State ex rel. Childress v. Anderson

• Decision Date: 08 November 1993
• Docket Number: No. 18769,18769
• Citation: 865 S.W.2d 384
• Parties: STATE ex rel. CHILDRESS, et al., Relators-Appellants, v. Deborah ANDERSON, et al., Respondents.
• Court: Missouri Court of Appeals

Page 384

865 S.W.2d 384

STATE ex rel. CHILDRESS, et al., Relators-Appellants, v. Deborah ANDERSON, et al., Respondents.

No. 18769.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 8, 1993.

James A. Burt, Strong & Associates, P.C., Springfield, for relators-appellants.

Howard C. Wright, Jr. and Nancy K. Yendes, Springfield, for respondents.

Don G. Busch, Woolsey, Fisher, Whiteaker & McDonald, Springfield, amicus curiae.

PAUL J. SIMON, Presiding Special Judge.

Relators, Larry B. Childress, Penny L. Childress and McLean Enterprises, Inc., appeal the trial court's denial of their petition for writ of mandamus. We affirm.

Relators' petition sought to compel respondents, Deborah Anderson, City Clerk of the City of Springfield, Missouri, (clerk) and the members of the Springfield City Council (council), "to comply with Section 14.4 of the Charter of the City of Springfield, and place the citizen-initiated measure on the ballot in the event the city clerk determines that the proper number of signatures appear on the initiative petitions...." The citizen-initiated measure seeks to submit to the citizens of Springfield a proposal to rezone two contiguous parcels of land located in the City of Springfield from residential to commercial use. The ordinance at issue was never submitted to the city planning and zoning commission (commission) for its examination and recommendation.

After the petition was submitted to the clerk, the council passed Resolution No. 8071 directing the clerk to "take no action with respect to any initiative petition pertaining to the rezoning of property in the City of Springfield, Missouri, under Article XIV of the City of Springfield Charter because the rezoning of property is not subject to the initiative process as decided by the Missouri Supreme Court in State v. Donohue, 368 S.W.2d 432 (Mo. banc 1963)." On April 7, 1993, relators then filed their petition for writ of mandamus in the trial court alleging that they had presented initiative petitions to the clerk pursuant to § 14.3 of the charter, and that they are the fee simple owners of the two parcels of subject property. The petition contained other allegations which are essentially conclusions of law, including the allegation that the clerk has no discretion or authority to refuse to perform the ministerial tasks mandated by § 14.4 of the charter, and that the charter and Missouri case law provide for the citizens to exercise their power through the initiative process in regard to zoning issues.

No alternative writ was issued. Respondents filed a "Motion to Dismiss and Suggestions in Opposition to the Issuance of a Writ of Mandamus" (Motion to Dismiss). One point of the Motion to Dismiss stated that the petition was unverified and contained no recitation of facts which, if true, would require the clerk to review signatures of any petition presented to her. The Motion to Dismiss also stated that there were unverified references to facts in the suggestions filed by relators, but that this is insufficient to support the issuance of a preliminary writ in mandamus. After relators filed a motion for judgment on the pleadings, respondents filed "Supplemental Suggestions and Affidavits in Opposition to the Issuance of a Writ of Mandamus and Granting of Judgment on the Pleadings," along with various exhibits. Relator, Larry B. Childress, also filed an affidavit stating that the initiative petition contained 3,133 signatures of persons believed to be qualified voters of the City of Springfield.

The trial court then rendered judgment as follows:

NOW ON this 27th day of April, 1993, Relator's (sic) Motion for Judgment on the Pleading, [and] Respondents' Motion to Dismiss * * * are before this Court for consideration. After being fully advised in the premises, it is hereby,

ORDERED, ADJUDGED AND DECREED that * * * Relators['] Petition for a Writ of Mandamus is denied. Judgment is entered in favor of Respondents. Costs assessed against Relators.

The procedure for a mandamus proceeding was set out in State ex rel. Schaefer v. Cleveland, 847 S.W.2d 867, 869-70[2-7] (Mo.App.1992), wherein it is stated:

The usual procedure in a mandamus case is for the petition to be filed, the court to determine whether an alternative writ should issue, denial of the writ or issuance of same, and answer to the alternative writ if issued. It is not the petition for the writ but the alternative writ in mandamus which corresponds to the petition in an ordinary civil action. Therefore, it is the alternative writ, and not the petition, to which a respondent makes his return. An order refusing an alternative writ of mandamus is not a final judgment or order and is not appealable. The remedy for refusal to issue a mandamus is by a direct application to the higher court which has jurisdiction in such matters.

