Pitman v. Drabelle

Decision Date21 February 1916
Citation183 S.W. 1055,267 Mo. 78
PartiesCHARLES A. PITMAN, Appellant, v. JOHN W. DRABELLE et al
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.


Henry S. Caulfield, Homer G. Phillips and George L. Vaughn for appellant.

(1) There can be no doubt as to the right of a taxpayer, suing on behalf of himself and all other citizens and taxpayers who are similarly interested with him, to have relief by injunction for the prevention of an illegal or unauthorized diversion of public funds belonging to the municipality. 2 High on Injunction (4 Ed.), 1237; Dillon, Municipal Corporations, sec. 1579 et seq.; Newmeyer v Railroad, 52 Mo. 81; Rubey v. Shain, 54 Mo 207; Black v. Cornell, 30 Mo.App. 641; Black v. Ross, 37 Mo.App. 250; Knapp v. Kansas City, 48 Mo.App. 485; Mayor of Baltimore v. Gill, 31 Md. 375; Savidge v. Spring Lake, 112 Mich. 91. And this right exists where the illegal or unauthorized diversion is for an election of the kind here involved, for which there is no warrant in law. 22 Cyc. 885; 2 High on Injunction (4 Ed.), 1237; Mayor of Macon v. Hughes, 110 Ga. 795; Layton v. Mayor, 50 La. Ann. 121; Railroad v. Board of Commissioners, 108 N.C. 56; Solomon v. Fleming, 34 Neb. 40; Connor v. Gray, 88 Miss. 489. (2) The city of St. Louis has no power or authority, under the Constitution, to provide by charter for any method or system of legislation independent of at least one house of legislation to be elected by general ticket. State ex inf. v. Railroad, 151 Mo. 162; St. Louis v. Telephone Co., 96 Mo. 628; St. Louis v. Eddy, 123 Mo. 557; Independence v. Cleveland, 167 Mo. 388; St. Louis v. Dreisoerner, 243 Mo. 223; St. Louis v. Quarry Co., 244 Mo. 479; State ex rel. v. Skeggs, 154 Ala. 249; In re Dunn, 9 Mo.App. 255; State ex inf. v. Kansas City, 233 Mo. 162; St. Louis v. Dorr, 145 Mo. 466; Westport v. Kansas City, 103 Mo. 141; Cooley, Const. Limitations (7 Ed.), p. 98; Dield v. People, 3 Ill. 79; Graham v. Roberts, 200 Mass. 152; Mo. Constitution, art. 9, sec. 22, art. 4, sec. 57.

Benjamin H. Charles, Charles H. Daues and Everett Paul Griffin for respondents.

