source: Caselaw Access Project

author: VALLIANT, C. J.

license: Public Domain

text:
    THE STATE ex rel. H. B. SCOTT v. FRED LICHTE et al., Judges of County Court.
    In Banc,
    March 7, 1910.
    1. INCORPORATON OF TOWN: Including Farming Land. County courts are not given authority hy the statutes to include large bodies of farming lands within the limits of a village where the only apparent purpose of including them is to increase the taxable area; but on the other hand, they are not limited strictly to the platted land and commons, hut may include a reasonable quantity of other land when it is so situated that it appears to be designed and adapted to urban purposes and necessary or convenient to the reasonable exercise of the village government; and whether it is so or not, is a question in the first instance for the county court.
    2. -: -: Jurisdiction: Two Towns. Where the petition for the incorporation of a village is in due form and is signed by two-thirds of the taxable inhabitants of the area sought to be embraced within the limits of the proposed corporation, the county court is not deprived of its jurisdiction over the subject-matter by the fact that the petition includes in its purposes two platted towns separated in part by a railroad, and a triangle of forty-five acres of farming land lying between them, and 85 acres adjoining one of them, of which twenty-six acres in a narrow strip lying along the edge of one of them belong to the only objector, and the rest to other parties, one of whom has signed the petition and neither of whom is making any resistance to the incorporation.
    3. -: Notice to Landowners: Constitutional Statute. The statute authorizing the county court to incorporate villages without giving notice by publication or otherwise, to parties whose lands are to be embraced within the corporation, is not unconstitutional. The landowners are not thereby deprived of their property without due process of law. The creation of a municipal corporation is an act of State sovereignty, and the grant of a franchise to it, such as a general charter, is an act that belongs primarily to the General Assembly, and as it could create a municipal corporation without giving notice to landowners, the State can likewise do so through any other department of its government to which it may choose by its Constitution to delegate the power.

      4. CITIES AND TOWNS: Classification: Villages: Five Classes. Tlie Constitution in stating that the number of classes of “cities and towns” shall not exceed four, did not include, and has never been understood by the General Assembly to include, villages as cities. The statutes which divide all “cities” containing more than 500 inhabitants into four classes, and provide that all towns having a less number of inhabitants may be incorporated as villages, did not create five classes of cities and towns, and are not unconstitutional.
    Prohibition.
    Writ denied.

      E. Rosenberger & Son for relator.
    (1) The county court has no jurisdiction under section 6004, Revised Statutes 1899', to include within the boundaries of the village of Bellflower, as sought to be incorporated, large tracts of farm lands which are used exclusively for agricultural and pastoral purposes. State ex rel. v. McReynolds, 61 Mo. 203; State ex rel. v. Campbell, 120 Mo. 402; State ex rel. v. Flemming, 185 Mo. 566; State ex rel. v. Jenkens, 25 Mo. App. 484; State ex inf. v. Bellflower, 129 Mo. App. 138; State ex rel. v. Small, 131 Mo. App. 470; State ex rel. v. Minnetonka, 57 Minn. 526; Vestal v. Little Rock, 54 Ark. 32; State v. Edison, 76 Tex.- 302; Ewing v. State, 81 Tex. 172; Borough of Little Meadows, 35 Pa. St. 335. (2) Under section 6004, Revised Statutes 1899, the county court is without jurisdiction and has no authority to incorporate within the borders of the town of Bellflower, and within the territory described in the petition, a separate and distinct town known, platted and designated as the town of New Bellflower, said town of New Bellflower being separate and distinct from the old town, not adjacent to nor adjoining the old town; but, on the contrary, separated and isolated from said old town by a farm owned by relator and containing forty-five acres. Borough v. West Philadelphia, 5 Watts & S. 281. (3) City limits should not be extended to take in contiguous lands [1] when they are used only for the purpose of agriculture and horticulture and are valuable on account of such uses, or [2] when they are vacant and do not derive special value from their adaptability for city purposes. People v. Bennett, 29 Mich. 451; Morford v. Unger, 8 la. 82; New Orleans v. Michoud, 10 La. Ann. 763; Bradshaw v. Omaha, 1 Neb. 16. (4) Sections 5256 and 6004, Revised Statutes 1899, are unconstitutional in this, to-wit: Article 9, section 7, of the Constitution provides that the General Assembly shall provide by general laws for the organization and classification of cities and towns, and that the number of such classes shall not exceed four. By section 5256, Revised Statutes 1899, it is provided that all towns not now incorporated in this State, containing less than five hundred inhabitants, are hereby declared to be villages. Sections 5252, 5253, 5254 and 5255, divide cities into four different classes, to-wit, first, second, third and fourth class respectively. Section 5256, Revised Statutes 1899, creates a fifth class known as villages. Section 6004, Revised Statutes 1899, provides for the organization of villages as bodies politic, and hence sections 5252 and 6004 are unconstitutional and absolutely null and void, because under article 9 and section 7 of the Constitution, the General Assembly has authority to provide by general laws for the organization and classification of cities and towns, but has no authority to create a greater number of such classes than four, and the General Assembly having attempted to create a fifth class of cities and towns has exceeded its constitutional limits; consequently the county court of Montgomery county has no authority or warrant of law to create as a body politic the town of Bellflower. (5) Section 6004 is unconstitutional in that it is in violation of the Fifth amendment of the Constitution of the United States, and is in violation of article 2, section 30, of the Constitution of the State, which provides that no person shall be deprived of his property without due process of law (said section does deprive this relator of his property without due process of law), and, furthermore, in that it fails to provide that any notice shall he given of the presentation of a petition for incorporation, and fails to provide for any hearing, remonstrance or defense before the county court, and fails to provide any adequate remedy whereby one’s property rights may be protected in the premises, and subjects property to city taxes after incorporation without giving the person affected thereby an opportunity to be heard in court. People v. Bennett, 29 Mich. 451; Trust Co. v. Railroad, 195 Mo. 669; State ex rel. v. Maroney, 191 Mo. 531; State ex rel. v. Spencer, 114 Mo. 574; St. Louis v. Hill, 116 Mo. 527. Section 2, article .10, of the State Constitution provides that the courts of justice shall be open to every person and certain remedies afforded for every injury to property, yet section 6004 fails to provide any remedy for the injury to the property of this relator, and subjects his property to city taxes against his protest, and without giving him an opportunity to be heard in court to make defense.