Where, however, the respondent appears without service of an alternative writ, and makes his return, the petition stands as and for the alternative writ itself for the purposes of the case and the return. Where the court dismisses the petition following answer or motion directed to the merits of the controversy and in so doing determines a question of fact or law the order is final and appealable.

(Citations omitted.) Here, reasonably construing the trial court's judgment, based on the motions and pleadings, it appears to be a dismissal pursuant to respondents' motion to dismiss rather than a denial of the petition. The motion to dismiss was, in part, directed to the sufficiency of the allegations to state a claim for relief. Therefore, we consider as true all well pleaded facts. Id., at 869. Also, the trial court's ruling pursuant to respondents' motion to dismiss is a ruling on the sufficiency of the allegations, an issue of law. Id., at 870[6, 7]. As such, the trial court's judgment is final and appealable and we have jurisdiction. Id.

Moreover, the record shows that the parties submitted affidavits and exhibits along with their suggestions to the trial court. When a party introduces evidence beyond the pleadings, a motion to dismiss is automatically converted to a motion for summary judgment. Hyatt Corp. v. Occidental Fire & Cas., 801 S.W.2d 382, 392 (Mo.App.1990). Thus, the trial court's judgment may reasonably be construed as a summary judgment, which is appealable. See, Uhle v. Sachs Electric, 831 S.W.2d 774, 776 (Mo.App.1992).

We turn to the merits. In their point on appeal, containing two subpoints, relators contend that the trial court erred in refusing to issue a peremptory writ of mandamus directing the clerk to verify the sufficiency of an initiative petition for the rezoning of a tract of land within the City of Springfield because the act of verifying the sufficiency of an initiative petition is a non-discretionary, ministerial act in that (A) the Springfield city charter mandates that the clerk verify the sufficiency of all initiative petitions filed in the clerk's office; and (B) the citizens of Springfield have, through their charter, reserved the power to rezone land through the initiative process.

A writ of mandamus is appropriate only where it compels ministerial actions; it may not be utilized to compel the performance of a discretionary duty. State ex rel. Schaefer v. Cleveland, at 870[8, 9]. It is not a writ of right, Anderson v. Smith, 377 S.W.2d 554, 559 (Mo.App.1964), and its issuance lies in the sound judicial discretion of the court. Id. Before granting a writ of mandamus, however, the court should look to the public interest which may be concerned, and act in view of all the existing facts and with due regard to the consequences. Anderson v. Smith, 377 S.W.2d at 559. The writ will be refused where, if granted, it would be unavailing, or where the act to be performed would be unlawful, for the court will not compel the performance of a vain or unlawful act. Id. If the proposed ordinance was void for any reason, that would be a complete defense to this action. We would not impose upon the City of Springfield the burden and expense of examining and certifying an initiative petition and submitting to its citizens for a vote an ordinance which would be of no effect if adopted. See, id.

Municipal charters are adopted by a vote of the citizens of a municipality. Mo. Const. Art. VI, § 19. Subject to the requirement that the charter be in harmony with and subject to the Constitution of Missouri and its laws in matters of general interest and statewide concern, the home rule charter is the city's organic law--its constitution. Mo. Const. Art. VI, § 19(a); State ex rel. St. Louis Fire Fighters Assoc. Local No. 73 v. Stemmler, 479 S.W.2d 456, 457 (Mo. banc 1972). If consistent with and subject to the constitution and laws of this state, charter provisions have the force and effect of enactments of the legislature. Reynolds v. City of Independence, 693 S.W.2d 129, 131 (Mo.App.1985).

Under our constitutional assumptions, all power derives from the people, who can delegate it to representative instruments which they create. City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 672, 96 S.Ct. 2358, 2361, 49 L.Ed.2d 132, 137 (1976). In establishing legislative bodies, the people can reserve to themselves power to deal directly with matters which might otherwise be assigned to the legislature. Id.

The provisions under which the people proceed in an initiative and referendum should be liberally construed. State ex rel. Ford v. Brawley, 514 S.W.2d 97, 99[2-4] (Mo.App.1974). However, the general rule governing the interpretation and construction of charter provisions is that all parts thereof should be construed together. Abernathy v. City of St. Louis, 313 S.W.2d 717, 719 (Mo.1958). In construing the charter we must give effect to the intent of the framers. State ex rel. Gragg v. Barrett, 352 Mo. 1076, 180 S.W.2d 730, 731 (1944). While each provision should be construed so as to harmonize with the others, id.,...