Anderson v. Smith
| Decision Date | 03 February 1964 |
| Docket Number | Nos. 23852,s. 23852 |
| Citation | 377 S.W.2d 554 |
| Parties | Edgar T. ANDERSON, Alfred Davidson, and Frederick T. Allen, as individuals and on behalf of a committee of petitioners of the City of Columbia, Missouri, Appellants, v. Robert C. SMITH, Clyde R. Cunningham, Roy G. Wiley, Ira L. Davis, and Carl L. Brady, individually, and as constituting the City Council of the City of Columbia, Missouri, and, B. D. Simon, Jr., John C. Crighton, Charles J. Proctor, Dorsey M. Russell, and Dell Keepers, individually, and as constituting the Board of Commissioners of the Land Clearance for Redevelopment Authority, Columbia, Missouri, Respondents. STATE of Missouri ex rel. Edgar T. ANDERSON, Alfred Davidson and Frederick T. Allen, as individuals and on behalf of a committee of petitioners of the City of Columbia, Missouri, Appellants, v. Robert C. SMITH, Clyde R. Cunningham, Roy G. Wiley, Ira L. Davis, and Carl L. Brady, individually, and as constituting the City Council of the City of Columbia, Missouri, Respondents. to 23854. |
| Court | Missouri Court of Appeals |
Michael J. Trombley, Columbia, J. David Collins, Edwards, Hess & Collins, Macon, for appellants.
George F. Nickolaus, City Counselor, Carl F. Sapp, Columbia, for respondents.
Plaintiffs, as property owners, citizens, taxpayers, and electors of the City of Columbia, Missouri, filed two suits in the Circuit Court of Boone County against the City Councilmen of Columbia, individually as members of the city council. 1
The first filed suit (case number 45975) was for a declaratory judgment and injunction. The judgment of the trial court denied the requested injunction and in effect denied plaintiffs their requested declaration of rights because the identical legal questions are presented in case number 45976. While plaintiffs appealed from this judgment they have abandoned that appeal by their failure to present any contentions of error or other objection thereto in their briefs, and that appeal should be dismissed.
In the second suit, case number 45976, in Count I plaintiffs sought a peremptory writ of mandamus requiring defendants, members of the city council, to perform their alleged duties under Article XVIII, Sections 132, 134 and 135 of the Home Rule Charter for the City of Columbia, Missouri relative to an initiative petition submitted to them by plaintiffs. In Count II plaintiffs sought substantially the same relief as in Count I but with regard to a referendum petition submitted by them to defendants and not acted on and denied by defendants.
The judgment entered in case number 45976 was in favor of defendants on Count I, refusing to require the city council to enact the ordinance proposed in the initiative petition or to submit it to a vote of the electors of the city. The judgment was in favor of plaintiffs on Count II, requiring defendants to either repeal Ordinance No. 1788 or to submit it to the vote of the electors. Plaintiffs appealed from the judgment on Count I and defendants appealed from the judgment on Count II. However, in their briefs defendants have not presented any contentions of error regarding the judgment on Count II and thereby have abandoned their appeal therefrom.
Remaining for our determination on this appeal is plaintiff's appeal from the judgment entered on Count I, case No. 45976 concerning the refusal of the trial court to order the city councilmen to enact a certain proposed ordinance contained in an initiative petition or to submit it to the voters of the city.
A chronological statement of the background of the present question is necessary to an understanding of the appellate contentions of the parties.
In 1951 our state legislature enacted the 'Land Clearance For Redevelopment Authority Law' (Sections 99.300 ff., RSMo 1959, V.A.M.S.). This law found and declared that there exist in localities throughout the state blighted and insanitary areas injurious to public health, safety and morals; that such condition is beyond remedy and control solely by regulatory process and private enterprise. It provided: 'There is hereby created in each community (as herein defined) a public body corporate and politic, to be known as the 'Land Clearance For Redevelopment Authority' of the community; provided, however:
'(1) That such authority shall not transact any business or exercise its powers hereunder until or unless the governing body shall approve (by resolution or ordinance as herein provided) the exercise in such community of the powers, functions and duties of an authority under this law; and provided further that, if it deems such action to be in the public interest, the governing body may, instead of such resolution or ordinance adopt a resolution or ordinance approving the exercise of such powers, functions and duties by the community itself or by the housing authority, if one exists or is subsequently established in the community, and in such event, the community or housing authority, as the case may be, shall be vested with all the powers, functions, rights, duties and privileges of a land clearance for redevelopment authority under this law.
