Mid-State Distributing Co. v. City of Columbia

• Court: Missouri Court of Appeals
• Writing for the Court: KENNEDY
• Citation: Mid-State Distributing Co. v. City of Columbia, 617 S.W.2d 419 (Mo. App. 1981)
• Decision Date: 30 March 1981
• Docket Number: MID-STATE,No. WD,WD
• Parties: DISTRIBUTING COMPANY, a corporation et al., Appellants, The Coca-Cola Bottling Company of Mid-America, Inc., a corporation, Intervenor-Appellant, v. The CITY OF COLUMBIA, Missouri, a Municipal corporation, Respondent, David P. Thelen and Charles Atkins, Intervenors-Respondents. 31226.

Page 419

617 S.W.2d 419

15 ERC 1833

MID-STATE DISTRIBUTING COMPANY, a corporation et al., Appellants The Coca-Cola Bottling Company of Mid-America, Inc., a corporation, Intervenor-Appellant, v. The CITY OF COLUMBIA, Missouri, a Municipal corporation, Respondent David P. Thelen and Charles Atkins, Intervenors-Respondents.

No. WD 31226.

Missouri Court of Appeals, Western District.

March 30, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 4, 1981.

Application to Transfer Denied July 14, 1981.

Thomas D. Graham, Jefferson City, for appellants.

Thomas W. Wagstaff, Kansas City, for intervenor-appellant.

W. Scott Snyder, Thomas M. Schneider, Susan Crigler, Columbia, for respondent.

Darwin A. Hindman, Jr., Columbia, for intervenors-respondents.

Before KENNEDY, P. J., and SHANGLER and SOMERVILLE, JJ.

KENNEDY, Presiding Judge.

The issue in the present case is the validity of an ordinance of the City of Columbia which establishes a refund value of five cents each upon certain beverage containers sold in the City of Columbia, and requires the retailer to pay the same amount upon receipt of the containers. Manufacturers and distributors in their turn must pay the refund value for the containers. The ordinance contemplates, but does not require, the collection of a five-cent deposit from the consumer upon each container, which is refunded upon return of the container. The declared purpose of the ordinance is to reduce littering and to promote recycling and reuse of empty beverage containers.

The ordinance was adopted by the initiative process, a procedure provided in Columbia's Home Rule Charter, on April 5, 1977.

The plaintiffs and intervenor plaintiffs are various bottlers, distributors and retailers of the beverages affected by the ordinance. After the enactment of the ordinance and before its July 4, 1977, effective date, the plaintiffs commenced the present suit for a declaratory judgment, attacking the validity of the ordinance. A temporary injunction against its enforcement was entered pending the conclusion of the declaratory judgment action in the trial court, and was continued pending the appeal now before us.

Upon trial to the Circuit Court of Boone County, the trial court found that the ordinance was valid and entered a judgment so declaring. From that judgment the plaintiffs and intervenor plaintiffs have taken this appeal. We conclude that the trial court was correct in its judgment and we affirm the same.

Various features and provisions of the ordinance will be more fully noticed in connection with our discussion of the various attacks made upon it by the appellants.

I. ADOPTION OF ORDINANCE

We first take up appellants' final point, which challenges the validity of the ordinance because of what appellants say was a fatal defect in its adoption.

Under this point, they first say that the title of the ordinance does not comply with Article II, Sec. 15, of Columbia's Home Rule Charter. That section of the Charter provides that: "No bills shall relate to more than one subject, which shall be clearly expressed in its title". Without pausing to consider whether the ordinance was ever in "bill" status, so as to bring it within the above charter provision, we hold that the title of the ordinance was sufficient. The title reads: "An ordinance amending Chapter 10 by adding and enacting a new Article XIV relating to beverage containers; and fixing the time when this ordinance shall become effective". The title is thus indicative of the subject of the ordinance, and meets the standard of the above-quoted Sec. 15 of Article II of the Charter. State ex rel. Jardon v. Industrial Development Authority of Jasper County, 570 S.W.2d 666, 667 (10) (Mo.banc 1978).

Appellants' main attack under this point, though, is that the proposition printed upon the initiative election ballot was in violation of Article XVII, Section 134, of the Charter. ¹ That provision of the Charter is as follows: "When a matter is submitted to the voters of the City by the Initiative or Referendum methods, the ballot title shall be a clear, concise statement, without argument or prejudice, descriptive of the substance of such ordinance".

The ballot contained the following proposition: "PROPOSITION Shall an ordinance be adopted establishing a mandatory refund value of at least 5 cents on all beverage containers purchased within the City of Columbia..."