      Avery, Young & Woolfork, W. B. M. Cook and R. H. Norton for respondents.
    (1) The law of the State vests the county court with authority to incorporate the inhabitants of the village of Bellflower living within the territory described in their petition, and this is done especially bisection 6004, which has been substantially the same since the year 1835. R. S. 1835, p-. 600, sec. 1. This statute is coeval with the Constitution of 18201 and has remained without material amendment-unto this day. The court having jurisdiction of this class of eases, there is no ground for the issuance of a writ of prohibition, since there is other adequate remedy by certiorari or quo warranto. State ex rel. v. Fox, 85 Mo. 61; State ex rel. v. Elkin, 130 Mo. 90; Mastín v. Sloan, 98 Mo. 252; State ex rel. v. Stobie, 194 Mo. 46; Delaney v. Police Court, 167 Mo. 679’; State ex rel. v. Reynolds, 121 Mo. App. 707; State ex rel. v. Mason, 155 Mo. 486; State ex rel. v. Ross, 136 Mo. 273; Coleman v. Dalton, 71 Mo. App! 19; Bankers Life Assn. v, Shelton, 84 Mo. App. 634. The county court certainly did nothing in excess of its jurisdiction in this cause, if it had any jurisdiction at all, for the reason that the court had done nothing in said cause except to fix the day for its hearing and determination, when relator interposed his complaint and prayer for the issuance of the writ herein. Relator did not even tender or interpose the issue of jurisdiction to the respondents» the county court, as in this case it was clearly his duty to do before being entitled to resort to this extraordinary remedy. State ex rel. v. Laughlin, 9 Mo. App. 486; Barens v. Gottschalk, 3 Mo. App. Ill; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Aloe, 152 Mo. 466; High, Extraordinary Rem., sec. 773. In the light of the above authorities we submit that the writ should be denied. (2) There is not, nor has there ever been, any definite or exact rule .of restriction as to the amount of agricultural or pastoral lands that may be embraced or included within the limit of an incorporated town under section 6004, except the qualification made by the statute that the quantity of such lands must be reasonable, and, further, may be sufficient to make even and regular the boundaries of such incorporated town. If there is any other restriction as to the quantity of unplatted territory that may be included, we have been unable to find it in the statutes or in the adjudicated cases, provided, of course, that there is no palpable abuse of the right by undertaking to incorporate a large acreage of farming land, an abuse that has been repeatedly condemned by the-courts. Relator refers to 130 acres of farming or agricultural lands being included within the territory sought to be incorporated as the town of Bellflower,, but fails to say that forty-five acres of this 130 acres is the wedge-shaped tract of land hereinbefore referred to as being located between the original town of Bellflower and relator’s addition which he has christened “New Bellflower” and which the St. Louis Court of Appeals has declared (so that it is now the law of the case), must be taken as a part of the incorporated district as a matter of necessity on account of its peculiar location with reference to the said1 town of Bell-flower and its additions, including “New Bellflower.” State ex inf. v. Bellflower, 129 Mo. App. 133. All of the 130 acres referred to by relator is used for town or urban purposes except the wedge-shaped tract of land located between the old town of Bellflower and the new town of Béllflower, which the relator, Col. Scott, plants to corn of the tallest growing variety so that it may isolate the original town of Bellflower from his addition called “New Bellflower,” and which he insists is a cornfield used strictly for farming purposes. State ex rel. v. Campbell, 120 Mo. 396; Bums v. Edgerton, 143 Mo. 563; Copeland v. St. Joseph, 126 Mo. 417; 28 Cyc. Law and Proc., p. 282, A. and B. On this liberal constmction we do not think the wedge-shaped piece of land separating the two towns ought or could defeat their incorporation as one town. The necessity of taking it into the corporation is apparent, and the fact that it is used for farm land ought not to defeat the right of the two towns to incorporate as one. Gibony v. City of Girardeau, 58 Mo. 141; State ex rel. v. Small, 131 Mo. App. 478; Walden v. Dudley, 49 Mo. 419. (3) The territory and population here sought to be incorporated is not a city of the first, second, third or fourth class, under the laws of the State, but is a village. The town of Bellflower is one compact community of houses forming a nucleus from which a city of the fourth class is destined to spring within a very few years. The authorities hold that when a number of distinct villages have coalesced by the growth of population, they may be incorporated as a borough although the different parts which have grown into one community may continue to be known locally by their original designations. 28 Cyc. Law and Proc., p. 145, par. 8; State ex rel. v. Campbell, 120 Mo. 396; In re Eddystone, 3 Del. Co. (Pa.) 541; 19 Pa. Super. T. 178; In re Narberth Borough, 16 Pa. Co. Ct. 32; 28 Cyc. Law and Proc., p. 149, par. 12; St. Louis v. Allen, 13 Mo. 400; St. Louis v. Russell, 9 Mo. 507; Crook v. People, 106 111. 237; State v. Tipton, 109 Ind. 73; Lancaster Co. v. Rush, 35 Neb. 119. In the absence of any constitutional inhibition the Legislature of the State has full power, in its discretion, to provide what territory may be incorporated within the corporate limits of a municipality, and may enact any law respecting same which is not an abuse of the legislative discretion, as when a territory is included within a municipal corporation or is .annexed to a municipal corporation for the mere purpose of increasing municipal revenue, the property annexed deriving no benefit from the incorporation. Fulton v. Davenport, 17 la. 404; Cheaney v. Hooser, 9 B. Mon. (Ky.) 330 ; 20 Am. & Eng. Ency. Law, p. 1152, par. 8. The Constitution places no legislative restriction upon the Legislature. In the matter of the creation of municipal corporations the Legislature is left free to legislate upon this subject, both as concerning cities of the first, second, third and fourth classes and also villages. McClay v. Lincoln, 32 Neb. 412; State v. Baird, 79 Tex. 63; People v. Flanning, 10 Col. 553; People v. Harvey, 142 111. 573; 28 Cyc. Law & Proc., p. 150, par. 12, subdiv. D, e. e. (4) Sections 5256 and 6004 are not in contravention of section 7, article 9, of the Constitution, providing for the classification of cities and towns. The framers of the Constitution certainly did not intend to restrict or abridge the rights of the people of the State through their legislative body to incorporate the many towns containing less than five hundred inhabitants.
   VALLIANT, C. J.

