99 Mo. 352 | Mo. | 1889
Kansas City, by its proper officers, filed, in the circuit court of Jackson county a certified copy' of an ordinance to grade a designated street, and asked, the respondent, who is one of the judges of that court,, to appoint commissioners under article 8 of its charter to' assess damages and benefits. The respondent declined to make the appointment under the provisions of the charter on the ground that article 8 is in conflict with the laws of the state, and for that reason void. Hence this application for the writ of mandamus.
The question in the case is whether the commissioners should be appointed, and the proceedings had under the charter, or under the act of the legislature of March 26, 1885 (Acts of 1885, p. 47), as amended by the act of March 31, 1887 (Acts of 1887, ■ p. 37). Both the charter and this act of the legislature, as amended, point out a procedure for the assessment of damages and benefits in such cases, but they are so different that the court in following one must, of necessity, disregard and exclude all consideration of the other. The question is therefore one of vital importance to the validity of such proceedings in Kansas City.
The act of 1885, as amended, is a general law, and in terms applies to all cities in this state, except those of the second class organized under the general law, and
Section 16 of article 9 of the constitution provides : “Any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government, consistent with, and subject to, the constitution and laws of this state, by causing a board of thirteen freeholders ” to be elected, who shall return to the mayor a draft of the charter. The proposed charter shall then be submitted to the qualified voters ■and if ratified “it shall, at the end of thirty days thereafter, become the charter of such city, and supersede any existing charter and amendments thereof.” The charter may be amended by a three-fifth vote of the qualified voters ; “ but such charter shall always be in harmony with, and subject to, the constitution and laws of the state.”
The first section of the enabling act of March 10, 1887, is but a repetition of said section 16, of the constitution, with some matters added, of no value to the present inquiry. The second section enacts: ‘ ‘After the expiration of said thirty days after the ratification and
While the constitution says any city having the requisite population “ may frame a charter for its own government,” it also declares that such charter shall be “consistent with, and subject to, the constitution and laws of the state,” and, as the law of 1885 is a general law, the claim is made on behalf of respondent, that the charter is subject to that law. The legislative power of the state is vested in a senate and a house of representatives, and, when it is declared that any city of the required population may frame and adopt a charter for its own government, the right thus granted, and the charter adopted, is subject to legislative control. The proposition made for relator, that, when any such city lias adopted a charter, it is out of, and beyond, all legislative influence, cannot be sustained. We held to the contrary in the case of Ewing v. Hoblitzelle, 85 Mo. 76, 77.
Subject to this superior power of the legislature, the constitution accords to any city having the requisite population the right to frame and adopt a charter for its own government, which will supply its peculiar wants. Charters thus adopted will, of necessity, be more or less at variance, and that they will be unlike, in many respects, is within the contemplation of the constitution. It is also within the fair contemplation of the constitution that a charter thus adopted may embrace the entire subject of municipal government, and be a complete and consistent whole. The enabling act of March 10, 1887, is in perfect accord with the spirit of the constitution, and it discloses a well-defined purpose to clear the legislative field, and pave the way
A system has grown up of legislating for cities by population, and, in view of this character' of legislation, the argument is made that the second section of the enabling act exempts cities, framing and adopting their own charters, from such laws only as relate exclusively to cities having more than one hundred thousand inhabitants; that the exemption does not extend to those laws which apply alike to cities of over one hundred thousand, and to cities of a less population. This argument is based on that clause of the second section of the enabling act, which declares that the charter adopted by the qualified voters shall supersede all laws then in force 1 ‘ in terms governing or appertaining to the cities having one hundred thousand inhabitants or more.” A law in terms governing or appertaining to all cities of this state would surely be a law in terms governing or appertaining to those cities having one hundred thousand inhabitants. The less is included in the greater. The construction, contended for, requires us to say for the legislature what it has not said for itself. Whether we look to the letter of this enabling statute, or are guided by its • object, purpose and intent, the result is the same. Under it, laws, though general they may be, which relate alone to the government of cities, must yield to the provisions of the adopted charter.
This matter of assessing damages and benefits for grading and regrading streets naturally falls within the domain of municipal government. The act of 1885, as amended, is one of those laws which the enabling act declares shall be superseded by the adopted charter. When the present charter of Kansas City became a law,
Our conclusion is, that the charter of Kansas City, and not the act of 1885, as amended, is the law by which damages and benefits arising from grading and regrading streets, in Kansas City, are to be assessed. The peremptory writ is, therefore, awarded.