Petition of City of St. Louis

• Decision Date: 22 November 1961
• Docket Number: A,No. 50678,50678
• Citation: 363 S.W.2d 612
• Parties: Petition of the CITY OF ST. LOUIS, a Municipal Corporation, for a Pro Forma Decree Authorizing the issuance of $4,207,000 of Bonds Pursuant to Ordinancepproved
• Court: Missouri Supreme Court

Page 612

363 S.W.2d 612

Petition of the CITY OF ST. LOUIS, a Municipal Corporation for a Pro Forma Decree Authorizing the issuance of $4,207,000 of Bonds Pursuant to Ordinance No. 50678 Approved November 22, 1961, being the Remainder of $7,957,000 of Bonds Authorized Under and Pursuant to Proposition No. 5 at an Election Held on the First Day of August, 1944, Pursuant to Ordinance No. 42,952, Approved June 17, 1944, City of St. Louis, Petitioner-Respondent P. F. Palumbo, Appellant-Intervenor.

No. 49539.

Supreme Court of Missouri, En Banc.

Jan. 14, 1963.

P. F. Palumbo, St. Louis, pro se.

Thomas J. Neenan, City Counselor, Thomas F. McGuire, Associate City Counselor, Stephen M. Hereford, Asst. City Counselor, St. Louis, for respondent.

DALTON, Judge.

This is an appeal by intervenor, P. F. Palumbo, from the judgment and decree of the Circuit Court of the City of St. Louis holding that unissued bonds of the City of St. Louis, in the sum of $4,207,000 are valid and legal obligations of the City of St. Louis, and authorizing and validating the issuance of said bonds by the said city.

The record shows that, on June 17, 1944, the Board of Aldermen of the City of St. Louis enacted Ordinance No. 42952, submitting to the voters of the City of St. Louis, eleven propositions for the incurring of indebtedness and the issuance of bonds of said city, among which was Proposition No. 5, authorizing the City of St. Louis to borrow money and to issue its bonds in the sum of $7,957,000 for the purpose of constructing, reconstructing, repairing, replacing, reconditioning and improving sewers and drains and the acquiring of rights of way and land therefor. The voters of said city approved said Proposition No. 5 on August 1, 1944. Appellant-intervenor admits that subsequent to the adoption of Proposition No. 5 the respondent city proceeded in an orderly manner to plan, construct and reconstruct sewer facilities in said city.

During the time prior to the adoption by the voters of the City of St. Louis and St. Louis County of the Plan of the Metropolitan St. Louis Sewer District, $3,750,000 of said bonds, as authorized by the adoption of Ordinance No. 42952, were offered for sale. The mentioned Plan went into effect on July 1, 1954. A judgment of ouster of the mentioned District was denied by this court on January 10, 1955. See State on Inf. Dalton v. Metropolitan St. Louis Sewer District, 365 Mo. 1, 275 S.W.2d 225.

The Plan for the Metropolitan St. Louis Sewer District was adopted pursuant to the provisions of Sec. 30(a) of Article VI of the Constitution of Missouri 1945, V.A.M.S., which provided that: 'The people of the city of St. Louis and the people of the county of St. Louis shall have power * * * to establish a metropolitan district or districts for the functional administration of services common to the area included therein.' Sec. 30(b) of the same article also provides that a plan so adopted 'shall become the organic law of the territory therein defined, and shall take the place of and supersede all laws, charter provisions and ordinances inconsistent therewith relating to said territory.'

On November 22, 1961, Ordinance No. 50678 of the City of St. louis was enacted. It directed the Mayor and Comptroller of the City of St. Louis, to offer the unissued bonds theretofore approved on August 1, 1944, in the amount of $4,207,000 for sale, and sealed bids to be received at the Office of the Mayor in the City Hall in said city until the hour of 10 a. m., central daylight saving time on Monday, the 28th of May, 1962.

On April 16, 1962, the City of St. Louis filed its petition in the Circuit Court of the City of St. Louis pursuant to Sec. 108.310 RSMo 1959, V.A.M.S., for a pro forma decree declaring the validity of the proposed issuance of $4,207,000 in sewer bonds, such bonds, as stated, being the remainder of $7,957,000 of sewer bonds authorized to be issued by the qualified voters of the City of St. Louis, at a bond issue election held on August 1, 1944, at which time the qualified voters had approved Proposition No. 5 for the issuance of said bonds. As part of its petition, the petitioner filed as exhibits certified copies of all records, petitions, publications, orders and resolutions and other documents pertaining to the authorization and issuance of said bonds.

The parties agree that all procedural requirements relative to the approval by the voters of the mentioned bonds, and the procedural steps for the issuance of said bonds have been met, as well as the procedural steps for the institution of this proceeding under Sec. 108.310 RSMo 1959.

