (13) The statutes requiring intermediate registration and revision of registration before a special charter election are mandatory, and the Charter of 1925 is void for failure to comply with the mandatory requirements of the applicatory law. R. S. 1919, sec. 8887; Laws 1921 (2nd. Extra Session) pp. 34, 35, sec. 35; Chillicothe ex rel. Meek v. Henry, 136 Mo.App. 469; St. Louis v. Dreisoerner, 243 Mo. 217; Ex parte Tarling, 241 S.W. 932; St. Louis v. Baskowitz, 273 Mo. 542.
Solon T. Gilmore, Frank W. McAllister, Cyrus Crane, E. F. Halstead and B. N. Mosman for respondents.
(1) The form of government set up in the new charter is not alien to our laws and not in conflict with the Constitution and laws of the State. Sec. 7978, R. S. 1919; Pacific States Co. v. Oregon, 223 U.S. 118; Kiernan v. Portland, 223 U.S. 151; Barnes v. Kirksville, 180 S.W. 545. (2) A legislative body of two houses is no longer regarded as a necessary part of a city government. 19 R. C. L. sec. 51, pp. 745, 746. The Constitution itself no longer requires two houses. Old Section 17 of Article IX, making such requirement, was repealed November 2, 1920. (3) The method prescribed by Section 16, Article IX, of the Constitution for nominating candidates for the charter commission is workable, and there is no conflict. (4) Section 16, Article IX, of the Constitution (amendment adopted November 2, 1920), does not violate the rule against doubleness in the submission of questions to the voters. (5) The amendment to the Constitution adopted November 2, 1920, is not inconsistent with other provisions of the Constitution. Edwards v. Lessueur, 132 Mo. 433; Gabbert v. Railroad, 171 Mo. 84.
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, Missouri. 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 four hundred and eighty-eight 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 10:00 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 twenty-five 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 three millions of dollars 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 first 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 IX 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 thirteen electors were presented as candidates for membership on the proposed commission, was not provided for by ordinance as directed by Section 29, Article 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 thirteen 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 thirteen 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...
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