Padberg v. Roos

FINCH, Judge.

This is an appeal from a declaratory judgment which held that two ordinances proposing charter amendments to the Charter of St. Louis County (herein referred to as the Charter) did not receive sufficient votes for passage and submission to a vote of the people.

Since March 1950, St. Louis County has been a charter county. Its Charter was adopted pursuant to the Constitution of Missouri, 1945, Article VI, Sections 18(a)-(l), V.A.M.S. Amendment is covered in Article VIII of the Charter. Section 82 thereof provides three methods of amendment. One of these, Section 82(2), is “By ordinance adopted by the Council and submitted to the voters at a general or special election and approved by a majority of those voting on the proposition.”

In September 1964, Ordinance 3345, proposing amendment of the Charter to make the office of County Highway Engineer appointive rather than elective, and Ordinance 3346, to amend by extending the merit system to certain employees, were introduced in the County Council, which is the governing and legislative body of the County. The ordinances received four yea and three nay votes, both were approved by the County Supervisor, the executive officer of the County, and then certified by the County Clerk -to the Board of Election Commissioners to be submitted to the voters on. November 3, 1964.

When the two ordinances were received by the County Board of Election Commissioners it took the position that the ordinances had not received a sufficient number of votes for passage and were invalid and should not be submitted to a vote of the people. The members of the Board instituted an action for declaratory judgment to determine whether or not the ordinances had been validly'passed for submission to the voters. The three Councilmen who had voted against the adoption of these two ordinances filed an answer, counterclaim and cross claim in which they asserted the invalidity of the ordinances. The County, the County Council and the County Supervisor filed an answer and a counterclaim seeking a mandatory injunction requiring the submission of the ordinances to a vote by the people. Our disposition of the case does not require a detailed recital of these rather complex pleadings.

A question was raised as.to the right of the Board of Election Commissioners to maintain this action. It is urged that they were acting in a ministerial capacity only in submitting these proposals to the voters and that they had no right to go behind the ordinances to test the validity of their passage. We are of the opinion that the Board was entitled to file and maintain this action. Civil Rule 87.02, V.A.M.R. and Section 527.020 (all references to statutes are to RSMo 1959, V.A.M.S.) specifically provide for declaratory relief with respect to municipal ordinances and questions of construction or validity thereof. The case of Kansas City v. McGee, 364 Mo. 896, 269 S.W.2d 662, involved a declaratory judgment action by Kansas City and its Mayor and Council against members of a committee who had filed an initiative petition with the Council. The question to be adjudicated was whether the City Council was justified in refusing to submit the proposal to the people for a vote. The court did decide the question presented and held that the initiative petition proposing such ordinance was fatally defective and need not be submitted to a vote as proposed in the initiative petition. We think it is clear that the trial court in this instance was correct in overruling the motion of appellants to dismiss the petition herein on the ground of lack of capacity of the Board to maintain the action.

There are seven members of the County Council. Appellants contend that these ordinances proposing charter amendments, fixing the form of ballot, and providing for submission of the charter amendments to a vote of the people require only a majority vote, which would be four affirmative votes. It is respondents’ contention that five votes were necessary for passage.

It will be noted that Section 82(2) provides simply for amendment by ordinance adopted by the Council (and the approval of the voters). The section does not specify the vote by which such amendment must be passed by the Council. If Section 82 had stated specifically, the number of votes required for passage, the section would have been complete within itself and there would have been no room for doubt. It does not so specify, however, and hence it is necessary to look elsewhere in the Charter to determine that question.

Appellants rely upon Section 13 of Article III of the Charter. It deals with ordinances and resolutions generally and includes the following; “An affirmative vote by a majority of the members of the entire Council shall be necessary to pass any ordinance or resolution except as otherwise provided in this charter.” Appellants maintain that this charter provision, which applies to ordinances generally, applied to and governed the vote required on the proposed charter amendments. Respondents, on the other hand, rely on Section 18 of Article III, which is as follows:

“Emergency ordinances shall require the affirmative vote of not less than five members of the Council and shall take effect immediately upon their enactment. Emergency ordinances shall be those ordinances relating to the following:

“(1) Calling an election or providing for the submission of any proposal to the people;

“(2) Appropriations for the support of the County government and the payment of principal and interest on the County’s debts;

“(3) Borrowing of funds in anticipation of taxes;

“(4) Fixing tax rates;

“(5) Amendments to the zoning ordinance, provided that a general revision of the zoning ordinance shall not be deemed to be an emergency ordinance;

“(6) The immediate preservation of the public peace, health, safety and welfare, in which ordinance the emergency has been declared.”

