State ex rel. City of St. Louis v. Hall

• Decision Date: 18 October 1934
• Docket Number: 33142
• Citation: 75 S.W.2d 578,335 Mo. 1097
• Parties: State of Missouri at the Relation of the City of St. Louis, a Municipal Corporation, and Charles M. Hay, City Counselor of the City of St. Louis, Relators, v. Robert W. Hall et al., Judges Constituting the Circuit Court of the City of St. Louis
• Court: Missouri Supreme Court

75 S.W.2d 578

335 Mo. 1097

State of Missouri at the Relation of the City of St. Louis, a Municipal Corporation, and Charles M. Hay, City Counselor of the City of St. Louis, Relators, v. Robert W. Hall et al., Judges Constituting the Circuit Court of the City of St. Louis

No. 33142

Supreme Court of Missouri

October 18, 1934

Alternative writ made permanent.

Charles M. Hay, Oliver Senti, G. Wm. Senn and Seward McKittrick for relators.

(1) The amendments to the charter contained in Ordinance 39898 are not void because they were not submitted on separate ballots. State ex rel. Attorney-General v. Kansas City, 310 Mo. 542, 276 S.W. 389; Gabbert v. Ry. Co., 171 Mo 96, 70 S.W. 891. (2) The amendments to the charter contained in Ordinance 39898 are not void because the ballot did not set them out in sufficient detail. State ex rel Refrigerator & Supply Co. v. St. Louis, 319 Mo. 497, 5 S.W.2d 1180; 20 C. J. 150; State ex rel. Attorney-General v. Kansas City, 310 Mo. 542, 276 S.W. 394. (3) The amendments to the charter contained in Ordinance 39898 are not void because they are in conflict with Section 7222, Revised Statutes 1929. State ex rel. Kansas City v Field, 99 Mo. 352; Kansas City v. Marsh Oil Co., 140 Mo. 458. (a) Proceedings for the assessment of damages and benefits growing out of change of grade can be lawfully combined with proceedings for assessing damages and benefits for opening or widening a highway, when such combined proceedings are authorized by charter. Kansas City v. Woerishoeffer, 249 Mo. 39.

Hensley & Hensley and John M. Goodwin for respondents.

(1) The ballot proposal submitting amendment No. 10 is void because it contains two or more separate and distinct propositions and the voter was required to vote for all or against all and was left no choice to vote for one and reject any or all the others. (a) Where separate and independent questions are referred to the electors, whether they are amendments to the Constitution or questions of any other nature, they must be submitted separately so that each may stand or fall upon its own merits. This because the voter in order to get what he honestly wants must not be compelled to vote for things which he does or may not want. To do otherwise is a species of legal fraud and is universally condemned. State ex rel. Barrett v. Maitland, 296 Mo. 338, 246 S.W. 267; 9 R. C. L., chap. 76, p. 1059; State ex rel. Pike County v. Gordon, 268 Mo. 321, 188 S.W. 88; State ex rel. Joplin v. Wilder, 217 Mo. 261, 116 S.W. 1087; State ex rel. Chillicothe v. Wilder, 200 Mo. 97, 98 S.W. 465; State ex rel. Bethany v. Allen, 186 Mo. 673, 85 S.W. 531; State ex rel. v. Powell, 70 Miss. 543, 27 So. 927; McBee v. Brady, 100 P. 103; City of Denver v. Hays, 28 Colo. 110, 63 P. 311. (b) The above proposition, commonly referred to as the "matter of doubleness," is not limited in its application to amendments relating to the incurring of debts or matters of taxation, but applies in all cases of amendment proposals where the propositions are separable and independent of each other. State ex rel. Barrett v. Maitland, 296 Mo. 338, 246 S.W. 272. (c) The opinion of the Supreme Court of Mississippi in the Powell case, cited above, has been recently adopted with approval by this court en banc. State ex rel. Barrett v. Maitland, 296 Mo. 338, 246 S.W. 272. (d) The mere fact that all the amendments relate to the same subject-matter does not justify the assumption that the amendment is a unit, but the several parts of the amendment must be compared one with the other and if one may stand and the other or others fall and an intelligent, harmonious, symmetrical scheme or plan remains, then the proposals are double. State ex rel. v. Powell, 70 Miss. 543, 27 So. 927; State ex rel. Barrett v. Maitland, 296 Mo. 338, 246 S.W. 267. (2) A ballot proposal submitting amendments with no notice that the voter was voting for or against any of the matters above referred to was deceptive and worked a fraud upon the voters. State ex rel. Barrett v. Maitland, 296 Mo. 338, 246 S.W. 267. (3) Section 19 of the amendment to Article XXI of the St. Louis Charter is unconstitutional and void because said section vests in the board of condemnation commissioners judicial powers to ascertain and determine the respective interests and liabilities of various persons jointly interested in distinct portions of any lot or parcel of property assessed with benefits in contravention of Articles III and VI of the Constitution of Missouri.

