State, on inf. of Dalton v. Dearing

• Court: Missouri Supreme Court
• Writing for the Court: ELLISON
• Citation: State, on inf. of Dalton v. Dearing, 263 S.W.2d 381, 364 Mo. 475 (Mo. 1954)
• Decision Date: 11 January 1954
• Docket Number: No. 43830,43830
• Parties: STATE, on Inf. of DALTON, Atty. Gen., v. DEARING et al.

Page 381

263 S.W.2d 381

364 Mo. 475

STATE, on Inf. of DALTON, Atty. Gen., v. DEARING et al.

No. 43830.

Supreme Court of Missouri, En Banc.

Jan. 11, 1954.

John M. Dalton, Atty. Gen., Fred L. Howard, Asst. Atty. Gen., for relator.

Roberts P. Elam, St. Louis, for respondents.

ELLISON, Judge.

This is an amended Information in the nature of quo warranto brought by the Attorney General directly in this court and submitted on briefs. We have jurisdiction because it is an original remedial writ. Art. V, Sec. 4, Const.Mo.1945. It involves a construction of Art. VI, Secs. 30(a), and 30(b), Const.1945.

Sec. 30(a) authorizes the people of the city and county of St. Louis to consolidate their respective territories and governments into one political subdivision under the municipal government of the city, and, among other things (4) to establish a metropolitan district or districts for the functional administration of services common to the area included therein. In this case it is proposed to establish a metropolitan mass transportation district.

The power so given must be exercised by vote of the people of the city and county upon a plan prepared by a board of freeholders consisting of nineteen members, nine of whom shall be electors of the city and nine from the county, along with one from some other county. Upon the filing with the officials in general charge of elections in the city of a petition proposing the exercise of the powers granted by said constitutional provisions, signed by registered voters of the city in a number equaling 3% of the total vote cast in the city at the last general election for Governor, and the certification thereof by the election officials to the mayor and Governor, the following takes place.

Upon call of the mayor within ten days after the certification, the mayor and the judges of the circuit court of the city shall assemble in joint session at the city hall and proceed to appoint the city's nine members of the board of freeholders, not more than five of whom shall be members of or affiliated with the same political party. Each member so appointed shall be given a certificate certifying his appointment signed by the mayor and attested by the seal of the city.

Upon the filing with the officials in general charge of elections in the county of a similar petition signed by registered voters of the county, in such number as shall equal 3% of the total vote cast in the county at the last general election for Governor, and the certification thereof by the county election officials to the presiding judge of the circuit court of the county and to the Governor, the judges of the circuit court, probate court and county court, or other governing body, of the county within ten days after said certification.

And upon the call of the presiding judge (they) shall assemble in joint session at the court house of the county, and appoint the county's nine members of the board of freeholders, not more than five of whom shall be members of or affiliated with the same political party. Each member so sppointed shall be given a certificate of his appointment signed by said presiding judge and attested by the seal of said circuit court.

Sec. 30(b) provides that upon certification of the filing of such similar petitions by the officials in general charge of elections of the city and county, the governor shall appoint one (the nineteenth) member of the board of freeholders, who shall be a resident of the state, but not of either the city or county. He shall be given a certificate of his appointment signed by the Governor and attested by the state seal. The appointment of the board of freeholders shall be completed within 30 days after the certification of the filing of the petition, and at 10 o'clock on the second Monday after their appointment the members of the board shall assume the discharge of their duties, and meet from time to time.

It is their duty to prepare and sign a duplicate plan for the proposed district improvements and return it to the officials having general charge of city and county elections within one year after the appointment of the board of freeholders. The election officials shall submit the plan to the voters of the city and county in separate elections to be held within 90 days after the filing of the plan and not on or within 70 days of any state or county primary or general election in the city or county.

If a majority of the qualified electors of the city and county voting on the plan in their separate elections shall vote therefor, then at such time as shall be prescribed therein the same shall become the organic law of the territory therein defined, and shall supercede all laws, charter provisions and ordinances inconsistent therewith relating to said territory.

