Warren v. The Barber Asphalt Paving Company

• Decision Date: 08 May 1893
• Citation: 22 S.W. 490,115 Mo. 572
• Parties: Warren et al., Appellants, v. The Barber Asphalt Paving Company
• Court: Missouri Supreme Court

22 S.W. 490

115 Mo. 572

Warren et al., Appellants, v. The Barber Asphalt Paving Company

Supreme Court of Missouri, First Division

May 8, 1893

Appeal from Jackson Circuit Court.

Affirmed.

Teasdale & Ingraham and C. O. Tichenor for appellants.

(1) Section 4388a Revised Statutes, 1889, prohibits the extension of the limits of Westport to within two miles of a city of the first, second or third class, unless the cities are in different counties. The above statute should be so construed. Sutherland on Statutory Construction, sec. 324; United States v. Babbit, 1 Black 61; Inhabitants v Commissioners, 83 Mo. 346; Young v. Boardman, 97 Mo. 187; Small v. Small, 129 Pa. St. 372; Sams v. Sams, 85 Ky. 400; People v Blackwelder, 21 App. Ct. (Ill.) 257; State ex rel. v Dueling, 66 Mo. 379; Sullivan v. Oregon, etc., 24 P. 408; Myer v. Car Co. 102 U.S. 11; City v Lane, 19 S.W. 533; Kane v. Railroad, 20 S.W. 532. When territory is annexed to a city it comes into municipal existence as effectually as if it was a part of the territory incorporated in the first instance. (2) The contract was void because not drawn in a manner to admit competition. Bishop on Contracts, sec. 523; Atcheson v. Mallin, 43 N.Y. 147; Hooker v. Allen, 5 Denio, 434; Gulick v. Ward, 5 Halst. 87; Gardiner v. Morse, 25 Me. 140; Woodruff v. Berry, 40 Ark. 251. (3) The ordinance was unreasonable in the matter of the notice. (4) Quo warranto is not necessary. Hambleton v. Town, 89 Mo. 191; City v. Railroad, 79 Mo. 98; High on Extraordinary Remedies, sec. 618.

W. C. Scarritt, Pratt, Ferry & Hagerman, and W. A. Alderson for respondent.

(1) It is no defense that the property charged by the tax bills and the boulevard paved were within certain portions of Westport taken by the extension of 1891. Extension is not the same as organization. The words of a statute should not be departed from when they can be read in their ordinary sense. Revised Statutes, 1889, sec. 6570; Sedgwick on Statutory Construction [2 Ed.] 191; Edrich's case, 5 Coke, 118; Fisher v. Blight, 2 Cranch 358; Risely v. Mattingby, 14 B., Mon. 89; Weller v. Harris, 20 Wend. 566. (2) Even if extension is organization, its legality cannot be questioned in a suit between individuals. That question can be raised in a quo warranto proceeding by the state. 1 Dillon on Municipal Corporations [4 Ed.] sec. 43a; Kayser v. Bremen, 16 Mo. 88; St. Louis v. Shields, 62 Mo. 247; Fredericktown v. Fox, 84 Mo. 59. (3) There is nothing in the alleged defense that the work as advertised created a monopoly. If the statute required advertisements for the lowest bidder, which it does not (Revised Statutes, 1889, sec. 1592) the fact that defendant was the only one who could bid on the work is no defense. Yarnold v. Lawrence, 15 Kan. 126. In re Dugro, 50 N.Y. 513; Hobart v. Detroit, 17 Mich. 246; Memphis v. Waterworks, 5 Heisk. 495. (4) The ordinance for publication was not unreasonable and Sunday was not counted. Morse v. Westport, 110 Mo. 502. Sunday as an intervening day may properly be counted. Patchen v. Bonsack, 52 Mo. 431; State v. Green, 66 Mo. 631; Ringgold on Law of Sunday, 169. (5) Equity ought not to entertain the petition because of the delay until after the benefit of the work has been received. Gibson v. Owens, 21 S.W. 1107; Johnson v. Duer, 21 S.W. 800.

Macfarlane J. Barclay, J., is absent.

OPINION

Macfarlane, J.

This is a suit in equity for the cancellation of certain tax bills charged against the property of plaintiffs and issued to the defendant corporation for paving Warwick boulevard under an ordinance of the city of Westport, approved October 13, 1891. A demurrer to the petition was sustained, and plaintiffs appealed.

