*1 as a means used range was when municipal HANNIBAL, a OF CITY fire, had danger of was heating there Appellant, corporation, ap- by the use amplification need do with having to language pellate-court Winchester, defendants, negligence their and Ruth knowledge of Ben N. WINCHESTER al., wife, Respondents. his et course, Of negligence. result of knowledge told the defendants’ jury was No. 50068. fire in which manner” particular of “the Missouri, Supreme Court of from the use injury result would In Banc. unnecessary. heating, was gas range in opened the minds might have This well June “any thought manner” jurors and, fire occurred which the jury saw jurors, when
minds of “regard- was satisfied
that “this element” fire” have of the fact that the
less peculiar circum- from unusual or
resulted
stance, likely long jury to have required findings forgotten
since and causation
negligence of defendants 3, and verdict-directing Instruction No. the fire
assume that whatever manner circumstance, even
resulted whatever circumstances,” peculiar de-
“unusual or
fendants were liable.
We hold the Instruction No. 4 was and, therefore,
confusing misleading
prejudicial. complain
Defendants that Instruction No.
3, plaintiff’s principal verdict-directing in-
struction, was erroneous. It is not neces-
sary for us to contentions of discuss these
error. The instructions are to be care-
fully considered judge the trial
counsel, instructing jury and errors in
thus avoided retrial. judgment for defendants should be
reversed, and the cause remanded. so ordered.
PER CURIAM. foregoing opinion by PAUL VAN
OSDOL, Commissioner, adopted Special opinion of
as the the Court. judges
All concur. *2 territory. petition A under the
declaratory judgment
V.A.M.S.,1
Act,
71.015,RSMo
Section
against
inter-
suit
filed as a class
*3
adjacent territory. No
ested
owners
class
objection
to the use
is made here
petition
allega-
action.
contains the
The
case,
Sawyers Act
appropriate
tions
ato
namely,
proposed
that the
necessary
proper
de-
reasonable and
velopment
that the
had the
municipal
ability to
normal
services
furnish
time, and
within a reasonable
area
pertinent.
deemed
other factual statements
adopted appropriate
City
The
Council had
annexation, in-
concerning
resolutions
part
cluding
eliminating from the suit a
one
proposed
originally
for
area
annexa-
tion,
certain
agreement
because
with
property
resulting
partial
in a
an-
owners
their
nexation. Defendants filed
motion
petition
the second amended
on
dismiss
following
among others:
that
grounds,
action;
petition
that
stated no cause
said
jurisdiction
court did not have
subject
parties;
71.015
matter
apply
does
cities and that the
unconstitution-
statute is
applied,
al as so
it is in conflict with
because
Art.
and 20 of Missouri Con-
§§
stitution, V.A.M.S.;
plaintiff
pro-
must
ceed under
RSMo
82.090,
Section
V.A.M.S.,
corporate limits were
because its
charter, and that
defined and
set out in
repugnant
present proceedings
plain-
statute;
boundaries of
by charter amend-
tiff can
extended
present proceedings
ment, and that
property
their
deprive defendants of
would
process.
Honorable
without due
James
Davidson,
Counselor, Ely
Dennis R.
City
case,
to hear
assigned
D.
Clemens was
Hibbard,
Hannibal,
Ely,
&
Ben
appel-
for
Court
judge.
regular
in lieu
lant.
peti-
and dismissed
motion
sustained the
Hannibal,
Spaun,
respond-
William B.
jurisdiction
prejudice
lack of
tion
ents.
matter;
it relied
EAGER, Judge.
City
City,
Kansas
cases
of McConnell v.
Mo.,
ex
inf.
S.W.2d
This
validity
pro-
case involves the
Kansas
ceedings by
City Hannibal,
Taylor
ex rel.
v. North
Kansas
statutory
1. All
revision
otherwise.
references
be to that
unless stated
will
recently
held rather
City, 360
This
Our Court has
sonableness and of the annexa- attention which its tion. conclusions are that our the constitu- right
tion denies to the of Kansas the point appropriate At this we deem it corporate limits, except to extend first briefly review three of the earlier cases proposition proсuring to and submitting subject; decided, on the these were the consent of three-fifths of the voters of course, under the In 1875 Constitution. proposition; voting on the City Westport v. Kansas 103 Mo. legislature section 41 the act of the validity void, S.W. annexa March in so far as it City Westport tion of Kansas attempts give adopting charters City question. City was in Kansas government power to for their own charter, adopted then under a constitutional extend their sub- limits without 16 of Art. Constitu proposition 9 of the 1875 mitting voters ; provided tion that a cities; ques- act and that the ordinance in city might tion, extend its limits ordi of that sec- based permitted nance and the annexation of tion of the act of is also void. another if the voters four-sevenths of follows that the ordi- city approved, making any City without nance add is not seeks to to Kansas reference necessity of a vote in the city.” within the limits of that annexing city. Westport The voters Stegmiller, approved;
had of Kansas no vote had been taken validity of City. provision The constitutional Westport required again annexation was involv the amendment of a charter Westport ed. The majority statute involved three-fifths voters city. specifi Kansas had then been amended does cally dealing requirement comply discuss the with city. annexation, annexing a vote Court but is inferred that they directly Westport opinion conformity were construed the with the statute *6 permitted provision City invalidating a of the Kansas ex cept incоrporated provided for an (it says) as to Charter which cities and towns. ordinance; upheld the The charter did nexation but it define the territorial bound legislation subsequently aries. In in consummated holding the void as requirements provision conflict with under the for an the constitutional constitutional for charter, an There amendment of the the Court amendment of the charter. said, part said, 69, in 15 loc. cit. 725: part, S.W. loc. cit. “This Court in 52 70: S.W. section, City, provision of defining the Kansas “When confronted with this limits of ques charter, part authority is made the ex organic and the our law case, tion counsel might might whether it or tension assailed in learned not have this City may foreign been present say they deny omitted is that Kansas to the do not * n * inquiry. purposes, nor plain amend charter for some is too to admit any of limits is an part doubt that act on the that an extension of of amendment, kind City expands they deny Kansas that this which contracts but or extension, wit, jurisdiction amendment, territorial an is an amendment of of * ** this But its charter. the constitution. When the constitution authorized found in says power attempted not to be these shall have the restriction is only limitation way only, The amend their own charters in one the constitution itself. it must legislature power of amendment is that give cannot to them the qualified power adopted to amend three-fifths of their charters in a different election, way. prohibition upon special after The voters at a is binding publication proposаl, and legislature upon them the due as well as the cities * n * always that that the charter as amended shall selves. This case has received
285 harmony paratively holdings be in con- with and recent we do not City Westport In laws of the state. v. sider that the omission the words “and City, 68, Kansas our 103 Mo. S.W. not otherwise” from 20 of Art. 6 of unanimously ruled this court 1945 Constitution is determinative. plain division No. 1 that ‘it was too Air In the case of McDonnell part admit of doubt that act on Mo., Corporation City Berkeley, craft v. City expands of Kansas contracts said, loc. cit. the Court jurisdiction its territorial is an amendment “It that the method 500: is well settled amendment, too, of its and ‘an charter/ city may territory which a charter purview
within the
article
section 16 of
Westport
City
charter amendment.
