State ex rel. Belt v. City of St. Louis , 161 Mo. 371 ( 1901 )

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. Poster, 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:

“199.84.

“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 Pred R. Belt, or-Ms assigns, to erect and maintain said boxes or receptacles, for tbe purpose aforesaid, without cost or expense to tbe city.

“Be it ordained by tbe municipal assembly of the city of St. Louis, as follows:

“Section 1. Tbe board of public improvements of tbe city of St. Louis is hereby authorized, directed and empowered to erect and maintain, at such convenient and suitable locations, upon tbe streets and public places of said city, as may, from time to time, be designated by said board, suitable boxes or receptacles for tbe collection, casting and temporary deposit of such waste paper or other litter as now are or are likely to be cast upon tbe streets or public places of said city, and to provide and arrange for tbe cleaning and keeping clean of such boxes and receptacles, and tbe removal of such waste paper and other litter, and to accomplish tbe purposes aforesaid, said board of public improvements is hereby authorized, directed and empowered to enter into a contract with Ered R. Belt, or bis assigns, for tbe exclusive right of said Belt, or bis assigns, to erect and maintain, at such convenient and suitable locations upon tbe streets and public places of said city as may be designated from time to time by said board, suitable boxes or receptacles for tbe collection, casting and temporary deposit therein of such waste paper or other litter as now are or are likely to be cast upon tbe streets or public places of said city, and to provide and arrange with said Belt, or bis assigns, for tbe cleaning and keeping clean of such boxes or receptacles, and tbe removal of such waste paper or other litter.

“Sec. 2. Tbe contract with said Belt or his assigns, is to be made for and during tbe full term of ten years, from and after the execution of tbe contract.

“Sec. 3. It shall be specified in said contract with said Belt, or bis assigns, that tbe said Belt or bis assigns, during tbe 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 Ered R. Belt or his assigns, during the lifetime of the franchise granted by this ordinance.

“Sec. 6. Said Ered 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 tbe 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 Ered 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 tbe approval of tbe 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, sees. 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; Verdin v. St. Louis, 131 Mo. 26.]

In City of St. Louis v. Gleason, 89 Mo. 67, a condemnation proceeding under a charter provision akin to this, came before this court and the counsel for the property-owners insisted that the judgment must be reversed because “the ordinance failed to show that it was passed upon the unanimous recommendation of the board of public improvements, or on the petition of the owners of the major part of the property fronting on the proposed street.” Citing article 6, section 2, of the S& Louis charter. This court unanimously ruled that the municipal assembly had no power to act, no jurisdiction over the subject-matter until directed by the board of public improvements or the owners of a major portion of the ground fronting on the proposed street. “Until such action was taken by the board of public works or the owners of the ground, there was no authority in the assembly to pass the ordinance.”

By section 7 of the same article 6, it is provided that “the board of public improvements shall recommend to the assembly ordinances for the repairing and cleaning of all streets, alleys and highways, and for the construction of crosswalks, and no ordinance therefor shall be passed without such recommendations.”

With this understanding, then, of the charter and the construction placed upon it by the courts, let us inquire, first, what is the purpose of the ordinance, No. 19984? Clearly it is two-fold: to clean the streets of “waste paper or other litter,” and to give Belt the exclusive right to use the boxes for advertising purposes for ten years.

The ordinance was not recommended by the board of public improvements and they deny the power of the assembly to pass and enforce it. If the ordinance provides for public work within the meaning of the charter, it must be held void. The cleaning of a public street is so obviously a public work that it requires no argument to make it more so. Unless the purpose was to rid the streets of an unseemly appearance by removing the loose paper and litter, no reason can be perceived why the assembly should have entertained the matter at all. If such was the purpose of the ordinance it involved a public duty and a public work, which the assembly sought to cast upon a public body, the board of public improvements. If the ordinance was not enacted to- subserve a public purpose, the assembly had no power or authority to impose the duty it did on the board of public improvements, whose functions are public. But as the charter required the board to recommend the ordinance, and prohibited the passage of an ordinance without its recommendation in the first instance, the ordinance was invalid for this, if for no other reason.

Counsel for relator, however, insists that the assembly is forbidden to contract for public work only when the work is to be paid for out of the city treasury, because section 28 of article 6 provides that “every ordinance requiring such work to be done shall contain a specific appropriation from the revenue fund,” and as this ordinance does not contemplate the expenditure of public funds, section II and 21 of article 6, ■do not apply to the ordinance in question.

We do not so construe section 28 of article 6. In our opinion, it was simply another limitation upon the assembly, and not upon section 21. Section 21 expressly prohibits the assembly from directly contracting for “any public work contemplated by this charter,” which necessarily includes the street cleaning mentioned in section II.

