Mandamus.
GANTT
J.
This is
an original proceeding of mandamus instituted in this court
to compel the board of public improvements of the city of St.
Louis to enter into a contract with relator for the erection
and maintenance, for ten years, of boxes to be placed in the
streets of said city, to be used by relator for advertising
purposes, and by the
city of St. Louis for the purpose of holding any waste paper
that might be thrown on said streets. On the return of the
writ respondents, city of St. Louis and Emory S. Foster,
filed returns, alleging, among other matters, that they were
not proper parties to the suit. On the same day the remaining
respondents, the board of public improvements of St. Louis,
filed a motion to quash the alternative writ for the reason
that relator's petition failed to state facts which
entitled him to any relief, thus raising at once the question
as to the validity of the ordinance set forth in his
petition.
The
ordinance, which relator claims imposes a plain, legal duty
on said board, which duty it has refused to perform, is as
follows:
"19984.
"An ordinance authorizing, directing and empowering the
board of public improvements of the city of St. Louis to
erect and maintain, at convenient and suitable locations upon
the streets and public places of said city, boxes or
receptacles for the collection, casting and temporary deposit
therein of such waste paper or other litter as now are or are
likely to be cast upon said streets or public places, and to
contract with Fred R. Belt, or his assigns, to
erect and maintain said boxes or receptacles, for the purpose
aforesaid, without cost or expense to the city.
"Be
it ordained by the municipal assembly of the city of St.
Louis, as follows:
"Section
1. The board of public improvements of the city of St. Louis
is hereby authorized, directed and empowered to erect and
maintain, at such convenient and suitable locations, upon the
streets and public places of said city, as may, from time to
time, be designated by said board, suitable boxes or
receptacles for the collection, casting and temporary deposit
of such waste paper or other litter as now are or are likely
to be cast upon the streets or public places of said city,
and to provide and arrange for the cleaning and keeping clean
of such boxes and receptacles, and the removal of such waste
paper and other litter, and to accomplish the purposes
aforesaid, said board of public improvements is hereby
authorized, directed and empowered to enter into a contract
with Fred R. Belt, or his assigns, for the exclusive right of
said Belt, or his assigns, to erect and maintain, at such
convenient and suitable locations upon the streets and public
places of said city as may be designated from time to time by
said board, suitable boxes or receptacles for the collection,
casting and temporary deposit therein of such waste paper or
other litter as now are or are likely to be cast upon the
streets or public places of said city, and to provide and
arrange with said Belt, or his assigns, for the cleaning and
keeping clean of such boxes or receptacles, and the removal
of such waste paper or other litter.
"Sec.
2. The contract with said Belt or his assigns, is to be made
for and during the full term of ten years, from and after the
execution of the contract.
"Sec.
3. It shall be specified in said contract with said Belt, or
his assigns, that the said Belt or his assigns, during the
term aforesaid, shall erect, renew and maintain said boxes or
receptacles at all such locations upon any of
the streets and public places of said city, as may, from time
to time, be designated by said board of public improvements,
without cost to said city for the erection or maintenance of
said boxes or receptacles, or for keeping said boxes and
receptacles clean.
"Sec.
4. That for and in consideration and as full compensation to
said Belt, or his assigns, for erecting, maintaining and
keeping clean all said boxes or receptacles, said Belt, or
assigns, are to have and possess all waste paper and other
litter cast and deposited in said boxes or receptacles, and
are also to have the exclusive right and privilege to place
advertisements on such boxes or receptacles, for the benefit
of himself or assigns; provided, however, that no
advertisement which is of an immoral or disreputable
character shall be placed thereon; and provided that all
advertising signs shall be made of tin or other metal, and no
bill or advertisement on paper is to be posted upon said
boxes or receptacles; and provided, further that no
advertisement of any kind shall be placed on any of said
boxes or receptacles until the same shall have first been
submitted to and approved by the board of public improvements
of said city.
"Sec.
5. In consideration of the granting of the privileges
aforesaid to said Belt, or his assigns, said Belt, for
himself and his assigns, agrees, during the continuance of
the contract provided for as aforesaid, to submit a quarterly
statement to the register of the city of St. Louis, showing
the amount collected in each quarter for the advertisements
placed on said boxes or receptacles, and to pay into the city
treasury of the city of St. Louis, at the end of each
quarter, fifteen per cent of the gross receipts received by
the said Fred R. Belt or his assigns, during the lifetime of
the franchise granted by this ordinance.
"Sec.
6. Said Fred R. Belt, or his assigns shall, in connection
with said contract, give his or their bond in the penal sum
of five thousand dollars, with two or more sureties, to be
approved by the mayor and council, conditioned
for the observance of all said terms, provisions and
conditions, and for the prompt submission of said quarterly
statement, and the prompt payment of all sums of money herein
by him and his assigns agreed to be paid.
"Sec.
7. Where a remonstrance is filed by a majority of the
residents of any block or blocks in the city against the
erection of any box or boxes, as described in this ordinance,
then it shall be unlawful to place
said box or boxes, on said block or blocks.
"Sec.
8. If said Fred R. Belt, or his assigns, shall fail to make
true and correct returns of receipts as aforesaid, or shall
fail to keep said boxes in a sanitary condition to the
satisfaction of the street commissioner, or shall fail to
clean out said boxes daily, he shall forfeit all rights
granted herein.
"Approved
March 19, 1900."
I.
The validity of the ordinance requiring the board of public
improvements to enter into the contract, with relator, Belt,
for the exclusive right to erect and maintain boxes, to be
placed upon the streets and public places of St. Louis for
the collection and temporary deposit of waste paper and other
litter, must be determined by the charter of St.
Louis.
So much
of section 27 of article 6 of the charter as is pertinent to
this inquiry, is in these words:
"The assembly shall have no power directly to contract
for any public work or improvement, or repairs thereof,
contemplated by this charter, or to fix the price or rate
therefor; but the board of public improvements shall, in all
cases, except in case of necessary repairs requiring prompt
attention, prepare and submit to the assembly estimates of
cost of any proposed work, and, under the direction of the
ordinance, shall advertise for bids as provided for purchases
by the commissioner of supplies, and let out said work by
contract to the lowest responsible bidder,
subject to the approval of the council. Any other mode of
letting out work shall be held as illegal and void."
This
article of the charter had been considered by the St. Louis
Court of Appeals in Cole v. Skrainka, 37 Mo.App.
427, in an opinion by Judge Rombauer, in which he says:
"The board of public improvements of the city of St.
Louis are the agents of the city in regard to all street
improvements. All ordinances for such purposes must emanate
from the board. [R. S. 1879, p. 1608, secs. 14, 15, and 16.]
The assembly had no power to contract either directly or
indirectly for any public work. [Sec. 27, p. 1610, R. S.
1879.] The ordinances are all framed by the board . . . It is
an initial and necessary step of the contract," etc.
Judge
Bond dissented upon another point, and that case came to this
court and the opinion of Judge Rombauer was affirmed.
[Cole v. Skrainka, 105 Mo. 303, 16 S.W. 491;
Verdin v. St. Louis, 131 Mo. 26, 33 S.W....
