73 Mo. App. 537 | Mo. Ct. App. | 1898
The plaintiff by her petition prayed that the defendant, as collector of the city of St.
First. That the extension, was not made with the consent of a majority of the legal voters of said city in the manner required by law.
Second. That there was no lawfully called or legally authorized election held in the city of St. Charles submitting the question of extension of said city limits to the legal voters of the city.
Third. That the attempted extension of the city limits is illegal, unjust, inequitable and unreasonable, for the reason that it embraces and takes in a new territory that is composed almost exclusively of agricultural or farming lands.
Fourth. That plaintiff’s property and residence do not and can not receive benefit by virtue of being taken into said city.
A demurrer was filed to the petition and overruled; an immaterial portion was stricken out on motion, and
We are met at the threshold of this case by the contention of appellant that plaintiff has no legal capacity to sue; that the attack made nPon the ordinance extending the limits of the city is an attack upon the charter of the city, a strike at its corporate existence, which can not be made collaterally in a petition for an injunction to stay the collection of a tax. Were this petition a thrust at the life of the city and its corporate existence were to be determined by the suit, this contention would have to be sustained, for it is well settled that the right to exercise the franchise of a municipal corporation can be tested in but one way — by quo warranto brought by the proper officers in the name of the state. Cooley on Const. Lim., 312; State v. Bradford, 32 Conn. 50; Fredericktown v. Fox, 84 Mo. 59; St. Louis v. Shields, 62 Mo. 247; Kayser v. Trustees of Bremen, 16 Mo. 88. The corporate existence of the city of St. Charles is not called in question by this proceeding; its corporate existence
In Warren v. Paving Co., supra, the validity of an ordinance extending the limits of the city of Westport was tested by a bill in equity to cancel tax bills issued for paving done on a boulevard in the new or extended limits. An extension of the limits of a city is necessarily a change of its- charter, and in some states it is held that the validity of an ordinance extending the limits can only be tested by quo warranto; but the decisions of the supreme court of our state have taken a different view of these ordinances and hold them subject to the same tests as any other city ordinance. It is stated in the petition and admitted by the answer that St. Charles is a city of a third class. By the provisions of section 2, Acts 1893, page 67, the mayor and city council, with the consent of a majority of the legal voters of the city voting at an election
“Section 1. The limits of the city of St. Charles, in the county of St. Charles, in the state of Missouri, are hereby extended so as to embrace and include all that part of said St. Charles county, lying within the following outboundary lines, to wit: (Description omitted.)
“Section 2. A proposition to extend the limits of the city of St. Charles as in the next preceding section set forth and described, shall be submitted to the voters of the city of St. Charles at an election to be held in said city on the 6th day of February, 1894.
“The mayor of this city shall give notice of such election by publication in the newspaper doing the city printing in this city; if there be no such paper, then said notice shall be published in any newspaper published in the English language in this city. Such notice shall be published at least fifteen days before the day of holding said election, and shall state the time and places of holding the same and shall clearly describe the out-boundary lines of the proposed extension.
“Such election shall be held and conducted as other elections are-held and conducted in this city.
“Section 3. The city clerk shall prepare and cause to be printed ballots to be used at such election which shall be in the following form:
“For extension of limits.Yes
“For extension of limits . .'.No
“The former of which shall be taken as a vote assenting to such extension and the latter as dissenting therefrom.
“Passed Jan. 9th, 1894.
“Louis Ringe, Presiding Officer.”
This ordinance was approved by the mayor January 16, 1894, and was followed by the following proclamation made by the mayor:
“Mayor’s Proclamation.
“Notice of special election.
“Notice is hereby given that a special election will be held in the city of St. Charles, in the state of Missouri, on Tuesday, February 6,1894.
“Submitting to the qualified voters of said city of St. Charles, Mo., a proposition to extend the limits of the city of St. Charles, in the county of St. Charles, in the State of Missouri, so as to embrace and include all that part of St. Charles county lying within the following outboundary lines, to wit: (Description omitted. )
“Polls will be open for the purpose of said election' in the various wards in the eity at 7 o’clock a. m., and kept open until 6 o’clock p. m. of said day at the following places, to wit:
“First ward — No. 324 South Main street (H. Meyer’s).
