Stemmler v. Einstein

• Decision Date: 10 December 1956
• Docket Number: No. 45806,45806
• Citation: 297 S.W.2d 467
• Parties: George L. STEMMLER, Mrs. Conrad Sommer, C. B. Broussard, Frederick E. Busse, John F. X. Callanan, David M. Grant, Ralph A. Kinsella, Mel H. Krah, John J. Nally, Henry B. Pflager, William A. Webb and Frank L. G. Weiss, as Members of the Charter Board of Freeholders of the City of St. Louis, Missouri, Relators, v. Major B. EINSTEIN, as a Member of the Charter Board of Freeholders of the City of St. Louis, Missouri, and as the Chairman of the Committee on Employees, Supplies and Budget of the Charter Board of Freeholders, Respondent.
• Court: Missouri Supreme Court

Page 467

297 S.W.2d 467

George L. STEMMLER, Mrs. Conrad Sommer, C. B. Broussard,

Frederick E. Busse, John F. X. Callanan, David M. Grant,

Ralph A. Kinsella, Mel H. Krah, John J. Nally, Henry B.

Pflager, William A. Webb and Frank L. G. Weiss, as Members

of the Charter Board of Freeholders of the City of St.

Louis, Missouri, Relators, v. Major B. EINSTEIN, as a Member of the Charter Board of

Freeholders of the City of St. Louis, Missouri, and as the

Chairman of the Committee on Employees, Supplies and Budget

of the Charter Board of Freeholders, Respondent.

No. 45806.

Supreme Court of Missouri, En Banc.

Dec. 10, 1956.

Rehearing Denied Jan. 14, 1957.

Dissenting Opinion Jan. 22, 1957.

Richmond C. Coburn, Thomas L. Croft, William B. Eldridge, St. Louis, for relators.

Dan P. Reardon, Joseph G. Stewart, St. Louis, for respondent.

HOLLINGSWORTH, Judge.

This is an original proceeding in mandamus. Relators, being twelve of the members of a Board of (thirteen) Freeholders of the City of St. Louis elected to prepare and submit a new or revised charter to the qualified voters of said city, seek our peremptory writ commanding respondent Einstein, the remaining member of said Board and chairman of one of its committees, to approve and certify a voucher for the sum of $500 in payment of an allegedly valid indebtedness of the Board to Governmental Research Institute for services rendered by the latter. Respondent challenges the authority of the Board to enter into a contract for such services and asserts that he might be exposed to criminal prosecution and civil liability if he should approve a voucher issued in payment of the questioned indebtedness. ¹

The issue presented by the pleadings requires us to determine a question that has become a matter of urgent public interest, to wit: whether, under the provisions of Sections 31-33, Article VI, of the Constitution of Missouri, V.A.M.S., the City of St. Louis is authorized or required to include, in a proposed new or revised charter, provisions for the exercise of county government, as set forth in Sections 18(a) to 18(l), Article VI, which authorize counties having more than 85,000 inhabitants to frame and adopt charters for their own government.

The cause was briefed, orally argued and submitted upon an agreed statement.

According to the last decennial census of the United States, the City of St. Louis has a population of 856,800. On January 23, 1956, its duly enacted Ordinance No. 47,690 was approved and became effective. Pursuant to the provisions of that ordinance, the aforesaid Board of Freeholders, on May 8, 1956, was elected by the qualified voters of the City 'to prepare a new or revised Charter of said city, * * * all as provided for by Section 32, Article VI of the Constitution of the State of Missouri'. The ordinance also provided that the new or revised charter should be completed within one year of the date of election of the Board.

Following its election, the Board organized, elected relator Stemmler as chairman of the Board and respondent was appointed chairman of the Committee on Employees, Supplies and Budget. Rules were adopted governing the meetings and operations of the Board and the City appropriated the sum of $50,000 for salaries, counsel, personnel, materials and expenses of the Board in the performance of its duties. Relator Stemmler, as chairman of the Board, and respondent Einstein, as chairman of the Committee on Employees, Supplies and Budget, were authorized to approve and certify by their joint signatures all expenditures of the Board.

