State ex rel. Sprague v. City of St. Joseph

• Decision Date: 10 May 1977
• Docket Number: Nos. 59460,59517,s. 59460
• Parties: STATE ex rel. Dale SPRAGUE, Relator-Respondent, v. The CITY OF ST. JOSEPH, Missouri, and F. L. Endebrock, in his capacity as Supervisor of the Department of Public Works of the City of St. Joseph, Missouri, Respondents-Appellants. STATE ex rel. CITY OF ST. JOSEPH, Missouri, and F. L. Endebrock, in his capacity as Supervisor of the Department of Public Works of the City of St. Joseph, Missouri, Relators, v. The Honorable Fred E. SCHOENLAUB, Judge of the Circuit Court of Buchanan County, Missouri, Second Division, Respondent.
• Court: Missouri Supreme Court

Page 873

549 S.W.2d 873

STATE ex rel. Dale SPRAGUE, Relator-Respondent, v. The CITY OF ST. JOSEPH, Missouri, and F. L. Endebrock, in

his capacity as Supervisor of the Department of

Public Works of the City of St. Joseph,

Missouri, Respondents-Appellants.

STATE ex rel. CITY OF ST. JOSEPH, Missouri, and F. L.

Endebrock, in his capacity as Supervisor of the

Department of Public Works of the City

of St. Joseph, Missouri, Relators, v. The Honorable Fred E. SCHOENLAUB, Judge of the Circuit Court

of Buchanan County, Missouri, Second Division, Respondent.

Nos. 59460, 59517.

Supreme Court of Missouri, en banc.

May 10, 1977.

Ronald E. Taylor, St. Joseph, for appellants.

James H. Counts, St. Joseph, for respondent.

SEILER, Chief Justice.

These cases come to the writer on reassignment. They involve the question of whether sections 341.010 through 341.080, ¹ inclusive, pertaining to plumbers and plumbing, apply to the city of St. Joseph, a constitutional home rule charter city. ² We hold that they do not by virtue of Art. VI, Sec. 22, which prohibits the general assembly from creating any municipal office or employment or fixing the powers, duties or compensation thereof, for any city framing its own charter under the home rule charter provisions of the constitution.

Sections 341.010 through 341.080, inclusive, provide a scheme of licensing and regulating persons engaged in the business of plumbing in cities with 15,000 or more inhabitants. The statute requires that every person so engaged in cities of the requisite size must possess a certificate from the Board of Plumbing Examiners of the city in which he resides or from the board nearest his place of residence. To this end, the statute establishes three member Boards of Plumbing Examiners in every city with 15,000 or more inhabitants. It further provides that the board members are to be the chairmen of the city's board of Health and two plumbers the plumbers to be appointed by the mayor.

The statute prescribes the terms of the board members and the cost of a certificate, provides for their compensation from the city's treasury, that certificates shall be valid throughout the state, that no plumbing work shall be done without a permit from the Board of Health, and that cities shall establish rules and regulations for material, construction, and inspection of plumbing work. The statute creates the office of city plumbing inspector, prescribes his qualifications, and provides that he is to be paid by the city. The statute also requires that the board convene and administer an examination over generally specified subject matter. This description is not exhaustive, but only attempts to cover the major provisions of the statute.

Relator Sprague holds a master plumbers license from the Board of Plumbing Examiners of the city of Gladstone, a statutory class type city. Sprague has attempted to acquire plumbing permits from the city of St. Joseph by invoking sections 341.010 through 341.080 but the city has refused to issue him these permits. Sprague claims that although his residence is nearest St. Joseph, Gladstone is the city nearest his residence with a validly constituted plumbing board because a vacancy exists on the St. Joseph board; that therefore his license issued by Gladstone should be recognized by St. Joseph under section 341.050. Sprague filed his petition for a writ of mandamus in the circuit court to compel the proper St. Joseph authorities to honor his Gladstone license, to issue plumbing permits, and to inspect work done pursuant to those permits. The circuit court of Buchanan County issued its alternative writ January 1, 1976, and its peremptory writ on February 25, 1976. The city of St. Joseph appealed the issuance of the writ of mandamus to this court on the basis that jurisdiction lies here under Art. V, Sec. 3 because construction of the state constitution is involved. This is case No. 59460. The city of St. Joseph also filed a petition for a writ of prohibition in this court to prevent the circuit court from enforcing the writ of mandamus. We issued a stop order, followed by our preliminary rule in prohibition. This is case No. 59517. The cases were ordered consolidated in this court.

