State ex rel. v. City of St. Louis

Decision Date17 March 1928
Docket NumberNo. 28373.,28373.
Citation5 S.W.2d 1080
CourtMissouri Supreme Court
PartiesTHE STATE EX REL. HARRY L. HUSSMAN REFRIGERATOR & SUPPLY COMPANY v. CITY OF ST. LOUIS and EDMUND R. KINSEY ET AL., Constituting BOARD OF PUBLIC SERVICE of City of St. Louis.

Jourdan & English for relator.

(1) Amendments to the charter may be made only as specified in the Constitution. St. Louis v. Dorr, 145 Mo. 481; State ex inf. v. Kansas City, 233 Mo. 185. (2) The city of St. Louis derives its corporate existence and charter powers exclusively under Article 9, secs. 20 to 23, inclusive, of the Constitution. State ex rel. v. Clayton, 226 Mo. 302; St. Louis v. Dorr, 145 Mo. 466. (3) The charter cannot be amended under Article 9, sec. 17, of the Constitution. State ex inf. v. Maitland, 296 Mo. 338. (4) Article 9, Section 22, relating to St. Louis, does not authorize an amendment of the Charter of 1914, because the present charter superseded the charter "so ratified" in 1876, and the Charter of 1876, ratified in connection with the separation of St. Louis from St. Louis County, was the only charter to which amendments were authorized. This is necessarily true, because all parts of the Constitution must be construed together. State ex inf. v. Maitland, 296 Mo. 352; Constitution, Art. 9, sec. 16 (old section); Laws 1921, p. 701; Grimes v. Reynolds, 184 Mo. 688; Courtwright v. Crow, 44 Mo. App. 568; Dworkin v. Insurance Co., 285 Mo. 363. (5) No amendment to the charter is permissible under the Charter of 1914 itself, except by initiative petition. Charter, Art. 5, sec. 1. (6) In submitting charter amendments to popular vote the form of submission and ballot must be such as to allow the voter to act thereon intelligently. State ex inf. v. Maitland, 296 Mo. 338. (7) Where the ordinance submitting a proposed charter amendment specifies a greater publication of the proposal than is the minimum authorized by the Constitution there is no conflict between the Constitution and the ordinance, and the amendments in this case are void because of the failure to follow the requirement of the ordinance that it be published in the papers doing the city printing. State ex inf. v. Maitland, 296 Mo. 338; Webster Groves v. Reber, 212 S.W. 38, affirmed in State ex rel. v. Reynolds, 223 S.W. 412; Hanscom v. Meyer, 60 Neb. 68.

Julius T. Muench and Oliver Senti for respondents; Benjamin H. Charles of counsel.