On July 6, 1956, the Board, by resolution duly adopted, directed its chairman to instruct Governmental Research Institute to prepare and present to the Board 'for its consideration proposed charter provisions relating to the number, kinds, manner of selection, terms of office and salaries of all county officers, other than judicial officers, including the following: Circuit Attorney, Clerk of the Circuit Court, Clerk of the Circuit Court for Criminal Causes, Clerk of the Court of Criminal Correction, Clerk of the Magistrates Court, Collector of Revenue, Constables, Coroner, License Collector, Prosecuting Attorney, Public Administrator, Recorder of Deeds, Sheriff and Treasurer, and relating to the powers and duties of the same'; and directed that the sum of $500 be paid to the Institute as a fee for such services. Upon the adoption of the resolution, respondent, who had abstained from voting thereon, advised the Board that there might be a legal question as to its power and authority to enact charter provisions dealing with the so-called 'county offices' and that he was in doubt as to whether he could legally approve the expenditure and requested that he be furnished an opinion by the Board's counsel as to his rights, duties and personal risks, if any, in this connection. The chairman directed the Board's counsel to furnish respondent with such an opinion. On July 10, 1956, Governmental Research Institute presented its bill for services in the amount of $500. On the same date, a City of St. Louis departmental disbursement voucher, covering the payment of said bill, was presented to the chairman of the Board. The voucher was in standard form, was prepared for the signatures of Stemmler as chairman of the Board and respondent as chairman of the Committee on Employees, Supplies and Budget, and embodied a certificate that the account amounting to $500 was correct and the expenditure authorized and necessary. Stemmler signed the voucher and at the regular meeting of the Board of Freeholders on July 13, 1956, called upon respondent to approve, certify and sign the voucher. Respondent, however, refused to do so and still so refuses, basing his refusal upon the written opinion of the Board's regular counsel dated July 10, 1956, which advised respondent that by such action he might expose himself to personal liability of both a criminal and civil nature.

Due to the urgency of an early determination of the issue, we waived the provisions of our Rule 1.23, 42 V.A.M.S. See State ex rel. Cole v. Matthews, Mo., 274 S.W.2d 286. And we have concluded that the facts above recited justify the exercise of our jurisdiction to determine the case on the merits. Section 4, Article V, of the Constitution; State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75.

Since the adoption of the Constitution of 1875, the City of St. Louis, by virtue of the provisions of Sections 20-26, Article IX, thereof, has been invested with and has exercised the powers of both a city and county, with the same power reserved over it by the General Assembly, however, under Section 23 of said Article, that it had over other cities and counties of the State. And such of its officers as have performed the functions and duties generally exercised by county officers have been held to be county officers and subject to the general laws of the State relating to the selection and duties of county officers, as distinguished from municipal officers. State ex rel. Walker v. Bus, 135 Mo. 325, 36 S.W. 636, 639, 33 L.R.A. 616; State on inf. of McKittrick v. Dwyer, 343 Mo. 973, 124 S.W.2d 1173, 1174-1176. It is also provided in Section 1.080 RSMo 1949, V.A.M.S. ² , that whenever the word 'county' is used in any law general in character to the whole State, it shall be construed as applicable to the City of St. Louis unless such a construction be inconsistent with its evident intent or some law specially applicable to the city. But, although it constitutes a legal subdivision of the State and exercises such governmental functions as are generally exercised by the one hundred fourteen counties of this State, the City of St. Louis is not legislatively classified as a county, but as a city. Section 46.040. And the framers of the 1945 Constitution declared in Section 1 of Article VI that the 'existing counties' were 'recognized as legal subdivisions of the state'.

Article VI of the Constitution of 1945 sets forth three instances in which local government may be enjoyed by cities and counties in this State. One of them is of general application to counties of more than 85,000 inhabitants, one is of general application to cities of more than 10,000 inhabitants, and one applies exclusively to the City of St. Louis. They are:

(1) Sections 18(a) to 18(l) are entirely new and novel in that they, for the first time in this State, authorize 'any county having more than 85,000 inhabitants' to frame and adopt and amend a charter for its own government and provide that upon adoption of such a charter such county shall be a body corporate and politic. Section 18(b), which relators contend empowers the Board to adopt provisions for the exercise of county government by the city and to contract the $500 item of alleged indebtedness here in question, provides: 'The charter shall provide for its amendment, for the form of the county government, the number, kinds, manner of selection, terms of office and salaries of the county officers, and for the exercise of all powers and duties of counties and county officers prescribed by the constitution and laws of the state.' However, the number and qualification of the members of the Board of Freeholders provided for in Sections 18(f) and 18(g) and the method of their selection differ materially from those provided in Section 32(b), under which the city proceeded. ³

(2) Section 19, not new in substance, except that the figure of '10,000' has been substituted for '100,000', authorizes any city having more than 10,000 inhabitants to frame and adopt a charter consistent with and subject to the constitution and laws of the State, and provides a procedure that is different in its details from that followed by the city in the instant matter.

(3) Sections 31-33 deal exclusively with the power of the City of St. Louis to establish local self-government:

Section 31 provides: 'The City of St. Louis, as now existing, is...