State ex rel. Halsey v. Clayton

126 S.W. 506, 226 Mo. 292, 1910 Mo. LEXIS 64

• Court: Supreme Court of Missouri
• Decided: March 7, 1910
• Status: Published

Opinion

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 second1 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; third, it further violates that section in that by compelling the city to hold an election to determine the question it takes away from the city of St. Joseph the power to determine for itself whether it shall become a city of the first or remain a city of the second class; fourth, it deprives all existing cities of the first class of any laws governing them; fifth, it deprives all cities which now have or hereafter may .have a population of 150,000 or more of coming in under the class of cities of the first class; sixth, it fails to classify all cities as the Constitution requires; seventh, in dealing with cities of both first and second classes it contains more than one subject and that subject is not clearly defined in the title, in the face of section 28, article 4; eighth, it violates section 53, article 4, in that it is a local and special law intended to apply to St. Joseph only, that being the only city in the State having more than 75,000' and less than 150,-000 inhabitants.

On the filing of the petition of relator an alternative writ of mandamus issued to which on the return day respondents filed what they call a demurrer which we will treat as a motion to quash the writ.

I. Section 7, article 9, of the Constitution of which relator chiefly complains as violated, is as follows: ‘ ‘ The General Assembly shall provide, by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the power of each class shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. The General Assembly shall also make provision by general law whereby any city, town or village, existing by virtue of any special or local law, may elect to become subject to,- and be governed by, the general laws relating to such corporations. ’ ’

In obedience to that section the General Assembly, soon after the adoption of the Constitution of 1875, passed an act classifying all cities and towns, making four classes; and it also passed general laws governing the several classes and providing how a city of one class might advance to another class when by increase in its population it came up to the mark. Those laws, with subsequent amendments, are now contained in chapter 91, Revised Statutes 1899. That chapter is divided into 23 articles, of which article 1 and article 2 are the only ones which concern us in this case. Article 1 makes the classification and provides how cities and towns may organize under the general law to which they are respectively entitled. Section 5252, which is the first section of that article, is: “All cities and towns in this State containing one hundred thousand inhabitants or more, shall be cities of the first class.” Then follow sections 5253, 5254 and 5255, declaring what shall constitute cities of the second, third and fourth classes respectively; also section 5256 relating to villages. Immediately following the sections making the classifications, is section 5257, which provides, first, how cities and towns existing under general or special law may become incorporated as cities of the class to which their population entitles them, and, second, how a city or town not incorporated may become so in its proper class. None of the sections in article 1 is expressly repealed by the Act of 1909, which in express words does repeal article 2. On the contrary article 1 is carried into the revision of 1909' and now forms a part of the same chapter of which the Act of 1909 in question is also a constituent part. We must, therefore, consider them both in force and reconcile them if they are susceptible of a construction that will uphold both. Article 2 provides a charter for the government of cities of the first class only, and the Act of 1909, which repeals it, takes its place providing a charter for cities of the first class. Section 2 of the Act of 1909 is: “All cities and towns in this State containing more than seventy-five thousand inhabitants and less than one hundred and fifty thousand inhabitants may elect to become cities of the first class in the manner hereinafter provided. In all cases, the population shall be determined by the last census taken, whether State or national.”

Relator contends that section 2 of the Act of 1909, which provides that cities of more than 75,000 and less than 150,000 may become, incorporated as cities of the first class, necessarily repeals section 5252, Revised Statutes 1899, which says that all cities of 100.000 inhabitants or more shall be cities of the' first class; that it either attempts to create a fifth class or else it leaves out of classification all cities which now have or hereafter may have more than 150,000 people, and provides no charter for them, in either of which events it violates section 7, article 9. We recognize in those two points, taken together, a question not free from difficulty. Courts have nothing to do with the policy of a statute and are not bound to find a reason for the enactment, but it does aid in the task of construing a statute when a good reason for it appears. We are unable to conjecture the reason for the introduction in this Act of 1909 of the call for cities between 75.000 and 150,00o1 inhabitants. A suggestion in one of the briefs is that the purpose was to make a charter for St. Joseph alone, but if the G-eneral Assembly had St. Joseph alone in view there was no necessity for referring to cities of more than 75,000, because at the date of the Act St. Joseph had more than 100,000 inhabitants; it measured up to the requirements of section 5252 and could have organized as a city of the first class under the terms of that section. Although St. Joseph was at that time the only .city in the State having more than 75,000 and less than 150,000 inhabitants, yet if the purpose was to make a charter for St. Joseph only, that purpose could have been accomplished with less difficulty by simply making the act applicable to all cities of the first class as defined in section 5252. Because, whilst St. Joseph was then the only city in the State with a population of more than 75,000 and less than 150,000, it was also the only city in the State with more than 100,000 inhabitants which was subject to classification and subject to a general charter enacted by the General Assembly. St. Lonis and Kansas City are not subject to the classification required by section 7, article 9 of the Constitution. St. Louis has its charter under sections 20, 21, 22 and 23 of article 9, and Kansas City under sections 16 and 17 of that article.

