147 Mo. 1 | Mo. | 1898
— This is an original proceeding instituted in this court by the attorney-general and the prosecuting attorney of St. Louis county, in which they inquire quo warranto William S. Fleming as mayor, and the other respondents as board of aldermen, of the pretended city of' Webster Groves, have usurped and are still usurping the powers, privileges, franchises, and prerogatives of a city of the fourth class over certain specified territory, the boundaries whereof are fully set forth in the petition.
Briefly told the history of this case is as follows: On March 26, 1896, a petition purporting to be signed by a-majority of the taxable inhabitants of the unincorporated town of Webster Groves, and praying for its incorporation as a city of the fourth class, was presented to the county court of St. Louis county, in accordance with section 977, Revised Statutes 1889. The boundaries of the territory which it was desired to have so incorporated were fully set' forth in the petition. They are not the same boundaries set out in the information filed in this case, but the territory which the court was asked to incorporate is included within the boundaries set out in said information. On the second' of April, 1896, said county court made an order incorporating the city of Webster Groves, in accordance with the prayer-of the petition; and on the sixth of April it appointed William S. Fleming mayor, and the other respondents aldermen, of said city. On the twentieth of the same month it made a nunc pro tunc order as of April 2, in order to correct some-fancied irregularities in the original order of April 2. The several appointees of the county court qualified and entered
1. The authorities cited on behalf of informants sanetion the direction of the information against the respondents-
2. The record of the order of the county court shows that the city of Webster Groves was regularly incorporated, and on this state of facts it is insisted by respondents that this order has the force and effect of a judgment, while by informants it is asserted that such order was simply a ministerial or legislative act. Our statute relative to the incorporation of cities and towns, among other things, provides: “Whenever a majority of the inhabitants of any such city or town shall present a petition to the county court of the county in which such city or town is situated, setting forth the metes and bounds of their city or town and commons, and praying that they may be incorporated, and a police established for their local government, and for the preservation and regulation of any commons appertaining to such city or town, and if the court shall be satisfied that a majority of the taxable inhabitants of such town have signed siich petition, the court shall declare such city or town incorporated, designating in such order the metes and bounds thereof, and thenceforth the inhabitants within such bounds shall be a body politic and incorporate, by the name and style of the city of-.” R. S. 1889, sec. 977. Among numerous definitions of the term
3. But, notwithstanding this, it does not thence follow that the judgment of the county court is impregnable to direct attack through the medium of quo warranto, because this is a direct proceeding by the State, which will invalidate even the judgment of a court, as the State is not a party to the record in the cause in which such judgment is rendered, and consequently is not bound thereby. And that quo warranto is the proper method of procedure in a case of this kind is distinctly recognized in Kayser v. Trustees, 16 Mo. 88; directly decided in State v. McReynolds, 61 Mo. 203; necessarily determined in Woods v. Henry, 55 Mo. 560. State v. Weatherby, 45 Mo. 17, is not in harmony with the view just announced, since it applies tíre same rule to the effect of a direct attack by quo warranto as results from a mere collateral attack. That case was therefore not carefully considered. It cites no authorities for its position, is not law, and will not be followed. The utterance in State v. Powles, 136 Mo. 376, was obiter, and did not go to the point in judgment. The case, however, was correctly decided.
5. Relative to the election held under Ordinance 59 for the extension of the city limits the informants make contention that said election was invalidated because not held in conformity to the Australian ballot law, and that the statute of 1895, approved March 16 (Laws 1895, p. 170), which purports to do away with the Australian ballot law in cities of the fourth class, is violative of section 53 of article 4 of the Constitution, in that it is a “local or special law,” and provides “for the opening and conducting of elections.” This much-abused, much-misunderstood term is not applicable in this case, for the reason that this law is a general law, and applies to all cities of the fourth class; and perhaps it may be considered as established in this State that a statute which relates to persons or things as a class is a general law. State v. Tolle, 71 Mo. 645; State v. Herrmann, 75 Mo. 349, and numerous other cases. And it is entirely competent for the legislature to enact such a law; such power being directly conferred on the legislature bysection25 of article IX, and other sections of that article, and indirectly conferred by section
6. These remarks are perhaps sufficient to indicate our views on the motion to strike out portions of informants’ reply, of which motion it may be said that it would have been better had it more clearly indicated the precise portions desired to be stricken out. Pearce v. McIntyre, 29 Mo. 423, But, inasmuch as testimony has to be taken in order to determine the issues of fact herein joined, we defer further discussion or investigation until such testimony be received; and we say this the more readily because, if the original act of incorporation, should prove invalid, it will be wholly unnecessary to look into any extension of territorial limits. A commissioner will be appointed to take testimony, which, when taken, this cause will again be set down for argument.