Baum v. City of St. Louis

• Decision Date: 20 December 1938
• Docket Number: 34891
• Citation: 123 S.W.2d 48,343 Mo. 738
• Parties: Clarence Baum v. City of St. Louis, a Municipal Corporation; James A. Waechter, Joseph W. Hannauer, Charles L. Moore, Stephan M. Wagner, Election Commissioners of the City of St. Louis; Henry Menne, Treasurer of the City of St. Louis and Louis Nolte, Comptroller of the City of St. Louis, Defendants, Claud C. Cox, F. J. Dieterle, William Gray, Mrs. Catherine O'Tolle and Max W. Soffer, Appellants
• Court: Missouri Supreme Court

123 S.W.2d 48

343 Mo. 738

Clarence Baum v. City of St. Louis, a Municipal Corporation; James A. Waechter, Joseph W. Hannauer, Charles L. Moore, Stephan M. Wagner, Election Commissioners of the City of St. Louis; Henry Menne, Treasurer of the City of St. Louis and Louis Nolte, Comptroller of the City of St. Louis, Defendants, Claud C. Cox, F. J. Dieterle, William Gray, Mrs. Catherine O'Tolle and Max W. Soffer, Appellants

No. 34891

Supreme Court of Missouri

December 20, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Frank C O'Malley, Judge.

Affirmed.

Robert Kratky and Joseph Nessenfeld for appellants.

(1) The court erred in failing to dismiss the plaintiff's petition. The court, as a court of equity, had no jurisdiction of the subject matter covered by the petition and had no jurisdiction to grant the relief prayed for. The court had no jurisdiction to restrain the exercise of the political rights of the people. Walton v. Develing, 61 Ill. 201; Morgan v. Wetzel, 53 W.Va. 372, 44 S.E 182; Payne v. Emmerson, 290 Ill. 490, 125 N.E. 329; Dallas v. Dallas Consolidated Elec. St. Ry. Co., 105 Tex. 337, 148 S.W. 292; McAlister v. State, 219 P 134. (2) The court erred in granting the injunction prayed for and in rendering its judgment and decree. (a) The court, as a court of equity, had no jurisdiction to restrain the exercise of the law-making power nor the process of legislation, which it did by its judgment and injunction. Pitman v. Drabelle, 267 Mo. 78, 183 S.W. 1055; Spies v. Byers, 287 Ill. 627, 122 N.E. 841; Pfeifer v. Graves, 88 Ohio St. 473, 104 N.E. 529; Dallas v. Dallas Consolidated Elec. St. Ry. Co., 105 Tex. 337, 148 S.W. 292; People ex rel. O'Reilly v. Mills, 30 Colo. 262, 70 P. 322; State ex rel. Cranmer v. Thorson, 68 N.W. 202; Albright v. Fisher, 164 Mo. 56, 64 S.W. 106; Kansas City v. Hyde, 196 Mo. 498, 96 S.W. 201. (b) The proposed ordinances are legislative in character, in that each declares the public policy and purpose with respect to its subject matter, and makes provisions for ways and means of accomplishment. The court had no power to interfere with its enactment and erred in so doing. State v. Superior Court, 139 Wash. 182, 247 P. 4; Hopping v. Richmond, 170 Cal. 618, 150 P. 982; People v. Graham, 70 Colo. 509, 203 P. 277; State ex rel. Boynton v. Charles, 136 Kan. 875, 18 P.2d 149; Goodman v. Hamilton, 153 N.E. 217; Pitman v. Drabelle, 267 Mo. 78, 183 S.W. 1055; Duggan v. Emporia, 84 Kan. 429, 114 P. 235; Dallas v. Dallas Consolidated Elec. St. Ry. Co., 105 Tex. 337, 148 S.W. 292. (3) The court had no jurisdiction to construe or to determine and declare the legal effect and validity of the ordinances prior to their enactment. It erred in assuming such jurisdiction (the only possible ground on which the injunction was granted). The mere fact that municipal funds will be expended to hold an election expressly provided for by Article V of the Charter of St. Louis does not confer jurisdiction, nor make plaintiff's petition sufficient. Pitman v. Drabelle, 267 Mo. 78, 183 S.W. 1055; Ex parte Holman, 197 Mo.App. 70, 191 S.W. 1117; Duggan v. Emporia, 84 Kan. 429, 114 P. 235; Pfeifer v. Graves, 88 Ohio St. 473, 104 N.E. 529; Dallas v. Dallas Consolidated Elec. St. Ry. Co., 105 Tex. 337, 148 S.W. 292; Spies v. Byers, 287 Ill. 627, 122 N.E. 841; Laws 1935, p. 218; City and County of Denver v. Denver Land Co., 85 Colo. 198, 274 P. 743; Borchard on Declaratory Judgments, p. 46.

Hiram N. Moore, Rene J. Lusser and Emmett Golden for respondent.

