Barnes v. City of Kirksville

180 S.W. 545, 266 Mo. 270, 1915 Mo. LEXIS 126

• Court: Supreme Court of Missouri
• Decided: December 8, 1915
• Status: Published

Opinion

BOND, J.

This is a suit for salary alleged to be due plaintiff as marshal of the city of Kirksville. The defendant, the city of Kirksville, answered that on the 10th of March, 1914, at an election duly held, it adopted the provisions of the act of the General Assembly (Laws 1913, p. 517) permitting cities of the third class and others to organize thereunder and to exercise the powers of government therein specified; that it became duly organized and officered as provided in said act and vested with all the powers and privileges granted thereby; that in the exercise of such powers and duties its mayor and councilmen-passed a resolution on April 13, 1914, terminating the office of plaintiff as marshal of said city and elected another in his place who has since discharged the duties of the office.

Plaintiff replied that said act providing for such organization was void under section 53, article 4, of the Constitution in that it was a local or1 special law, and also under section 7, article 9, of the Constitution in that it provided for more than four classes of cities.

Upon the issues joined the cause was submitted to the court upon the following agreed statement of facts:

“For the purpose of dispensing with the introduction of evidence in the trial of the above cause, it is agreed, subject to the objection of either party hereto for incompetency, that the plaintiff was on the - day of April, 1913, duly elected and commissioned to the office of marshal for a term of two years and entered upon the discharge of the duties of said office and discharged the duties thereof until the 13th day of April, 1914; that on the-day of June, 1892, said city of Kirksville was organized as a city of the third-class, and divided into four wards; that said city has refused to pay plaintiff the salary of the marshal’s office ever since the 13th day of April, 1914; that ordinance No. 1862 was passed by the council and approved by the mayor prior to the election and commission of plaintiff and was at said time in full force and effect, and provided a salary of fifty dollar's per month; that on the 10th day of March, 1914, pursuant to a petition of the electors of said city of Kirksville equal in number to more than twenty-five per centum of the votes cast for all candidates for mayor at the last preceding city election of said city prior to the filing’ of said petition, and pursuant to a proclamation calling aforesaid special election, a special election was duly had and held on said 10th day of March, 1914, at which special election the terms and provisions of an act of the Forty-seventh General Assembly of the State of Missouri, entitled, ‘An act providing for an alternative form of government for cities of the third class and cities now having or that may hereafter have a population entitling them to become cities of the third class, and certain cities under special charters, making provisions for the election of a mayor and four councilmen at large, for a method of nominating candidates, for office at a primary election, for electing candidates selected at such primary election at a general election, providing for the appointment of various city officers, and providing for the initiative and referendum in municipal legislation, and further providing for the recall of any elective officer, which shall become effective only in the event of an adoption of the provisions of this act by the vote of the electors of any of said cities, and providing for the renunciation of the provisions of this act when once adopted, with an emergency clause,’ approved March 28, 1913, and found in the Laws of Missouri of 1913, at pages 517 to 533 both inclusive, was by said city of Kirksville duly adopted and said city organized under the provisions of said act; that return of said election was duly made; thereafter on the 7th day of April, 1914, at a general election duly had and held in said city one Charles E. Still was elected mayor of said city and Thomas Rainey and Rapheal M. Miller were elected councilmen at large of said city; that return of said election was duly made and thereupon said last-named mayor and councilmen at larg’e of said city took the oath of office and were commissioned as such officers and entered upon the discharge of the duties of their respective offices; and at all times since they have been the only persons holding or claiming to hold the office of mayor and councilmen in said city and at all said times have discharged the duties of said offices; that on the 13th day of April, 1914, aforesaid mayor and council of said city, by a resolution, entitled, ‘A resolution terminating the term of office of certain city officials in the city of Kirksville, Missouri,’ passed and adopted on the 13th day of April, 1914, and signed and approved by the mayor on said date, declared by aforesaid resolution that the term of office of plaintiff as marshal of said city of Kirksville ceased and determined on said 13th day of April, 1914; thereafter and on said 13th day of April, 1914, the mayor and council aforesaid by unanimous vote of said mayor and council elected one George M. Malone to the office of city marshal; that said George M. Malone took the oath of office prescribed by statute and was duly commissioned as marshal of said city by the mayor of said city and did duly file a bond as required by statute, which said bond was by the mayor of said city approved, and said George M. Malone ever since said last-named date has performed all the duties of the office of marshal of said city and has received the salary provided by ordinance therefor.”

