Carson v. Oxenhandler, 30545

• Citation: 334 S.W.2d 394
• Decision Date: 19 April 1960
• Docket Number: No. 30545,30545
• Parties: John CARSON et al. (Plaintiffs), Appellants, v. Joe OXENHANDLER et al. (Defendants), Respondents.
• Court: Court of Appeal of Missouri (US)

Page 394

334 S.W.2d 394

John CARSON et al. (Plaintiffs), Appellants, v. Joe OXENHANDLER et al. (Defendants), Respondents.

No. 30545.

St. Louis Court of Appeals, Missouri.

April 19, 1960.

Motion for Rehearing or for Transfer to Supreme Court Denied

May 16, 1960.

J. A. Gochenour, Frank Bild, Fred J. Hoffmeister, St. Louis, for appellants.

William R. Dorsey, Clayton, for respondents.

DOERNER, Commissioner.

Plaintiffs, legal voters in St. Louis County, seek through mandamus to compel the defendants, members of the Board of Election Commissioners of that county, to submit to a referendum election an ordinance enacted by the St. Louis County Council. The trial court denied the writ, and plaintiffs appealed.

This case is a sequel to that of Schmoll v. Housing Authority of St. Louis County, Mo., 321 S.W.2d 494, decided by the Supreme County on February 9, 1959. In that case the Supreme Court held that because of the explicit provision of the charter of St. Louis County requiring the County Council to enter into a cooperation agreement only by an ordinance, an agreement entered into with the Housing Authority of St. Louis County under a resolution of the County Council was invalid.

It appears from the record, and from the agreed statement of facts entered into below by the parties, that subsequent to the decision in the Schmoll case, Ordinance No. 1448, authorizing St. Louis County to enter into a cooperation agreement with its Housing Authority, was duly passed on April 1, 1959, and enacted on April 4, 1959. Before the date upon which it would have become effective, plaintiffs filed with the Board of Election Commissioners, on May 11, 1959, a petition calling for a referendum on the Ordinance in question. It is agreed between the parties that the referendum petition was filed in accordance with the procedural requirements of the applicable ordinances governing referendums, and that at a meeting of the Board of Election Commissioners held on June 5, 1959, a motion to submit Ordinance No. 1448 to a referendum vote at the next primary election, to be held on August 2, 1960, was defeated by an evenly divided vote.

On June 10, 1959, plaintiffs filed their petition for an alternative and absolute writ of mandamus, requesting the Circuit Court to order the defendants in their capacity as the Board of Election Commissioners to submit Ordinance No. 1448 to a vote of the electorate on August 2, 1960. The alternative writ was issued the same day, returnable June 22, 1959. On that day defendants filed their return in which they pleaded their answer to plaintiffs' petition, and, in addition, certain affirmative defenses, which will be subsequently adverted to. Plaintiffs filed a reply, raising certain constitutional and other questions relative to the affirmative defenses raised. The agreed statement of facts was filed on August 20, 1959, and the matter was subsequently submitted to the trial court. On October 23, 1959, the court below entered its findings of fact, conclusions of law, and the judgment heretofore stated.

We are met at the outset of our consideration of this case with the contention of the defendants that we lack jurisdiction of this cause. The basis for their argument is founded on the Charter and an ordinance of St. Louis County. Article VII, Section 77 of the Charter provides:

'The people reserve the power to propose and enact or reject ordinances and amendments to this Charter, independent of the Council, to approve or reject by referendum any ordinance of the Council except emergency measures, and to recall any elective County officer.'

Section 81 of Article VII reads:

'The Council shall, within one year of the effective date of this Charter, establish by ordinance necessary procedures to effectuate the provisions of this Article.'

Pursuant to that Section, the Council enacted Ordinance No. 134 to implement the initiative, referendum and recall provisions of the Charter. The pertinent part of that ordinance with which we are here concerned is Section 6, which provides:

'If the Board of Election Commissioners refuse to accept or file an initiative or referendum petition or recall petition, any citizen who is a legal voter may apply in 5 days to the Circuit Court of St. Louis County for a writ of mandamus to compel it to do so. If the court finds the petition legally sufficient, the Board of Election Commissioners shall file it as of the date offered. If the Court finds it not sufficient, the Board of Election Commissioners shall not hold an election thereon. The decision of the Circuit Court shall be final.'