But whatever may have been the reason of the lawmakers we must take the act as we find it and interpret it according to its own language, regarding the context in which it appears; and in doing so we must bear in mind these cardinal rules of construction, viz.: Where two general statutes are in irreconcilable conflict the one of later date must prevail, but if the two are susceptible of a construction that will give force to both, they must be so construed. And where the validity of a statute is assailed we must uphold.it if it is susceptible of a construction that will render it valid.

Does section 2 of the Act of 1909 repeal section 5252, Revised Statutes 1899? It is not claimed that it does so in express terms, but that it does so by necessary implication. Section 5252 declares that all cities having 100,000 or more inhabitants are cities of the first class and, under section 5257, which prescribes the proceedings under which cities of the various classes may organize, no city of less than 100,000 inhabitants could, before the Act of 1909', organize as a city of the first class, but section 2 of the Act of 1909 now says that cities having over 75,000 and less than 150,000 people may organize as cities of the first class. It does not say that no city except it be within those limits of population shall become a city of the first class, but it only says that cities within those limits may organize under the provisions of that act. All cities of 100,-000 or more, subject to classification, are still cities of the first class; if any difference in this respect-exists between cities of 150,000 or more and those of more than 75,000 and less than 150,000, it is in the terms on which they may effect their organization. The Act of 1909 expressly repeals all of article 2 of chapter 91, and takes, in the Revised Statutes 1909, the place of the repealed article; it, however, not only does not repeal article 1, but at the same session of the General Assembly that article was retained as article 1 of the corresponding chapter in the Revised Statutes of 1909. [Chap. 84, R. S. 1909, entitled “Municipal Corporations.”] The repealed article 2 of chapter 91 related only to matters of charter and government of cities of the first class; it did not contain provisions for the organization of such cities. Those provisions were contained in article 1, and they were left in full force. But the Act of 1909', besides providing a charter and matters of government for all cities of the first class, provides also how cities of more than 75,000 and less than 150,000 may become incorporated in that class. A material difference between the provisions of article 1 and those of the Act of 1909', in this particular is, that under the former, the fact that the city proposing to organize as a city of the first class possesses the necessary population may be established not only by the last State or national census, but it might be established also by a census taken by the city itself, whereas under the Act of 1909 the fact can be established only by a census taken by the State or national government. There is another difference between the requirements of the Act of 1909 respecting the organization of cities of more than 75,000 and less than 150,000', and those of article 1 which covers all cities, and that is, in section 2 of the Act of 1909 all cities of the second class organized either under the general or a special charter at the date of the Act, are required to hold a special election on a certain day to decide whether or not they will organize as cities of the first class, whereas all other cities of a population entitling them to come into the first class are not compelled to hold such an election but may or may not do so as they desire; This compulsory feature of the act is one of the complaints of relator against it, but there is nothing in the Constitution to forbid the General Assembly making such ■distinction based on the fact of difference in population. The General Assembly is the supreme lawmaker of the State, except as the Constitution limits its authority. A city existing in one class has no constitutional right to continue in that class; it may be even compelled against its will to go into a higher class if the General Assembly so enacts, and the lawmaker may say that cities within certain limits as to population shall pursue one course, while those not within those limits may pursue another course, to come into the same class, but when they have come into the class then section 7, article 9, requires that all in the class shall have the same powers and be subject to the same restrictions. In this instance the General Assembly has. not gone so far as it might have gone. It has required the city to hold an election, but it has left it to the voters to say whether or not they will go into the first class; the election has been held in St. Joseph and the voters have expressed their will to organize as a city of tbe first class under the terms of the act. In this connection we notice the significance of the other difference mentioned, that is, ascertaining the population only by a State or national census. The General Assembly at the date of the act knew the population of every city in the State as shown by the last State or national census, but it did not, with legal certainty, know what the result of a census to be taken by the city, after the last national census, would show; therefore, it required only those cities whose population it knew to hold such an election. The Act of 1909 makes no provision for ascertaining the population of cities of over 150,000 inhabitants, or for their organization, but such provisions for such cities are contained in article 1, chapter 91. The Act of 1909 provides in that respect only for cities of over 75,000 and1 less than 150.000 inhabitants, and from this fact relator argues that cities of 150,000 or more inhabitants are left out of classification,, or else cities of over 75,000 and under 150,000 are created into a new and fifth class.

