State ex rel. Powers v. Donohue, s. 49824
| Decision Date | 04 June 1963 |
| Docket Number | Nos. 49824,49825,s. 49824 |
| Citation | 368 S.W.2d 432 |
| Parties | STATE of Missouri ex rel. Albert W. POWERS and Pearline Powers, his Wife, John Ebner and Gladys Ebner, his Wife, Adele Erb, Gladys M. Beilstein, Elmer J. Hoelzer and Carolyn Hoelzer, his Wife, Personally and as Class Representatives of Persons Similarly Situate, Oakville Point Taxpayers Association, a Corporation, Respondents, v. Carroll J. DONOHUE, Edward W. Garnholz, Paul M. Morris, Harry N. Soffer, Constituting the St. Louis County Board of Election Commissioners, St. Louis County, Missouri, and James H. J. McNary, Intervenors, and Vigus Quarries, Inc., a Corporation, Intervenor, Appellants. STATE of Missouri ex rel. Carroll J. DONOHUE, Edward W. Garnholz, Paul M. Morris and Harry N. Soffer, Constituting the St. Louis County Board of Election Commissioners, the County of St. Louis, Missouri, James H. J. McNary, as Supervisor of the County of St. Louis, Missouri, and Vigus Quarries, Inc., a Corporation, Relators, v. Noah WEINSTEIN, Judge of the Circuit Court for the Thirteenth Judicial District of the State of Missouri, Respondent. |
| Court | Missouri Supreme Court |
George E. Schaaf, Clayton, for St. Louis County Board of Election Com'rs, Carroll J. Donohue, Edward W. Garnholz, Paul M. Morris, Harry N. Soffer, as Members Thereof.
Norman C. Parker, St. Louis County Counselor, Donald J. Stohr, Asst. County Counselor, Wm. J. Becker, Clayton, for Vigus Quarries, Inc.
H. Jackson Daniel and Robert T. Johnson, St. Louis, for respondents.
These cases present the question of the right of the people of St. Louis County to propose by initiative petition an amendment of the comprehensive zoning ordinance of the county. The title of the proposed ordinance is:
'An ordinance amending the St. Louis County zoning ordinance and the official zoning district maps which are a part thereof, by changing the boundaries of 'K' heavy industrial district and the 'C' 20,000 square foot single family district so that there will be transferred from the 'K' heavy industrial district to the 'C' 20,000 square foot single family district on the official zoning district maps certain property specifically described herein and repealing ordinance No. 2518.'
In the first case (No. 49824) certain citizen-landowners of St. Louis County, personally and as class representatives of other such persons similarly situate, and Oakville Point Taxpayers Association, a pro forma, non-profit corporation, as plaintiffs, filed a petition in the Circuit Court of the County of St. Louis seeking a writ of mandamus directed to the originally named defendants as members of the Board of Election Commissioners of St. Louis County to require said board to place on the ballot at the general election to be held in St. Louis County on November 6, 1962, for submission to a vote of the people the above titled ordinance, as proposed in an initiative petition signed by some 11,700 citizens and taxpayers of the county. The court issued its alternative writ directing the board to place the proposed ordinance upon the ballot as prayed in the petition or to show cause for its refusal so to do. The board filed return and answer setting forth in detail its reasons for its refusal. Plaintiffs filed reply and a motion for summary judgment. During pendency of the motion for summary judgment, St. Louis County and James H. J. McNary as Supervisor of said county, alleging that the county's political and corporate status would be directly affected by any final judgment rendered in the mandamus proceeding, sought and were granted leave to intervene as parties defendant; also, during pendency of said motion, Vigus Quarries, Inc., alleging that it was the owner of the tract of land described in the ordinance, consisting of 225 acres, and had invested $525,000 in developing a quarry business thereon, likewise sought and was granted leave to intervene as a party defendant. Said intervening defendants separately filed answer and return in which they, in substance, joined with the board in denying that the people of the county were vested with the right to cause to be placed upon the ballot for enactment the proposed amendment to the zoning ordinance of the county by use of initiative petition. Upon consideration of the matters of fact and law pleaded in behalf of each and all of the parties, the court, over objection of all of the defending parties decided that no material issue of fact was involved, that the only material issue involved was one of law, and summarily rendered judgment making the alternative writ peremptory; and ordered the board to place the ordinance on the election ballot. The original and intervening defendants filed notice of appeal.