constitution/
amendment
68;
City,
Kansas
S.W.
attempted by
that case was
ordinance with-
Stegmiller,
Kansas
151 Mo.
out the vote and assent of the voters of
Major
723;
S.W.
v. Kansas
State ex inf.
city,
and for that
alone was
reason
City,
1007;
233 Mo.
S.W.
held ineffective. Both
Taylor
ex inf.
ex rel. Kansas
v. North
of that
reading
case and the obvious
City,
Kansas
360 Mo.
power interpret to constitutional cities. We Major, Atty. legislature may step State ex inf. to mean that Gen. v. problems policy where and interest 134 S.W. state precise question concerned; may express a state (aside involved policy annexed, reasonableness) majority concerning territory was the extent or to be required approv- vote as it requiring an election 71.015 ing necessary by way annexation. But action “reasonable and speaking proper provi- development” construction of the constitutional of the annexing sion, the part, expressly Court thus giving said in loc. to the courts “By inquire cit. expressly question. 1011: But providing into principle Berkeley manner of amending the case reaffirms *7 acceptance prescribe by requisite legislature may of the same not qualified procedure number voters, for in con by and annexation which is provisions; addition of the words flict with constitutional and it ‘and not otherwise/ provision express legislative this constitutional does hold that au is made not self- enforcing, prohibitive, thority power necessary and or is before a con subject not to charter, change modification, by may or either stitutional charter make an an by enactment nexation by of the charter amendment under or act of the § * * * Assembly. General of Art. 6. Under the court, power decisions of this
respondent to amend charter and the independently its We have examined necessary therefor, vote power like the to such authorities as could found from adopt states, the charter in help; the first instance and they but are of little required purpose, vote statutory for that is de- most of the constitutional and directly Constitution, ours; rived from provisions vary and no widely more legislative provision charter or over, neces- the few cases which find seem we sary in either case.” In com- view our to be in one considerable conflict. At least annex, legislation necessary may
holds that is an method which such cities though may provide scope any nexation even there are constitu it such an- provisions requirements as, tional for charter amendments nexation add therefor and Warner, 1892, instance, (State ex rel. Snell v. in the annexation of other 263), cities, Wash. where villages. P. 17 L.R.A. or See Section 82.- towns specifically previously we have held that stated 090. We adhere to § to self-enforcing proposition every Art. 6 is and effective that permit legislation. Mc annexation without charter is a charter amendment. Connell, Taylor, supra. Oregon it is
said,
Portland,
We
told that Hannibal was
City of
mental law. It is points appellant’s brief, remaining two not contain of a charter which would particularly desirability declaratory of a territori- limiting its of that kind judgment suit for a determination of the jurisdiction.” Any holding would al an annexation and to bal- reasonableness of permit omission by its own devious parties, opposing ance interests of the requirement escape the constitutional really point and the annexation is people. An annexation under vote of sphere in germane a matter to and a charter amend- Hannibal charter is government. local equally under a ment with an annexation directly limits metes deal- setting nothing out There is before us property material to ing and bounds. it is not with the and While status decision, by necessary persons prior our we note that Hannibal’s an- affected question sentence legislature inference the in the last nexations. That will be consider- proper some annexa- arises. recognized 82.090 ed when the occasion tions constitute charter prevents us only consideration which amendments, regardless of the methods of present judgment affirming the provided in the charters them- annexation city may possibility that the elect to avail Moreover, selves. since we hold procedure, Act to be itself of the are defined limits of Hannibal successful) followed the annexation (if 82.090 that last sentence procedure of ordinance and election requires applicable; expressly would 20 of Art. 6 Constitution. With made char- that all annexations shall be mind, judgment that in we reverse amendment, ter and thus conforms to cause, remand order that the Court requirements. opportunity so afford the elect; declines, original judgment if it 20 Art. 6 the Con Section re-entered, should be and we so direct. mode of stitution sets out the exclusive for constitutional charter cities. annexation many years. HOLMAN, FINCH,
Our cases have JJ., stated so HENLEY and distinguish here to STONE, Special Judge, Counsel for seek concur. Taylor cases on McConnell there dis ground that the Court was not separate HYDE, concur- J., concurs constitutionality a mode of cussing the opinion ring filed. alone, but pro specifically the method of amendment sepa- STORCKMAN, dissents J.,C. That vided in the Kansas Charter. dissenting opinion rate filed. true, Court, in those cases but this both subsequent al prior cases discussed, clearly ready indicated HYDE, Judge (concurring). a constitution view EAGER, fully opinion I concur in the аmendment and» al charter is a charter expressed J., herein and consider the views provided therefor shall be that the method supported by history his those views followed. We adhere to appellant on relies. feel, moreover, Sec. 82.090 holding results we that this section The enactment out which this method to uniformity in a desirable (Laws 1887,pp. 49) 41 of came was Sec. It follows be used charter cities. 10, 1887,applying to cities permit a the act of March purports to in so far 82.090 as