(1) The court had no jurisdiction of the subject-matter covered by the petition, and no jurisdiction to grant the relief prayed for. (a) Because equity has no jurisdiction to restrain, by injunction or otherwise, the exercise of the political rights of the people. State ex rel. v. Aloe, 152 Mo. 466; Fletcher v. Tuttle, 151 Ill. 51; Green v. Mills, 30 L. R. A. 90, 69 F. 852; Morgan v. Wetzel, 53 W.Va. 372; Anthony v. Burrow, 129 F. 783; Giles v. Harris, 189 U.S. 475; Fisler v. Brayton, 145 Ind. 71; McAlester v. Milwee, 31 Okla. 620; Walton v. Develing, 61 Ill. 201. (b) Because an equity court has no jurisdiction to restrain, by injunction or otherwise, the exercise of the lawmaking power, nor the process of legislation. Albright v. Fisher, 164 Mo. 64; State ex rel. v. Gates, 190 Mo. 556; Kansas City v. Hyde, 196 Mo. 506; Duggan v. Emporia, 84 Kan. 429; Pfeifer v. Graves, 104 N.E. 529. (c) Because an equity court has no jurisdiction to restrain or arrest, by injunction or otherwise, the official acts of public officials preparatory to, or in the conduct of, public elections. Shoemaker v. Des Moines, 129 Iowa 244, 3 L. R. A. (N. S.) 382; Duggan v. Emporia, 84 Kan. 429; People ex rel. v. Galesburg, 48 Ill. 485; Weber v. Timlin, 37 Minn. 274; Friendly v. Orcott, 61 Ore. 580. (d) Equity has no jurisdiction, because the complainant has a complete and adequate remedy at law to test the validity of the proposed ordinances, in case they should be adopted. (e) An allegation that the complainant is a taxpayer is not an allegation that his property rights are about to suffer injury. It is merely colorable; thrown in to make a show of right to proceed in equity to an attack on a charter provision. State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Thorson, 9 S.D. 149; Libby v. Olcott, 66 Ore. 134. (2) The initiative and referendum provisions of the St. Louis charter are valid. Wagner's St. Louis Charter, arts. 5 and 6, pp. 40, 41. (a) Because the Constitution contains no grants of power to the city of St. Louis. It merely provides a method of incorporation; and indicates a part of the form of its government, namely, a chief executive, and at least one house of legislation. Missouri Constitution, art. 9, secs. 20, 22, 23. "No limitation is placed upon the character of the charter, save and except that it shall always be in harmony with and subject to the Constitution and laws of the State." Kansas City v. Oil Co., 140 Mo. 470; St. Louis v. Gleason, 15 Mo.App. 30, affirmed (on this point), 93 Mo. 38; State ex rel. v. Stobie, 194 Mo. 14, 54; St. Louis v. Tel. Co., 149 U.S. 465. Powers conferred by this charter are of equal dignity with powers conferred upon a municipal corporation by an act of the Legislature. Ex parte Smith, 231 Mo. 122; Kansas City v. Bacon, 147 Mo. 272; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Oil Co., 140 Mo. 458; St. Louis v. Gleason, 15 Mo.App. 30. (b) The purpose disclosed in the Constitution was that a charter thus adopted might embrace the entire subject of municipal government, and be a complete and consistent whole, with such provisions as to the powers conferred and the methods of exercise of such powers, as the people of the city might adopt. State ex rel. v. Field, 99 Mo. 352; Kansas City v. Bacon, 147 Mo. 272; Haag v. Ward, 186 Mo. 343. (c) If the initiative and referendum provisions of the St. Louis charter are void, then the same provisions in charters of cities of the second and third classes are void; because the St. Louis charter stands on the same basis as any other legislative act of the State. (d) The provisions are not repugnant to any provision of the Constitution. The Constitution contains no prohibition against the adoption by the city of St. Louis of these methods of legislation. (e) The provisions are in harmony with the Constitution and laws of the State. To be in harmony with the Constitution means merely in "substantial harmony" with the principles of the Constitution. Kansas City v. Bacon, 147 Mo. 259; St. Louis v. De Lassus, 205 Mo. 585. Legislation by the initiative and referendum are now (since 1908) principles of the Constitution. And these principles have been recognized by the Legislature in its grant of charters to cities of the second and third classes. Laws 1913, pp. 443, 530. (f) The new charter of St. Louis shows on its face that the purpose of the Board of Freeholders which framed it, was to confer practically unlimited powers on the mayor and aldermen, with one check only. That check is the initiative and referendum. Remove it, and the people of that city are powerless, except at the polls, and then only at long intervals. (g) The initiative and referendum methods of legislation with respect to municipalities as well as the State at large, have, in other jurisdictions, been sustained as constitutional, with scarcely a dissent. Oregon v. Tel. Co., 53 Ore. 162, 223 U.S. 118; Kadderly v. Portland, 44 Ore. 118; Kiernan v. Portland, 57 Ore. 459; In re Pfahler, 150 Cal. 71; Graham v. Roberts, 200 Mass. 152; Hantig v. Seattle, 53 Wash. 432; Hindman v. Boyd, 84 P. 609; State v. Paul, 151 P. 116. See, also, cases from Ohio, Oklahoma, Texas, Kansas and other jurisdictions, cited under our point one.

BOND, J. Woodson, C. J., and Graves, J., concur; Faris, Blair and Revelle, JJ., concur to all except as to paragraph five, as to which they express no opinion.


In Banc.



-- Plaintiff, a taxpaying citizen, sued to enjoin the holding of an election on the 29th of February, 1916, for the adoption of two ordinances proposed under article 5 of the charter of St. Louis, reserving to the people of that city the power "known as the initiative."

The ordinances to be submitted to a ballot are referred to in the petition by number and title, and provide for "the use of separate blocks for residence by white and colored races and for the gradual complete occupancy of blocks by one of the two races to the exclusion of the other."

The ground of the petition is the alleged unconstitutionality of the provisions of the charter with reference to the exercise of the initiative in legislation, and the misappropriation of public money for the holding of the election. The defendants, the board of election commissioners, the city comptroller and the city treasurer, demurred, whereupon the petition was dismissed, and plaintiff appealed to this court where the cause was advanced for public reasons.


The rule is apodeictical that the charter of a municipal corporation or a State statute will not be held to violate the Constitution if any other rational interpretation or construction can be given to it. [State ex rel. v. Kirby, 260 Mo. l. c. 120, 168 S.W. 746; State ex rel. v. St. Louis, 241 Mo. l. c. 231, 145 S.W. 801; State ex rel. v. McIntosh, 205 Mo. l. c. 589, 103 S.W. 1078; State ex rel. v. Warner, 197 Mo. l. c. 650, 94 S.W. 962; Ex parte Loving, 178 Mo. l. c. 194, 77 S.W. 508.]

This maxim is particularly applicable to the framework of our State government, for the Constitution of Missouri is only limitative of the plenary power to legislate reserved to the people of the State, who may exercise it through the law-making body, or its auxiliaries in government, or by the initiative except to the extent they have restrained themselves by the prohibitions of the Constitution. [Harris v. Bond Co., 244 Mo. l. c. 664, 149 S.W. 603; McGrew v. Railroad, 230 Mo. 496; State ex rel. v. Warner, 197 Mo. 650, 94 S.W. 962; State ex rel. v. Sheppard, 192 Mo. 497, 91 S.W. 477.]

In that respect our State government differs from the Federal republic whose...

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