State ex rel. Keystone Laundry & Dry Cleaners, Inc. v. McDonnell, 52756

• Citation: 426 S.W.2d 11
• Decision Date: 11 March 1968
• Docket Number: No. 52756,No. 2,52756,2
• Parties: STATE ex rel. KEYSTONE LAUNDRY AND DRY CLEANERS, INC., Plaza Cleaners and Laundry, American Laundry Company, Toy A. Cribbs, Mahlen Henry, Joseph Humphrey, James Thomas, Burl Garvin, Nolan Sherwood, Gale Ludwig, Frank Meyers and S. Woofcool, Relators, v. William A. McDONNELL, Charles E. Curry, J. Carl Anderson, Everett Van Matre, Albert J. Ahner, Robert Dorsey, as members of the Commerce and Industrial Development Commission, and Henry C. Maddox, Director of Commerce and Industrial Development, Respondents
• Court: United States State Supreme Court of Missouri

Page 11

426 S.W.2d 11

STATE ex rel. KEYSTONE LAUNDRY AND DRY CLEANERS, INC., Plaza Cleaners and Laundry, American Laundry Company, Toy A Cribbs, Mahlen Henry, Joseph Humphrey, James Thomas, Burl Garvin, Nolan Sherwood, Gale Ludwig, Frank Meyers and S Woofcool, Relators, v. William A. McDONNELL, Charles E. Curry, J. Carl Anderson Everett Van Matre, Albert J. Ahner, Robert Dorsey, as members of the Commerce and Industrial Development Commission, and Henry C. Maddox, Director of Commerce and Industrial Development, Respondents.

No. 52756.

Supreme Court of Missouri, Division No. 2.

March 11, 1968.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 8 1968.

Edgar M. Eagan, Jefferson City, for appellants.

Norman H. Anderson, Atty. Gen., Arnold Brannock, Asst. Atty. Gen., Jefferson City, for respondents.

EAGER, Judge.

The relators filed a petition for mandamus in the Circuit Court of Cole County in September, 1966, and the alternative writ was issued. Subsequently the cause was dismissed, after a hearing upon a combined return and motion to dismiss; the grounds alleged in that motion were (1) that such a proceeding would not lie to compel the performance of acts which were discretionary in nature; (2) that respondents had already acted and had no power to rescind their action; (3) that the petition did not state a claim upon which relief could be granted. It was further alleged, as a return to the alternative writ, that the controverted project was within the purview of §§ 71.790--71.850, RSMo., 1965 Supp., V.A.M.S. The order and judgment of the Court specified that the relators had failed to state a claim upon which relief could be granted; it also contained a general finding in favor of the respondents. Following an unsuccessful after-trial motion, relators appealed. In this situation we consider the pleadings and the judgment. For the sake of clarity, however, we note here that the case arose out of the attempt of the City of Joplin to issue and sell revenue bonds in the amount of $260,000 under Art. 6, § 27 of our constitution, V.A.M.S., and the statutes cited above, for the purpose of acquiring a site constructing a building, and purchasing equipment for a commercial laundry, to be leased to Industrial Linens, Inc. of Columbia, Missouri.

The petition alleged in substance: that certain of the relators are owners and operators of laundries in Joplin and that they, as a class, fairly represent the other commercial laundries there; that the other nine relators are citizens, taxpayers and residents of Joplin; that the respondents constitute the officers and members of the Industrial Development Commission (see § 255.061, 1967 Supp.), which controls the Division of Commerce and Industrial Development of the State of Missouri (respondent Maddox is the Director of the Division); that it is a function of the Division to approve or disapprove proposals of municipalities for industrial development under the statutes cited above; that the Council of the City of Joplin did on February 7, 1966, approve a proposed project to be financed with revenue bonds in the amount of $260,000 for the acquisition of a site, the construction of a building, and the purchase and installation of laundry equipment, to be leased to Industrial Linens, Inc. of Columbia, Missouri, 'for the operation of a laundry and rental service of linens, treated cloths, and treated entrance mats, and a full line of laundry service to the public, including industries.' The petition further alleged: that the City applied to respondents for approval of the project, describing it in part as a plant for 'the rendering of a full line of specialized laundry service required by industries * * *'; that relators requested the respondents not to approve the project, but that they did 'unlawfully' approve it and so advised the City; that the project constitutes a commercial laundry, 'A SERVICE BUSINESS,' and does not constitute 'manufacturing and industrial development as provided by Art. VI, Sec. 27 of the Constitution of Mo., or for the construction of an industrial plant as defined by Section 71.790(3), Laws 1963, * * *'; that respondents had no jurisdiction, power or statutory authority to approve the project, but that it was their duty to disapprove it; that the issuance of a notice of disapproval was a ministerial duty, and that their failure to so act was a breach of a public trust and duty; that the unlawful approval of the project is vital to all service businesses in the state and affects the historical and economic classifications of businesses; that relators had no other complete and adequate remedy, that certain of the relators had substantial investments in their commercial laundries in that trade area, and that the completion of this proposed project would give to the lessee substantial tax and interest advantages and consequently a competitive advantage over such relators. Relators prayed that a writ of mandamus issue commanding respondents to revoke their approval of the project, and for such other relief as might be proper.