The petition charged the invalidity of these tax bills upon three grounds, which are insisted upon in this appeal. First. That the property of plaintiffs, which defendant claimed was charged with the lien of these bills, was within certain territory taken into the city of Westport by an attempted extension of its limits in May, 1891, which was unauthorized, illegal and void. Second. That the ordinance for paving the street was so drawn as to cut off all competition in bidding on the work, and to give the defendant the sole right to secure the contract. Third. That the ordinance providing for the advertisement for bids was unreasonable and void for the reason that it only required the posting of "ten written or printed notices at ten public places within the city of Westport for five days." These objections will be considered in their order.

From the allegations of the petition, which are admitted by the demurrer to be true, it appears that by proper proceedings the city of Westport, in Jackson county, became a city of the fourth class June 4, 1881. By an ordinance approved April 14, 1891, and an election held thereunder May 11, 1891, the corporate limits of said city were extended north so as to take in plaintiffs' lots, provided the authority to extend the limits in that direction existed; that at the time this attempted extension was made, Kansas City, also in Jackson county, was a city having a population of over one hundred thousand inhabitants, and that the north line of Westport, as extended, was adjacent to and within less than two miles of the south boundary of Kansas City.

I. Section 1580, concerning cities of the fourth class, provides that "the mayor and board of aldermen of such city, whether the same shall have been incorporated before becoming a city of the fourth class or not, with the consent of a majority of the legal voters of such city voting at an election therefor, shall have power to extend the corporate limits thereof over any territory lying adjacent thereto, or may by the same vote reduce the territory of such city to exclude land used for farming purposes."

An act of the general assembly approved April 2, 1883 (now section 981, Revised Statutes, 1889), provides that: "No city, town or village shall be organized within this state under and by virtue of any law thereof adjacent to or within two miles of the limits of any city of the first, second or third class, or a city having a population sufficient to become a city of the first, second or third class, unless such city, town or village be in a different county from such city."

It is contended by plaintiffs that the true intent and purpose of said section 981 is to reserve the territory contiguous to cities of the first, second and third classes for the purpose of permitting their future growth, development and expansion, and that therefore any act, whether of organization or extension, that would permit an encroachment of any other municipality upon such territory would be violative of its true spirit and intent. It is accordingly insisted that the section should be construed to operate as a limitation on their power to extend their corporate limits, granted cities of the fourth class under said section 1580.

The construction contended for would require the word "organized," as used in the statute to mean, or to include in its meaning, "extend the corporate limits," and plaintiffs insist that the word as used requires that interpretation in order to effectuate the manifest purpose of the law.

Plaintiffs in support of their position have brought to our notice many rules adopted by the courts for determining the legal import of words, terms and sentences when their meaning is doubtful or ambiguous. The sum and object of all rules of statutory construction is to determine what was the general purpose sought to be accomplished by the law. If the statute is expressed in clear and unambiguous language, and if, when all its parts are taken together, it declares a rule of action which in itself is not unreasonable or unjust, we know of no rule of construction which would permit a questionable interpretation, in order to enforce what we may regard as a wiser public policy. The simple, cardinal rule of construction is that "the words of a statute are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general and proper use." Potter's Dwarris on Statutes, 193; Revised Statutes, 1889, sec. 6570.

Organize means to "form with suitable organs." Webster's Dictionary. The word in some of its forms is frequently used in the constitution and laws of the state. The general assembly is required to "provide by general laws for the organization, etc., of cities." Constitution, sec. 7, art. 9. The general assembly may provide "by general law for township organization under which any county may organize." Constitution, sec. 8, art. 9; see also section 2, article 8, Constitution of Missouri, and Railroad v. Shambaugh, 106 Mo., on pages 567-8. The word as used in the constitution or common parlance has no doubtful or ambiguous meaning. To organize a certain territory into a municipal corporation is a very different thing from that of extending the limits of an organized city over new territory.

If it were entirely clear that the legislative intent was to prevent the existence of territory under municipal organization within two miles of a city of the first, second or third class, then we might feel called upon to cast about for a rule of interpretation under which to enforce that intent.

It seems to us more in accord with reason and justice that the legislature should have intended to give existing cities an equal chance for development and expansion, though one may have contained a greater population than the other. Why a city of two thousand nine hundred inhabitants should not be given the same right to grow and expand as one of three thousand inhabitants is not satisfactorily...