The State ex rel. Halsey v. Clayton

• Decision Date: 07 March 1910
• Citation: 126 S.W. 506,226 Mo. 292
• Parties: THE STATE ex rel. HALSEY v. ALVA P. CLAYTON, Mayor, et al., Officers of CITY OF ST. JOSEPH
• Court: Missouri Supreme Court

126 S.W. 506

226 Mo. 292

THE STATE ex rel. HALSEY v. ALVA P. CLAYTON, Mayor, et al., Officers of CITY OF ST. JOSEPH

Supreme Court of Missouri

March 7, 1910

Writ denied.

K. B Randolph and Chas. F. Strop for relators.

(1) The Act of 1909 by necessary implication repeals sec. 5252, R. S 1899. In express terms it repeals article 2, of chapter 91 which article contains the law theretofore in force governing cities of the first class. The act enacts in addition an entire new scheme of government for cities of the first class, and at the same time provides what cities may become cities of the first class and also provides the procedure therefor, so that said Act of 1909 is full and complete both as to the powers of cities of the first class and also as to the classification and method of organization. Section 5252 provides that cities containing one hundred thousand inhabitants, or more, shall be cities of the first class. Section 2 of the Acts of 1909 provides that all cities containing more than seventy-five thousand and less than one hundred and fifty thousand inhabitants may elect to become cities of the first class, etc. Therefore it is contended by petitioner that section 5252 is repealed by necessary implication. "Where subsequent statutes are passed revising the whole matter of former ones, and evidently intended as substitutes for them, in such cases the latter act, although it contains no words to that effect, must in the principles of the law, as well as in reason and common sense, operate to repeal the former." Meriwether v Love, 167 Mo. 521; Yall v. Gillihan, 187 Mo. 405; Smith v. State, 14 Mo. 115. If petitioner is correct in his contention that section 5252 is repealed by necessary implication by the Act of 1909 it then clearly follows that the Act of 1909 is unconstitutional because in conflict with section 7 of article 9 of the Constitution, for the reason that the cities of this State which now have or may hereafter have a population of one hundred and fifty thousand and over are not classified, and no general laws or scheme of government for such cities has been provided, and hence there has been no general classification of cities of this State within four classes. (2) But if section 5252 is not repealed by implication, then the Act is in conflict with section 7 of article 9 of the Constitution in this: It creates a fifth class of cities containing not less than seventy-five thousand nor more than one hundred and fifty thousand population. It takes a part of the cities within the provisions of section 5252, defining cities of the first class, and a part of the cities within the provisions of section 5253, defining cities of the second class, and carves out a new and additional class from the two classes just mentioned. It also creates a class of cities which are compelled to hold an election in September, 1909, that is, only such cities of the second class as have already attained a population of seventy-five thousand but have not exceeded one hundred and fifty thousand population, so that cities of the second class are subdivided as follows: a. Those having more than thirty thousand and less than seventy-five thousand inhabitants. These remain in the second class, undisturbed. b. Those now having seventy-five thousand and less than one hundred and fifty thousand population. These are compelled to hold an election in September, 1909. c. Those having more than one hundred and fifty thousand population but which have not elected to become cities of the first class. Cities of the first class are also subdivided as follows: a. Those containing more than one hundred thousand inhabitants. b. Those having seventy-five thousand and not more than one hundred and fifty thousand inhabitants. c. Those having more than one hundred and fifty thousand inhabitants. Those cities of the first class "a" and "c" have now, since the repeal of article 2, chapter 91, no organic law, and are left with no alternative except to frame their own charters under section 16, article 9, of the Constitution. St. Louis v. Dorr, 145 Mo. 466; Owen v. Baer, 154 Mo. 434; Murnane v. St. Louis, 123 Mo. 479; State ex inf. v. Borden, 164 Mo. 221. (3) The said act is in conflict with first and twelfth clauses of section 53 of article 4 of the Constitution. It is a special law. It was intended to apply, and does apply, only to St. Joseph. There is no other city in the State to which it could apply, and it changes its charter. State ex inf. v. Borden, 164 Mo. 221; State ex rel. v. Jackson County, 89 Mo. 239; State ex rel. v. Hermann, 75 Mo. 340; Kansas City ex rel. v. Scarritt, 127 Mo. 642. (4) The said Act also conflicts with section 23 of article 4 of the Constitution. Said section provides that "No bill . . . shall contain more than one subject, which shall be clearly expressed in its title." Said act by its title purports to legislate solely for cities of the first class. By reference to the various sections, and particularly section 3, of the Act, it becomes apparent that the Act legislates for cities of the second class and even goes so far as to compel them, whether willing or unwilling, to hold an election in September, 1909, and also legislates with reference to the classification of cities, which is not all embraced in the title. State ex inf. v. Borden, supra. (5) In the foregoing parts of this brief we have cited the authorities which have seemed to us to be directly in point on the issues of law involved. There are many other expressions of this court showing the trend of authority on the constitutional questions involved in this controversy, and we here present a few of them. State ex rel. v. Herrmann, 75 Mo. 340; Rutherford v. Heddens, 82 Mo. 388; State ex rel. v. Pond, 93 Mo. 641; State ex rel. v. Miller, 100 Mo. 439; Dunne v. Railroad, 131 Mo. 5; State v. Walsh, 136 Mo. 405.