This is an application for a writ of prohibition to go against respondents, composing the county court of Montgomery county, to prohibit them entertaining jurisdiction of a petition filed in that court, founded on section 6004, Revised Statutes 1899, praying for the incorporation of a village to be called the town of Bellflower. The petition was signed by two-thirds of the taxable inhabitants of the area sought to be embraced within the limits of the proposed corporation and was in due form; it embraced 460 acres of land; it was filed in the county court May 8, 1908, while the court was in session, whereupon the court made an order continuing the matter until May 13th; on May 12th relator filed his petition in this court praying a writ of prohibition; this court on that day issued a preliminary rule to the justices of the county court to show cause why the writ should not issue as prayed. On October 13th, respondents filed a motion to quash the application and dismiss this suit. The court ordered that the motion be retained to be considered on the final submission of the cause on its merits, whereupon respondents filed their return, and the court appointed David H. Harris, Esquire, a commissioner to take proof on the disputed facts. The commissioner has made his report, relator has filed exceptions to same, and the cause is now before us for final disposal on the questions of law and facts.

The relator relies on three propositions to sustain his application for a writ of prohibition: first, that the area embraced in the proposed incorporation includes two separate towns and, of the 460 acres so embraced, 130 acres are lands unplatted and used only for agricultural and pastoral purposes; second, section 6004 is unconstitutional in this, that it makes no provision for notice of the proceeding in the county court and thereby deprives relator of his property without due process'of law; third, that section 6004, in connection with sections 5252 to 5256 inclusive, is unconstitutional in the face of section 7, article 9, of the Constitution, which requires the General 'Assembly to enact general laws for the organization and classification of cities and towns and limits the classes to four, that having by sections 5252 to 5255 created four classes of cities it could not create a fifth class by calling it a village.

I. The facts on which relator’s first proposition is based are as follows:

For some years prior to the beginning of this controversy there existed the unincorporated platted town of Bellflower, containing originally eighty acres, but afterwards by additions made from time to time so extended as to cover 240 acres. Relator bought a tract of 190 acres lying adjacent to and south of the town. After the relator’s purchase, the O., B. & Q. railroad was'constructed, running diagonally through relator’s land from southeast to northwest, and through a. small part of the southwest corner of the town. The location of the railroad left a tract of about forty-five acres of relator’s land in the shape of a triangle.north of the track and adjoining the south line of the town. The relator then laid off and platted a town on his own land south of the railroad and called it New Bell-flower. His new town was separated from what he calls the old town by this forty-five-acre triangle, and he has since used that triangle solely for a cornfield.

The following diagram, though not mathematically accurate, will assist in understanding the situation. A very much more accurate map is on file in the case showing the plats of the two towns laid. off in lots, streets, alleys, etc., to which reference may be had if desired:

The petition on file in the county court asks that all the land shown on the above diagram, including the two platted towns, the forty-five-acre' triangle and eighty-five acres embraced in the dotted lines, aggregating in all about 460 acres, be included in the corporation. Of the eighty-five acres embraced in the dotted lines twenty-six acres in a narrow strip south of the new town belong to relator, the rest to other parties, one of whom is one of the petitioners for the incorporation and neither of whom is making any resistance to the act of incorporation.

The statute under which the parties seeking the incorporation are proceeding is section 6004, Revised Statutes 1899, of which the following is the part of vital interest in this case:

“Whenever two-thirds of the taxable inhabitants of any town or village within this State shall present a petition to the county court of the county, setting forth the metes and bounds of their village and commons, and praying that they may be incorporated under a police established for their local government, and for the preservation and regulation of any commons appertaining to such town or village, and the court shall be satisfied that two-thirds of the taxable inhabitants of such town or village have signed such petition, and that the prhyer of such petition is reasonable, the county court may declare such town or village incorporated, designating in such order the metes and bounds thereof, and thenceforth the inhabitants within such bounds shall be a body politic and corporate, by the name and style of ‘The town of-----,’ naming it,” etc.

Relator interprets that statute to mean that the county court has no jurisdiction to entertain a petiion for incorporation that seeks to include in the corporation area any more than “the metes and bounds of their village and commons,” therefore it cannot entertain this petition, which seeks to include the new town, which is no part of the original village, the forty-five-acre triangle and the eighty-five acres outlying which are no part of the village commons. In support of that interpretation of the statute relator relies on the law as declared by this court in State ex rel. v. McReynolds, 61 Mo. 203. The language used by the court in that case gives strong support to the relator’s contention here, but that language must be understood as applied to the facts of that case. That was a proceeding by quo warranto tried in the circuit court and brought to this court by appeal, the record showing all the facts of the case. In that case the county court of Bates county had undertaken to incorporate a village under the name of the town of Butler and included in the area designated for the village about 1200* acres, of which only about 260 or 280 acres were included in the town as it had previously been platted, the rest was farming-land surrounding the town with nothing to indicate that it was designed or intended ever to be used as urban property. The court defined the word “commons” as used in the statute to mean “lands included in or belonging to a town set apart, for public use, ’ ’ and after quoting from the statute said: “It would seem from the foregoing portion of the statute that power is only given to the county courts to incorporate towns and villages and their commons; that no power is conferred on county courts to incorporate a farming country not constituting a part of the town or village or the commons belonging thereto.” That language expresses the law correctly as applicable to the facts of that case, but it is not to be so applied in other cases as to forbid the county court including any land at all except that contained in the platted towns and its commons.