We have already reviewed the motion to dismiss and the judgment of the trial court. The constitutional provision in question, Art. 6, § 27 (as amended in 1960 and 1965) is in part as follows: 'Any city or incorporated town or village in this state, by vote of four-sevenths of the qualified electors thereof voting thereon, may issue and sell its negotiable interest bearing revenue bonds for the purpose of paying all or part of the cost of purchasing, constructing, extending or improving any of the following: * * * (2) plants to be leased or otherwise disposed of pursuant to law to private persons or corporations for manufacturing and industrial development purposes, including the real estate, buildings, fixtures and machinery; * * *.'

The applicable statutes, originally §§ 71.790--71.850, are now §§ 100.010--100.200. The define a 'project' in § 100.010 as: '(5) 'Project for industrial development' or 'project', the purchase, construction, extension and improvement of industrial plants, including the real estate either within or without the limits of such municipalities, buildings, fixtures, and machinery; * * *.' Section 100.050 requires that the plan for any such project for industrial development shall first be approved by the governing body of the municipality and then submitted to the Division of Commerce and Industrial Development (emphasis is ours); Section 100.060 provides that the Division shall approve when it finds that: the project will further economic development and employment and the general welfare of the municipality and the state, and that it is economically feasible. Section 100.070 provides that the Division shall notify the municipality of its approval or disapproval. Thereupon, under the following sections, the municipality may proceed to give its final approval and carry out the project under the requirements of those sections. It is specifically provided, however, that 'No project shall be carried out by the municipality without the prior approval of the division of commerce and industrial development * * *.' Section 100.080.

It may thus be seen that the key requirements, insofar as the nature of such proposals is concerned, are that they be plants 'for manufacturing and industrial development purposes' (constitution), and an 'industrial plant' (§ 100.010). Respondents concede here that this particular project would not constitute a manufacturing plant and that the issue is whether or not it would be an 'industrial plant.' This Court has jurisdiction for the reason that a construction of Art. 6, § 27 is involved and in fact is required. The contention of respondents to the contrary is denied without further discussion.

The first point of substance which we must consider is whether the writ of mandamus will lie in these circumstances. It is true, as respondents insist, (1) that the writ will not ordinarily issue to control the discretion of a court or an administrative body acting within its jurisdiction. State ex rel. Schulz v. Fogerty, Mo.App., 195 S.W.2d 908; State ex rel. Richardson v. Baldry, 331 Mo. 1006, 56 S.W.2d 67; State ex rel. Hand v. Bilyeu, Mo.App., 346 S.W.2d 221 (approved by this court at 351 S.W.2d 457, lot. cit. 460). Respondents also contend, (2) that the writ may not issue here because their action has been completed and they may not be required now to rescind it, citing State ex rel. Richardson, supra; State ex rel. Hagerman v. Drabelle, Mo., 191 S.W. 691, and State ex rel. Nick v. Edwards, Mo., 260 S.W. 454. We first consider (1) above. An exception to the general rule is recognized where the administrative board (or court) has acted unlawfully or wholly outside its jurisdiction or authority or has exceeded its jurisdiction, and also where it has abused whatever discretion may have been vested in it. State ex rel. Knight Oil Co. v. Vardeman, Banc, Mo., 409 S.W.2d 672; State ex rel. Hagerman, supra, at 191 S.W. loc. cit. 694; State ex rel. Schulz, supra, at 195 S.W.2d loc. cit. 911; State ex rel. Lovell v. Tinsley, Mo.App., 236 S.W.2d 24; State ex rel. Kelleher v. Board of President & Directors of St. Louis Public Schools, 134 Mo. 296, 35 S.W. 617; State ex rel. Richardson, supra; 55 C.J.S. Mandamus § 63 c, p. 103--104. 'If, as a matter of law,' the action of respondents is wrong, then they have abused any discretion which they may have had. State ex rel. Knight Oil Co., supra, at 409 S.W.2d loc. cit. 675. The determination of questions of law is reserved to the courts, and such matters may not be decided by an administrative board. State ex rel. Hand, supra; State ex rel. Folkers v. Welsch, 235 Mo.App. 15, 124 S.W.2d 636.

As to (2) above, namely, that the writ may not issue after respondents have acted, we also find in the cases instances where the writ has been so issued. In the recent case of State ex rel. Knight Oil Co., supra, the trial court had...