Appellants point out that the ordinance did not relate to all beverage containers, as stated on the ballot, but only to certain beverage containers, namely, those containing "beer or other malt beverages and mineral waters, soda water and carbonated soft drinks in liquid form and intended for human consumption", which are not biodegradable and which are sealed. Appellants point out that this leaves a variety of beverage containers outside the range of the ordinance, such as cans and bottles containing non-carbonated soft drinks, paper containers, and unsealed containers such as paper cups. They claim that the proposition on the ballot referring to all beverage containers was therefore misleading and deceptive and violative of the above-quoted Section 134 of Article XVII of the Charter.

In dealing with this argument, we say first that after the election has been held and the ordinance adopted by initiative, the ballot proposition is viewed more liberally from the standpoint of the City. ² A ballot proposition which might have been condemned before the election will be judged less strictly after the election. State v. Board of Examiners, 125 Mont. 149, 239 P.2d 283, 289-290 (1951).

The rule relating to ballot descriptions of initiative propositions is fairly stated in the following language:

A ballot description must be complete enough to convey an intelligible idea of the scope and import of the proposed law; it ought not to be clouded by undue detail, or so abbreviated as not to be readily comprehensible. It must give a true and impartial statement of the purpose of the measure in such language as not intentionally to be an argument or to be likely to create prejudice either for or against the measure. Where the description must be a "fair, concise summary", it may satisfy the requirement even if it is not complete in some small matters. 42 Am.Jur.2d, Initiative and Referendum, § 46 (1969).

The criticism of the ballot proposition is that it is broader than the ordinance. While the ballot proposition relates to all beverage containers, the ordinance itself deals with only part of the beverage containers. We do not deem this to be fatally misleading or inaccurate. We are not persuaded that any appreciable number of voters voting to establish a mandatory refund value upon all beverage containers would have voted against a proposition to establish a mandatory refund value upon a substantial portion of such containers but excluding some from its terms. Particularly after the election has been held, the ballot title must be held to comply with the Charter standard of "a clear, concise statement, without argument or prejudice, descriptive of the substance of such ordinance".

The cases cited by appellant in support of their claim of the insufficiency of the title are cases dealing with the requirement of Section 23 of Article III of Missouri Constitution, 1945, that "no bill shall contain more than one subject, which shall be clearly expressed in its title". 508 Chestnut, Inc. v. City of St. Louis, 389 S.W.2d 823 (Mo.1965); State v. Currency Services, 358 Mo. 983, 218 S.W.2d 600 (1949); State ex rel. Toedebusch v. Public Service Commission, 520 S.W.2d 38 (Mo.banc 1975); State ex rel. Normandy School District of St. Louis County v. Small, 356 S.W.2d 864 (Mo.banc 1962). In Currency Services and Normandy School District, the legislation dealt with a subject beyond the scope of the title. It was held in those cases that any portion of the legislation which exceeded the scope of the title was void. The title was too narrow for the statute. That did not require striking down the entire statute, but only that portion which was outside the title. In the case before us, however, the ballot title which was submitted to the voters was broader than the ordinance, not narrower. In 508 Chestnut (involving a municipal ordinance rather than a statute) and in Toedebusch, the titles were found sufficient.

II. CITY'S POLICE POWER: RATIONAL RELATION: EQUAL PROTECTION

Appellants say that the ordinance in question is an "unreasonable, arbitrary and capricious exercise of the City's police power because the ordinance is arbitrary and unreasonable and lacks a rational relation to the purpose sought to be served, namely, the reduction of litter in the City of Columbia", and therefore invalid.

Appellants, citing the testimony of their expert witness, Mr. Gilston, argue that beverage containers represent less than 20% of the total litter found in the City of Columbia. Second, they argue that the ordinance will not be effective to eliminate even that portion of Columbia's litter. They point to the fact that many people will dispose of beverage containers, foregoing the refund. They show that beverage containers purchased outside the City of Columbia, which would not be subject to the deposit-refund ordinance, would be disposed of in the City of Columbia. They point also to the beverage containers which are not covered by the ordinance including plastic and paper cups, bottles and cans which are opened before being sold, and beverages which compete with beer and carbonated soft drinks, which are available in identical containers but which are not covered by the ordinance. These considerations, argue the appellants, show that the deposit-refund ordinance has no "real and substantial relation to the object sought to be attained", namely, the "meaningful reduction of the accumulation of litter in the city".

In answer to appellants' contention it was first of all, not the business of the...