The trial court found the -issues for defendant and against the plaintiff, from which the plaintiff has appealed to this court.

I.

Commission Form of Government: Salaries of Former Officers. The plaintiff (appellant) does not assail in this action the existence of defendant as a municipal corporation of the third class, since that status is conceded both by the pleadings and the agreed statement of facts. What the appellant seeks to recover by this suit, is the compensation which, would be due him as marshal of the city of Kirks-ville under its incorporation as a city of the third class according to the terms of an ordinance duly enacted by it.

To this demand the only defense is that appellant was legally removed from the office of marshal on April 13, 1914, by the mayor and council of said city in pursuance of the powers vested in them by the terms of the act of the Legislature providing for tlio assumption of other governmental powers after an organization as prescribed by the act. [Laws 1913, pp. 517 et seq.]

This narrows the controversy to a single inquiry, for it is agreed that respondent complied with the conditions attached in the act to the grant of powers therein-specified and thereafter duly removed the appellant from the office of marshal and elected another, hence, the only question left is the constitutional validity of the act empowering respondent to terminate appellant’s term of office. [Laws 1913, p. 524, sec. 10.]

Before passing on the objections of appellant to this enabling act, it is well to note that none of the objections involved a disincorporation of defendant as a municipal body, nor its right to exist as a city of the third class, and hence we are not precluded from considering such objections by the rule that the corporate existence of a municipal corporation can only be attacked by the State through its proper officers. [State ex inf. v. Fleming, 147 Mo. l. c. 12; Kansas City v. Stegmiller, 151 Mo. 189; Burnham v. Rogers, 167 Mo. 17; Bradley v. Reppell, 133 Mo. 545; State ex rel. v. Mineral Land Co., 84 Mo. App. l. c. 39.]

II.

The first objection to the validity of the act under review is that the title is not adequately descriptive of the body of the act.

Title to The title is quoted in extenso in a former paragraph. It provided for the election of a mayor and four couneilmen, and provides also for the adoption of its provisions by cities “now having or that may hereafter have a population entitling them to become cities of the third class.” It is contended that the first of these provisions does not describe the contents of the bill, since although- the body of the bill provides for the election of four councilen as a maximum, yet it also permits three or even two couneilmen to be elected according to the popoulation of the cities adopting the act when the election shall- be held. There is no merit whatever in this objection. The title expresses the full limit of the couneilmen to be elected by the cities having the largest population within the prescribed limits at-the time the election is held. Such a definition of the purpose of the bill fairly and reasonably embraces a provision therein for a less number of couneilmen accord^ ing as the population of the city, desirous of embracing the provisions of the bill, shall be less than that required for the election of the full number of councilmen mentioned in the title. If the title points to the election of four couneilmen no one could be misled as to the provisions of a bill which provided not only for four but for a lesser number of couneilmen.-)

Neither is there any force in the further contention that the body of the bill (section 2) uses words of present meaning when referring to the population ■which, shall entitle certain cities to organize thereunder. A simple inspection of the language of this section discloses that it can only mean the future population which those cities shall have who are to elect two or three or four councilmen as may happen under the apportionment made by the bill. The words of this section, necessarily and of their own force, carry a future sense and meaning and are intended to be applicable to the subsequent time when cities on account of their growth in population shall be entitled to hold the elections provided for in the bill, and this conclusion.is further demonstrated by'the fact that the language of the title in referring to the holding of such elections is expressly put in the future tense.

Our conclusion is that the foregoing objection as to the title of this bill, if not trivial, is destitute of any logical or leg’al force, and that neither the letter nor the spirit of the Constitution (art. 4, sec. 28) was violated when this act was passed.