289 their own charters to extend bound- authorized to frame Constitution their containing (then applying only than aries ordinance. This statute to cities of more 100,000, 16, 9, same form proviso exactly and the 1895 in Const.) Sec. Art. the 1875 subsequent revi- appears following ordinance. authorized extension of limits 9743; 1889, sions, 6399; 1909, Sec. This Sec. but was became RS Sec. 7483; special 8894; Sec. broadened then to include certain Sec. 1919,Sec. 7626; there was cities, period during charter the first sentence then read- all that except Kansas “Any city, or oth- no ing any as follows: such constitutional revision, However, the City. er thousand less in ten inhabitants or 1949 the of charter, special city, having after the tak- words if the “[pjrovided, extended, charter, ing any effect at time of such limits of which are to be ordinance, spec- IX article organized or times extend its limits under 16 of section state, ifying accuracy line or lines to then the the new of this Constitution proposed such limits.” extending it is to extend shall” were ordinance the limits (Italicized Thereafter, added.) were words omitted. in the 1949 and appears revisions, proviso former this However, this amended in statute was complete separate “In beginning: sentence (Laws 1895,p. 54) by adding at the end corporate all are de- cases where limits proviso: the section the “Pro following city, the charter of ordi- fined such vided, city, if the limits of which nance the limits shall be in the extending extended, are to organized under sec proposed form of a amendment [etc.].” tion 16 of article of the constitution (The being from the italicized words moved state, extending this then place proviso they previously were in shall, in all cases where the pro- and all any reference to constitutional limits are city, defined of such the charter revision, vision omitted.) Also in the 1949 be in proposed of a form amendment to ten words “or thousand the charter of such and before the same less, special having a inhabitants or shall be of force effect, or it shall be sub charter,” section, in the first sentence of the accepted mitted to and three-fifths of special were Thus cities omitted. qualified voters of such at a voting in- were eliminated and this seemed statute special respects election, in all again tended to apply to constitutional char- compliance and in requirements with all the ter originally cities as it enacted in 1887. was provided for amendments If, Westport аs this held in court city.” Why was it so Un amended? case, Legislature could not authorize a doubtedly because this court in 1890 in framing its under of Westport City 103Mo. Constitution, Sec. 16, Art. to ex- 141, 151, 15 68, 70, held: “[S]ection ordinance, tend its limits this could not of the act the legislature of March Legislature done in 1949and cer- 1887, void, attempts give so far tainly a mere revision the statutes cities adopting gov charters own for their (for authority of revisors see Laws ernment corpo to extend their p. 545, especially 3.06, 547) pres- p. Sec. rate proposi limits without submitting 19-20, ent provisions (Secs. tion to the voters of such cities.” VI, Art. being Const.) substantially Surely respect. effect 1959, by same this this 1895 amendment Senate was to leave this statute as authorizing Bill repealed this section re- less, ten thousand having present form, principal enacted in special charter, to extend its boundaries change being require- elimination of ordinance; repeal authorization, and to ment substituting of a three-fifths vote and void, annexation, court had declared majority vote no doubt organized Sec. 9 because Art. of our decision in ex 1950 State *11 to au- go legislature for laws Taylor cities to to the inf. ex rel. Kansas v. North interests seemed every act their 228 thorize Mo. S.W.2d 762. provision is require. constitutional If this Although Legislature change cannot prevent as to narrowly be construed so by the method the charter of a con are not local needs which enactments for amended, may stitutional be charter be constitu- any state then laws, conflict with provides cause the Constitution pur- no real tional cities could have charter way may done, recognize be I abolished. Of pose might as well be Legislature provide scope may of an course, charter cities would constitutional accomplished by nexation that could be an other cities not be authorized to so requirements amendment add therefor authority of the organized under already as it did Sec. 82.090 for annexing be inconsistent legislature (which would cities, villages; towns or since done has why it state); and that is of this laws by 71.860-71.920, p. Secs. Laws pro- legislature to necessary for the However, as to certain first class counties. done, be vide a method which could if there is imposing any no law restrictions Legis- 82.090. by enacting Sec. it did unincorporated on territory, annexation of any required authority is to authorize lative my it is view that a charter organized under cities may domay what other cities do an have the effect and these statutes statutes nexation because it is not inconsistent with organized. cities so charter for the Constitution and laws of this state to do Constitution, leg- by granting However, the (See authority in so. discussion of this cities, charter power islative to constitutional Corporation City McDonnell Aircraft v. proper makes amendment a charter Berkeley, Mo.Sup., 500- 367 S.W.2d be This must true method of annexation. 19-20, 503.) of Secs. Art. shows, de- because, principal аs the VI, cities, Constitution, grant or in some fining ganized it, part char- part of a valid manner is an essential power of the I. state. Kansas J. corporate limits Therefore, change ter. Co., Threshing Case Machine must a charter amendment. 195, 202; see also Kansas Co., Marsh Oil expressed agree suggestion I also with the in which to be without merit this court held opinion that the council principal in the the contention that a constitutional charter proceed with intending to of a charter power could not have the of eminent initia- on its own enabling legis domain act without an of intent adopt resolution tive could first grant legis lature. This constitutional declaratory judgment under and obtain a lative to such cities the Constitu 71.015) procedure Sawyers (Sec. Act tion why is the reason such cities an of reasonable- thus obtain a determination unincorporated territory by nex adopting a necessity ness and before amendment. annexation, which amendment ordinance for after that issue prevent litigation would expressed-in dissenting opin- on view However, the charter election. ion amendment herein charter cities that constitutional optional. completely such a would cannot annex en- course territory without an Act Sawyers fact, nothing there is abling legislature act would amount to any city. requires a resolution VI, such striking out of Art. Sec. words ** * says gov- All the Act is: “Whenever “consistent with and resolu- adopted a erning body any city laws of the therefor substituting state” unincorporated area tion to annex “specifically words authorized shall, proceeding as land, before purpose laws this state.” The main charter for otherwise authorized law providing for constitutional charter areas, unincorporated annexation of larger unnecessary was to make it for the file au- A.M.S., othewise proceeding “before county action in the circuit court of the situated, for annexation unincorporated law or charter which such area thorized provisions Chapter unincorporated RSMo under the areas”. praying declaratory judgment 71.015, commonly re- required by As (Emphasis
authorizing such annexation.”
