State ex inf. McKittrick ex rel. Ham v. Kirby

• Decision Date: 25 July 1942
• Docket Number: 37925
• Parties: State of Missouri on the Information of Roy McKittrick, Attorney General, at the relation of Charles W. Ham, Relator, v. Daniel N. Kirby, Luther Ely Smith and Paul J. Kaveney
• Court: Missouri Supreme Court

163 S.W.2d 990

349 Mo. 988

State of Missouri on the Information of Roy McKittrick, Attorney General, at the relation of Charles W. Ham, Relator, v. Daniel N. Kirby, Luther Ely Smith and Paul J. Kaveney

No. 37925

Supreme Court of Missouri

July 25, 1942

[Copyrighted Material Omitted]

Writ denied.

Louis E. Miller, of St. Louis, for relator.

Joseph F. Holland, City Counselor, George L. Stemmler, Oliver Senti and Albert Miller, Associate City Counselors, and Charles P Williams, all of St. Louis, for respondents.

Norman Bierman and George S. Roudebush, both of St. Louis, for amicus curiae.

Hays, J. All concur, except Gantt, J., not sitting.

OPINION

HAYS

Information in the nature of quo warranto filed by the Attorney General against the members of the Civil Service Commission of the City of St. Louis. Respondents have answered and relator has demurred to their answer. The proceeding challenges the validity of Amended Article 18 of the Charter of the City of St. Louis, under which amendment a system for the appointment of civil servants of said city is provided. The amendment in question is very long and contains many detailed provisions. It will be unnecessary to set out all of them, but those against which relator's attack is leveled will be referred to in the course of the opinion.

Sec. 22, Art. IX of the Constitution of Missouri, covering the power of amending the St. Louis Charter, provides:

"The charter so ratified may be amended by proposals therefor submitted by the lawmaking authorities of the city to the qualified voters thereof, at a general or special election held at least sixty days after the publication of such proposals and accepted by three-fifths of the qualified voters voting for or against each of said amendments so submitted."

Sec. 13, Art. IV of the Charter of the City of St. Louis provides:

"No bill, except a general appropriation bill, which shall only embrace matters on account of which moneys are appropriated, shall contain more than one subject, which shall be clearly expressed in its title."

The present amendment was proposed by the Board of Aldermen through an ordinance entitled: "An Ordinance submitting a proposed amendment to the Charter of the City of St. Louis to the qualified voters of the city, and providing for an election to be held therefor, and for the manner of voting thereat, and for the publication of this ordinance." Relator contends that this ordinance of submission was invalid because the title did not specify the contents of the proposed amendment. It is not contended that the proposal for amendment as published and as it appeared upon the ballot had an incomplete or misleading title nor that the ordinance itself did not set out the exact amendment proposed. It is said only that the title to the ordinance was improper. We are therefore confronted with the question as to whether the requirements of the charter applying to the titles of ordinary ordinances have any application to the titles of ordinances, resolutions or other legislative actions submitting to the voters a proposed charter amendment.

The procedure under which the Charter of the City of St. Louis is to be amended is in many respects similar to that followed with respect to amendments to the Constitution of this State. The amendment in each case is to be initiated by the ordinary legislative body. In case of the city by the Board of Aldermen, in case of the State by the General Assembly. When so submitted in either case it is to be ratified by the qualified voters. Similar procedure for amendment is found in the constitutions of a large majority of our states. In construing such provisions it has been universally held that the legislature, in proposing an amendment, is not exercising its ordinary legislative power but is acting as a special organ of government for the purpose of constitutional amendment. [State ex rel. v. Hackman, 273 Mo. 670, 202 S.W. 7; Edwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L. R. A. 815; People ex rel. v. Ramer (Colo.), 160 P. 1032; State v. American Sugar Refining Co. (La.), 68 So. 742; Re Opinion of the Justices (Me.), 107 A. 673, 5 A. L. R. 1412.] In the Lesueur case we held that the constitutional requirement applying to ordinary bills that they be read three times before final passage did not apply to a joint and concurrent resolution submitting a constitutional amendment. In Cooney v. Foote (Ga.), 83 S.E. 537, Ann. Cas. 1916B, 1001, it was directly held that the constitutional requirement in regard to the title of legislative bills had no application to joint and concurrent resolutions submitting constitutional amendments.