(1) The appellants had no right to intervene in this action, and consequently they had no standing in the court below or in this court as such interveners. State ex inf. May v. C., R. I. & P. Ry. Co., 193 S.W. 932; Skinner v. Slater, 159 Mo.App. 589; Browning v. Hilig, 69 Mo.App. 594; Whitney v. Hanover, 23 L. R. A. 531; Sec. 701, R. S. 1929; Moline v. Hamilton, 76 N.W. 455; Hunt v. O'Leary, 87 N.W. 611; Kortjohn v. Seimers, 29 Mo.App. 276. (2) This action does not seek to restrain legislative action by the city or to restrain any legislative officer thereof in his legislative capacity, but only to restrain administrative officers from threatened and impending administrative acts, and the trial court and this Court had and has full authority, upon proper showing, to restrain same. State ex rel. Subway Co. v. City, 145 Mo. 572; State ex rel. Smith v. Neosho, 203 Mo. 40; Kaesser v. Becker, 243 S.W. 351. (3) The subject matter as contained in Ordinance A is not, and was not, such as could be presented by the initiative, and the Board of Election Commissioners was without authority to receive same or order an election thereon. City Charter, Art. V, Sec. 1; City Charter, Art. XXII, Secs. 1, 4; City Charter, Art. IV, Secs. 13, 26; American Tobacco Co. v. St. Louis, 247 Mo. 374; State ex rel. Abel v. Gates, 190 Mo. 540; Hurst v. City of Burlingame, 277 P. 308; State ex rel. Belt v. City, 161 Mo. 380. (4) The people, by initiative, have no greater power to adopt an ordinance than the Board of Aldermen have. If, therefore, the proposed ordinances, or either of them, are in such form or so defective in substance that the Board of Aldermen would be without legal right to adopt or pass same, then by the same token, the people, by initiative, are without power or authority to so pass or adopt. Hurst v. City of Burlingame, 277 P. 308; Ludlow-Saylor Wire Co. v. Woolbrincke, 205 S.W. 197; Newsom v. Board of Supervisors, 270 P. 676. (5) The proposed ordinances are incapable of performance or enforcement.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This suit was filed by respondent, plaintiff below as a citizen and taxpayer of the city of St. Louis, against the city, the election commissioners of the city and the treasurer and comptroller of the city to enjoin the holding of an election threatened to be called for the purpose of voting on two ordinances proposed under the initiative provisions of the city charter. A number of taxpayers of said city filed a petition seeking to intervene in the suit as defendants. This petition was granted. The trial court entered a judgment in plaintiff's favor enjoining the defendants, election commissioners, from calling an election, and the treasurer and comptroller from paying expenses to be incurred in the holding of such an election. From this judgment the intervening defendants appealed.

The purpose of the two ordinances proposed may be best stated by quoting the titles thereof. The title to Ordinance (a) reads as follows:

"'An ordinance providing for the acquisition of a five cent fare municipal mass transportation system, estimating the cost of such system at twenty-five million dollars, authorizing the issuance of public utility revenue bonds in the amount of twenty-five million dollars to pay therefor, secured by mortgage on such system, together with an appropriation to pay for such system.'"

The title to Ordinance (b) read as follows:

"'An ordinance calling and providing for an election on May 22, 1936, to vote on the proposition to issue public utility revenue bonds in the amount of twenty-five million dollars to pay for the acquisition of a five cent fare municipal mass transportation system.'"

The petition charged that the election commissioners were threatening to call an election pursuant to initiative petitions which had been filed with the city officials; that an expense of $ 8,000 had been incurred and a further expense of $ 65,000 was intended to be incurred in checking the signatures to the initiative petitions. It was also alleged that an election on the proposals would cost the taxpayers of said city in excess of $ 200,000. The petition then charged that the proposed ordinances were void because of Sections 1 and 2, Article 22, of the city charter. Section 1 reads as follows:

"Section 1. Recommendation by board of public service ordinances public work or improvement. -- No ordinance for public work or improvements of any kind, or repairs thereof, shall be adopted, unless prepared and recommended by the board of public service with an estimate of the cost endorsed thereon."

It was admitted that the Board of Public Service had not recommended either of the proposed ordinances. Appellants contend that the restrictions contained in the section above quoted do not apply when the people of the city desire to enact an ordinance under the initiative provisions of the charter, Section 1 of which reads as follows:

"Ordinances proposed and adopted by initiative. -- The people shall have power, at their option, to propose ordinances including ordinances proposing amendments to this charter, and to adopt the same at the polls, with the same effect as if adopted by the board of aldermen and approved by the mayor, such power being known as the initiative. It shall be exercised as hereinafter provided, subject to the provisions of this charter."

It has been definitely decided by this court that the Board of Aldermen of the city of St. Louis does not have authority to adopt any ordinance which may come within the provisions of Section 1, Article 22, supra, unless the same has been recommended by the Board of Public Service. In the case of American Tobacco Co. v. Mo. Pac. Railroad Co., 247 Mo. 374, 157 S.W. 502, this court en banc held that the Board of Aldermen could not even adopt an ordinance for a public improvement, which improvement had been recommended by the Board of Public Service, where the plans in the ordinance of the Board of Aldermen were at variance with the ordinance and recommendations prepared by the Board of Public Service. It was there decided that the Board of Aldermen could not, under any circumstances, pass such ordinances unless recommended by that board. The question in this case...