Act,
plaintiff’s
ferred to as the
mine.)
petition presents
of whether “such
the issues
*12
ordinarily
necessary
“A resolution is
ministerial
is reasonable and
annexation
administrative
development
city”
character and relates to the
proper
of said
an
municipality,
business of the
whereas
“to furnish
ability
whether the
has the
act.”
distinctively legislative
ordinance is
a
municipal
city to
normal
services of said
McQuillin, Municipal Corporations
52 Sec.
unincorporated
said
within a reason-
area
there
is
Nowhere
Sec. 71.015
15.02.
able time after said annexation is to become
requirement that
be
resolution
there
a
require
effective.” Section
does not
71.015
is
there
begin
proceedings
proof
pleading
procedure
or
оf the
intended
resolution
why
must be a
no reason
there
to be followed after the issues are decided
no
process.
There can be
the annexation
city.
pleading
only
favor of the
leg-
doubt
is the exercise of
that annexation
by
filed
dis-
defendants was a motion to
is
that an
which
islative
so
ordinance
miss which was sustained. The trial court’s
only
required.
a
is
Thus
act
“granted
order of dismissal was
on the
in-
construed to
if the term “resolution” is
grounds
that under the
of Art.
“ordinance,”
in the Mc-
suggested
clude
20, Mo.Const., 1945,
VI. Sect.
the Court
(282
518),
Connell case
would
does
jurisdiction
not
have
mandatory
as to
Sec. 71.015
matter,
petition
and the said
is therefore
any city.
a
can
is true because
This
dismissed,
ordered
prejudice.”
with
annex without
resolution but cannot annex
a
concurring opin-
principal and
Both
Literally,
without an ordinance.
that the use of
the conclusion
ions reach
terms,
only requires
Sec.
a declara-
71.015
byAct
a constitutional charter
has
tory judgment
resolution
“whenever” a
mandatory but is elective
is not
anywhere
adopted
been
re-
and it
does
opin-
principal
optional. In conclusion the
quire
adoption
In
of a resolution.
“The
consideration
ion states:
event,
as a
Sec.
cannot be construed
71.015
present
prevents
affirming
judg-
us from
mandatory requirement
for annexation
city may
possibility
ment
principal opinion
clear-
as the
so
Sawyers Act
itself
elect to avail
ly
judg-
in the
Therefore,
shows.
I concur
procedure,
(if successful)
to be
ment ordered to be entered.
followed
procedure
election
20 Art.
Con-
under §
STORCKMAN,
(dissent-
Chief Justice
mind,
that in
we reverse
stitution. With
ing).
cause, in
judgment
and remand the
may afford the
order that the Court
appellate
If the
review of
case were
elect;
declines,
opportunity
to so
if it
kept
record
the limits made
within
re-entered, and
original judgment should be
us,
quite
before
the issue would be
a narrow
(Italics
The con-
we so direct.”
added.)
question
one. The essential
on the trial
curring opinion
paragraphs
in the last two
record is
or-
court
whether a charter
agrees
procedure,
judgment
with this
ganized under
and 20 Art. 6 of
§§
stating that “such a
be com-
course would
body
governing
the 1945Constitution whose
optional.”
pletely
adopted
proposing
has
to annex
resolution
unincorporated
lawfully
author-
of Hannibal has exercised
option
declaratory
ized
or elected
itself of the Saw-
to maintain a
for a
to avail
suit
yers
judgment
71.015,
procedure.
Act
the rec-
V.
As shown
RSMo
ordinary par-
principal opinion,
“According to
recognized in the
court stated:
ord and
very
adopted
liamentary practice, a resolution is a
body
governing
an ordinance.
thing
different
from a law or
appropriate
evidencing its in-
resolutions
merely
or direc-
suggestion
and it
filed its suit for A resolution
tention to annex
writing,
the two
tion in
concurred
declaratory judgment
conformity
assembly, if there be two
opinion,
requirement
houses of the
my
71.015.
houses,
house,
passed by
there be
one
if
principal opinion,
italicized
one,
but
and not submitted to the executive
immediately
preceding paragraph, that
ordinarily
approval.
resolution is
proceed
his
A
further elect to
“ordinance
passed
delays
without the
and election”
forms
is not warranted on the record.
required by
may
It
constitutions
proper pleading
generally
be that
in a
municipal
prerequisites
declaratory
judgment
charters
action such an issue
presented
enactment of valid
adjudication,
could be
laws or ordinances.
but
passed by
need be
petition
neither the
read but once and
nor the motion to dis-
vote,
*13
calling
ayes
miss does
viva-voce
without
comprehend
so. It is difficult to
noes, whereupon,
engrossed,
and
it
requirement
when
how a
to elect as to further
operative.”
procedure
becomes
ex rel.
engrafted upon
could be
Jones
Mo.,
806, 817,
Atterbury,
v.
this
statutory action
300 S.W.2d
which is described rather
“Generally, may
court in
completely in
banc stated:
it
71.015.