A previous effort to incorporate this village found its way into our St. Louis Court of Appeals, where it passed under judgment in the case of State ex rel. Rosenberger v. Bellflower, 129 Mo. App. 138. In that case the petition for incorporation sought to compass not only the old and new town and the forty-five-acre triangle as in this case, but also over 600 acres of outlying farm land. The court in rendering its decision referred to and quoted from the McReynolds case, and other more recent decisions of this court, the latest being State ex rel. v. Fleming, 158 Mo. 558, wherein it was said: “While it is true that the county courts of our State have no right to incorporate farming or agricultural lands, as such, into cities or towns, as was attempted in the McReynolds case, supra, yet lands used for agricultural purposes solely, may become so surrounded and connected with lands used for town and city purposes, as to be and constitute a part thereof, so that the incorporation of the town or city would, as a necessity, include within its natural boundaries such lands, and this court has three times held since the opinion in the McReynolds case, supra, that the inclusion of small tracts of agricultural lands within the corporate limits of the unincorporated town would not operate to defeat the corporation thus created. [State ex rel. v. Campbell, 120 Mo. 396; Burns v. Edgerton, 143 Mo. 563, and Copeland v. St. Joseph, 126 Mo. 417.]” Then the Court of Appeals said: “On this liberal construction we do not think the wedge-shaped piece of land separating the two towns ought or can defeat their incorporation as one town. The necessity of taking it into the corporation is apparent, and the fact that it is used for farm lands ought not to defeat the right of the two towns to incorporate as one. But it seems to us that under the authority of the McReynolds case the county court exceeded its jurisdiction by including within the boundaries of the town over six hundred acres of outlying farm land.” That was also a quo warranto case tried in the circuit' court and carried to the Court of Appeals by appeal, where the judgment was reversed and the cause remanded. After that cause was returned to the circuit court the suit was dismissed and the petition we are now considering was filed in the county court, differing from the petition in the former suit only in that it now covers only eighty-five acres of outlying land instead of over 600.

The law is correctly stated in the cases above referred to. The county courts are not given authority to include large bodies of farming lands in a village limits where the only apparent purpose of including them is to increase the taxable area, but on the other hand they are not limited strictly to the platted land and commons, but may include a reasonable quantity of other land when it is so situated as appears to be designed and adapted to urban purposes and necessary or convenient to a reasonable exercise of the village government. Whether it is so or not is a question in the first instance for the county court. It is contended by the respondents in this case that these outlying lands are of the character and location that would bring them within the description above mentioned and there is evidence taken before the commissioner that tends to so prove, but we are not going to decide that issue of fact, because this, differing from the cases above referred to, is an application for a writ of prohibition and we are concerned only with the question of county court’s jurisdiction. If that court has jurisdiction of the case before it, the question of whether the alleged farming lands included in the petition for incorporation fill the description above mentioned of such lands as may be so included, is a question for that court in the first instance to decide, if it decides the question in the affirmative it will, if all else is right, grant the prayer for incorporation, otherwise it will deny the petition. We hold that the county court is not deprived of its jurisdiction given under section 6004, Revised Statutes 1899, by the fact that the petition includes in its purpose the two towns, the forty-five-acre triangle, and the outlying eighty-five acres.

II. Relator contends that section 6004, Revised Statutes 1899', is void because it attempts to authorize the county courts to incorporate villages without giving notice to the parties whose lands are to be included in the corporation, thereby depriving them of their property without due process of law.

Relator misconceives the purpose of the statute and the purpose of the petition under it in the county court. He is not in any event to be deprived of his property, he is only liable, if the petition should be granted, to have an additional arm of State governmental protection extended over his property and a tax levied to pay the expense. The State is not required to give notice when it purposes to take action for the better government of its people or when it will levy taxes. The creation of a municipal corporation is an act of State sovereignty, the corporation is created to aid the State in the exercise of its sovereign power, to preserve the lives, the health, the liberty of its people and the protection of their property — it is an arm of the State. Formerly cities, towns and villages were incorporated only by special acts of the Legislature, and when so the Legislature never waited to notify the owners of the land that it was intending to create a municipal corporation that would include their lands or asked if they had anything to say why it should not be done. No one ever questioned the power of the State to so act without previous notice to the landowners. But in modern times, because the legislative department of the State government has not time to spend1 in making a special charter for every community that feels the. need of a municipal government, and also for the sake of uniformity in such charters, it has with sanction of the Constitution passed general laws delegating that governmental power to the courts and directing how it shall be exercised. We do not mean to say that the county court in exercising such power is as free from supervision and control of higher courts as the General Assembly would he if it acted in the same matter, but what we do mean to say is that the power to incorporate when exercised by the county court is a power of the same nature as that which the General Assembly would have exercised if it yet retained the exercise of that authority. The grant of a franchise, whether to constitute a public or a private corporation, is an act of sovereignty that belongs primarily to the law-making department, and' though transferred by the General Assembly to the judicial department by authority of the Constitution, yet it is not a judicial act, though when exercising it the court doubtless must act according to its own course of procedure as far as applicable. Section 7, article 9, of the Constitution says: “The General Assembly shall provide, by general laws, for the organization and classification of cities and towns.” Since the State, acting through its legislative department, could create a municipal corporation without giving notice to the owners of the property without violation of section 30, article 2, of the Constitution, which says “that no person shall be deprived of life, liberty or property without due process of law,” the State can likewise do so through any other department of its government to which it may choose by its Constitution to delegate the power. When the General Assembly conferred this power on the county courts it bad authority to prescribe the course to be pursued and if it had required notice by publication or otherwise the county court would have to comply with such requirement, but it has not so required and it was not required so to do.

III. Relator’s third point is- that section 6004, when considered in the light of sections 5252 to 5256, violates the provision of section 7, article 9, of the Constitution, which forbids the creation of more than four classes of cities and towns. That section of the Constitution 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 provisions, 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, tbe general laws relating to sncb corporations.”

