Millsap v. Quinn, 70688

• Decision Date: 13 March 1990
• Docket Number: No. 70688,70688
• Citation: 785 S.W.2d 82
• Parties: Wayne L. MILLSAP, et al., Respondents, v. Robert J. QUINN, Jr. and Patricia J. Kampsen, Appellants.
• Court: Missouri Supreme Court

Page 82

785 S.W.2d 82

Wayne L. MILLSAP, et al., Respondents, v. Robert J. QUINN, Jr. and Patricia J. Kampsen, Appellants.

No. 70688.

Supreme Court of Missouri,

En Banc.

March 13, 1990.

Kenneth F. Teasdale, Thomas Cummings, Jordan Cherrick, St. Louis, William L. Webster, Atty. Gen., Simon Buckner, Asst. Atty. Gen., Jefferson City, for respondents.

Kevin O'Keefe, Jess W. Ollour, St. Louis, Mark D. Mittleman, Howard Paperner, Louis S. Czed, Clayton, for appellants.

RENDLEN, Judge.

This cause turns on the validity of Missouri constitutional provision art. VI, § 30, measured against the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Article VI, § 30(a), permits the City of St. Louis and St. Louis County to reorganize their governmental structure by vote of the electorate upon a plan drafted by a "board of freeholders," "nine of whom shall be electors of the city and nine electors of the county and one an elector of some other county." The section directs that such electors of the city and county be appointed by the Mayor and County Executive, respectively, and under § 30(b) a final member (an elector from another county) by the governor. ¹ Petitions to create such board of freeholders were filed with the election officers of the city and county and when certified the Mayor, the County Executive and the Governor made their respective appointments. See Millsap v. Quinn, 757 S.W.2d 591 (Mo. banc 1988). The appointing authorities concluded the term "freeholder" required ownership of real property as a necessary qualification for board membership, and consistent with that determination, removed from consideration at least one landless candidate, replacing him with an appointee satisfying the purported ownership requirement. The board commenced its work September 28, 1987, and continued until filing a proposed plan on September 13, 1988. An election on the plan was initially scheduled for June 20, 1989, but in separate litigation, since dismissed, the election was stayed pending disposition of the current proceedings. State ex rel. City of Ladue v. St. Louis City/County Board of Freeholders, Circuit Court of St. Louis County, Cause No. 589490.

In November 1987, after the board had begun meeting, Robert Quinn, Jr. and Patricia Kampsen filed a class action in the U.S. District Court, Western District of Missouri on behalf of all Missouri voters owning no realty, naming as defendants members of the board of freeholders, the Mayor, the County Executive, the Governor, and the State of Missouri. The complaint asserted that § 30, requiring property ownership as a condition for membership on the board, violated the Equal Protection Clause of the Fourteenth Amendment. The defendants in that case, respondents here, then filed an action naming Quinn and Kampsen defendants for a declaratory judgment in the Circuit Court of St. Louis County, asserting the validity of § 30, and the defendants in that suit counterclaimed, raising the issues posited in their federal complaint.

The U.S. District Court, Western District, entered its ruling in favor of Quinn and Kampsen, Quinn v. State of Missouri, 681 F.Supp. 1422 (W.D.Mo.1988), but the Eighth Circuit Court of Appeals reversed on grounds that the district court should have abstained. 855 F.2d 856 (8th Cir.1988). The Circuit Court of St. Louis County then entered judgment finding no violation of the Equal Protection Clause. This Court affirmed without finally deciding the question whether § 30 absolutely imposes a property ownership requirement, holding instead that the Equal Protection Clause was inapplicable to this case because the board exercises no "general governmental powers." 757 S.W.2d at 595. The United States Supreme Court reversed, holding that though this Court "retains the final authority to interpret § 30," there was "no substantial reason to believe that appellees' interpretation might be accepted." --- U.S. ----, 109 S.Ct. 2324, 2331 n. 9, 105 L.Ed.2d 74 (1989). On that assumption, the Court held that "it is a form of invidious discrimination to require land ownership of all appointees to a body authorized to propose reorganization of local government," id. 109 S.Ct. at 2331-32, and accordingly reversed and remanded the cause to this Court. Thereupon the board of freeholders filed here its "Motion for the Issuance of a Final Judgment Affirming the Constitutionality of Art. VI, Section 30 of the Missouri Constitution and Ordering the Governor of Missouri, the Mayor of the City of St. Louis, and the St. Louis County Executive to Appoint New Members to the Board of Freeholders in a Manner Not Inconsistent with the Judgment of the Supreme Court of the United States." ²