Defendants contend that as provided by the last sentence of that section the decision of the Circuit Court is final, and therefore that no appeal may be taken to this court. They argue that the Charter and ordinance provisions establish the entire scheme of referendum with respect to county ordinances, and that such a self-contained, special proceeding is a code complete in itself, not subject to the Code of Civil Procedure, citing State ex rel. Bess v. Schult, Mo.App., 143 S.W.2d 486; Rosebraugh v. State Social Security Commission, Mo.App., 196 S.W.2d 27; Choate v. State Department of Public Health and Welfare, Mo.App., 296 S.W.2d 189; State ex rel. Schwartz v. Buder, Mo.App., 315 S.W.2d 867. Plaintiffs now contend, although their petition and the agreed statement of facts would indicate to the contrary, that their action in mandamus was brought under the provisions of Ch. 529 RSMo 1949, V.A.M.S., concerning mandamus, as well as under the procedure provided for in Ordinance No. 134; and that the limitation in Ordinance No. 134 making the decision of the Circuit Court final is in conflict with our statute on appeals, Section 512.020 RSMo 1949, V.A.M.S., and therefore invalid.

It is true that the Legislature may establish a special statutory proceedings to which the Code of Civil Procedure may not be applicable, as the cases cited by defendants, and others, demonstrate. This principle is recognized by Supreme Court Rule 3.02(c). But even if it be conceded for the sake of argument that plaintiffs' action was instituted in the Circuit Court under Ordinance No. 134, it was not a special statutory proceeding, for the ordinance is not a statute. By Section 512.020 the Legislature has guaranteed the right of appeal to 'Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings * * *.' (Emphasis supplied.) The result is that the provision in Ordinance No. 134 denying the right of appeal, by attempting to make the decision of the Circuit Court final, is in conflict with Section 512.020, establishing the general policy of the state with respect to appeals, and hence invalid. For while under its special Charter St. Louis County is possessed of a dual nature and functions in a dual capacity, both as a county and as a municipality, State on Information of Dalton ex rel. Shepley v. Gamble, 365 Mo. 215, 280 S.W.2d 656, the powers granted to it must be exercised in a manner not contrary to the public policy of the state. Hellman v. St. Louis County, Mo., 302 S.W.2d 911. And, as was said in State ex rel. Cole v. Matthews, Mo., 274 S.W.2d 286, 292: 'The provisions of the charter and ordinances of the county which are in conflict with prior or subsequent state statutes relating to governmental matters must yield.' And see State ex rel. Dwyer v. Nolte, 351 Mo. 271, 172 S.W.2d 854; State ex rel. Volker v. Carey, 345 Mo. 811, 136 S.W.2d 324.

Defendants also assert that plaintiffs may not question the validity of that part of Ordinance No. 134 because '* * * The right to referendum which they are asserting is one created and existing solely by virtue of the very code which they are attacking * * *.' But Ordinance No. 134 did not create the right to referendum. That right was reserved by the people of St. Louis County when they adopted the charter. All that the Ordinance did was to establish part of the procedures to be followed in the exercise of that right. The last sentence is separable from the rest of Section 6 of the ordinance, and may therefore be declared invalid without affecting the remainder. It follows that we have jurisdiction of plaintiffs' appeal.

We pass, then, to the case on its merits. In their briefs both parties have raised numerous points relative to Section 3 of Ordinance No. 134, which reads:

'Ordinances enacted under and pursuant to administrative and ministerial authority vested in the Council by the Constitution or laws of this State, independent of the legislative power granted to charter counties by the Constitution, shall not be subject to referendum, and the Election Commissioners shall refuse to accept a referendum petition in such cases.'

Plaintiffs' appeal was taken to the Supreme Court. In their brief, filed in that court, plaintiffs attacked the constitutionality of that section, as well as its claimed conflict with Section 77 of Article VII of the Charter. Plaintiffs' attempts to raise constitutional questions respecting Ordinance No. 134 have been foreclosed by the mandate of the Supreme Court transferring this case to us, which recites that '* * * no constitutional question is properly raised or preserved * * *.' Among other constitutional questions thus eliminated is the issue of whether Sections 3 and 6 of that Ordinance, which confers on the Board of Election Commissioners the authority to decide whether a proposed ordinance is or is not legislative in nature, is violative of Article 2, Section 1 of our constitution, V.A.M.S. as an encroachment on the judicial power of the courts. We note, in passing, that by Section 2 of Ordinance No. 134 the Board of Election Commissioners is also authorized to pass upon the constitutionality of an ordinance submitted by initiative, and is directed to refuse to submit it to a vote if it...