In obedience to that constitutional mandate the General Assembly in 1877 enacted what are. now sections 5252 to 5255, Revised Statutes 1899, inclusive, dividing all “cities and towns” into classes. Cities and towns having 100,00o1 inhabitants or more are “cities of the first class,” containing 30,000 and less than 10Ó,-000 “are cities of the second .class,” containing 3000 and less than 30,000 are “cities of the third class,” containing 500 and less than 3000 are “cities of the fourth class.” Those sections, when describing the municipalities by the number of inhabitants, use the words “cities and towns, ’ ’ as used in the Constitution, but when classifying them they use the word “cities” only, designating them not as “cities and towns” of the first, second, third or fourth class, but “cities” of the first, second, third or fourth class. This classification left out of view unincorporated towns or villages containing less than 500 inhabitants, but in 1879 the General Assembly enacted what is now section 5256, Revised Statutes 1899: “All towns not now incorporated in this State, containing less than 500 inhabitants, are hereby declared to be villages.” The effect of that section is a mere definition, the statute authorizing the incorporation of such villages was already a law and had been in force since 1837 and is substantially the same as section 6004 we are now discussing; the jurisdiction of the county court to entertain the petition now before it is not derived from section 5256 defining the word village, but from section 6004 which would have been as effectual for the purpose of incorporating a village if section 5256 had never been enacted.

Relator’s proposition is that the Constitution having said that the General Assembly should not create more than four classes of cities and towns, it could not create a fifth class of towns by calling them villages. To give that interpretation to the section of the Constitution above quoted we would have to say that the framers of the Constitution intended that the term “cities and towns” should embrace not only the larger urban communities but the smallest also, or else they intended to ignore or exclude from organization the small communities called villages. That section itself, however, expressly recognizes that there were then existing under special charters not only cities and towns but villages also, eo nomine. The statute under which the petition in the county court in this case is framed has been the law of this State from its earliest organization. The express purpose of the statute is the incorporation of villages as distinguished from larger urban communities.

The distinction between villages and larger towns was not only well known to the framers of the Constitution of 1875, and to the inhabitants generally of this State, but provision for their incorporation and government is found in our earliest statutes. That well-known distinction is shown by the fact that the first General Assembly 'which convened after the adoption of the Constitution of 1875, re-enacted, with slight amendment, the statute providing for the incorporation of villages as it had then existed since 1837 and as it has come down to us in its present form; from that date to this that statute has remained on our books and its validity has never before been questioned, so far as our reported cases show. Even if we were inore impressed than we are with the soundness of the argument of relator we would hesitate to declare an Act of the General Assembly invalid that had so long stood unchallenged and on which doubtless many rights now depend.

There is nothing technical or obscure in the meaning of the words city, town and village. The word town is more comprehensive than either of the others. it is a generic word applicable as well to a city as to a village. In England a city was distinguished from other towns by the fact that it had a cathedral and was the residence of a bishop, but in this country the name city is used ordinarily to designate the larger class of towns. The name village always carries to the mind the idea of a small urban community. A city is a town and a village is a town, but the word city or village indicates the size of the town. London, New York and St. Louis are towns and Bellflower is also a town, but in applying the word city or village to either of those communities no one would be in doubt as to the correct application. Sometimes perhaps ambitious founders of towns misapply the word city to what should be called a village, but no one is deceived thereby; we speak now of the ordinary and commonly accepted meaning of the words. We find in the section of the Constitution we are now considering (Sec. 7, art. 9) the term “cities and towns,” and also the term “town or village;” our General Assembly in 1877, when it came to performing the duty required by that section, interpreted the term “cities and towns” as -there used to mean cities, and the term “town or village,” as therein later used, to mean village, and so it has been by that department of the State government understood ever since, and we think the General Assembly was correct in its interpretation.

The writ of prohibition is denied.

All concur.


text:
    THE STATE ex rel. HALSEY v. ALVA P. CLAYTON, Mayor, et al., Officers of CITY OF ST. JOSEPH.
    In Banc,
    March 7, 1910.
    1. STATUTES: Conflicting. 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.
    2. -: Validity Presumed. Where the validity of a statute is assailed it will be upheld if it is susceptible of a construction that will render it valid.
    3. -: Cities of First Class: Act of 1909: Sec. 5252, R. S. 1899: Irreconcilable Conflict. Sec. 5250, R. S. 1899, found in article 1 of chapter 91, and providing that “all cities and towns in this State containing one hundred thousand inhabitants or more, shall be cities of the first class,” and the Act of 1909, which expressly repeals" article 2 of chapter 91, but leaves article 1 in full force, and provides that “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,” are not in irreconcilable conflict.
    4. -: -: -: -: Manner of Organization: Census. The Act of 1909 does not say that no city except it be within the limits of the designated population (between 75,000 and 150,000) shall become a city of the first class, but it says that only cities between those limits may organize as a city of the first class under the provisions of the act, and it can do so only when the last state or national census shows it has the requisite population, and then only by a vote of the people. All cities of 100,000 or more are still cities of the first class, and one of them proposing to so organize may ascertain that it has the requisite population by a census of its own, as well as by the last state or national census, and it may determine to so organize with or without an election. These are material differences and the General Assembly had power to prescribe these different terms, because not inhibited from doing so by the Constitution.
    6. -: -: -: Five Classes. Nor can it be held that the Act of 1909 left all cities having more than 150,000 population without classification, or created a fifth class of cities in contravention of the Constitution. All cities in excess of that population (St. Louis and Kansas City) now have special charters of their own, formed and adopted in pursuance to statutes and the Constitution, and the act is not to be held unconstitutional because the Legislature did not make provision for the organization as cities of the first class of cities which may hereafter have more than 150,000 inhabitants. That may hereafter be done. Besides, article 1 of chapter 91, yet in force, declares all cities having a population of 100,000 or more are cities of the first class.
    6. -: -: -: Different Powers. The charter and municipal governmental powers and duties given by the Act of 1909 are not limited to cities having between 75,000 and 150,000 inhabitants, but apply to all cities of' the first class, including those and all others having 100,000 inhabitants or more; and hence the act does not violate the constitutional mandate that all cities “of the same class shall possess the same powers and be subject to the same restrictions.” It only provides a different method or terms of organization as a city of the first class, by those having between seventy-five and one hundred and fifty thousand inhabitants, and by those having one hundred thousand or more.
    7. -: Title: Reference to Chapter. Where an act, either' in its title or 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 Statutes mentioned. “An act to repeal all of article 2 of chapter 91 of the Revised Statutes of 1899, relating to cities of the first class, and to enact a new article to be known as article 2, chapter 91,” is a sufficient title to the Act of 1909, which repealed the article referring to cities of the first class, and enacted a new article referring to cities of the same class. The fact that the act makes provision by which the only city of the second class in the State could organize as a city of the first class and makes no reference to cities of the second class except to provide how they may, when they attain the requisite population, become cities of the first class, does not render the title insufficient.
    8. -: Special Law. While the Act of 1909 applied only to St. Joseph at the date of its enactment, yet if it remains a law it will apply with equal force to other cities when they attain the number of ‘inhabitants indicated by it, and is not, therefore, a special or local law.
    Mandamus.
    Writ denied,