§
legislative body
said that a
uses a resolu-
appears
The trial court
to have ruled the
express
opinion
tion to
purpose
motion to
assumption
dismiss on the
respect
given
thing
to a
matter or
and it is
City
of Hannibal as
a charter
could
nature,
temporary in
while a law is intended
only extend its
territorial limits
a charter
to direct and
permanently
control
matters
amendment and that a declaratory judg-
applying
persons
things
and
in general.”
ment under
Act
incompat-
The court in
again recognized
banc
the dis-
ible
procedure.
with that
rate,
anyAt
tinction in State
Whittington
ex rel.
v.
briefs are
along
fashioned
those lines and Strahm, Mo.,
374
131.
See
perhaps it is necessary for
opinions
also Schmoll Housing Authority
v.
of St.
do likewise.
demonstrates,
This
however,
Mo.,
County,
Louis
321 S.W.2d
498-
the disadvantage of disposing of a case be-
[2-4];
499
City
Springfield
to use of
fore the issues are
developed
properly
McEvilly Knott,
617;
and
Mo.App.
v.
isolated in a proper proceedings.
City
Poplar Bluff,
to use of Wheeler v.
Hoag,
675-676;
Mo.App. 672,
Wheeler
The trial court as well as
principal
Poplar Bluff,
relies
McConnell
1088, 1089 [2].
City,
Kansas
Mo.,
282 S.W.2d
Another distinction not noted in the Mc-
in turn is based on statements in State ex
Connell case is that
71.015 deals with the
Taylor
inf.
§
ex rel.
Kansas
v. North
“governing body
any city”
and “such
city” undertaking an annexation. That was
which we
to be unnecessary
believe
the factual situation in the McConnell case
erroneous. The principal opinion does dis-
as in the case at bar. No case
been
avow,
has
very
properly so,
assumption
brought
proposal
to our attention where a
made in McConnell that a “resolution” as
territory
to annex
has been initiated
used in
71.015
equivalent
was the
of an
petition
optional
of electors which is an
annexation ordinance.
procedure
for amendment of
The earliest Missouri case
set out
20 of Art. 6. There is no
pointing out
the distinction between
statutory authority
resolutions
and or-
for the annexation
dinances is City
Cape
petition
additional
by the
Girardeau v.
Fougeu,
“If were doubts “It is an element con- there to the essential all acceptance governmental- dicial establishing stitutional proprietary rule, principle they municipal function un- home were rule that equivocally resolved and general in Coleman v. Kansas Constitution laws of City, a case which dealt with conflict shall continue force within the State municipalities between the of a framed state statute have charters, power pertaining the Kansas their own and that the municipality legislate the salaries of the local collector. shall license municipal On prevailed, holding statute confined affairs. hand, adoption court declared: after the argument is wholly based on the fact as to control sively for municipal purposes. That retains control. On this “ * * * private, governmental holds its license [A]s local General taxes power independent to matters corporate functions the State point Assembly, used exclu- pertaining functions city’s but poration, the ters of home rule zation and as porate functions, “ n (( [*] municipality * * [*] municipal and local concern. [*] [A]s law, Legislature to its form of affect and the manner by municipal private, respect cannot, powers local to mat- organi even cor cor- fact is not determinative. The distinc- them, pro exercising the Constitutional tion is not and general between local people grants of the cities vision concern, but between pow designated, part governmental purpose of de er the State functions. taxation governmental is a incorporat termining of tion such matters and func- * * * [Italics added.] they ing them in charter as see their fit, Gen free from the control of the “It should be observed that Car * * Assembly *. mat eral [I]n *15 penter and Coleman cases did not con ters, functions, governmental are complete stitute a return the Garner doc to State to such retains control and as trine ex rel. Garner v. Missouri & [State matters, char of a Telephone Co., K. 83,Mo. 189 88 S.W. 41] ter, although adopted consti under the insofar as that would deny home ruling a therefor, provision and tutional must be rule any governmental control over subject to remain consistent with and in delega function statutory absence of the statutes of State enacted tion. The two later permit cases would Legislature. self-chartered municipality ju exercise to * * * difficult “It sometimes risdiction and control over such activities determine the border line between legislative without they authorization if governmental corporate functions and primarily were of concern local and if there * n However, *. functions certain contrary was no conflicting of enactment have, court, definitely this been de the General in This Assembly existence. governmental, the control of termined emphasized rule was the that was in com police prehensive which remains in the State. The powers of summation of a * * power is one *. home Some rule which the court undertook matters, gov purely which are v. I. Threshing Case Ma J. functions, pertain are Company 913, chine ernmental those 923, 87 S.W. [337 elections, education, 195, suffrage 2d ing and Admitting prior deci 200]. public sions utilities and admin harmonious, regulation were of no means * * justice in nature and governmental *. These istration away assembly. general may delegated to or taken to control subject be part, with In ex rel. regard or in the court held State from the in whole Crismon, Mо. Legislature. of Behrens v. to Use in the [337 wisdom power 926, 927, 174, 188 that the [2], at S.W.2d Mo. at S.W.2d 203.] corporations municipal to create or establish inconsistency patent “Despite court’s is a enlarge their area or diminish terminology, it preciseness lack solely political function which rests cases that series of appeared from this now government branch of the the home ambiguities of the constitutional is practically unlimited in the absence of resolved finally been had rule In constitutional restrictions. Town func- governmental-corporate favor of Mo., County, v. Alexandria Clark 231 S.W. distin- doctrine, problem of tions with the [5], 2d it was terri held fall the activities guishing between political subdivision, torial limits like categories remaining.” respective into these tax, political question is a specified by determined in the manner v. of St. Lou- Carpenter rel. State ex general assembly. Apparently the only lim [8], 713, 720 re- is, general respect itation on the assembly in Mis- “Municipal