48 Mo. App. 485 | Mo. Ct. App. | 1892
-The common council of Kansas City passed an ordinance entitled, “An ordinance appropriating $1,500 to give aid to the third regiment, national guard of Missouri.” The first section of this ordinance provided that the sum of $1,500 be, and the same is hereby, appropriated out of the board of public works department to assist in the maintenance of the third regiment, national guard of Missouri.” The second section instructed the city auditor to draw a warrant on the city treasurer in favor of the colonel commanding’ said third regiment for the amount of the appropriation.
The plaintiff, a resident owner of real and personal property in Kansas City, subject to taxation for municipal purposes, instituted a proceeding by injunction to restrain the defendants who were, respectively, auditor, comptroller and treasurer of defendant city from drawing, countersigning and paying the warrant on the ground that the passage of the ordinance was in excess of the chartered powers of the city. The special defense interposed by the answer was : That under and by virtue of the terms of the charter of said city the mayor and common council shall, as far as practicable,
The question we are obliged to decide is “ whether the passage of the ordinance in question was within or without the authorized power of the city government, or in other words whether the city has the power under its charter to appropriate by ordinance money out of its treasury to assist in the maintenance of the national guard, which is.a part of the organized militia force of the state. The appealing defendants contend that the power is conferred by the provisions of chapter 112, Revised Statutes. By section 6943 of that chapter this regiment is subject to the call of the mayor under certain
Nor has section 6979 which provides that all cities-within the state are authorized to raise money by taxation or otherwise for the purpose of providing suitable-armories, halls and headquarters for the national guard located therein, for the reason that it relates to those-cities having a less population than the class of cities-mentioned in section 6978. Manifestly it has not the slightest application to the cities of the class to which Kansas City belongs. Besides this it shows upon its-face that it was not passed in conformity to the grant
If there is any authority in the city warranting the passage of this ordinance it must be found in its charter. Section 14, article 12, of the city charter provides that the board of police commissioners may in their discretion árm and equip such force of law-abiding citizens as volunteers as they may deem proper. Such volunteer force shall perfect themselves, in the use of arms and such military maneuvers as will render them efficient in assisting the regular police force in suppressing riots, etc., who shall have while in active service the authority of members of the regular police-force. There is no pretense that the appropriation was. made for the support of this auxiliary police force. The city militia is one force, and the national guard is another. The appropriation was to aid in the maintenance of the latter and not the former. No authority to pass the ordinance can be deduced from this section of the charter.
But it is further contended that the “general welfare” provision in the charter, subdivision 81, section 1,. article 13, is broad and comprehensive enough in its. terms to confer the required authority to pass the ordinance. It provides that the city shall have power to-pass, publish, amend and repeal all such ordinances,, rules, police regulations not inconsistent with the provisions of the charter or laws of the átate, as may be-expedient in maintaining the peace, order, good government, health, welfare of. the city, its trade and manufactures, or that may be necessary and proper for carrying into effect the provisions of this charter. It is a well-settled law that when a power is given to a city that power may be exercised from time to time as its wants may require, and of the necessity or expediency of its exercise the governing body of the city, and not the courts, is the judge. McCormack v. Patchin, 53 Mo. 33; Miller v. Anheuser, 7 Mo. App. 168; Bohle, Adm'r, v.
It' is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following’.-powers and none others : First, those granted in express words. Second, those necessarily or fairly implied in or incident to the powers expressly granted. Third, those essential to the declared objects and purposes of the corporation, — not simply convenient, but indispensable. Kansas City v. Swope, 79 Mo. 346; Leach v. Cargill, 60 Mo. 316; Kelly v. Oppenheimer, 55 Mo. 374; Dillon on Mun. Corp., sec. 99; Smith v. Newburn, 70 N. C. 14; Cook v. McCrea, 93 Ill. 246; Ottawa v. Crary, 108 U. S. 110; City of Eufaula v. McNab, 67 Ala. 588; Henderson v. Covington, 14 Bush (Ky.) 312. And any fair reasonable doubt concerning the existence of the power is resolved by the courts against the corporation. St. Louis v. Bell, 96 Mo. 623; Ex parte Mayor, 78 Ala. 419; Dillon, Mun. Corp., secs. 90, 91. Neither the corporation nor its officers can do any act, or make any contract or incur any liability not within' the scope of its chartered powers applicable thereto. Any act in excess of such power is void. Kansas City v. Flannigan, 69 Mo. 22; Butler v. Neven, 88 Ill. 575. These, principles are derived from the nature of corporations, the mode in which they are organized and in which their affairs must be conducted. Dillon, Mun. Corp.; Spengler v. Trowbridge, 62 Miss. 46; Gas Co. v. Parkersburg, W. Va. 435. In looking through the various chartered grants of powers of the city, we find no exjn’ess or implied authority to appropriate money out of the treasury for the purpose specified in the ordinance, and, hence, under 'the rules of construction applicable and which have just been adverted to we must conclude that the same is forbidden.
But it is contended that in the “general welfare” provision of the charter is to be found the police powers
The maintenance of the organization of the national guard is, no doubt, dictated by a wise state policy. It is to be inferred the state has failed to make suitable provisions for the support of the Third regiment, in consequence of which it has been compelled to seek assistance of the city where located. It is, therefore, to be regretted, for the reasons already sufficiently indicated, that the required assistance has to be withheld from so useful a military organization.
The decree must be affirmed.