On April 17, 1962, intervenor, after being permitted by the court to intervene in this action, filed his intervening petition denying the right of the city to issue the remaining bonds on the ground: 1. That the authority of the city was terminated by the adoption of the Plan of the Metropolitan St. Louis Sewer District; and (2) that there had been an unreasonable delay of 18 years, terminating the city's authority to issue the bonds.

The cause was heard on the pleadings, exhibits and evidence adduced by petitioner and intervenor. See Secs. 108.320 and 108.330 RSMo 1959; Boggess v. Pence, Mo.Sup., 321 S.W.2d 667.

The parties have stipulated that:

'7. The Court heard uncontroverted evidence of the Petitioner-Respondent that there has been a continuing need for the construction, reconstruction, replacing, reconditioning and improving the public sewers in the Mill Creek Valley, Kosciusko, Tandy and Murphy areas in the City of St. Louis, and that this urgent need existed prior to the approval of the said Proposition No. 5 by the voters of the City of St. Louis and continues to the present time. There was uncontroverted testimony that moderately heavy or heavy rainfall in these areas produce flooding conditions on the public streets in these areas, restricting the movement of vehicular traffic due to the fact that the trunk sewer lines (to which street drains are connected) are of insufficient size to handle such rainfall and that flooding of homes and businesses during heavy rains is, and was, common. Further, that these conditions are a direct and immediate threat to the public health, safety and welfare of persons residing within, and businesses located within, those areas.

'8. In order to eliminate these conditions, a contract was entered into between the Metropolitan St. Louis Sewer District, pursuant to Section 3.020(7 and 8) of Article 3 of the plan of the Metropolitan St. Louis Sewer District, and the City of St. Louis, dated March 1, 1962 under the terms of which the City of St. Louis would build, alter, and construct sewers, drains and other related facilities in the Mill Creek Valley, Kosciusko, Murphy and Tandy areas in the City of St. Louis, financed from the proceeds of the sale of said sewer bonds of the City of St. Louis; the issuance of the remainder of said bonds having been authorized by Ordinance No. 50678 of the City of St. Louis. The contract further provides that the Metropolitan St. Louis Sewer District shall inspect such construction and shall accept title to same upon completion. Thereafter the Metropolitan St. Louis Sewer District shall be responsible for the operation, maintenance, and repair of said facilities.'

At the trial of the cause, intervenor offered in evidence Articles 3, 9 and 12 of the Plan of the Metropolitan St. Louis Sewer District. Sec. 3.010 of said Article 3 provides for the taking over of all existing sanitary and storm-water sewer systems and facilities of any and all municipalities, sewer districts, and other public agencies within the boundaries of the District. Sections 9.010, 9.050, 9.060 and 9.090 of said Article 9, provide for the method of payment for sewers in the District. Section 12.090 of said Article 12, provides that any outstanding and unpaid sewer bonds or liabilities (on July 1, 1954) of any municipality, sewer district or other public agency situated within the District should not be affected or altered in any way. And see Secs. 30(a) and 30(b), Article VI, Constitution of Missouri 1945.

On April 2,, 1962, the trial court rendered its judgment and decree holding:

1. That the adoption by the qualified voters of the City of St. Louis and St. Louis County, of the Plan of the Metropolitan St. Louis Sewer District at a special election held on February 9, 1954, did in no way affect the power, jurisdiction, and authority of the City of St. Louis to issue sewer bonds of such city as authorized by the qualified voters of the City of St. Louis, at an election held on August 1, 1944;

2. That notwithstanding the lapse of time accruing since the date of the 1944 election, there has at no time been an abandonment on the part of the City of St. Louis of its authority to proceed with the issuance of the remainder of said bonds, and

3. That the remaining unissued bonds in the sum of $4,207,000 are in all respects valid and binding obligations upon the City of St. Louis, according to their terms.

Thereafter, intervenor, within the time prescribed, filed his motion for new trial, which was overruled, and he then filed a notice of appeal to this court.

Appellant and respondent have filed in this court an agreed statement of the case pursuant to Supreme Court Rule No. 82.13, V.A.M.R., which statement has been approved by the trial court; and the cause has been submitted in this court pursuant to the provisions of Secs. 108.340 and 10,.350 RSMo 1959

The appellant-intervenor contends that (a) the authority of the City of St. Louis to issue sewer bonds was terminated upon the adoption of the Plan of the Metropolitan St. Louis Sewer District, and that the issuance of said sewer bonds is contrary to, and militates against Articles 3, 9 and 12 of such plan; and (b) that the lapse of 18 years between the authorization and the proposed issuance of such bonds constitutes an unwarranted and unreasonable delay, so as to...