Rule Home ferred to organization cities, to the their changing purely mu- souri”, that: “Matters of held charters, and specifying the kind of officials special nicipal, corporate concern powers, and their must that the control control, may not be amended by general ; 3, 40(22) laws. Art. Art. law, harmony special though must be 15 and Constitution §§ upon general where it touches with the law apt statement policy.” matters of state An of McDon annexation case recent Reynolds Jost, 265 Mo. ex rel. Corporation Berke nell Aircraft fact, 591,595, very is: 175 S.W. “In Mo., [4], this court ley, provision behind which re- “Therefore, our held: cases and reviewed spondents scope seek hide limits the additional is that annexation conclusion document, powers. their charter Such merely than is a more matter concern, general matters state is the and that municipal and concern affairs peace citizens, safety of its must be unreason applying test of reasons subject, Constitution, but arbitrary, capricious amounting ableness state as laws well.” equally of discretion action abuse applicable by constitutional to annexations Generally speaking, the constitutional re organized and those quirement must be con Among added. statutes.” Italics sistent with and to the Constitution *16 v. Grae cases cited was Olivette laws of state means inconsist ler, Mo., 827, 338 836 S.W.2d [14]. ent charter and ordinances con cerning governmental the exercise of func fallacy principal opin- The basic tions are void. Turner v. 354 Kansas city a ion the contention that charter is 857, 612, Mo. 191 S.W.2d [2]; 615 State “power under 20 of Art. 6 has the § ex Darby, 1002, 137 rel. Rothrum Mo. v. 345 unincorporated authority” to terri- annex 532, S.W.2d 537 [6]. authority. tory The without question next 10-11,
The opinion, pages proposi- whether the annex- states this ation cities repeatedly ways, additional is a tion various such governmental function of pow- state-wide 20 “gives con- as: that to charter cities a § merely cern municipal оr a or af- er charter amendment fair. equivalent statutory In all cases where the issue has been to a which authoriza- presented, squarely “fixes, has ; irrevocably, been decided tion” 20 mode § 296 715, Co., territory”; Telephone Mo. may 352 179 charter annex
which alone, “by [3]; Heimberger ex rel. city may a State charter virtue of 20§ University of territory” subject Board of Curators of Mis- unincorporated to reasonableness; souri, 268 Mo. judicial a determination of [13]. assembly “not inter- general subject The of annexation is not men- of an- fere with the constitutional method tioned either 19 or 20. No intent can § nexation”; finally adheres grant right be inferred from the to “proposition every adopt “a government” charter for its own city a charter charter amendment”. purely unless municipal annexation is a or corporate matter which we have seen from proposition necessarily asserted the cases cited it is not. Nor is annexa- means that the state virtue of has § right tion an inherent of a relinquished and ceded to charter cities the otherwise, city may because a function power regulate state’s an right such without the to extend its limits. unincorporated territory nexation of which Furthermore, general assembly un- relinquishment absent would abide dertaken beginning regulate from the assembly. this, as in In other matter of annexation all cities because later, cases we will mention there is tend it concerns more the city than itself. It is enсy to say isolate 20 from 19 § § governmental in nature and of state-wide that 20 gives right unlimited amend concern. alone, charter. Even if we consider it language reasonably 20 cannot concept that constitu- The erroneous given it, meaning ascribed to but the rights tional had annexation rule of construction is well established that from possessed by cities arose cases provisions of dealing a constitution with a involving City. It arose of Kansas single or related must be considered of the constitutional not from a construction together fragments and not as detached misinterpretation or provisions but from a provisions. isolated Randolph State ex rel. application language used mistaken County Walden, 206 S.W. previous involving annexations decisions 2d [3]; 982-983 Chaffin v. Christian an- complicated Kansas had County, Mo., [5]; spe- procedures by setting out the nexation ex rel. City of Hackmann, Marshall v. description orig- cific in its of its boundaries 203 S.W. 961-962 [3]. adopted pursuant inal to the consti- Therefore, right of to amend its provisions. important keep tutional It is provided charter as in 20 must be consid prior adoption in mind that ered in connection with 19 which limits Constitution, popu- which lowered city’s legislative power to “a charter for requirements 100,000 10,000, lation government, own consistent with and only was iri^the state subject to the constitution and laws of the that had a constitutional charter under state.” fact, provisions. these requisite popu- the state that had the general assembly legisla- has all the except lation St. which was chartered Louis tive of the state not denied it provision another Any Constitution. constitutional limitation imposed in grant- similar limitations *17 on its legislative power must be strictly ing powers. that home rule construed in favor of general assembly and such assembly leg- limitations must expressly enacted im- 1887 posed or clearly implied. provi- home rule Hickey implementing v. Board islation of Education 1875 City Louis, appeared of of St. first 363 had Mo. sions which 1039, 775, 256 1887, S.W.2d 10]; pp. 42-51. Sec- [9, 778 Laws State ex Constitution. rel. Hughes pro- (p. 49) to Use of v. act Southwestern tion 41 of the
297 es- The cities nexation become effective. in which charter had the manner vided inf. question ex the fur- determined State limits and set out sential could extend their City v. Kansas Taylor area ex North requirements necessary rel. Kansas when ther 762, 374, that Mo. was incorporated City, 360 228 S.W.2d annexed included City approve could village. the voters of Kansas This became 1880 town or § of majority vote by ordinance a some and with 1889 Revised Statutes 1959, provided in the the electors as Constitution 82.090, amendments is now RSMo than rather rule for amendment of charters City adopted a home V.A.M.S. Kansas required by by n ths the statute majority a 8, charter on May amended to conform had not been which There are of court deal- five decisions change in a the Constitution.