(1) The city of St. Louis is empowered by the Constitution to amend its present charter. Sec. 22, Art. 9, Constitution. (2) If, as relator claims, St. Louis is not empowered by Sec. 22 of Art. 9, to amend its present charter, then that power has been conferred upon it by the Legislature. Secs. 8854-8855, R.S. 1919; Laws 1921 (1 Ex. Sess.), p. 110. (3) St. Louis is not dependent on Secs. 16 and 17 of Art. 9, of the Constitution for power to amend its Charter. (a) The city has ample power to amend its present Charter. Constitution, Sec. 22, Art. 9. (b) Section 23 of Article 9, which provides that the charter and amendments thereto shall always be subject to and in harmony with the Constitution and laws, is applicable to the present charter, and therefore contemplates that the city shall always have power to amend its charter. Lefman v. Schuler, 296 S.W. 808. (c) The power to amend a charter of a municipal corporation is a legislative and therefore a continuing power. Morrow v. Kansas City, 186 Mo. 675; Collins v. Jaicks Co., 279 Mo. 428; In re Birmingham Drainage Dist., 274 Mo. 140; Prior v. Construction Co., 170 Mo. 439; State ex inf. v. Maitland, 296 Mo. 338. (d) The purpose of authorizing large cities to frame, adopt and amend their own charters is to provide such cities the means of framing suitable laws (subject to and in harmony with the Constitution and laws) for their own government. St. Louis v. Dorr, 145 Mo. 466; Morrow v. Kansas City, 186 Mo. 675; State ex rel. Kansas City v. Lucas, 296 S.W. 781; State ex rel. v. Seehorn, 246 Mo. 557; In re Condemnation of Land v. Boroff, 295 Mo. 46; Brunn v. Kansas City, 216 Mo. 117; Kansas City v. Oil Co., 140 Mo. 458; Kansas City v. Bacon, 147 Mo. 259; Kansas City v. Field, 99 Mo. 355. (e) The Constitution is subject to the same general rules of construction as other laws, due regard being had to the objects and broader scope of the former. State ex rel. City of Carthage v. Hackman, 287 Mo. 184. (f) If a literal interpretation of the language used in a constitutional provision would give it an effect in contravention of the real purpose and intent of the instrument as deduced from a consideration of all its parts, such intent must prevail over the literal meaning. State ex rel. City of Carthage v. Hackman, 287 Mo. 184. (g) Since the purpose of authorizing St. Louis to amend its Charter of 1876 was to enable it to make laws suitable to its changing conditions, Sec. 22 of Art. 9, should be so construed as to authorize the amendment of the present charter to effectuate that purpose. (h) If the Constitution did not confer on St. Louis the legislative power to amend its charter, that power would remain in the General Assembly and would enable it to whittle away the charter which the Constitution empowers the inhabitants of the city to adopt for their own government. (4) The purpose of the provision of the charter that the people shall have power to propose ordinances proposing amendments to the charter and to adopt the same at the polls-is not to confer upon the city the power to amend its charter, but to enable the people to propose amendments to their charter with the same effect as though such amendments were proposed by the Board of Aldermen in which the legislative power of the city is vested by Sec. 1, Art. 4, of the Charter. (5) The language of ordinance 35368, prescribing the form of ballot, is: "The qualified voters of the city may, at the election aforesaid, deposit a printed ballot in this form." This language is not mandatory and the form in which the amendments were submitted was in substantial compliance with the terms of said ordinance. Where the language prescribing the form is not mandatory, substantial compliance therewith is sufficient. Carr v. Hyattsville, 115 Md. 545; State ex inf. Hedges v. Anderson, 75 Ore. 509; Taylor v. Greensboro, 145 N.C. 423; Shaw v. Lindsley, 195 S.W. 338 (Tex. Civ. Apps.); State ex inf. Barrett v. Imhoff, 291 Mo. 603. (a) Where the language of a statute or ordinance relating to an election is mandatory, substantial compliance is sufficient, unless the statute or ordinance provides that compliance is essential to the validity of the election. Carr v. Hyattsville, 115 Md. 545; Pain on Elections, sec. 498; State ex inf. Barrett v. Imhoff, 291 Mo. 603. (b) Even if the emergency clause in ordinance 36051 were held invalid sufficient time has elapsed since its passage that it is now in force. Fahey v. Hackman, 291 Mo. 351; Ex parte Corvey, 287 S.W. 879. (c) Proceedings of the Board of Public Service are valid even if begun before the effective date of the ordinance. Springfield to use of Weaver, 137 Mo. 650. (6) The procedure to be followed in amending the charter is controlled by the terms of the grant of legislative power pursuant to which such charter may be amended. Since the constitutional grant of power does not prescribe what shall constitute publication, it may be done by the Charter or ordinances of the city. State ex inf. v. Maitland, 296 Mo. 338. (a) All ordinances of the city are required to be published in the City Journal. Charter of St. Louis, sec. 21, art. 4; State ex rel. v. Lucas, 296 S.W. 781; Ordinance 30050. (b) The City Journal was established pursuant to the provisions of the charter of the city of St. Louis. Charter, sec. 30, art. 4. (c) In the absence of a mandatory constitutional, charter or ordinance provision to the contrary, amendments to the charter can be lawfully submitted at an election held sixty days after their publication in the City Journal. Williams v. Broening, Mayor, 135 Md. 232. (d) Substantial compliance with the statutory provision in regard to an election is sufficient where the statute itself does not declare that the failure to comply strictly therewith shall be fatal. State ex inf. Barrett v. Imhoff, 291 Mo. 603; State v. Winnette, 78 Neb. 379; Fahey v. Hackman, 291 Mo. 351; Baily v. Smith, 4 Wash. 661; City of Macomb v. Barron (Miss. Sup. Ct.), 112 So. 875. (e) Where the local legislative authorities submitting an amendment require publication in excess of that required by the organic law, compliance with the organic law is sufficient. State ex rel. Carthage v. Gordon, 217 Mo. 103; State ex inf. v. Kansas City, 233 Mo. 180.

ATWOOD, J.

Upon return to our writ of certiorari issued herein relator seeks to quash the record of respondents, who constitute the Board of Public Service of the City of St. Louis, authorizing the improvement of Leffingwell Avenue from Madison Avenue to St. Louis Avenue in said city and the assessment of a special tax against relator's real estate within the area of the designated taxing district. A companion case, No. 28364, State ex rel. Rosebrough Monument Company, relator, against the above-named respondents, relating to similar improvement of property located at the southeast corner of Twentieth and Olive Streets in said city, has also been submitted. The proceedings relative to both improvements were had in accordance with the provisions of the Charter of the City of St. Louis as amended at the election held April 5, 1927, and their validity is challenged on the ground that such amendments are invalid. Particular attention is directed to Amendment No. 5, which empowers the Board of Aldermen, on recommendation of the Board of Public Service, to authorize public work or improvements and establish a benefit or taxing district thereof in the same ordinance; to Amendment No. 3. which provides that any ordinance authorizing public work or improvements, or...

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