Hawkins v. City of St. Joseph
| Decision Date | 15 March 1926 |
| Docket Number | 26227 |
| Citation | 281 S.W. 420 |
| Parties | HAWKINS et al. v. CITY OF ST. JOSEPH |
| Court | Missouri Supreme Court |
J. V Gaddy, City Counselor, of St. Joseph (Phil. A. Slattery and W. B. Norris, both of St. Joseph, of counsel), for appellant.
R. A Brown, Strop & Silverman, and Culver, Phillip & Voorhees, all of St. Joseph, for respondents.
In Banc.
The plaintiffs brought this suit in the circuit court of Buchanan county seeking to restrain the city of St. Joseph from expending any funds of the city in the publication of Ordinances Nos. 9227 and 9228 and for printing ballots for an election upon the referendum of those ordinances to the people.
On June 24, 1924, the common council of the city of St. Joseph enacted two special ordinances numbered as above. They were approved by the mayor on June 26, 1924, and under the provisions of the law relating to cities of the first class they would take effect in 10 days thereafter, unless their operation was suspended by the filing of a petition for referendum within that 10-day period. Those ordinances provided for condemning certain lands for a public park and the payment of damages by assessments or benefits, etc., within a benefit district.
On July 4th a petition for referendum on each ordinance was filed with the city clerk. On July 14th the city clerk reported to the common council that the referendum petition against each ordinance had the requisite number of names. It was admitted that 25 per cent. of the total number of votes cast for all candidates for mayor at the last preceding election in St. Joseph was 4,422, the number required on a referendum petition. Each referendum petition contained more names than that.
The petitions were then compared by the proper authorities with the registration books and it was found that the registered voters on each petition were less by several hundred than 4,422. Additional petitions for referendum on each ordinance were filed on July 24th, more than 10 days after the approval of the ordinance. These additional names of qualified voters duly registered were sufficient to make the number on each petition in excess of 4,422. Thus the number of registered voters signing the petitions filed within 10 days of the approved ordinance was less than one-fourth of the voters, and the number of registered voters signing the petitions which were filed after the expiration of 10 days increased the number to more than one-fourth of the registered voters.
It is contended by the appellant that the names of a sufficient number of legal voters were on each petition filed within 10 days, although the requisite number were not registered; also that the petition containing the additional names of registered voters filed after the 10 days should be counted. In either event the referendum petitions were sufficient to submit the ordinances to the vote.
The respondents bring this suit to enjoin the expenditure of the money in the referendum election on the ground that the council had no authority to submit the election, because the petitions were insufficient.
The trial court heard the evidence and rendered judgment for the plaintiffs, enjoining the city, its officers and agents, from expending or contracting to expend any money of the city for the publication of the ordinances, or printing the ballots, or other expenses incident to the election, and from that judgment the defendant city appealed.
I. Appellant first contends that the plaintiff's remedy is by certiorari and that injunction will not lie in this case. Certiorari is a remedy available only for the review of judicial or quasi judicial actions. It will not lie to review actions which are ministerial, legislative, or executive in character. State ex rel. Manion v. Dawson, 225 S.W. 97, 284 Mo. loc. cit. 506. The expenditure of public moneys by public officials is purely an administrative act. There is no function, judicial or quasi judicial, exercised in merely paying the expenses of an election. The validity of the ordinances is incidentally called in question, but the act of the common council in passing those ordinances was purely legislative. There is no feature of the case which would authorize the remedy by writ of certiorari.
II. Injunction is the proper remedy in a case like this. Stocke v. Edwards, 244 S.W. 802, 295 Mo. 402, was a proceeding by injunction to restrain the board of election commissioners of the city of St. Louis from printing upon the official ballot for a general election the names of the candidates of the different parties for the office of assessor of the city of St. Louis. This on the ground that the assessor of the city of St. Louis was an appointive office and not an elective office. This court held (loc. cit. 413 ) that injunction was the proper remedy.
Appellant argues that this is a proceeding to enjoin an election, and a court of chancery is not authorized to interfere by injunction with matters of a political nature such as an election and cites many authorities in support of that proposition. The remedy asked here is not to enjoin an election, but to prevent the expenditure of public moneys, by a taxpayer on behalf of himself and other taxpayers, on the ground that the election upon which such expenditure is threatened is unauthorized by any law. The remedy is...
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