Against this background, we reach the issue not decided in the litigation until this juncture: i.e., whether the § 30 term "freeholder" means "landowner" and is an indispensable prerequisite for appointment, thus violative of the Equal Protection Clause as construed by the United States Supreme Court. We answer this question in the affirmative, and accordingly reverse and remand the cause to the circuit court for further proceedings consistent with this opinion. ³

Though our decisional law has not previously interpreted the word "freeholder" in § 30, we find that respondents' proffered interpretation defies tradition and the common understanding of the term. As the U.S. Supreme Court stated, the word "freeholder" carries with it the "usual meaning of land ownership." 109 S.Ct. at 2324. ⁴ This Court has so construed the term appearing in Mo. Const. art. I, § 26, which provides that compensation for private property taken or damaged for public use is to be ascertained by "a jury or board of commissioners of not less than three freeholders (emphasis added)." In Shively v. Lankford, 174 Mo. 535, 548, 74 S.W. 835, 838 (1903), the Court concluded the term "freeholder" in that provision means "one who owns a freehold estate; that is, an estate in lands, tenements, or hereditaments of an indeterminate duration, other than an estate at will or by suffrance." See also Grossman v. Patton, 186 Mo. 661, 668, 85 S.W. 548, 550 (1905); Kansas City v. Jones Store Co., 325 Mo. 226, 28 S.W.2d 1008, 1016 (1930), cert. denied, 282 U.S. 873, 51 S.Ct. 78, 75 L.Ed. 771 (1930). ⁵ Further, we reject respondents' contention that "freeholder" means "elector." Both words are employed in § 30, and "[i]f these terms were intended to have the same meaning the use of only one of them would be necessary, and the other would be surplusage, included for no reason. Such a construction is not favored." Boone County Court v. State of Missouri, 631 S.W.2d 321, 325 (Mo. banc 1982). Furthermore, regardless of the true meaning of § 30, it was applied in an unconstitutional manner because at least one otherwise qualified candidate was dropped from consideration because he owned no realty.

Having concluded the term "freeholder" in Mo. Const. art. VI, § 30, is violative of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, we now determine if this term may be severed from the section, leaving a viable remainder. The test for upholding the balance of the provision after excision of the invalid portion depends on whether the remainder is in all respects complete and susceptible of constitutional enforcement, and one which the people would have nevertheless adopted had they known the excluded portion was invalid. Simpson v. Kilcher, 749 S.W.2d 386, 393 (Mo.1988). ⁶ We find that § 30 meets the test. Only the word "freeholder" is to be struck from the section, and there remains a procedure for appointment of the board members, "nine of whom shall be electors of the city and nine electors of the county and one an elector of some other county." Though "freeholder" is deleted, enforcement of the provision without this term adequately fulfills the purpose of the people to receive and vote upon a reorganization plan; the essential purpose and mode of implementation remain. Further, enforcement of § 30 without the offending term is not inconsistent with prior cases where portions of our state constitutional provisions were found to be offensive to the federal constitution but the remainder was deemed intact. ⁷

As the board was invalidly appointed, we hold that a new board must be appointed without property ownership considerations. ⁸ See Chappelle v. Greater Baton Rouge Airport District, 357 So.2d 824, 826 (La.App.1978). In so doing we reject appellants' argument that this relief was not properly requested by respondents and that reappointment cannot be ordered by the Court. The original petition for declaratory judgment in the trial court requested a declaration of the "status, rights, obligations responsibilities (sic) of the Plaintiffs as they relate to §§ 30(a) and 30(b) of Article VI of the Missouri Constitution," and "other orders as are just and proper under the circumstances." In their trial court motion for summary judgment and their original brief in this...