Whilst the Constitution contemplates that all cities in the State shall be classified except those which become organized under sections 16 and 17, article 9, and the city of St. Louis, yet we would not feel justified in holding that the General Assembly in 1909' failed to perform the whole duty required of it by section 7, article 9,- even if it had failed to provide by general laws for the organization and classification of cities having over 150,000 inhabitants, because the General Assembly then well knew that there was not then in the State, or likely in many years to he, a city of over 150.000 inhabitants subject to classification; and, therefore, the General Assembly may well have put off to a more appropriate period the duty of making provision for such cities. Whilst the General Assembly has the right to look ahead and make provisions for what it may think will occur in the future, yet if it provides for what is present and what is likely within a measurable period to he, its act cannot be declared unconstitutional because it did not provide for possibilities in the remote future. But we do not think the act in question either repeals section 5252, or creates a fifth class, or leaves unprovided for, cities of over 150,-000 inhabitants. It allows cities having 75,000 or more 'inhabitants to come into the first class on terms a little different, as we have pointed out, from those on which cities of 100,000 or more could organize, but it leaves all cities of 100,000 or more, still cities of the first class, and allows them to organize as such under the terms provided in article 1, of chapter 91, Eevised Statutes 1899, now chapter 84, Eevised Statutes 1909. There is nothing in the Constitution to prohibit the General Assembly from prescribing terms or method of organizing for cities containing a certain number of inhabitants, and different terms and method for cities of a different number of inhabitants, although all for the same class. What the Constitution requires is: “that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions, ’ ’ that is, after they are incorporated they should have the same powers and be subject to the same restrictions. The Act of 1909 is not limited, in the matter of charter and municipal g-overnmental powers and duties, to cities of the population specified in sections 2, 3 and 4 of the act, although perhaps the cities referred to in those sections could organize only as in sections 3 and 4 of that act is prescribed. But beginning with section 8, which is where the act begins to specify what powers the cities of that class shall possess and what restrictions they shall be subject to, the act applies to all cities of the first class, including of course cities of over 150,000 inhabitants.

We hold therefore that the Act of 1909 is not unconstitutional on either of the. six grounds first specified by relator.

As to the seventh ground, vis.: that the act deals with more than one subject, that is, cities of both the first and the second class and that the subject is not clearly stated in the title, it is sufficient to say that the title shows its purpose to be taken as a part of chapter 91 of the Revised Statutes of 1899, entitled “Cities, Towns and Villages, ’ ’ which relates to cities of all the four classes as well as to villages. This act must not be construed alone by its own terminology, because it was not designed to stand alone. It was to take its place in and be a part of the chapter in the Revised Statutes which covers the whole legislative field of “cities, towns and villages.” That chapter not only classifies all cities, subject to classification, and provides for the government of them in their respective classes, but it also provides the legal process for the passing of cities from one class to another. Where an act of the General Assembly, either in its title or its body, makes mention by title and number of a particular chapter and article of the Revised Statutes, the reference is sufficient to indicate the subject of the Revised Statute mentioned. This act does not contain any provision for the government of cities of the second class; it relates only to cities of the first class and no reference is made to cities of the second class except to provide how they may, when they attain the requisite population, become cities of the first class. That is entirely germane to the subject of the organization and government of cities of the first class.

The eighth and last ground is that it is a local or special law designed for St. Joseph' only. Although St. Joseph was, at the date of the enactment, the only city in the State as shown by the last national census with a population within the limits prescribed by section 2 of the act, yet if the act remains on the books it will apply with equal force to other cities when they attain the number of inhabitants indicated.

Our conclusion is 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, is a constitutional and valid act.

The alternative writ of mandamus is quashed and a peremptory writ denied.

All concur.