Steinbrenner v. City of St. Joseph

• Decision Date: 13 December 1920
• Citation: 226 S.W. 890,285 Mo. 318
• Parties: STEINBRENNER et al. v. CITY OF ST. JOSEPH et al.
• Court: Missouri Supreme Court

226 S.W. 890

285 Mo. 318

STEINBRENNER et al. v. CITY OF ST. JOSEPH et al.

Supreme Court of Missouri, in Banc.

December 13, 1920.

Appeal, from Circuit Court, Buchanan County; Lawrence A. Vories, Judge.

An action by William H. Steinbrenner and others against the City of St. Joseph and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

L. V. Stigall, City Counselor, C. L. Faust, Strop & Mayer, and Culver & Phillip, all of St. Joseph, for appellants.

W. H. Haynes and W. B. Norris, both of St. Joseph, for respondents.

GRAVES, J.

Action by certain taxpayers of the city of St. Joseph to restrain such city from issuing improvement bonds in the of $1,850,000. The petition charges some 13 reasons for the invalidity of this bond issue. The for ones chiefly of are: this (1) The failure of legal notice; and (2) that such an issue would allow the city to become indebted in excess of the constitutional limitation.

On March 31, 1919, there were introduced five separate ordinances in the common council of the city of St. Joseph, and these were passed by such council and approved by the mayor on the 21st day of April, 1919. These five several ordinances carried the total of $1,850,000 proposed bonded indebtedness. These ordinances fixed the election date at May 27, 1919. On April 14, 1919, the county court in anticipation of said election, made an order for a special registration of voters for said election, such registration to be held April 29 and 30, 1919.

On April 28, 1919, the city, pursuant to the provisions of section 8671, R. S. 1909, presented the ordinances to the judge of the circuit court and obtained from him a certificate to the effect that the total amount of said bonds could be issued without violating the Constitution of the state. The date of the issuance of the bonds was fixed as of July 15, 1919.

The election was held on May 27, 1919, each of the five propositions being voted upon separately. Each carried by an overwhelming vote, so that unless there are fatal defects in the proceedings, or that the proposed issue so increased the indebtedness of the city as to be violative of constitutional provisions, the bonds are valid. Of the objections in the course of the opinion, where the relevant facts can best be outlined.

I. It is urged that the notice of the election was not sufficient. The lower court held that the bonds were void by a general judgment for the plaintiffs. The particular grounds upon which the injunction against the issuance of the bonds was made are not specified. We are therefore left to grapple with the whole category of objections lodged in the petition, save and except such as have been abandoned here, or as might have been abandoned below, as indicated by the course of the trial. The statute which governs the publication of notice in this case is section 8672, R. S. 1909, which reads:

"After such certificate the city shall cause to be published, once each week for four consecutive weeks, in the newspaper at the time doing the city printing, the last insertion to be not more than five days prior to the time for election, a copy of such ordinance and certificate, with a proclamation, according to law, then an election will be held at the time appointed in the ordinance for the voters of the city to vote on the proposition for the issue of bonds as proposed by the ordinance."

The following admission was made of record:

"It is admitted in this case that the ordinances referred too in the petition and introduced in evidence were published on. April 29, 1919, May 5, 1919, May 12, 1919, May 19, 1919, and May 26, 1919, in the St. Joseph Gazette, the paper at the time doing the official printing for the city of St. Joseph."

It will be observed that there were five publications, the last of which was within five days of the election. The statute supra only requires four publications, "one each week for four consecutive weeks."

The point made is that under the law the ordinances did not become effective until May 2, 1919, and the city had no power before that date to act in any way thereunder.

St. Joseph is a city of the first class, of which we will take judicial knowledge. Concerning such cities we have section 8859, R. S. 1909, which, so far as applicable, reads:

"No ordinance passed by the council, except when otherwise required by the general laws of the state or by the provisions of this article, except an ordinance for the immediate preservation of the public peace, health or safety, which contains a statement of its urgency and is passed by a four-fifths vote of the council, shall go into effect before ten days from the time of its final passage."

This is the referendum statute for such cities, and the ordinances before us do not by their terms fall within the excepted classes named in this statute, unless the very face of the ordinances exempt them from this provision. These ordinances do not, in the language of the statute supra, contain "a statement of its urgency," although the vote in the council was unanimous, so far as the vote of the five present members show. By section 8548 the common council of cities of the first class shall consist of five members, so that there was a unanimous vote on these ordinances, and they might have come with in the excepted classes under section 8859, supra, had they contained the necessary recitation of "a statement of its urgency"; this purely on the theory that they were ordinary ordinances, and not ordinances of the character shown by their face.

In our judgment section 8859 has no reference to ordinances of the character here involved. As said, this is the referendum statute of cities of the first class. Its purpose was to have a reference to the voters upon an ordinance that would become effective at the date of its passage and approval, and the ten days was allowed for the purpose of the reference. But the ordinances before us are mere references to the people of the questions therein involved. They do not purport to be completed ordinances, for they themselves provide for a reference of their terms and the adoption of their terms and the questions by them submitted. They are ordinances only in a limited sense. They are really proposed ordinances for the ratification of the voters. When ratified by the voters, they become ordinances. They might be said to fall within that line of ordinances mentioned in said section 8859, supra, by the clause "except when otherwise required by the general laws of the state," if perchance this section covered proposed ordinances of this kind at all. We do not think that this section applies at all.

When the mayor signed these proposed ordinances, that branch of the legislative power had done all that could be done to make them effective. When the voters ratified them, they became finally effective, barring legislative or constitutional defects. The passage of such proposed ordinances was but the first step in the general plan to increase the indebtedness of the city. This step was complete upon the approval of the mayor, and all other steps could then be taken, in accordance with the proposed ordinances, as would be necessary, under the city charter, to complete the ordinances by a vote of the electorate. Under this view of the law there were five valid publications of the notice, and, if this be true, all objections as to the notice fails. Not only do the objections to the notice fail, but all objections to things done under the proposed ordinances from April 21st, the date of their approval by the mayor. We say this because, among other things, it is urged that the city was premature in presenting the ordinance to the circuit judge. We rule that the city had the right to act under these ordinances from and after their approval on April 21, 1919. This makes the first and all five of the publications valid, and the notice was good. We need not therefore rule upon the question urged that the last four publications made a legal notice.

H. What we have said in our paragraph 1, supra, disposes of most of the rubbish in the case, and leaves for consideration, but one or two vital questions. With our ruling all the alleged premature acts of the city under these ordinances disappear from the case. There is left at least the vital matter as to whether or not these bonds were beyond the constitutional limitations placed upon the city in the matter of incurring debts. This limitation is fixed by section 12 of article 10, of the Constitution, which said section says:

"No county, city, town, township, school district or other political corporation or subdivision of the state shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose; nor in cases requiring such assent shall any indebtedness be allowed to be incurred to an amount including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness."

Counsel do not disagree upon the question of there being this 5 per cent. limitation upon the city of St. Joseph. They do disagree as whether or not this total bond issue, when added to previous indebtedness, in fact exceeds this constitutional limit. And right here came in some questions of importance, first of which is the assessment to be considered as the basis for the calculation. The Constitution says that it must be not in excess of 5 per centum on the property in such city as shown "by the assessment next before the last assessment for state and county purposes, previous to the incurring of the indebtedness." And herein comes the question as to which is the proper assessment to be taken as...