OPINION

Gantt, J.

This came to me on reassignment. It is an original proceeding in mandamus. Relators seek to compel the judges of the Circuit Court of the City of St. Louis, in general term, to appoint a permanent commission composed of three commissioners and three alternates for the assessment of damages and benefits in all condemnation proceedings.

Article 21 of the charter of said city provided the procedure for the acquisition of private property for public use. It contained sixteen sections. In Section 3 the court or judge was directed to appoint three commissioners in each proceeding in condemnation. Under ordinance an amendment of said article was proposed to the voters of the city at the election on April 4, 1933. The proposal provided changes in Sections Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10. It also added new sections to said article designated Sections 1-a, 17, 18, 19 and 20. The amendment was ratified by the voters at said election. Among other things, it directed in Section 3, as amended, that said judges appoint a permanent commission to fix the damages and benefits in all condemnation proceedings, and said section, as amended, fixed the term and salary of the commissioners and alternates.

Respondent judges challenge the validity of the amendment. They contend that two or more separate and distinct propositions were submitted to the voters as one proposition, and for that reason the amendment is void.

There is no constitutional or charter provision prohibiting the submission of two or more separate propositions as one amendment to the charter of the city. However, if the amendment under consideration submitted separate propositions as one amendment, it was a fraud upon the voters. The rule is stated by a standard text as follows:

"Two propositions cannot be united in the submission so as to have one expression of the vote answer both propositions, as voters might be thereby induced to vote for both propositions who would not have done so if the questions had been submitted singly." [21 Am. & Eng. Ency. Law (2 Ed.) 47.]

The parties agree to this statement of the rule. But relators contend that the subject of the amendment relates solely procedure for the acquisition of private property for public use; that the sections of the article as amended are naturally related and dependent on one another; that said amended code is only workable as a unit, and that the amended and new sections of the article were properly submitted to the voters under one amendment. In other words, they contend that the amendment as submitted had only one subject. On this question a leading case states the rule as follows:

"In order to constitute more than one amendment, the proposition submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other." [State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N.W. 785.]

This statement is quoted with approval in Gabbart v. C., R. I. & P. Railroad, 171 Mo. 84, l. c. 99, 70 S.W. 891. And in Hart v. Nevada School Dist., 299 Mo. 36, l. c. 40, 252 S.W. 441, we said:

"If it can be said that the proposed improvements are not naturally related or connected, then it is clear that separate submissions are required; if on the other hand the several parts of the project are plainly so related that, united, they form in fact one rounded whole, it is equally clear that they may be grouped together and submitted as one proposition."

The rule is also stated as follows:

"If, in the light of common sense, the propositions have to do with different subjects, if they are so essentially unrelated that their association is artificial, they are not one; but if they may be logically viewed as parts or aspects of a single plan, then the constitutional requirement is met in their submission as one amendment." [State ex rel. Hay v. Alderson, 49 Mont. 387, l. c. 404.]

Other cases to the same effect follow: Meyering v. Miller, 330 Mo. 885, l. c. 893, 51 S.W.2d 65; State ex rel. v. Thompson, 323 Mo. 742, 19 S.W.2d 642, l. c. 645; Gottstein v. Lister, 153 P. 595; People v. Sours, 31 Colo. 369, l. c. 400, 74 P. 167; State ex rel. Printing Co. v. Riplinger, 30 Wash. 281, 70 P. 748; State ex rel. Corry v. Cooney, 70 Mont. 355; Bethea v. Dillon, 91 S.C. 413, 74 S.E. 983; State ex rel. Adams v. Herried, 10 S.D. 109, 72 N. W. 93; State ex rel. Teague v. Bd. of Commrs., 34 Mont. 426, 87 P. 450; State ex rel. Fargo v. Wetz, 40 N.D. 299, l. c. 337; Chicago v. Reeves, 220 Ill. 274.

The proposed changes in the article are correctly summarized by relators as follows:

"1. The change adding the restriction of use of property as one of the purposes for which condemnation can be exercised contained in sections 1, 4, 5 and 10.

"2. The combination of appropriation proceedings and change of grade proceedings contained in section 1.

"3. The change requiring that the consorts of all married defendants be made defendants, contained in section 1.

"4. The provision for a delay in entering judgment if the total damages exceed the sum set forth in the condemning ordinance, contained at the end of section 1.

"5. The inclusion in section 2 that service by publication is valid against any owner who 'cannot be found within the state....