      K. B. Randolph and Chas. F. Strop for relators.
    (1) The Act of 1909 by necessary implication repeals sec. 5252, R. S. 18991. 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; Tall v. Grillihan, 187 Mo. 405; Smith v. State, 14 Mo. 115. If petitioner is correct in his * contention that section 5252 is repealed by necessary fimplication 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 hill . . . 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 tins 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. Herrhiann, 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.' Eney. Law (2 Ed.), 720; Marker 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 o.f 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.
   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.


author: GRAVES, J. WOODSON, J.

text:
    THE STATE ex rel. THEODORE REMLEY v. JOSEPH M. LOWE et al., Election Commissioners of Kansas City.
    In Banc,
    March 12, 1910.
    1. MUNICIPAL JUDGES: Election by Districts. Under the charter of Kansas City the council had power to provide by ordinance for the election of an additional municipal judge by the voters of the district over which he is thereby given jurisdiction. Said ordinance is not invalid because it does not require all municipal judges to be elected by the voters of the • whole city.
    2. -: -: Charter Provisions. Section 8 of article 4 of the charter, requiring the judge of the municipal court to “be elected by the qualified voters of the city,” and section 10, providing that “the city may by ordinance divide the municipal court into two or more divisions, prescribe the time and place of holding each of such divisions, and territorial district of the city within which each division shall exercise jurisdiction, and provide for the election, at any general election, of additional judge or judges to preside over such additional division,” are somewhat indefinite as to the right of the council to divide the city into two districts and provide for the election of a judge from each, instead of by the whole city, but they are not in express conflict, and an ordinance providing that each judge shall be elected by the voters of the district is not invalid. Section 8 was meant to apply so long as there was one municipal judge in the city; section' 10 was meant to apply when another was to be added and a district given to each; and if so understood, they are harmonious.
    3. -: -: Elected By Voters of District. The very fact that said section 10 declares that the territorial jurisdiction of such additional judge is limited to his own district is persuasive argument that the charter means that he shall be elected by the voters of his district only; otherwise, it would have given each judge concurrent jurisdiction throughout the city. [Per WOODSON, J., concurring.]
    '4. MUNICIPAL CONDUCT: Presumption. It is to be presumed that the city council has acted and will act in a manner consistent with official dignity, honor and probity: It is not to be presumed that, if under the charter the council has" the right to create municipal court districts, it will exercise that power so as to make a district of the lawless portions of the city with power in the law-defying elements therein to elect the judge.
    Mandamus.
    Writ denied.

      John Kennish for relator.

      Jno. T. Harding for respondents.
   GRAVES, J.

Relator filed Ms application for an alternative writ of mandamus against the respondents. Respondents entered their appearance and waived’ the formal issuance of the alternative writ, and have treated the petition as and for the alternative writ. To such pleading they have' demurred. Under such circumstances we have treated the petition for mandamus as and for the alternative writ, and a demurrer thereto as a motion to quash such writ, and thus they will he treated in this case.

The facts pleaded and pertinent are about as follows: Respondents constitute the Board of Election Commissioners of Kansas City, Missouri. Relator'was. on the 25 th day of February, 1910, named by the Republican party in a convention of delegates of such party' as the Republican candidate for judge of the municipal court in and for said city. On the 21st day of February there was passed by the common council of said city an ordinance entitled:

“An ordinance, dividing the municipal' court into two divisions and describing the time and place of holding of each of such divisions and the territorial district of the city within which each division shall exercise jurisdiction, and providing for- the election at the next general election of judges to preside over the divisions of such municipal court.”

This ordinance was approved by the mayor of said city on the 22nd of February and if valid went into effect at said time. Sections 1, 2, 5, 6, 9 and 10 of said ordinance, thus read:

‘ ‘ Section 1. — That the municipal court be, and the same is hereby divided into two divisions, to be known as ‘Division No. 1,’ and ‘Division No. 2,’ each-of which shall be presided over by a municipal judge, who shall, at the time of his election, have been for five years a member in good standing of the bar of Jackson county, Missouri, and shall be learned in the law. He shall be a resident of the respective district in which the division of the municipal court over which he is to preside is situated.
“Section 2. — That the city is hereby divided into two municipal court districts, which shall be known as ‘District No. 1,’and1‘District No. 2.’ . . .
“Section 5. — That there is hereby created an additional judge, who shall preside over such Division No. 2.
“Section 6. — That the municipal judges shall be elected at the next general election and at the succeeding elections by the qualified, voters of the district in which is situated the court over which he is to preside, for a term of two years, at the same time and in the same manner as are other city or municipal officers.
“Section 9. — Whenever complaint in writing upon the oath or affirmation of any person competent to testify against the accused, or information in writing by the city attorney, shall be made to either of said municipal judges that any violation of an ordinance or other regulation of the city has been committed within the territorial district, of which he is the judge, for the breach of which any fine or penalty was imposed, such municipal judge shall forthwith issue a warrant for the arrest of the offender, which warrant shall be directed to the chief of police and shall be executed by him, or any other officer or member of the police force.
“Section 10. — The powers, duties and jurisdictions of each of said municipal judges shall he co-ordinate, except as to territorial limits, and in case of the absence or sickness of one of the judges the other may preside over his division.”