The purpose of the freeholders in thus restricting the < assembly is manifest and two-fold. They sought to create a board whose experience and ability would especially fit it for the duty of contracting for a vast system of public improvements and whose estimates should guide the assembly in entering upon them, and secondly, to guard against extravagance by requiring that before public work was ordered to be done, there should be expert estimates made thereof.

The argument of counsel for relator is strikingly similar to that of counsel in State ex rel. Dunn v. Barlow, 48 Mo. II. In that case a contract had been awarded to one Henry for lighting, cleaning and repairing the street lamps of St. Louis for one year. It was assigned to Dunn with the consent of the city and extended from year to year. At the time the contract was awarded, the charter did not require public work to be let to the lowest bidder,'but prior to the last renewal the charter was so amended. After the amendment the city entered into a new contract with one Zeider, and the comptroller having signed Zeider’s contract refused to countersign Dunn’s extension. Thereupon, Dunn brought a proceeding for mandamus in this court to compel the comptroller to countersign his contract. It was admitted there, as it must be here, that if Dunn’s contract was for public work, it violated tbe amended charter.

But it was insisted then, as it is now, by relator, that the charter did not apply to that particular contract. The argument is reported thus:

“The meaning of section 17, article 8, amended charter, approved March 4, 1870, is obvious: 1. The council shall not contract directly, but may contract indirectly, for work indicated in that section, after plans, profiles, estimates, advertisements and bids approved by the council. 2. But no work, improvement or repairs mentioned in that section is to be let out after advertisements and bids unless it be of nature to admit of plans, profiles and estimates of costs. That is perfectly clear. Section 18 enforces the same view wherein it says every ordinance requiring such work shall contain a specific appropriation from the proper revenue or fund, based on an estimate of cost. Now what is meant by such work? Evidently that of which profiles and plans may be made and submitted.”

This is precisely the same argument that is now made. Section 18 of the amendment of 1870 (now section 28) provides that every ordinance involving such work shall make an appropriation therefor, and requires plans and specifications to be prepared and an estimate of the cost made. It was argued in that case that the contract did not contemplate public work because the work to be done did not admit of plans and specifications, and that by section 18 only work that did so admit was public work. Here, it is said that the contract does not involve public work because the ordinance requiring it to be done does not contain an appropriation therefor, and that only work to be done under an Ordinance so requiring, is public work under the charter.

This court rejected the argument in Dunn’s case and held that, although that particular contract did not call for “plans, profiles, and estimates of cost,” the spirit of the ordinance and the amended charter required specifications and competitive bids and denied the assembly or city council the power to contract directly for such work.

Counsel cite State ex rel. v. St. Louis, 56 Mo. 277, but very candidly admit it is open to criticism, because it was ruled that the ordinance and amended charter required the city engineer to make the plans and estimates and let to the lowest bidder only when the work was to be done by the city and paid out of the city treasury, and did not require such plans, specifications and estimates and competitive bidding when the work was done by ordinance and contrac,t of the city to be paid by property-holders.

This distinction, if it can be so denominated, condemns the whole decision. In either case it was clearly public work, and if the principle of competitive bidding should ever be applied and enforced it is when the city makes public improvements at the expense of the owners of private property.

So in this ease, this provision of the charter in section 27, one of the most admirable and salutary in the charter, applies in full force. The cleaning of the streets had been especially confided to the board of public improvements. If deemed advisable to have boxes or receptacles for waste paper or litter, it was eminently proper that the board should specify the character, size and material out of which they should be made, and an estimate of the number to be required, and the contract should be let to the lowest bidder, and without these essential prerequisites no valid ordinance could be passed.

But there is another view to be taken of this ordinance. It subjects the public streets to a purely private purpose, to-wit, the advertising of individual business and enterprises. Can the city devote its streets to such a purpose? We hold that it can not. The charter gives the city power “to regulate the use of the streets.” Under this grant it may, it is true, not only regulate the travel thereon, but it may allow gas, water and sewer pipes to be laid therein and permit telegraph and telephone poles to be erected therein, because all of these uses are consistent with the use for which they are dedicated or condemned. [Schopp v. City of St. Louis, 117 Mo. 136.]

But it has been held by this court that the city has no power to lease out portions of the street for huckster stands and stalls. “The public highways belong from side to side and end to. end, to the public, and The public are entitled, not only to a free passage along the highway but to a free passage along any portion of it not in the actual use of some other traveler,’ and the abutting property-owner has the right to the free and unobstructed passage to and from his property.” [Schopp v. St. Louis, 117 Mo. 136-7; Sherlock v. Kansas City Belt Line, 142 Mo. 172; Knapp, Stout & Co. v. Railroad, 126 Mo. 26; Schulenburg v. Railroad, 129 Mo. 455.]

