The State ex rel. Belt v. City of St. Louis

• Decision Date: 26 March 1901
• Citation: The State ex rel. Belt v. City of St. Louis, 61 S.W. 658, 161 Mo. 371 (Mo. 1901)
• Parties: THE STATE ex rel. BELT v. CITY OF ST. LOUIS et al
• Court: Missouri Supreme Court

61 S.W. 658

161 Mo. 371

THE STATE ex rel. BELT v. CITY OF ST. LOUIS et al

Supreme Court of Missouri

March 26, 1901

Alternative writ quashed.

G. B Webster for relator.

Herman A. Haeussler, Arthur B. Shepley and Charles S. Reber for respondents.

(1) The ordinance in controversy is invalid because it requires the board of public improvements to make a contract with relator which involves public work.Sec. 27, art. 6, charter of St Louis;State ex rel. v. Barlow,48 Mo. 16;Cole v. Shrainka,37 Mo.App. 427, 433.(2) Said ordinance is invalid because it undertakes to grant to relator the right to use the streets for a private purpose.Matthews v Alexander,68 Mo. 115;Glasgow v. St. Louis,87 Mo. 678;Cummings v. St. Louis,90 Mo. 259;Glaessner v. Brewing Association,100 Mo. 508;Scopp v. St. Louis,137 Mo. 537;Coal Company v. Coal Company,62 Mo.App. 93.(3) Said ordinance is void because it contains more than one subject.Sec. 13, art 3, charter of St. Louis;State v. Lafayette County,41 Mo. 39;State v. Persinger,70 Mo. 346;City of Kansas v. Payne,71 Mo. 162;State v. Jackson County,102 Mo. 531;State v. County Court,128 Mo. 441;Wittman v. Railroad,131 Mo. 612;State v. Heege, 135 Mo. 112.

GANTT, J. Burgess, C. J., Robinson, Brace and Valliant, JJ., concur, Sherwood and Marshall, JJ., dissent.

OPINION

In Banc

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, and16.]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....