Section 3 of the ordinance prescribes the territorial limits of Municipal Court District No. 1, and section 4 the territorial limits of District No. 2. Section 7 locates the place of holding such court in said District No. 1, and section 8 provides that the place of holding court in said District No. 2 shall be as may hereafter be fixed by the common council. Section 11 fixes the compensative salaries of the judges and provides for the payment thereof; Such is the ordinance, and this ordinance the relator avers to be invalid for the following reasons:

“ (a) That it is in conflict with and repugnant to the provisions of said article four, section -eight, of the charter of said city.
“(b) That it is in conflict with and repugnant to article four, section ten, of said charter.
“(c) That it attempts to divide said municipal court into two divisions and to divide the said city into two territorial districts and provides that the qualified voters of each of said districts shall elect a judge of a division of said municipal court to preside over the division exercising jurisdiction in’ the district in-which said judge is to be elected; and said common council is and was without any power or authority to provide by ordinance for the election of a judge of the municipal court or a division or divisions thereof, except by the vote of the qualified voters of the entire city.
“(d) That article four, section eight, of said charter provides that judges of the municipal court shall be elected by the qualified voters of the said city, and that the said common council had and has no power or authority to change the manner of the election of said judge; that article four, section ten, of said charter confers upon said common council authority to legislate only with reference to the election of additional judge or judges of said court.”

Respondents contend that the ordinance is valid, and that inasmuch as the relator was not nominated as a candidate for judge of either of said municipal court districts, but for the city at large, they have, by resolution of their board, declined and refused to have relator’s name printed on the ballots to be used in the coming city election to be held April 5, 1910.

Material portions of article 4 of the city charter are:

“Sec. 8. — There shall be a comptroller and a treasurer and a judge of the municipal court, who shall be elected by the qualified voters of the city, who shall hold their offices for a term of two years, and in all cases until their successors have been duly elected and qualified, and who shall, in addition to the duties prescribed in this charter, perform such other duties as may be provided by ordinance, pursuant thereto.
“Sec. 10. — There is hereby created a court not of record to be known as the municipal court of Kansas City. Such court shall be presided over by a judge who shall, at the time of his election, have been for five years a member in good standing of the bar of Jackson county, Missouri. The city may, by ordinance, divide the municipal court into two Or more divisions, prescribe the time and place of holding each of such divisions, and territorial district of the city within which each division shall exercise jurisdiction, and provide for the election, at any general election, of additional judge or judges to preside over such additional division. When such municipal court is divided into divisions, each of such divisions shall possess the same powers and jurisdictions, except as to territorial limits; and any judge of any division may preside in any other division when required' by ordinance so to do. . . . The municipal court and each division thereof, shall have jurisdiction of all eases arising under any provision of this charter or any ordinance of the city, and shall likewise exercise such jurisdiction as may be delegated to it by the general law of the State of Missouri. . . . The judge or judges of the municipal court shall be ex-officio justices of the peace, and have and exercise in addition to any jurisdiction conferred by this charter, such powers and jurisdiction as may be delegated to them by any law of the State of Missouri. ” . . .

Under árticle 3, which pertains to the “Powers of Common Council,” we find the following:

“Thirty-fifth., To establish, create and prescribe the term of office, salaries and duties of all officers and the compensation and duties of all employees and agents necessary or proper in carrying into effect any of the powers of the city, in all cases not otherwise provided for by this charter, and to establish the compensation . of jurors and witnesses, respectively, for their services, except as otherwise provided in this charter; provided, that the salary, fee or compensation, of any officer shall not be changed during the term for which he is elected or appointed, and that no officer receiving a salary shall receive any fees or other compensation for his services.”

Other matters contained in the charter, if material, will be noted in the course of the opinion. Counsel for relator in his statement of the case says the sole question for determination on the pleadings is. the validity of the ordinance above set out in part, and counsel contra agree to this proposition. Such sufficiently states the case.

Eelator contends that under these charter provisions, whether one or more than one judge of the municipal court is to be elected, the election must be by the electors of the whole city, and that inasmuch as this ordinance undertakes to limit the election to the electors of the particular districts, the same contravenes and is in violation of the charter provisions and therefore void. Speaking of these charter provisions le,arned counsel for relator thus sharply states his contention :

“It is clear that their intention was one municipal court — to be divided1 at the proper time into two or more divisions, presided over by judges elected by the qualified voters of the whole city and whose jurisdiction might be limited territorially to districts for the convenience of the inhabitants thereof. ’ ’

"We do not agree with learned counsel upon this proposition. We have here two sections of the same charter, pertaining in a way to the same subject-matter, i. e., sections 8 and 10 of article IV. It is the duty of the court to so construe the sections as to permit both to stand, if such can be done without doing violence to the well known canons of constructions. The charter provisions are not as clear and distinct in terms as they might have been, but we think-the real intent of the law-makers (in this case, the people) can be gathered therefrom, and both sections given a meaning which will obviate a clash between the two. Article IV pertains to municipal officers, their qualifications and duties. Section 8 does provide for a judge of the municipal court, and does provide for his election by the qualified voters of the city, but section 10 is the portion of the charter which in fact creates the court and prescribes the qualifications of the judge or judges thereof. In this section the charter expressly authorizes the city to legislate of and concerning this court. The city is expressly authorized, (1) to -divide this court into two or more divisions, (2) to designate the time and place for holding each of the divisions of such court, (3) the territorial district of the city in which each division shall exercise jurisdiction, and (4) to provide for the election of an additional judge or judges to preside over such additional division. These are some of the things about which the charter says the city can legislate so far as concerns the municipal court. There is some ambiguity in the use of the words “additional judge.” By section 8 the term is fixed at two years. By section 10 no new or “additional judge” could be elected except at a general election. An examination of the new Kansas City charter reveals the fact that such general city elections are to be held once in every two years. It thus appears that if the ordinance had not been enacted the whole electorate of the city would have chosen the first judge of the municipal court. But it is equally as apparent, that if just after his election this ordinance had been passed, then at the next general election there would be two judges to elect, because the first judge elected only holds office for two years. In fact all such judges can only hold for two years. So that had there been one election under the charter prior to the passage of the ordinance, then there would have been an election of two judges of the municipal court at the second election under the charter, and not simply an election of an “additional judge.” There never could be an election of simply an “additional judge” because whenever an increase is made in the number of divisions or districts, no new man can be elected until the next general election, and at such time all such judges must be elected. The use of the term is therefore somewhat clouded.