And it was held in Glaessner v. Brewing Co., 100 Mo. 508, that a franchise to lay a railroad track in a street must be for a public and not for private purposes. Referring now to the ordinance, it will be observed that it confers upon Belt the exclusive right to place advertisements on such boxes, for the benefit of himself and his assigns. In a word, the city has attempted to farm out its sidewalks and streets to a private person for advertising. Belt is free to make his own charges for advertising; no power is reserved to the city, even if it were a purpose to which it could devote the streets, to regulate the charges for advertisements.

The legislative authority of the city could not thus be delegated, nor could it abdicate its control over the public streets, held by it in trust for the public, and create a monopoly in favor of one advertiser. [Matthews v. Alexandria, 68 Mo. 115; Cooley on Const. Lim. (6 Ed.), 247-253; Gale v. Kalamazoo, 23 Mich. 344; Oakland v. Carpentier, 13 Cal. 540.]

But it is said that it is no objection to a public franchise that its owner may derive a private gain therefrom. This is unquestionably true when the use is public and the gain arises out of that use, such as street cars, telegraph and telephone lines. In this case, however, the pecuniary profits to Belt arise from a source wholly distinct from any public use. They will not flow naturally from his right to erect and maintain boxes for waste paper, but solely from a distinct privilege in which the public are not interested, to-wit, his exclusive right to use the streets for advertising purposes, a purely private and collateral enterprise.

We are clear that the streets can not be devoted to such a private purpose.

With what sort of propriety or fairness can the city farm out to Belt and his assigns the right to erect a box on a sidewalk, in front of a business house and not only thus deprive the proprietor, who has been compelled to construct the sidewalk and pay for improving the street in front of his premises, of the free access, ingress and egress from his store, but to advertise the goods of a rival in the same line of business ?

The question furnishes its own answer. The city had no such power.

We have considered the two paramount purposes of this ordinance separately, and our conclusion is that the cleaning of the streets is a public duty required to be accomplished by public work and the charter negatives the power of the assembly to directly contract therefor, but it must be first recommended by the board as required by the charter.

Second, the city has no power to let out the sidewalks and streets to a private person for advertising purposes, even though he should pay it a per cent of the property, and the combining of these two illegal purposes iu one ordinance does not make it valid.

The Julia Building case, 88 Mo. 258, State ex rel. v. Schweickhardt, 109 Mo. 496, and the Subway case, 145 Mo. 551, have no bearing on the questions here decided.

The Julia Building case and the Subway case were put upon the distinct ground that they were public uses, and the Schweickhardt case involved only the validity of an ordinance granting him the privilege of selling refreshments in Eorest Park. This court held that a park was a place devoted to amusement, comfort, and recreation of the public; that the power to regulate parks included the power to make all reasonable regulations to promote such objects.

II. This is a proceeding for a writ of mandamus to compel the board of public improvements to make a contract with Belt for the erection of boxes or receptacles in which to put waste paper and other litter on the streets.

The relative duties of the board and Belt are not defined in the ordinance save as to certain restrictions, but as the board have been denied their charter privilege and duty of making the necessary specifications and estimates, how can this court proceed to make the contract for the parties by commanding the board to contract for a certain number of boxes of a certain dimension and of certain material. Suppose Mr. Belt desires the boxes large enough to properly advertise a circus and the board should think such boxes would constitute an unsightly obstruction of the sidewalk, amounting to a nuisance to the merchant who does business in the abutting building, are we to determine it by our peremptory writ ?

We do not think the writ can be used to subserve such a purpose.

III. It remains only to consider the further contention that this is clearly a franchise legislation, and as thus construed it is not obnoxious the objection that it attempts to grant a monopoly of the advertising business in the streets of St. Louis, or that it is a grant of an exclusive privilege.

While its purpose was obviously to grant an exclusive privilege, and without this privilege the contract would be wholly undesirable and profitless, no intimation that such was its purpose is disclosed in its title, and it falls within the rule laid down by this court in Kansas City v. Payne, 71 Mo. 162, wherein it was aptly said, “The body of the bill expresses its object; the title disguises and conceals it.”

The city was,' moreover, without authority, as already said, to grant such a franchise.

The alternative writ must be held to have been improvidently granted, and it is therefore ordered quashed and the proceeding dismissed at the cost of relator.

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