“Second ward — City Hall Building.
“Third ward — No. 327 North Main street (E. Abeling’s).
“Fourth ward — Hose, Hook and Ladder Company Hall.
“Louis Ringke,
“Mayor of the City of St. Charles.
“Attest: H. C. Sandpokt,
“Clerk of the City of St. Charles, Mo.”
This proclamation was published for four consecutive weeks in the St. Charles Banner (the paper doing the city printing), and in the St. Charles Cosmos, the last insertion of said notice being February 1, 1894.
The official ballot was as follows:
“Special election”
on
“Extension of City Limits.
“For extension of city limits.. Yes
“For extension of city limits.No.”
This official ballot was published in the St. Charles Banner on January 25 and February 1, 1884; and in the St. Charles Cosmos on January 24 and 31, 1894. An election was held in pursuance of the foregoing proclamation and notice and due returns were made thereof to the city council. At this election five hundred and thirty votes were polled in favor of extending the city limits as proposed by the ordinance of January 9, and ninety-three votes against it. Following this election on April 4, 1894, the city council passed the following ordinance extended the limits of the city:
“An ordinance establishing new limits of the city of St. Charles, in the State of Missouri.
“Whereas, an ordinance entitled ‘an ordinance providing for the extension of the limits of the city of
“Be it ordained by the council of the city of St. Charles, in the State of Missouri, as follows:
“Section 1. The limits of the city of St. Charles, in th.e county of St. Charles and State of Missouri, are hereby extended and established so as to embrace and include all that part of said St. Charles county lying within the following outboundary lines, to wit.” (Description omitted.)
“Section 2. All ordinances or parts of ordinances conflicting with this ordinance are hereby repealed.
“This ordinance was approved by the mayor April 13,1894.”
The contention of appellant is that the election was a mere voluntary one and that no authority was vested in anyone to call the election. Section 2, Acts of 1893, supra, does not in terms confer the power on the city council and mayor to call the election. The authority is conferred to extend the limits of the city, when a majority of the voters voting at an election shall assent thereto. Express authority is granted to extend the limits of the city, but as a prerequisite to a
A further objection to the ordinance is that it is inequitable, unjust and unreasonable. The plaintiff, by a clause in her petition, undertakes to strengthen her position by averring that she prosecutes the suit in her own behalf and for all others similarly situated. The petition is not to enjoin the collection of any and all tax levied in the annexed territory, but to enjoin the collection of tax levied on the personal and real property of the plaintiff, and in which she only is interested, and strictly speaking, the inquiry should be confined as to the reasonableness of the ordinance in so far as it affects the plaintiff; but the whole question was examined on the trial, was argued orally here, and is so presented in the briefs of counsel. Being a matter in which the city of St. Charles and all of its citizens are interested, we will examine the ordinance as to its justice and reasonableness taken in its entirety. There are ten additions to the original town of St. Charles, seven of which, according to a plat of the city filed with the record, are beyond the old city limits, and also a greater part of one other (McElhinesy’s Addition). The city cemetery, the St. Charles county driving park and fair grounds were also outside the old city limits. The extended limits taken in, with the exception of two or three blocks, these additions, the cemetery and fair grounds, also some agricultural land, but not exceeding ten acres in any one tract. Some of the additions taken in are compactly built up with residences, about' all of them are more or less built up and all have excellent building lots. Some of the principal streets leading from the business center of the city into the most thickly populated of these additions have been graded and macadamized at the expense of the
In Vestal v. Little Rock, 54 Ark. 321, it was said that “city limits may reasonably and properly be extended so as to take in contiguous lands, first, when they are platted and held for sale or use as town lots; second, whether platted or not, if they are held to be brought on the market'and sold as town property when they reach a value corresponding with the views of the owner; third, when they furnish the abode for a densely settled community, or represent the actual growth of the town