The State ex rel. Brown v. The Town of Westport

• Decision Date: 13 June 1893
• Parties: The State ex rel. Brown, Prosecuting Attorney, v. The Town of Westport, et al
• Court: Missouri Supreme Court

22 S.W. 888

116 Mo. 582

The State ex rel. Brown, Prosecuting Attorney, v. The Town of Westport, et al

Supreme Court of Missouri, Second Division

June 13, 1893

Writ of ouster denied.

Johnson & Lucas and R. H. Field for relator.

(1) In order for a town to 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 or proposition to that effect. 1 Dillon on Municipal Corporations [4 Ed.], 270. The ordinance in this case merely called for the sentiments of the people on the subject of becoming a city of the fourth class and it therefore lacked the corporate action required by the statute. Whitney v City, 58 Conn. 459; Keely v. Kennard, 60 N.H 1; Dillon on Municipal Corporations, supra. (2) Such election, being void and unauthorized, cannot be held ratified by the council and mayor of the town of Westport thereafter assuming to act as "mayor and board of aldermen of the city of Westport," for a change of the form of corporate organization is not an ordinary municipal act of the body corporate, and is therefore not susceptible of ratification. Stephens v. People, supra; Marsh v Fulton Co., 10 Wall. (U.S.) 677; Norton v. Shelby Co., 118 U.S. 451, 452. (3) The four wards of Westport constituted four election districts and the election, being conducted only at one place in the town, was void. Beane v. County Court, 33 Mo.App. 635; Fort Dodge, etc. v Wahkansa, 17 Iowa 85; Dyson v. Pope, 71 Ga. 205; Marshall v. Kearns, 2 Swan (Tenn.) 68. (4) The statutes of limitation are no bar to this quo warranto action, and in no event could they be construed as any bar in such actions when the usurpation complained of, as in this case, existed at the time of the filing of the information. Parks v. State, 7 Mo. 196; U. S. v. Hoar, 2 Mason C. C. 311; State v. Pautuxet, 8 R. I. 521. (5) Westport cannot obtain a corporate organization by the laches of the state officers. Norton v. Shelby Co., 118 U.S. 451; McPherson v. Foster Brothers, 43 Ia. 61; Brady v. Mayor, 20 N.Y. 312; Logan Co. v. Lincoln, 81 Ill. 156. (6) The doctrine of estoppel is in its nature and application like that of ratification. An officer cannot ratify what he could not have authorized. Delafield v. State, 2 Hill (N. Y.) 160; State v. Bank, 45 Mo. 529; St. Louis v. Gorman, 29 Mo. 593; Marsh v. Fulton Co., 10 Wall. (U.S.) 677; Norton v. Shelby Co., 118 U.S. 451; Saunders v. Hart, 57 Tex. 8; Day Co. v. State, 68 Tex. 528. (6) The alleged extension of the limits of Westport is void, because, even if the city were one of the fourth class, the extension was made without the consent of the voters of Westport at an authorized election. (7) The extension ordinance was not based on the previous consent of the voters and is void. Revised Statutes 1889, sec. 1880; Railroad v. Platte Co., 42 Mo. 175. (8) The burden of proof is upon defendants to prove that the notice required was given of this election, if any was given. The defendants having failed to produce evidence of the giving of such notice the presumption is that it was not given. State v. McCann, 88 Mo. 386; State v. Sharp, 27 Minn. 38; State v. Saxon, 25 Fla. 343; Kamp v. People, 30 N.E. 680; Carrico v. People, 123 Ills. 198; City v. Railroad, 79 Mo. 100. (9) The elections and vote thereat upon the subject of extending the limits of Westport are no less void because of the number of votes cast thereat. The rights of the minority and those in the territory sought to be attached in the new limits could not be wiped out at a void election. Force v. Batavia, 60 Ill. 104; State ex rel v. Brassfield, 67 Mo. 344. (10) Quo warranto is a proper remedy, not only to test the organization of a town, but the legality of an extension of limits made by the town under authority of legislative enactment also. People v. Oakland, 92 Cal. 611; Dillon on Municipal Corporations, sec. 272.