As will be seen from the following discussion, Sprague's contentions concerning the alleged vacancy on the St. Joseph board and his justification for his being examined in Gladstone are irrelevant to the material issues of the cases because sections 341.010 through 341.080, inclusive, do not apply to constitutional home rule charter cities.

Art. VI, Sec. 22, provides as follows: "No law shall be enacted creating or fixing the powers, duties or compensation of any municipal office or employment, for any city framing or adopting its own charter under this or any previous constitution, and all such offices or employments heretofore created shall cease at the end of the terms of any present incumbents."

This section was enacted as part of the 1945 constitution and has remained unchanged. The Missouri courts have held in a number of cases either directly or indirectly that Sec. 22 is a limitation on the power of the legislature with respect to constitutional charter cities. ³

In State ex rel. Burke v. Cervantes, 423 S.W.2d 791 (Mo.1968), a dispute arose concerning wages and conditions of employment between the St. Louis firemen and the mayor. The firemen called on the mayor to appoint an arbitration board pursuant to the Firemen's Arbitration Board Act. This act provides that the firemen may request the chief executive of any city, town, or other governmental unit to appoint an arbitration board to hear their disputes and make recommendations. The mayor refused to act and the fireman sought mandamus to compel him to do so. The trial court granted mandamus and the mayor appealed. This court reversed, holding the statute unconstitutional as applied to constitutional charter cities under Art. VI, Sec. 22, supra.

The court said that undoubtedly it was true that by Art. VI, Sec. 22, the city of St. Louis (being a constitutional charter city) was given a broad measure of complete freedom from state legislative control. 423 S.W.2d at 793. The firemen argued that the purpose of the statute was to create statewide uniform labor practices and therefore it was outside the scope of Art. VI, Sec. 22. This is precisely the argument that is being advanced by relator Sprague with respect to plumbing as covered by the sections in question in chapter 341. The court recognized that the majority of cases hold that legislation concerning municipal fire departments is a matter of statewide concern and that a general statute on the subject applies to home-rule municipalities. But the court went on to point out that this was not true where "there is a constitutional limitation upon the legislature concerning interference with the powers and duties of municipal officers such as is contained in Art. VI, Sec. 22 of the Constitution of this state." 423 S.W.2d at 793. The court held that therefore the mayor could not be required to assume the additional duty of appointing a Firemen's Arbitration Board; that in working out the grievances of city employees, the mayor was not required to go beyond the comprehensive provisions of the city's charter on the subject; and that Secs. 290.350 and 290.360, RSMo 1959 (L.1963, p. 415) were unconstitutional and void as applied to constitutional charter cities because they imposed duties upon a municipal officer and created a municipal office.

The Cervantes opinion is based squarely on the prohibition found in Art. VI, Sec. 22, against the legislature creating or fixing powers, duties, or compensation of any municipal office or employment for a constitutional charter city.

In City of Joplin v. Industrial Commission of Missouri, 329 S.W.2d 687 (Mo.banc 1959), there was a proceeding under the Prevailing Wage Act to have the Industrial Commission ascertain the prevailing hourly rate of wages in Jasper county for workmen needed to execute contracts for construction of sewers in Joplin, a constitutional charter city. The commission made its determination over the objections, among others, of the city that the statute was unconstitutional on several grounds, one being that to require the city to stipulate in its contracts the crafts or types of workmen and rates of pay constituted fixing of duties and compensation of municipal employment in violation of Art. VI, Sec. 22. The court held that to construe the statute as applicable to direct employees of public bodies would make it unconstitutional as to all constitutional charter cities by virtue of Art. VI, Sec. 22. The court held further that the act by its terms did not apply to city employees but only to the employees of private contractors doing public works. It is clear that had the act attempted to apply to public employment on public works by a constitutional charter city, the ruling would have been otherwise. In the Cervantes case, supra, the court cited the City of Joplin case as one "where it was said that to construe the Prevailing Wage Act as applicable to direct employees of public bodies would make it unconstitutional as to all constitutional charter cities because of said § 22." 423 S.W.2d at 793.

In Stine v. Kansas City, 458 S.W.2d 601 (Mo.App.1970), a case cited by relator Sprague, the facts were that Kansas City, a constitutional charter city, had adopted an ordinance that repealed certain articles of its building code and enacted a new uniform plumbing code. The new code was silent as to the licensing of journeymen plumbers. Among other complaints, the plaintiffs objected that the new code made no provisions for examining and licensing journeymen plumbers as required by chapter 341. The parties, however, had stipulated that the only issues in the case were two: a declaration of the rights and duties of the parties under the new code and chapter 341, and whether the new code was in...