Respondents assert that the charter amendment ordinances provided for submission of these proposals to the people and fall within the language of Section 18(1), making them emergency ordinances which required five affirmative votes.

The question we must determine is whether passage of charter amending ordinances referred to in Section 82 contemplates passage by majority vote as provided for ordinances generally in Section 13 or whether they are to be treated as emergency ordinances under Section 18, thus necessitating five affirmative votes. This involves first a determination of whether provisions of the Charter relating to emergency ordinances are even applicable to the process of charter amendment, and secondly whether, if applicable, these ordinances were in fact emergency measures. Of these in order:

What is the nature of the act of a legislative body in proposing constitutional amendment? Do procedural requirements specified in the constitution (or charter) with respeet to legislation generally apply to the handling of proposed constitutional amendments ? Do provisions such as ones for all acts or resolutions to be submitted to the executive officer for approval or veto, ones specifying the number and times of reading, and ones as to the title requirements of the statute being considered apply to the constitution amending process?

Exactly this question arose in the early case of Hollingsworth et al. v. State of Virginia, 3 Dall. 378, 1 L.Ed. 644, decided in 1798. It involves the question of whether the Eleventh Amendment to the Constitution of the United States had been adopted. This amendment had been proposed by two-thirds of both the Senate and House of Representatives pursuant to Article V of the Constitution and subsequently had been ratified by the required number of states. The attack on the amendment was on the basis that Article I, Section 7, of the Constitution also was applicable and had not been followed. That section provides, in part, as follows:

"Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall he presented io the President of the United States; and before the Same shall take Effect, shall'be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.” (Emphasis supplied.)

It was pointed out that the Resolution, following passage by both houses of Congress, had not been submitted to the President of the United States, pursuant to said Section 7 of Article I which specified that every order, resolution, or vote (except on a question of adjournment) should be so submitted. When the case was argued in the Supreme Court of the United States and this proposition was advanced, Mr. Justice Chase stated, “There can, surely be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition, or adoption, of amendments to the Constitution.” The court, in a unanimous opinion, held that the Eleventh Amendment was constitutionally adopted, thereby establishing the principle that when a legislative body is acting in a constitution making rather than a legislative capacity, the provisions of the Constitution relating to requirements applicable to legislation do not apply.

This same basic principle has been followed in the decisions of this state. In State ex inf. McKittrick, Atty. Gen. ex rel. Ham v. Kirby et al., 349 Mo. 988, 163 S.W.2d 990, this court considered the validity of an amendment to the Charter of the City of St. Louis. The Board of Aldermen had proposed an ordinance entitled: “An Ordinance submitting a proposed amendment to the Charter of the City of St. Louis to the qualified voters of the city, and providing for an election to be held therefor, and for the manner of voting thereat, and for the publication of this ordinance.” Section 13 of Article IV of the Charter of the City of St. Louis provided that, “No bill, except a general appropriation bill, which shall only embrace matters on account of which moneys are appropriated, shall contain more than one subject, which shall be clearly expressed in its title.” (Emphasis supplied.) It was contended that the ordinance proposing the charter amendment “was invalid because the title did not specify the contents of the proposed amendment.” This court then said, 163 S.W.2d 1. c. 993: “We are therefore confronted with the question as to whether the requirements of the charter applying to the titles of ordinary ordinances have any application to the titles of ordinances, resolutions or other legislative actions submitting to the voters a proposed charter amendment.” The court points out that the Charter provision of the City of St. Louis for initiation of amendments, followed by a vote of the people, was similar to the method contained in the Missouri Constitution and in the constitutions of a majority of the states. The court then observes, 163 S.W.2d 1. c. 993: “In construing such provisions it has been universally held that the legislature, in proposing an amendment, is not exercising its ordinary legislative power but is acting as a special organ of government for the purpose of constitutional amendment. State ex rel. [City of Memphis] v. Hackman, 273 Mo. 670, 202 S.W. 7; Edwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; People ex rel. [Stewart] v. Ramer, 62 Colo. 128, 160 P. 1032; State v. American Sugar Refining Co., 137 La. 407, 68 So. 742; Re Opinion of the Justices, 118 Me. 544, 107 A. 673, 5 A.L.R. 1412. In the Lesueur case we held that the constitutional requirement applying to ordinary bills that they be read three times before final passage did not apply to a joint and concurrent resolution submitting a constitutional amendment.¹ In Cooney v. Foote, 142 Ga. 647, 83 S.E. 537, Ann.Cas. 1916B, 1001, it was directly held that the constitutional requirement in regard to the title of legislative bills had no application to joint and concurrent resolutions submitting constitutional amendments.”² The court held that the charter provision relative to the title to all bills had no relation to charter amendment.