W. A. Alderson, W. C. Scarritt, Gage, Ladd & Small and James C. Rieger for respondents.

(1) Ordinance number 78, adopted by the mayor and council of Westport, May 10, 1881, is a full compliance with the requirements of section 987, Revised Statutes, 1889, which provides how towns may be incorporated in their respective classes. (2) Ordinance number 78 is not void by reason of the provision in section 2, which required the election to be held at the town hall of the town of Westport, although said town at that time was divided into four wards. (3) The act of voting by electors outside the election district is a mere irregularity, and the votes should be counted as cast. Peard v. State ex rel., 51 N.W. 828; Bell v. Faulkner, 19 S.W. 480; Davis v. State, 75 Tex. 420; Bowers v. Smith, 17 S.W. 761. (4) But if the proceedings of the mayor and board of aldermen, and the vote taken pursuant to ordinance number 78, is not a compliance with the requirements of the general statutes of the state providing the method of changing the corporate existence of towns from one class to another, this court will not issue its writ of quo warranto disorganizing Westport as a city of the fourth class and ousting it of its jurisdiction as such city, after the uninterrupted and unquestioned exercise of the functions of such city for more than twelve years. State v. Leatherman, 38 Ark. 81; State ex rel. v. Gordon, 87 Ind. 171; People ex rel. v. Bank, 1 Doug. (Mich.) 282; State ex rel. v. Baily, 16 Ind. 452; People ex rel. v. Maynard, 15 Mich. 463. (5) This proceeding is not instituted under chapter 132, Revised Statutes, but is an attempt to invoke the reserved jurisdiction of this court, which it has under the constitution to issue writs of quo warranto and to hear and determine the same. Constitution, art. 6, sec. 3; Revised Statutes, chapter 132; State ex rel. v. Lawrence, 38 Mo. 535; State ex rel. v. Stewart, 32 Mo. 379. (6) The prosecuting officer, when authorized to institute and prosecute proceedings of this character, must exercise the official duty and discharge the official responsibility himself in fact and not in form -- in good faith and not by mere pretense. He cannot permit the "proceedings to be used as mere instruments for the gratification of private malice, or the attainment of personal and selfish ends." The fact that this proceeding is so used is sufficient to cause its dismissal. People ex rel. v. Railroad, 88 Ill. 537; Com. v. Burrill, 7 Barr. 39. (7) No such ouster as is here asked will be granted unless it be shown that no serious detriment to the interests of the public or of individuals can result from it. State ex rel. v. Tolan, 33 N. J. Law, 196; Atty. Genl. v. Page, 38 Mich. 286; Atty. Genl. v. Hanchett, 42 Mich. 436; King v. Parry, 6 Ad. & El. 810; King v. Stacy, 1 Durn. & E. 1. See also cases cited elsewhere. (8) Public policy demands that public interests are to be regarded and protected, and for this reason private prosecutions are not permitted. State v. P. H. & T. Co., 1 Zab. 9; Comrs. v. Bank, 2 Grant's Cases, 392; City v. People, 80 Ill. 496. (9) The general rule that the respondent must show and prove his right in a quo warranto case is reversed, and the strongest possible presumptions are indulged that all things necessary have been rightly and properly done; and the case must be clear and strong to justify an ouster. People v. Carpenter, 24 N.Y. 86. (10) Proceedings will be rigorously scrutinized by the court to see that no rights of the public are prejudiced by its action. (11) Where the private relator is permitted by law to be heard, any slight proof of participation or acquiescence on his part in the proceedings attacked will defeat the action. Jameson v. People, 16 Ill. 256; People v. Farnham, 35 Ill. 562. (12) Every circumstance in the case and surrounding it and the prosecution of it, must be made known to the court, and closely and carefully scrutinized by it so that it is made clearly apparent that no serious public harm can possibly result from the judgment of ouster, or it will not be granted. Chicago v. People, 80 Ill. 496; State ex rel. v. Stewart, 32 Mo. 379; State ex rel. v. Weatherby, 45 Mo. 17.

OPINION

Quo Warranto.

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 of 1857, page 365), 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 counsel 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...