Jennings v. Kinsey

• Decision Date: 13 April 1925
• Docket Number: 26115
• Citation: 271 S.W. 786,308 Mo. 265
• Parties: THOMAS F. JENNINGS, Appellant, v. EDMUND R. KINSEY et al., Constituting Board of Public Service of City of St. Louis
• Court: Missouri Supreme Court

271 S.W. 786

308 Mo. 265

THOMAS F. JENNINGS, Appellant, v. EDMUND R. KINSEY et al., Constituting Board of Public Service of City of St. Louis

No. 26115

Supreme Court of Missouri

April 13, 1925

Appeal from St. Louis City Circuit Court; Hon. J. Hugo Grimm, Judge.

Affirmed.

W K. Koerner and Lloyd L. Adams for appellant.

(1) Illegal action of public officials involving the expenditure of public funds will be enjoined at the suit of a taxpayer. Civic League v. St. Louis, 223 S.W. 891. (2) An ordinance is invalid when not enacted in compliance with the provisions of the charter. State ex rel. v. Dierkes, 214 Mo. 592; Peters v. St. Louis, 226 Mo. 62. (3) Charter limitations safeguarding the expenditure of public money should be construed and applied to secure the end sought. Dillon on Municipal Corps. (5 Ed.) sec. 294. (4) An ordinance of the city of St. Louis authorizing public work must contain a specific appropriation of an amount sufficient to pay the city's part of the estimated cost. City Charter, art. 17, secs. 1, 2 and 5. (5) An appropriation for public work made by ordinance must be of cash actually in the city treasury. An appropriation of unissued and unsold bonds is invalid. City Charter, Art. 4, sec. 25; Art. 15, sec. 2; Art. 16, secs. 4 and 5; Art. 22, secs. 1, 2 and 5. Especially is this true when the appropriating ordinance authorizes the Comptroller, at his option, to pay for the work in bonds instead of selling the bonds and paying for the work in cash.

Oliver Senti and Charles J. Dolan for respondents.

(1) The charter of the city of St. Louis authorizes the Board of Aldermen to appropriate either bonds of the city, or the proceeds of the bonds, to the purpose for which such bonds may have been voted. City Charter, Art. 17. This provision of the charter is in harmony with the general law of the State governing cities of the first class. R. S. 1919, sec. 7763. (2) The bonds in question have been both apportioned and appropriated already by the vote of the people. Pryor v Kansas City, 153 Mo. 135. (3) Charter provisions limiting appropriations to the amount standing to the credit of the fund from which the appropriation is made relate only to revenue funds. City Charter, art. 16, sec. 5; Pryor v. Kansas City, supra. (4) The city is authorized to incur indebtedness and issue its bonds to pay the cost of the work herein involved. In the absence of any express limitation or restriction, it is authorized to issue its bonds and contract for public work in the most economical manner possible. Dillon on Municipal Corps. (5 Ed.) sec. 239, p. 454. (5) The words "specific appropriation" are not limited in their application to appropriations of money. Pryor v. Kansas City, supra; R. S. 1919, sec. 7763; Webster's International Dictionary.

OPINION

White, J.

This is a proceeding whereby the plaintiff as a resident taxpayer of the city of St. Louis seeks to enjoin the defendants, constituting the Board of Public Service of the city, from advertising for bids and letting contracts in pursuance of Ordinance No. 33642, and to declare said ordinance null and void.

The plaintiff filed his amended petition January 20, 1924, and the defendant filed a demurrer to the petition on the ground that it did not state facts which showed grounds for equitable relief, or state any cause of action against the defendants. The demurrer was sustained, plaintiff declined to plead further, and judgment accordingly was entered for the defendants. From that judgment the plaintiff appealed.

The petition alleges that February 9, 1923, a special election was held in the city of St. Louis, on twenty-one propositions for the issuance of bonds aggregating $ 88,372,500; that of the twenty-one propositions, nineteen received the vote of more than two-thirds of the voters voting at the election, and the nineteen propositions involved the issuance of 75,373 bonds of one thousand dollars each.

That Proposition No. 7, carried by more than two-thirds majority, authorizing bonds for $ 11,000,000, provided for the improvement of sanitary conditions in the city of St. Louis by converting the River des Peres into a public sewer, and the construction of laterals, etc.

In January, 1924, the Board of Aldermen of the City of St. Louis, in pursuance of the authority given by Proposition 7, adopted ordinance numbered 33,642, entitled,

"An ordinance authorizing the Board of Public Service to let a contract for the construction of Section 'E' of the River des Peres Drainage Works, making an appropriation to pay the cost of the work and containing an emergency clause."

Section one of the ordinance authorized the Board of Public Service to let a contract for the construction of Section "E" of the River des Peres Drainage Works, and describes the points where Section "E" begins and ends. Section Two of the ordinance is as follows:

"Section Two. The bonds of the city of St. Louis numbered thirty-eight thousand, five hundred and fifty-one to forty thousand, one hundred and fifty, inclusive, authorized to be issued and sold by Proposition Seven of Ordinance Thirty-two thousand, four hundred ninety-six, are hereby appropriated to pay the cost of the work authorized herein, and the Mayor and the Comptroller are hereby authorized and directed to issue and sell from time to time any of the bonds numbered as aforesaid in such amounts as shall be necessary to meet payments on account of this contract, as they fall due, under the provisions of the contract; provided, however, that no bonds shall be sold for less than ninety-five cents on the dollar, plus the interest accrued to the date of delivery on the unmatured interest coupon attached thereto next to become due; and, provided, further, that all payments on account of the contract herein authorized may be made at the option of the Comptroller with the bonds themselves, at ninety-five per cent of their face, instead of money."

The petition then alleges that the Board of Aldermen had no authority to enact such ordinance; that it was null and void, because the charter of the city of St. Louis requires an ordinance for public work to contain a specific appropriation of an amount sufficient to pay the city's part of the estimated cost; that the appropriation of bonds is not a specific appropriation in the meaning of the Charter.

I. In support of his position that the Board of Public Service had no authority to let a contract for the contemplated work and pay for the same by appropriating bonds, the appellant quotes from Section 25, Article IV, of the Charter of the city, which provides that,

"Except as otherwise expressly provided in this Charter, no money shall be expended except in consequence of appropriations made by ordinance."

Also from Article XV, Section 2:

"The Comptroller shall audit all payrolls, accounts and claims against the city . . . but no payroll account or claim shall be audited against the city unless certified by the officer having knowledge of the...