Padberg v. Roos
| Decision Date | 11 April 1966 |
| Docket Number | No. 51138,51138 |
| Parties | Godfrey P. PADBERG, Samuel B. Murphy, Arthur S. Margulis and Harry N. Soffer, Members, All constituting the Board of Election Commissioners of St. Louis County, Missouri, Plaintiffs-Respondents, v. Lawrence K. ROOS, County Supervisor, John O'Hara, Maurice Osborn, Gerald A. Rimmel, Edward E. Murphy, Jr., Brainerd W. La Tourette, Jr., Boris M. Martin and Maurice L. Stewart, Members of the County Council, Dorothy Wilson, County Clerk, and St. Louis County, Missouri, a Municipal Corporation, Defendants-Appellants. |
| Court | Missouri Supreme Court |
Norman Barken, St. Louis, for respondents Padberg, Murphy, Margulis and Soffer, all constituting Board of Election Com'rs of St. Louis County.
John H. Lashly, St. Louis, for respondents John O'Hara, Maurice Osborn and Boris M. Martin, members of St. Louis County Council.
Donald J. Stohr, St. Louis County Counselor, Joseph B. Moore, Deputy County Counselor, Clayton, for defendants; Norman C. Parker, St. Louis, special counsel.
This is an appeal from a declaratory judgment which held that two ordinances proposing charter amendments to the Charter of St. Louis County (herein referred to as the Charter) did not receive sufficient votes for passage and submission to a vote of the people.
Since March 1950, St. Louis County has been a charter county. Its Charter was adopted pursuant to the Constitution of Missouri, 1945, Article VI, Sections 18(a)-- (l), V.A.M.S. Amendment is covered in Article VIII of the Charter. Section 82 thereof provides three methods of amendment. One of these, Section 82(2), is 'By ordinance adopted by the Council and submitted to the voters at a general or special election and approved by a majority of those voting on the proposition.'
In September 1964, Ordinance 3345, proposing amendment of the Charter to make the office of County Highway Engineer appointive rather than elective, and Ordinance 3346, to amend by extending the merit system to certain employees, were introduced in the County Council, which is the governing and legislative body of the County. The ordinances received four year and three nay votes, both were approved by the County Supervisor, the executive officer of the County, and then certified by the County Clerk to the Board of Election Commissioners to be submitted to the voters on November 3, 1964.
When the two ordinances were received by the County Board of Election Commissioners it took the position that the ordinances had not received a sufficient number of votes for passage and were invalid and should not be submitted to a vote of the people. The members of the Board instituted an action for declaratory judgment to determine whether or not the ordinances had been validly passed for submission to the voters. The three Councilmen who had voted against the adoption of these two ordinances filed an answer, counterclaim and cross claim in which they asserted the invalidity of the ordinances. The County, the County Council and the County Supervisor filed an answer and a counterclaim seeking a mandatory injunction requiring the submission of the ordinances to a vote by the people. Our disposition on the case does not require a detailed recital of these rather complex pleadings.
A question was raised as to the right of the Board of Election Commissioners to maintain this action. It is urged that they were acting in a ministerial capacity only in submitting these proposals to the voters and that they had no right to go behind the ordinances to test the validity of their passage. We are of the opinion that the Board was entitled to file and maintain this action. Civil Rule 87.02, V.A.M.R. and Section 527.020 () specifically provide for declaratory relief with respect to municipal ordinances and questions of construction or validity thereof. The case of Kansas City v. McGee, 364 Mo. 896, 269 S.W.2d 662, involved a declaratory judgment action by Kansas City and its Mayor and Council against members of a committee who had filed an initiative petition with the Council. The question to be adjudicated was whether the City Council was justified in refusing to submit the proposal to the people for a vote. The court did decide the question presented and held that the initiative petition proposing such ordinance was fatally defective and need not be submitted to a vote as proposed in the initiative petition. We think it is clear that the trial court in this instance was correct in overruling the motion of appellants to dismiss the petition herein on the ground of lack of capacity of the Board to maintain the action.
There are seven members of the County Council. Appellants contend that these ordinances proposing charter amendments, fixing the form of ballot, and providing for submission of the charter amendments to a vote of the people require only a majority vote, which would be four affirmative votes. It is respondents' contention that five votes were necessary for passage.
It will be noted that Section 82(2) provides simply for amendment by ordinance adopted by the Council (and the approval for the voters). The section does not specify the vote by which such amendment must be passed by the Council. If Section 82 had stated specifically the number of votes required for passage, the section would have been complete within itself and there would have been no room for doubt. It does not so specify, however, and hence it is necessary to look elsewhere in the Charter to determine that question.
Appellants rely upon Section 13 of Article III of the Charter. It deals with ordinances and resolutions generally and includes the following: 'An affirmative vote by a majority of the members of the entire Council shall be necessary to pass any ordinance or resolution except as otherwise provided in this charter.' Appellants maintain that this charter provision, which applies to ordinances generally, applied to and governed the vote required on the proposed charter amendments. Respondents, on the other hand, rely on Section 18 of Article III, which is as follows:
'(1) Calling an election or providing for the submission of any proposal to the people;
'(2) Appropriations for the support of the County government and the payment of principal and interest on the County's debts;
'(3) Borrowing of funds in anticipation of taxes;
'(4) Fixing tax rates;
'(5) Amendments to the zoning ordinance, provided that a general revision of the zoning ordinance shall not be deemed to be an emergency ordinance;
'(6) The immediate preservation of the public peace, health, safety and welfare, in which ordinance the emergency has been declared.'
Respondents assert that the charter amendment ordinances provided for submission of these proposals to the people and fall within the language of Section 18(1), making them emergency ordinances which required five affirmative votes.
The question we must determine is whether passage of charter amending ordinances referred to in Section 82 contemplates passage by majority vote as provided for ordinances generally in Section 13 or whether they are to be treated as emergency ordinances under Section 18, thus necessitating five affirmative votes. This involves first a determination of whether provisions of the Charter relating to emergency ordinances are even applicable to the process of charter amendment, and secondly whether, if applicable, these ordinances were in fact emergency measures. Of these in order:
What is the nature of the act of a legislative body in proposing constitutional amendment? Do procedural requirements specified in the constitution (or charter) with respect to legislation generally apply to the handling of proposed constitutional amendments? Do provisions such as ones for all acts or resolutions to be submitted to the executive officer for approval or veto, ones specifying the number and times of reading, and ones as to the title requirements of the statute being considered apply to the constitution amending process?
Exactly this question arose in the early case of Hollingsworth et al. v. State of Virginia, 3 Dall. 378, 1 L.Ed. 644, decided in 1798. It involves the question of whether the Eleventh Amendment to the Constitution of the United States had been adopted. This amendment had been proposed by two-thirds of both the Senate and House of Representatives pursuant to Article V of the Constitution and subsequently had been ratified by the required number of states. The attack on the amendment was on the basis that Article I, Section 7, of the Constitution also was applicable and had not been followed. That section provides, in part, as follows:
'Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.' (Emphasis supplied.)
It was pointed out that the Resolution, following passage by both houses of Congress, had not been submitted to the President of the United States, pursuant to said Section 7 of Article I which specified that every order, resolution, or vote (except on a question of adjournment) should be so submitted. When the case was argued in the Supreme Court of the United States and this proposition was advanced, Mr. Justice Chase stated, ...
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