ing by City with annexations Kansas Mo., case, City City, he City
should noted. The first of briefly McConnell Kansas v. Westport 141, Saw- City, 518, of v. Kansas 103Mo. hеld that effect S.W.2d 68, attempt applicable S.W. was an the incor- annexations yers annex Act was not porated City in- Westport. City Act was by Pursuant Kansas because the 1880, 1889, compatible RSMo voters with Westport approved propo- had regulating alone the amendment of (treated The City sition. a resolution holding essential of this court Kansas that adopted was that ordinance) since the could not be boundaries of Kansas as an City were within declaratory judgment fixed and defined in its charter obtained ap- for the holding annexation could elections by time provided in the alone but the as proval charter also of amendments had to be amend- pos- by Constitution; ed voters of further discussed City Kansas in accord- to be were ance with conflict if an annexation the constitutional sible provisions for by method amending attempted the initiative means of before the annexation ques- amending This latter could be the charter. pertinent effective. The holding because, ex before court Major inf. tion was not City, v. Kansas Mo. reasons, was 162, 1007, the annexation among other S.W. was that the charter of by the City enacted Kansas an ordinance could be initiated amended so as to make an annexation council. effective J^ths electors who actually voted proposi- on the case, Mo., 282 S.W.2d The McConnell provided tion as in the Constitution instead Taylor rel. 518, inf. Kansas and State ex ex greatеr majority qual- of all %ths 374, 228 City, Mo. City North Kansas ified voters City required Kansas the trial referred to were S.W.2d the Kansas City charter. re- chiefly relied court and are case,
The re- case of City Kansas McConnell Stegmiller, spondents herein. ex- City, that “an stated ferring was the to Kansas second attempt by successful city’s City to tension Kansas purview Westport. amendment within This time the council VI, 520), City passed (282 at Kansas 20” a resolution Art. authority. proposing Taylor proposi- case as and the cited case, [3-5], tion approved 770-771 Taylor in both voters definitely asserted cities. The the first RSMo was held amended, a constitu- right adopt p. Laws amend relied right to enactment, on with it the “carries was a tional charter valid annexation”, effect lawful complied amend as to of Kansas so had authority to specific legislative requirements with Constitution unnecessary al- respect limits was city’s amending and extend exist. statutory authority did though reason of such the an- amendment *18 298 quotes a from Stegmiller “While, statement the therefore, states: Kansas
case part to the effect that act on the 16, right, had the under section article expands which contracts or 9, of the to constitution frame its own its jurisdiction territorial is an amend- charter within purely the domain of munici- ment its pal and that the ordinance government, subject harmony to and in question was extending limits with the constitution and laws an amendment of state, the charter within entirely competent clearly was and purview of then Con- 16 of Art. 9 of the power assembly within the general § of the Taylor stitution. 228 at 769. The provide to for its relation con- to other case point quotes further at that also tiguous state, municipalities of the and it Stegmiller case the effect inso- cities, to only could outlying absorb these far as the towns, action of Kansas alone or villages the consent of the plain concerned there is a state which had created them.” grant power to extend We find no with fault the result reached pointed a definite mode out. These in the cases other than McConnell.
unwarranted statements have led to prior statements decisions to the ef- difficulty in the well McConnell case as fect that grant 20 of Art. 6 a as the constituted unexplained § instant If case. power not neces- context, were considered in the statements sary to the regard- and should misleading. pro- decisions The Constitution does ed surplusage. my opinion as point the hold- vide and out manner of amend- ing in the Sawyers ing charter; however, McConnell case that the statements from applicable Act was not early is erroneous. It is these misinterpreted cases have been authority no holding holding for right bestows the mandatory Act is not present case. provide annexation when all it does is to appear necessary, however, It does not to the means which annexation made deal further description with the McConnell case when effective litigation. this part limits is made a of the charter. right a charter amend under 20 statutory authority
There
at all times
6Art. must
be construed
connection
charter cities.
amend-
As
grants
pow-
with
ed
the home rule
and now existing it is
As
82.090.
pointed out previously,
Stegmiller
case
An
germane
ers.
amendment must be
on
relied
proposition
authority
cannot rise above the
right of
adopt
a charter
city’s
govern-
to annex is a direct
charter for the
own
grant by the Constitution. In
case
subject
fact the
ment consistent
with
recognizes that
general assembly
has Constitution and
of the State. When
laws
right
to regulate
annexations and that
home rule charter
an ordi-
enacts
amendments to the
har-
charter must be in
to amend its charter so
nance
endeavors
mony
subject
adopt
with and
purely
to the laws
not of
munici-
measure
pal concern,
power
state.