Culver, Phillips & Spencer, Vinton Pike and W. B. Norris for respondents.

(1) "A statute is repealed by implication whenever it becomes apparent from subsequent legislation that the Legislature does not intend the earlier act to remain in force, and the converse of this proposition is that no statute will operate as an implied repeal of an earlier statute, if it appears that the Legislature did not intend it to so operate." 26 Am. and Eng. Ency. Law (2 Ed.), 720; Manker v. Faulhauber, 94 Mo. 439; Evans v. McFarland, 186 Mo. 723; State ex rel. v. Walbridge, 119 Mo. 383; Albany v. Gilbert, 144 Mo. 233. (2) The Legislature did not intend section 2 of the Act of 1909 as a substitute for section 5252, or that the latter should be abrogated. (a) Section 5252 is a part of article one of chapter 91, R. S. 1899, which has to do solely with the classification of cities. Article two, R. S. 1899, has to do solely with the charter of cities of the first class. By enacting the Act of 1909 it is evident that the Legislature did not intend to repeal any of the sections of article one, but intended only to supply a new charter in place of the charter theretofore provided by article two for cities of the first class; that is, it intended to repeal article two and enact another in lieu thereof. That such was the intention of the Legislature is made manifest by the title of the new act, and by the express declaration in the first section of the act itself. Evans v. McFarland, 186 Mo. 724; State v. Morrow, 26 Mo. 141. (b) The same Legislature that passed the Act of 1909 at the same session re-enacted section 5252 by its revision bill. To the ordinary mind this is strong, if not conclusive, evidence that the Legislature did not intend section 2 of the Act of 1909 to abrogate, or be a substitute for, section 5252. If so, the re-enactment of section 5252 was an idle ceremony. 26 Am. and Eng. Enc. Law (2 Ed.), p. 736. (c) The Act of 1909 bears evidence on its face that the Legislature recognized that there may be cities of the first class other than those "containing more than 75,000 and less than 150,000 inhabitants [which] may elect to become cities of the first class," as provided in section 2 of the Act of 1909. (3) Section 5252 and section 2, Act of 1909, are not "irreconcilably in conflict," so that both cannot stand. In order to ascertain the meaning of section 5252 it must be read with sections 5257 and 5262. Section 2 of the Act of 1909 in no way conflicts with that law; it is simply auxiliary to it. It might be added thereto as a proviso, and the result is one harmonious whole. (4) The Act of 1909 does not create a fifth class of cities.

OPINION

In Banc.

Mandamus.

VALLIANT C. J.

The city of St. Joseph is organized as a city of the second class, but having now a population of more than 100,000 it is entitled to organize as a city of the first class. It has taken the preliminary steps to attain that class and is about to take the final step, that is, hold an election for officers to govern it as a city of the first class. Relator asks a writ of mandamus to compel the officers of the city to hold an election for city officers as a city of the second class under the charter under which it has hitherto existed and now exists.

Relator bases his application on the proposition that the act of the General Assembly entitled, "An act to repeal all of article 2 of chapter 91 of the Revised Statutes of Missouri 1899, relating to cities of the first class, and to enact a new article to be known as article 2, chapter 91," approved June 14, 1909, under which the city officials are proceeding, is unconstitutional, in the following particulars: first, it creates a new and fifth class of cities in violation of section 7, article 9, which limits the classes to four; second, that under it all cities of the same class do not possess the same powers and are not subject to the same restriction;...