In the case of State ex rel. v. Allen, 178 Mo. 555, 77 S.W. 868, we discussed the applicability of certain charter provisions of the Town of Canton applying to ordinary legislation to a proposal submitted by the Board of Town Trustees for a bond issue and we held that since the charter merely provided for the trustees to submit such an issue to the voters they did not have to make the submission by an ordinary ordinance. Similar holdings are to be found in State v. Armstrong, 140 Mo.App. 719, 127 S.W. 93, and Merchant's Union Barb Wire Co. v. C., B. & Q. R., 70 Iowa 105. It therefore seems clear that the requirements as to the title of ordinances have no effect or bearing upon legislative proposals for the amendment of the Charter of St. Louis. Cases like Young v. Greene County, 342 Mo. 1105, 119 S.W.2d 369; State ex rel. Inter-Insurance Auxiliary v. Revelle, 257 Mo. 529, 165 S.W. 1084, and Vice v. Kirksville, 280 Mo. 348, 217 S.W. 77, are not in point since they deal with ordinary legislation and not with constitutional or charter amendments.

The civil service amendment exempts by its terms from its operation certain classes of municipal employees, to-wit: employees of certain commissions and employees of the Board of Aldermen. It is contended by the relator that this discrimination is violative of the equal protection clause of the 14th Amendment to the Constitution of the United States and of certain similar provisions of our State Constitution. From an early date it has been held that the equal protection clause does not require an exactly equal treatment of all citizens, but that the Legislature may create certain classes and may make laws applicable to some but not all of such classes provided that the principle of classification rests upon some real difference "which bears a reasonable and just relation to the act in respect to which the classification is proposed." [Gulf, Colo. & S. F. R. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666.] This court, in a decision which has been cited with approval by the Supreme Court of the United States, laid down the rule of just and reasonable relationship in State v. Loomis, 115 Mo. 307, 22 S.W. 350, 21 L. R. A. 789. In Missouri v. Lewis, 101 U.S. 22, 25 L.Ed. 989, the Federal Supreme Court had before it the then existing constitutional provisions of this State providing for an appeal of certain cases arising in the eastern portion of the State to the St. Louis Court of Appeals but permitting a direct appeal to this court in similar cases arising in other counties, and it was held that such provisions did not violate the constitutional guaranty of equal protection. Other cases laying down the same rule are: Atchison, Topeka and S. F. R. v. Matthews, 174 U.S. 96, 19 S.Ct. 609, 43 L.Ed. 909; and Finley v. People of California, 222 U.S. 28, 32 S.Ct. 13, 56 L.Ed. 75. We are confronted, therefore, with the question of whether or not there was a reasonable and just relationship between the principle of classification here adopted and the ends sought to be accomplished in this legislation.

While it is unquestionably desirable to adopt a uniform merit system for the employment of municipal civil servants it can easily be seen that the employment of agents of certain special commissions can best be left to the members of those commissions who are presumably experts in performing the work entrusted to them. It is also a universal custom, supported by some reason, to permit legislative bodies to control the appointment of their own employees. This court cannot therefore say that the classification here made was inherently unreasonable.

A similar attack is made upon the provisions of the said 18th Amendment exempting present employees from examination under the new merit system. Such exemptions have been included in most civil service statutes. The theory upon which they are based is that the present employees have already proven their fitness by past service. The exemption is quite similar to that which has usually been placed in medical practice acts. Such acts require the examination and license of persons desiring to practice medicine but very generally have exempted from the examination requirement doctors who, for a given period prior to the enactment of the law, have been actually engaged in the practice of their profession. It has been directly held that such an exemption does not violate the constitutional guaranty of equal protection. [Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Hawker v. People of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002.] These rulings, we think, are by analogy controlling in the present case.

Relator also contends that the above cited provisions of the amendment are violative of the due process of law clause of the 14th Amendment to the Constitution of the United States. It has been uniformly held that a public office is not property in the constitutional sense and that the right to be appointed to a public office is not a natural or property right within the protection of the due process clause. [State ex rel. v. Davis, 44 Mo. 129...