regard
Stegmiller
In this
case
derive such
must
says,
ther on singly or combina- taken in constitution, be to ex- would §§ tained in the tion, power ex- grant of not constitute a instrument, and do language tend the that charter a impliedly authorizing effect, corporation pressly or read, in that a make that city territory, and adjoining govern- to annex might charter its own frame a function governmental is a additional government such ment and the has assembly general can and which the territory might to include with- as it choose regulated. must be Next we concerned in its the limits. Therefore opinion principal portion that to the amend- regard the constitution with pur- 82.090 that “in far as which holds so no force ment charters have could city ter- ports a to annex permit to charter legislation.” without assistance of the it is ritory by ordinance unconstitu- alone statements, Unnecessary unguarded holding that tional” and further primarily Stegmiller, 151 City in Kansas its “defined” in city Hannibal are limits of 723, appear to be relied 52 S.W. opinion appears hold The to charter. subsequent including in up on cases to city all cities must “define” their charter principal opinion sup- in case to this which, so, if would limits in their charter port proposition that a charter by constitutional bring all annexations alone, may "by annex unin- virtue rule, so applicable cities charter corporated territory” “every and that an- City, that solely to Kansas where far nexation a charter a charter charter, the are set boundaries out say re- amendment.” To that there no an- must be amended before charter imposed strictions cities to on charter If are cor- becomes we nexation effective. scope kind amendments as- proposition general rect in the patently used not unsound. words do power regu- sembly has the permit they any so state nor do such con- charter by constitutional late annexations struction. others, re- question as well as Hannibal has “defined” maining is whether bar, appellant In the case at its limits in its charter. supplemental argument brief and oral clearly contemplates presented Section 82.090 issue of whether phrase city may ordi- government, “a charter for charter extend its own except consistent with “defined” to the Constitu- nance where the limits are city, tion and in which case laws of the the charter state” confers on right unincorpo- be in the form annexation ordinance shall proposed rated contravention of amendment by majority regulating approved laws A ex- must be cursory annexation. prede- amination 19 and and a before it is effective. moment’s voters §§ power as a result legislature reflection on 82.090 was amended cessor of § Westport v. policy to determine matters of state would the decision counsel for seem be sufficient to reveal that state Kansas necessary delegated City argued not be governmentаl this func- it should descrip- except by because the tion to charter cities to amend the charter statute. included Certainly City of limits had been Hannibal entitled tion of the unnecessarily clause, and should phrase what or word in the charter be told contention, disregarded. these confers In answer this constitutional sections looking stated, 69: “In expressly by implica- 15 S.W. either court adopted a vast tion, find through we annex ad- might been have territory. principal of sections which ditional Neither the number taken affecting the charter previous without nor cases have omitted not follow But it does done so. whole. they parts thereof, are not they because specified limits must be with ac- *20 So, could have too, been omitted. the free- curacy in the annexation ordinance. holders, in framing proposed charter, the The word judicially “define” has been voters, and the it, did, in adopting by the defined, but nothing the add decisions second thereof, section the fix define the of in clarity the definition Webster’s territorial limits the municipality, and of which, Third New Dictionary International that section part is as much a of char- the decide, pertinent, fix, as here is: “to ter as other section therein contained. ** prescribe, clearly and with section, This defining the of limits pre- to mark the of: determine with limits City, is part charter, made a the and the cision clearly or exhibit of”. the boundaries question might whether it might or have been present omitted foreign Wеstport face the of 82.090 and the inquiry.” Italics added. will be noted decision, reasonably be cannot said that that the used court the word “define” in fixes, the Hannibal charter marks the limits describing how the boundaries were made of, clearly or determines boundaries the part City of the Kansas charter. City. contrary, the On the the con- City states that the of Hannibal shall Westport After statute, the decision the body tinue cor- municipal as “within the then RSMo amended porate limits as now established or (Laws 1895, p. 54) by proviso adding a pro- hereafter in the manner established in substantially the language same as the 1.01), adjoining (§ vided law” and that 82.090, last sentence of RSMo V.A. “may land the be annexed to Omitting M.S. the nonessential middle passage City of an ordinance the Council portion relating principally to the annexa- duly pursuant that effect and enacted cities, tion of present the section applicable of Missouri laws the State reads: (§ in at force the time such annexation” “Any city, may constitutional charter at 1.06). principal opinion The refuses to any time by ordinance, extend its limits give ordi- to the word its usual and “define” specifying with accuracy the new lines to nary meaning and further does violence proposed which it is to extend its limits. expressed in clearly intent * * * In corporate all where cases 82.090. limits are in the charter city, defined physical ordinance extending the shall The condition of the Hannibal limits be in completed, the form а proposed charter after annexation is amendment to this the charter if prin- of the before the done charter amendment effect, cipal amendment opinion requires, shall be force or will demonstrate it shall be fallacy holding submitted boundaries accepted by to and of the majority qualified presently voters “defined” in voting election, at a special description of Hannibal’s The charter. respects compliance all plaintiff’s petition all the boundaries attached to requirements provided transcript. up pages takes for amendments to thirteen the charter city.” According principal added. all Italics proviso present The put will in lieu last sentence of have to be the charter language present provisions. statute follows the In addition to Westport respect City’s legal court right case with to define the limits freezing limits being “defined” in the rather them in the than Obviously practical why charter. statute contem- there are reasons plates permitted there be would other cases should be to define its where the expense boundaries would not defined ordinance. of an be election in such cases the avoided where the limits can extended requires by ordinance; feeling first strong sentence of section is a if there annexation, refer Hannibal against thorized the now doing and can been Also corrections ordinance as endum can had. prоposes again. Accordingly I would conveniently and to do be made more economical ly by Installation and remand the ordinance. See General reverse case. Mo., University City, Company 379 S.W. reasons I dissent. For these 601, 604[5,
2d 6]. opinion re holdings principal clearly garding and 82.090 are 71.015 §§
contrary to basic rules construction. meaning of give plain effect to the
fails pro used in the statutes
the words and absurdities
duces inconsistencies meaning which be attrib
their should never legislature unless uted to the enactment of LONG,formerly known Rosealle M. escaping it. is no there rational means Daggett, Appellant, Rose Marie Heimberger of Cura ex v. Board rel. v. Missouri, Mo. University of tors of Furthermore, WILLEY, W. Administrator the Estate A. 135[15]. deceased, Daggett, Leland William will the rule is well settled that the courts Willey, de bonis non W. A. Administrator unless not hold a statute unconstitutional Daggett, Re of the Estate William spondents. H. in such a organic it contravenes the law un manner as no to leave doubt that No. 50581. Hughes v. constitutional. State rel. ex Co., Mo. Telephone Bell Southwestern Supreme Missouri, Court con 80-81 [4]. Division No. 2. trary approach appears been used to have June Moreover, this case. func policy, tion of the courts to deal with the justice
wisdom or stat constitutional
utory provisions. Heimberger State ex rel. University
v. Mis Board of Curators of
souri, 131 188 S.W. [8]. general assembly equip much better
ped hearings and than court to hold investigations to in what
make determine approved
instances annexations should
by the voters. 71.015, Act,
I would hold the mandatory proceedings in annexation just as it charter cities by special
has been held in annexations
charter cities and others. See Julian
Mayor, Councilmen and Citizens of 864; Liberty, Mo., 391 Graeler, Mo., of Olivette v. S.W. 827; Joseph
2d Hankin St.
son, Mo., 312 I hold that S.W.2d 4. would 82.090 is a au- valid enactment which