City of St. Louis v. Cavanaugh

• Decision Date: 08 December 1948
• Docket Number: 40205
• Citation: 207 S.W.2d 449,357 Mo. 204
• Parties: The City of St. Louis, a Municipal Corporation, Appellant, v. Edward Cavanaugh
• Court: Missouri Supreme Court

207 S.W.2d 449

357 Mo. 204

The City of St. Louis, a Municipal Corporation, Appellant, v. Edward Cavanaugh

No. 40205

Supreme Court of Missouri

December 8, 1948

Rehearing Denied January 12, 1948.

Appeal from Court of Criminal Correction of City of St. Louis Hon. David W. FitzGibbon, Judge.

Reversed and remanded (with directions).

George L. Stemmler, City Counselor, Oliver Senti and John P McCammon, Associate City Counselors, for appellant.

(1) Power to operate the Douglas MacArthur Bridge as a toll bridge is conferred upon the City of St. Louis by Congress and by the General Assembly of the State. Acts of Congress of March 23, 1905 and June 25, 1906; Sec. 7574, R.S. 1939. (2) Regulating the municipal bridge is a legislative function. 1875 Charter of the City of St. Louis, Para. 2, Sec. 26, Art. III; 1914 Charter of the City of St. Louis, Subsec. (14) of Sec. 1, Art. I, and Sec. 1 of Art. IV; Albright v. Fisher, 164 Mo. 56, 64 S.W. 106; Mayor and City Council of Baltimore v. Baltimore Trust & Guarantee Co., 166 U.S. 673, 41 L.Ed. 1160. (3) The legislative power of the city is not exhausted by being once exercised. Morrow v. Kansas City, 186 Mo. 675, 85 S.W. 572; State ex rel. Hussman Refrigerator Co. v. St. Louis, 319 Mo. 497, 5 S.W.2d 1080; St. Louis v. Christian Brothers College, 257 Mo. 541; City of Kansas v. White, 69 Mo. 26; Mayor and City Council of Baltimore v. Baltimore Trust & Guarantee Co., 166 U.S. 673, 41 L.Ed. 1160. (4) The power to repeal ordinances is an incident of the power to enact them. 37 Am. Jur. 834; City of Kansas v. White, 69 Mo. 26; St. Louis v. Christian Brothers College, 257 Mo. 541, 165 S.W. 1057. (5) The legislative power of a municipality cannot be surrendered. State v. Hannibal & St. Joseph Railroad Co., 75 Mo. 208; State ex rel. McClellan v. Graves, 19 Md. 351, 81 Am. Dec. 638. (6) The bridge bond ordinances were enacted by the Municipal Assembly and merely submitted to the voters proposals to issue said bonds. (7) The ballots cast by the voters said nothing about the bridge being free. Ordinance 22366, Exhibit No. 2; Ordinance 27662, Exhibit No. 6. (8) Since the ballots cast at the bond issue elections said nothing about the bridge being free and there is nothing in the record indicating that the defendant or any other voter was deceived, he is in no position to complain that the voters were misled. (9) Even if the voters had been misled that could not abrogate the right of the City to exercise its legislative powers. Jennings v. Clearwater School District, 65 Cal.App. 114, 223 P. 84. (10) The action of the Municipal Assembly in providing in said ordinances that the bridge should be a "free bridge" was a nullity since the Municipal Assembly had no power to pass an irrepealable ordinance nor to surrender the legislative powers conferred upon it by the City Charter. Authorities cited under Points (1), (2), and (3). (11) The provision that the bridge shall be "forever free" being a condition the Municipal Assembly had no power to impose, could not be cured by a vote of the electors of the city. Baum v. St. Louis, 343 Mo. 738, 123 S.W.2d 48.

Gustav Vahlkamp, Ralph V. Wilson, Louis H. Steffen and Sol S. Tversky for respondent.