But taking the two sections together, we are inclined to believe they both can stand, and yet a reasonable construction given them. To our mind the charter-makers by section 8 intended to provide for the election of a judge of the municipal court up to such time as the law-makers of the city chose to exercise their right to legislate concerning the matter, and' that when the law-makers did legislate under the authority of section 10 such legislation would control the whole situation. The two sections are inter-dependent. By section 8 the term of office is fixed, but no qualifications of the officers are named. By section 10 the court itself is created, and the qualifications of the judge or judges thereof are fixed/.

The ordinance follows strictly the legislative powers granted by section 10, article 4, of the charter. It divides the court (theretofore created by section 10 of the charter) into two divisions. The power is clearly granted by the charter. It provides for the place at which such divisions shall hold court, - and prescribes the territorial district in which such divisions shall exercise jurisdiction. These things are clearly within the charter powers. The ordinance in addition provides for the election of a judge for each division by the voters of the district wherein the said division of the court shall be held. This it is urged, is in violation of the charter powers. The charter, section 10, article 4, which gives the city the right to legislate upon the subject, among other things says, “and provide for the election, at any general election, of additional judge or judges to preside over such additional division. ” We have discussed supra the looseness of the expression “additional judge,” and we call attention now to the use of the word “division” in the quotation last above. It is clear under all the provisions that the power is given the city law-making power to create more than two divisions of their court, and yet the word appears in this connection in the singular number, when it should have read “division or divisions.”

But be that as it may, there is here given a power to provide by legislation for the election of judges after the court has been divided. The power is granted “in broad terms, leaving it to the legislative body to work out the details. This detail work has been done in the ordinance attacked in this case, and we think it is within the general power granted by the charter.

In other words, under the power granted to divide the court into two divisions, fix the districts wherein jurisdiction of each is to be exercised, and to provide for the election of the judge or judges, we take it that there is power granted to limit the election of such judges to districts, and by the voters of such districts. This we think is, a rational construction of the two charter provision^. As stated elsewhere, section 8 evidently was intended to control the question by. whom the judge of the municipal court should be elected prior to such time that the city through its legislature saw fit to act under the powers granted by section 10. But •'when the city did act under those powers and divided the city into districts then the judge of each division should be elected' from the electorate of such district and by the electorate of such district.

It may be urged that such construction adds additional qualifications to those required by the charter. The charter prescribes but one qualification, and that is that such judge at the time of his election shall “have been for five years a member in good standing of the bar of Jackson county, Missouri.” Under this it could hardly be said that the framers of the charter meant that a candidate should be elected who lived at Independence or some other city in Jackson county, yet there would be a score or more living outside of Kansas City who would fill the measure of the charter provision, so far as the. qualifications are named in express words. Such, however, was never the intent of the framers of this charter. They évidently meant that-where the court had not been divided, the judge must have this expressed qualification, and in addition must be a resident of the city and be elected by the voters of the city. And to our mind it is equally as clear that the charter-builders meant that the city could later divide the court, prescribe the districts of jurisdiction, and when such was done, the candidate for the judge of such court for any particular division, must, in addition to possessing the charter qualification, be a resident of the district he is to serve and be elected by the voters of such district.

In Throop on Public Officers, sec. 73, among other things, it is said: “The general rule is that the Legislature has full power to prescribe qualifications for holding office, in addition to those prescribed by the Constitution, if any, provided that they are reasonable, and not opposed to the constitutional provisions, or to the spirit of the Constitution.”

Mechem on Public Offices and Officers, sec. 66, says: “Where, howaver, the Constitution does not prescribe the qualifications, it is the province and the right of the Legislature to declare upon what terms and subject to what conditions the right shall be conferred. And where the Constitution has made some provision, but not exclusive ones, the Legislature may add such others as are reasonable and proper.”

In the case at bar it is evident that the charter has not in express words undertaken to fix all the qualifications. The question of citizenship or residence is not mentioned, but must be read into the charter. It is a rule that where no limitations are fixed as to ■qualifications then the right, under our political system, to hold office is coextensive with the right of voting at an election to fill the office. Upon this question, Mechem, sec. 67, says: “Where no limitations are prescribed, however, the right to hold a public office under our political system is an implied attiibute of citizenship', and is presumed to be coextensive with that of voting at an election held for the purpose of choosing an incumbent for that office; those and those only who are competent to select the officer being deemed competent also to hold the office.”

Under this view, where the charter has named but one qualification, and has not made that an exclusive qualification, then when the Legislature of the city, acting under the charter divided the court and fixed the districts of jurisdiction, such Legislature could also legally add the additional qualifications of residence in the district to he served.

Such is in keeping with the spirit of our institutions. [Throop on Public Officers, see. 72; Commonwealth v. Lally (Pa.), 30 Leg. Int. 296.]

It is urged in the brief that, if this construction be given the charter provisions, the city legislature could put the “tenderloin” section of the city in one district and thus permit the “toughs” to select the man before whom they should be tried. We hardly deem this an effective argument. It is to be presumed that the city legislature has acted and will act in a manner commensurate with official dignity, honor and probity. To our mind the ordinance in question is a legitimate exercise of the'charter powers conferred upon the ordinance-makers of Kansas City. If so, the ordinance is valid, and so we hold. The relator was nominated after this ordinance became effective. He was not nominated for either division of the municipal court. Under these facts and the law applicable thereto he is not entitled to have his name go upon the ticket, and respondents were right in refusing to print it thereon. The alternative writ is quashed, and peremptory writ refused.

All concur. Woodson, J., in separate opinion filed.

CONCURRING- OPINION.

WOODSON, J.

In concurring with the views expressed by Judge G-raves in this case, I desire to add: it seems to me that if it had been the design of the framers of the charter that the judges to be elected were to be voted for by the electors of the entire city, then they would have given each judge co-ordinate jurisdiction over the entire city, as is true of the circuit court in those counties where the court is divided into two or more divisions, and would not have authorized the division of the city into districts, and have limited the jurisdiction of each judge to tiie district over which he is to preside.

The policy of our form of government is, and has been, to limit the right to vote for district officers to the electors of such district, except where there is an express provision to the contrary found in the organic law, so in doubtful or mooted cases, this policy should prevail.

This is democratic, and, in the absence of express provision to the contrary, no one should he permitted to vote for an officer of a district different from that in which the elector resides.