In the exposition of that constitutional provision it has been uniformly ruled that it only requires that the title shall be a “fair forecast of the contents of the bill” and its subject, so as not to mislead the lawmakers or the people. And where the subsequent provisions of the bill are within the radius of that subject, it does not violate the Constitution. [State ex rel. v. Revelle, 257 Mo. l. c. 538, and cases cited; Burge v. Railroad, 244 Mo. l. c. 91.]

III.

Law¡al ■ ’ The other objections are that the act under review is local and special, and that it creates a fifth class, whereas the Constitution only provides for a division of the cities of the State into four classes. [Constitution, art. 9, sec. 7; Calland v. Springfield, 264 Mo. l. c. 301.]

We are unable to perceive any force in either of these contentions. A glance at the terms of the act shows that its words of classification according to poponlation, both in the title and in the body of the bill, are applicable to any and all cities which shall or may in the future fall within these specifications. In snch cases the rule is too well settled for cavil both here and elsewhere that the act is not obnoxious to the constitutional prohibition against certain special laws. [State ex rel. v. Southern, manuscript opinion; State ex rel. v. Clayton, 226 Mo. 292; State ex rel. Hunt v. Tausick, 35 L. R. A. (N. S.) 802; State ex rel. Simpson v. Mankato, 41 L. R. A. (N. S.) 1111; Munn v. Finger, 51 L. R. A. (N. S.) 631; Walker v. Spokane, 24 Am. & Eng. Ann. Cases, 994; Mayor v. State, 35 Am. & Eng. Ann. Cases, 1213.]

offcities?SS As to the objection that the act creates a fifth class of cities, the answer is, that the bill does not alter the preexisting classification of the city of Kirksville as one of the third class, but leaves it, and all other cities which shall adopt its provisions, in the same class to which they theretofore belonged. It merely gives to them for purposes of administration, similar governmental powers and functions, and expressly provides that all these new methods of administration may be surrendered and those which such cities formerly had may be resumed at any time at the option of the voters.

Indeed all these contentions as to constitutionality made by appellant in the present case were ruled adversely when the same points were made against the act of the General Assembly whereunder the city of St. Joseph was permitted to' organize as a city of the first class. In-that case a mandamus to compel the city to proceed under its former charter as a city of the second class was sought on the theory that the new act (approved January 14, 1909) was unconstitutional in the several respects which are now urged against the bill under review. But the court held after a clear and careful analysis of the grounds of attack in that case, which were similar to those relied upon in this case, that there was no merit in, any of the contentions and denied-'the writ of mandamus. [State ex rel. v. Clayton, 226 Mo. 292.]

IV.

Commission Government . in General. . The cases cited above from other jurisdictions and the terms of the act under review and those of a similar act passed in 1913 and applicable to cities of the second class (Laws 1913, p. 453, sec. 49) demonstrate that the State 0£ ]yQggourt j[g on]y following the trend of those measures of reform previously enacted in the leading States of the middle west and in other portions of the country for the eradication of inefficiency in the. working of their governmental agencies. The object of this and similar legislation is to give the cities of the State an opportunity to adopt what is termed the commission form of government, the chief excellence of which is the concentration of municipal power into the hands of a few men or responsible agents who are usually put at the head of the several departments necessary to the conduct of the business of cities. The general plan was early put into operation at Galveston, Texas (after the storm of 1900), and has spread over the country with remarkable yapidity. Up to the present time the agents have not exceeded' five and are termed comniissioners. They are selected by means of a short ballot and are usually subject to a recall. The union in their hands of quasi-judicial as well as administrative authority does not violate the constitutions of the various States, since it has been uniformly held that the municipalities so governed are not in. any sense sovereignties and hence do not fall within the provisions of the constitutions wliich apportion the powers of sovereign States. The salutary measures enacted by tbe Legislature of this State on tliis subject reflect credit on that body and must result in tlie protection of urban life and the promotion of civic betterment.

The act under review was devised and in our opinion will contribute to these ends and was enacted under full constitutional warrant. The learned trial court reached that conclusion and the judgment is affirmed.

All concur except Woodson, G. J., who dissents.