(1) Section four of Ordinance Nos. 22366 and 27662 states that one of the specific purposes of said ordinances is that "said bridge and approaches shall at all times be and forever remain a free bridge." Ordinance 22366, Exhibit No. 2; Ordinance 27662, Exhibit No. 6. (2) The entire ordinance calling the bond issue election should be considered to ascertain the true import of the propositions voted upon. Clark v. City of Los Angeles, 160 Cal. 317, 116 P. 966. (3) A municipal corporation does not have authority to use the proceeds derived from the sale of bonds for purposes other than those voted for affirmatively by the people. Meyers v. Kansas City, 323 Mo. 200, 18 S.W.2d 900; Harding v. Board of Supr's. of Osceola County, 213 Iowa 560, 237 N.W. 625; Beers v. City of Watertown, 43 S.D. 14, 177 N.W. 502; Hayes v. City of Seattle, 120 Wash. 372, 207 P. 607; Turkey v. City of Omaha, 54 Neb. 370, 74 N.W. 613. (4) Money procured by the sale of bonds, issued by virtue of a bond election, creates a trust fund and binds the city to see that the fund is applied for the purposes for which it was created and no other. City of St. Louis v. Senter Commission Co., 337 Mo. 238, 85 S.W.2d 21; Thompson v. St. Louis, 253 S.W. 969. (5) The primary rule of construction of statutes and ordinances is to ascertain and give effect to the lawmakers intent; this should be done from the words used, if possible, considering the language honestly and faithfully, to ascertain its plain and rational meaning and to promote its object and manifest purpose. City of St. Louis v. Senter Commission Co., 337 Mo. 238, 85 S.W.2d 21. (6) While the city had express statutory authority to build either a free bridge or a toll bridge, it is evident that the people thereof voted to construct a free bridge. Laws 1905, p. 94; R.S. 1939, sec. 7574; Ordinance 22366, Exhibit No. 2; Ordinance 37406, Exhibit No. 8; Ordinance 39749, Exhibit No. 9; Ordinance 39827, Exhibit No. 11; Ordinance 41554, Exhibit No. 14; Ordinance 41971, Exhibit No. 15; Ordinance 42189, Exhibit No. 16; Ordinance 42408, Exhibit No. 17; Ordinance 42553, Exhibit No. 18; Ordinance 42701, Exhibit No. 19. (7) The words "free" and "toll" connote different purposes. Webster's Revised and Unabridged Dictionary. State ex rel. Allison v. Hannibal & R.C. Gravel Road Co., 138 Mo. 332, 39 S.W. 910, 36 L.R.A. 457. (8) The courts will not tolerate a departure from the terms of the authorized purposes of a bond election. Authorities cited under Points (3) and (4). (9) By the terms of the charter of the City of St. Louis bonded indebtedness can be incurred only by the consent of two-thirds of the voters of the city voting at an election held for that purpose. Charter of the City of St. Louis, para. 1, Sec. 3, Art. 17. (10) Since the Municipal Assembly cannot unilaterally pass a bond issue but must submit it to the people, it is self-evident that the purposes voted for by the people cannot be contravened by an ordinance passed by the Municipal Assembly. (11) It is not within the purview of the Municipal Assembly to decide a toll is reasonable -- for where there is no power there can be no discretion. Hayes v. City of Seattle, 120 Wash. 372, 207 P. 607. (12) The police power cannot be exercised for the purpose of exacting revenue. Viquesney v. Kansas City, 305 Mo. 488, 266 S.W. 700. (13) All acts of a municipal corporation beyond the scope of the powers granted are void. 1 Dillon, Mun. Corps. (5 Ed.), sec. 237, p. 448. (14) "Due process" does not have regard merely to enforcement of law, but searches the authority for making law. State v. Henry, 37 N.M. 536, 25 P.2d 204, 90 A.L.R. 805. (15) "Due process" is a legal right assertable in the courts. State v. Henry, 37 N.M. 536, 25 P.2d 204, 90 A.L.R. 805.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Defendant was prosecuted and convicted in City Court No. 1 of the City of St. Louis for the violation of an ordinance requiring the payment of tolls on the Douglas MacArthur Bridge (formerly Municipal Bridge), which extends across the Mississippi River between the State of Missouri and the State of Illinois. A fine in the sum of fifty dollars was assessed. On appeal, the St. Louis Court of Criminal Correction sustained the defendant's motion to quash the information and discharged the defendant. The trial court held that the Board of Aldermen of the City was without authority to enact an ordinance placing tolls upon the use of the bridge; and that the ordinance upon which the prosecution was based was null and void. The City of St. Louis has appealed.

Error is assigned on the trial court's action in sustaining the motion to quash the information and in discharging the defendant.

It is admitted that the bridge in question is owned by appellant; and that on July 20, 1946, respondent, a citizen and taxpayer of the city, drove a pleasure motor vehicle across the bridge and refused to pay the ten cents toll therefor, as provided by the ordinance under which he was arrested and prosecuted. In the motion to quash the information, respondent charged that, on the basis of certain facts therein stated and hereinafter referred to, the ordinance upon which the prosecution was based was null and void; and that the enforcement of the ordinance against respondent by requiring the payment of any toll for crossing the bridge, or the imposition of penalties for failure to pay such toll, would deprive him of his property and his liberty without due process of law in violation of specified provisions of the State and Federal Constitutions. Appellant, on the other hand, contends that the ordinance sought to be enforced against respondent was fully authorized by specified statutory and constitutional provisions.

The essential issue presented concerns the right and authority of appellant to provide by ordinance for the collection of tolls from owners or drivers of vehicles crossing the bridge.

Appellant was authorized by an Act of Congress, approved June 25, 1906, to construct, maintain and operate a railroad, wagon and foot-passenger bridge, and approaches thereto, across the Mississippi River at St. Louis. U.S. Statutes at Large, Vol. 34, p. 461, Chap. 3539. The Act was subsequently amended and extended from time to time until the bridge and its approaches were completed. This Act of June 25, 1906 further required compliance with an Act approved March 23, 1906, which provided that if tolls should be charged for transit over any bridge constructed under such act the tolls should be reasonable and just. 33 U.S.C.A., Sec. 494.

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