The trial court refused to stay its writ pending the appeal. Whereupon, the defendants in that action, by petition filed in this court (case No. 49825), sought to prohibit the trial judge from further enforcement of the writ of mandamus pending decision of the appeal taken. Our provisional rule issued and the two cases were consolidated.
Jurisdiction of the appeal lies in this court because St. Louis County is a party to the action. Article V, Sec. 3, Constitution of Missouri, V.A.M.S.
The following facts are not in dispute. St. Louis County in accordance with the provisions of Article VI, Secs. 18(a)-18(l) of the constitution, adopted its charter in 1950. Oakville Point Taxpayers Association was incorporated in 1945. Its declared purpose is the preservation and protection of property values in the Oakville area of the county in which the 225 acre tract here in question lies. Vigus Quarries acquired that tract in January, 1962. On May 16, 1962, the county council, by ordinance No. 2518, rezoned the 225 acre tract from a 'C' 20,000 square feet single family district to a 'K' heavy industrial district and granted Vigus a special use permit to maintain a quarry thereon. Although some of the individual plaintiffs (respondents) herein appeared at a public hearing held prior to enactment of the ordinance and protested the enactment thereof, no question is here raised as to the validity of the action of the council in rezoning the 225 acre tract as set forth in said ordinance.
Immediately after enactment thereof, respondents instituted, but thereafter abandoned, referendum procedure seeking to effect repeal of it. Following abandonment of the referendum procedure, respondents procured and filed the initiative petitions in question. The effect of the ordinance proposed by these petitions was to repeal the county council's rezoning of the 225 acre tract from an industrial classification, to again place it in a single family classification and to void the special use permit granted Vigus. On September 14, 1962, the Board of Election Commissioners, having considered the initiative petitions, refused to place the ordinance thus proposed on the ballot.
Appellants (the Board of Election Commissioners, the County and Vigus) have assigned numerous grounds seeking reversal of the judgment summarily rendered by the trial court. But first, and, if sound, necessarily dispositive of the case, is their contention that the ordinance purporting to amend a zoning ordinance of the county is not subject to initiative procedure since enactment thereof by means of such procedure would circumvent (a) the lawfully required public hearing before the County Planning Commission after public notice and posting of signs; (b) report thereon to the county council; and (c) legislative action by the county council only after such procedure.
Respondents (citizen-landowning taxpayers, individually and as representatives of their class, and Oakville Taxpayers Association) assert that the trial court correctly overruled appellants' motion to dismiss for the reason that respondents have the right under the constitution and statutes of Missouri and the charter and ordinances of the county to submit ordinances, including those relating to zoning, to a vote of the people through initiative petition. In support of that contention, they say: the initiative and referendum are applicable to acts which are legislative in character, not to those dealing with administrative or executive matters; zoning matters are legislative in character; the initiative petition is a proper vehicle for the submission of a zoning change to a vote of the people; and the procedural requirements of the charter and ordinances of St. Louis County relative to notice and hearing were constructively complied with by respondents.
In asserting that the constitution and the laws of this state and the charter and ordinanaces of St. Louis County vest the county with the right to submit the proposed amendment to a vote of the people through means of the initiative, respondents cite as their basic authority Article III, Sec. 49, of the Constitution of Missouri. That section and Secs. 50 to 52(a) thereinafter following set forth the power reserved to the people of Missouri to propose and enact or reject laws and amendments to the constitution by initiative and to approve or reject by referendum acts of the general assembly. Those provisions, standing alone, do not of course solve the problem with which we here are confronted. The powers reserved to the people of St. Louis County with respect to use of the initiative and referendum are defined and limited by its charter, Article VII, Sec. 77, of which provides:
'The people reserve the powe to propose and enact or reject ordinances and amendments to this Charter, independent of the Council, to approve or reject by referendum any ordinance of the Council except emergency measures, 1 and to recall any elective County officer.'
Article III, Sec. 18, of the charter provides:
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