Prior to November 1, 1952, petitions were duly filed pursuant to the foregoing constitutional provisions of Art. VI, Secs. 30(a) and (b) for the establishment of a 'metropolitan district for the functional administration of sewer services common to the city of St. Louis and the county of St. Louis.' The appointment and organization of a board of freeholders pursuant thereto was duly completed by January 12, 1953, and said board of freeholders has been since its appointment, and still is, acting and functioning as such.

Likewise prior to November 1, 1952, similar petitions conforming to the requirements of said Sec. 30(a) as to the number of signing registered voters, were duly filed with the election officials of the city and county, for the appointment of a board of freeholders for the establishment of a 'metropolitan district for the functional administration of mass transportation services common to the city of St. Louis and the county of St. Louis.'

As will be seen, the foregoing procedure contemplated the establishment of two boards of freeholders, one for the functional administration of sewer services and the other for the functional administration of mass transportation services. The appointment and organization of the first board of freeholders [for sewer services] was completed by January 12, 1953, and it has been functioning ever since.

On December 11, 1952, the officials in general charge of elections in the city of St. Louis, that is to say the Board of Election Commissioners, duly made certification of the petition in the second suit governing mass transportation. On December 13, 1952, the mayor of the city of St. Louis issued a call for a joint meeting of the mayor and circuit judges of the city to be held at the City Hall on December 18, 1952, to act upon said petitions for mass transportation services. Being unable to complete their work they adjourned or recessed until December 23, 1952, when they found the required percentage of registered voters had signed, and appointed as the city's nine members of the board of freeholders, the following: Agatha Becker, Robert B. Brooks, Richmond C. Coburn, Donald Gunn, Mary Hall, John I. Rollings, Albert Schindler, Chester Stovall and Charles M. Warner. All of these were duly given their respective certificates of appointment.

Also on December 11, 1952, supra, when the freeholders' petitions for mass transportation services were filed, certification thereof was made to the Governor [then Hon. Forrest Smith]. And it appears without question that these certifications were received at the office of Governor Smith on December 12, 1952. But for some reason they were not called to his attention, or to the attention of Governor Donnelly, his successor in office, until more than 30 days after January 23, 1953. Upon receipt and verification of that information Governor Donnelly appointed the nineteenth member of the Board of Freeholders, respondent Will B. Dearing of Jefferson County, on April 1, 1953.

In the meantime on January 23, 1953, the officials in general charge of elections in the county of St. Louis duly made certification of the foregoing freeholders' petition for functional administration of mass transportation services, and on January 31, 1953, upon call of the presiding judge of the circuit court of St. Louis County, the judges of the circuit and probate courts of the county and the members of the County Council [the governing body of the county] assembled in joint session and appointed the respondents John J. Cole, Howard Elliott, S. Joseph Flori, John W. Giesecke, Fred H. Graf, Leo J. Hayes, Martin Jaeger, Kurt A. Schrader and William Wynn, as the county's nine members of a board of freeholders.

Each was duly given a certificate of his appointment. But not until more than 30 days after January 23, 195o, did the incoming Governor Phil M. Donnelly become informally, and for the first time, apprised of the aforesaid certification by the Board of Election Commissioners of the City of St. Louis of the filing of the last mentioned freeholders' petition for the functional administration of mass transportation services. And he did not make the appointment of the nineteenth member of the Board of Freeholders, Will B. Dearing, until April 1, 1953, after verifying the foregoing information.

The Attorney General, relator, assigns three reasons why the proceedings in this case fail to show the board of freeholders was legally appointed, and on the contrary establish that it was not. The first reason is that Dearing, the last member of the board, was not appointed by the Governor until April 1, 1953, whereas the last certification of the filing of the petition for mass transportation services was made by the election officials of St. Louis County on January 23, 1953, two months and seven days (67 days) earlier, whereas Art. VI, Sec. 30(b) of the Constitution provides the appointment of the board of freeholders 'shall be completed within thirty days after the certification of the filing of the petition'.

The second reason assigned in relator's brief is that constitutional provisions are mandatory, and that directions given therein respecting...