'(2) The governing body of a community shall not adopt a resolution or ordinance pursuant to subdivision (1) above unless it finds:
'(a) That one or more blighted, or insanitary areas (as herein defined) exist in such community; and
'(b) That the redevelopment of such area or areas is necessary in the interest of the public health, safety, morals or welfare of the residents of such community.'
The state statute above mentioned in Section 99.320(6) defined the statutory term 'community' as follows: "Community' * * * any county or municipality, except that such term shall not include any municipality containing less than seventy-five thousand inhabitants until the governing body thereof shall have submitted the proposition of accepting the provisions of this law to the qualified voters therein at an election called and held as provided by law for the incurring of indebtedness by such municipality, and a majority of the voters voting at such election shall have voted in favor of such proposition.'
Columbia, Missouri is a municipal corporation with a population which has always been substantially less than 75,000. Pursuant to Section 99.320(6) of the mentioned statute the City Council of Columbia on April 23, 1956, enacted Ordinance No. 485 finding that one or more blighted or insanitary areas exist in Columbia and that the redevelopment thereof is necessary in the interest of the health, safety, morals or welfare of the city, and in effect accepted the provisions of the Land Clearance For Redevelopment Authority Law subject to a vote of the people thereon. Ordinance No. 485 provided for a special election to be held on May 29, 1956, to submit to the electors of Columbia the proposition of whether they accept the provisions of the Law, and 'approving the exercise of the powers, duties, and functions of said law by a land clearance for redevelopment authority * * * and establishing such authority by finding that one or more blighted or insanitary areas as defined in said law exist in the City of Columbia, and that the redevelopment of such area or areas is necessary in the interest of the health, safety, morals and welfare of the residents of said City.'
The special election was held on May 29, 1956, and the proposition passed as submitted pursuant to the ordinance.
While the record does not indicate fully what occurred thereafter, it does disclose that the requisite five members were appointed by the Mayor of Columbia to the Land Clearance For Redevelopment Authority and that they assumed the duties of the office.
It is the above mentioned Ordinance, No. 485, electing to accept the provisions of the Land Clearance For Redevelopment Authority Law, by deeming Columbia to be a defined 'community' thereunder and approving the exercise of powers thereunder by a Land Clearance For Redevelopment Authority, passed on April 23, 1956, and approved by the people at the special election of May 29, 1956, that plaintiffs on June 9, 1962, sought to have repealed through the initiative process. Article XVII, Section 127, of the City Charter of Columbia provides for the initiative process, '(they) shall have power to propose any ordinance', except one appropriating money or authorizing the levy of taxes.
The indicated cause of plaintiff's action was that on May 2, 1962, an ordinance (No. 1788) was introduced providing for the undertaking of surveys and plans for an urban renewal project (Midtown Redevelopment Project) and authorizing the filing of an application with the United States government for an advance of funds therefor in the sum of $134,777.00 and providing for the submission of the completed plans and surveys to an election. There was opposition to the proposed Midtown Redevelopment Project by plaintiffs, and others, who after being unsuccessful in efforts to prevent Ordinance No. 1788 from being enacted by the Council, on May 21, 1962, sought to invoke the referendum process to have it submitted to the people of Columbia in an election (although the ordinance itself provided for the submission of the completed plans and surveys to an election). The city council by a 4 to 1 vote refused to repeal Ordinance No. 1788 and voted that it not be referred to the people. Plaintiffs also prepared and circulated initiative petitions and obtained the requisite number of signatures (which petitions the city clerk certified to be procedurally sufficient) proposing an ordinance which would repeal Ordinance No. 485. The city council voted to 'ignore' the initiative petition. The following day plaintiffs filed the mentioned two lawsuits, numbered 45975 and 45976, respectively.
Plaintiffs' points I, II and III(a) are in effect assertions that the determination of the Columbia City Clerk that the initiative petition is sufficient procedurally cannot be inquired into in a mandamus...
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