The case of State ex rel. Jones v. Atter-bury, Mo:, 300 S.W.2d 806, did not involve the constitution making or amending'process, but it does illustrate further the fact that constitutional provisions dealing with legislative activity.are limited to acts of the Legislature performed in its legislative capacity and do not apply to actions when the Legislature is acting in a nonlegislative capacity. The Atterbury case involved mandamus to compel the Comptroller to approve expenses incurred by an interim legislative committee member. A joint committee on juvenile delinquency was created by a concurrent resolution adopted by both houses of the General Assembly. The validity of the resolution was attacked on the basis that its adoption was in violation of provisions of the Missouri Constitution because the resolution was not presented to the Governor for his consideration and was not proceeded upon as in the case of a bill. Specifically, it was contended that Article III, Section 31,³ and Article IV, Section 8,⁴ were violated.

The court discusses the history of these provisions and concludes that joint resolutions, as that term is used in Article III, Section 31, and concurrent resolutions, as used in Article IV, Section 8, are those resolutions which have the force and effect of law. The court then concludes that the concurrent resolution in question was administrative or procedural in character, that it did not have the force and effect of law, and that its submission to the Governor was not required by the constitutional provisions in question. In so holding, this court recognized that while the two constitutional provisions used general, all inclusive language, they pertained only to acts of the Legislature when acting in its legislative capacity. This is in harmony with the earlier decisions in Missouri hereinbefore discussed and with the conclusion of the Supreme Court of the United States in the Hollingsworth case wherein such provisions (presentation to the executive for signature, having a proper title, reading the resolution on three different days, etc.) were held to have no application to resolutions or proposals to amend the Constitution.

The Charter of St. Louis County is before us in this case and we observe that Section 16 of Article III provides that all ordinances passed by the Council shall be submitted to the County Supervisor, who is the executive officer of the county. It provides a right of veto and for a method of passing ordinances over the veto of the Supervisor. It would seem obvious, under the doctrine of Hollingsworth, Lesueur, Kirby and Atterbury, that this section has application to legislation making but would not apply to the process of amending the Charter. This is true even though the section uses the language “all ordinances.” It appears that the County Supervisor did in fact affix his signature to the two ordinances proposing the charter amendments but this was unnecessary. If he had not approved them (whether not submitted to him at all or he vetoed) this would not have affected the validity of the proposed charter amendments. Such provisions as Section 16 apply only to the legislative process. The earlier cases discussed eompel this conclusion. We could not decide otherwise without overruling those cases.

We also observe that Section 17 of Article III of the Charter specifies the effective date for all ordinances other than emergency measures (unless a notice of intention to circulate referendum petitions is filed in the manner prescribed, in which event the effective date of the ordinances is postponed for a period of time to permit circulation and filing of referendum petitions). This provision relative to suspension for referendum likewise is not applicable to the constitution making process. This is the necessary result of our holding in State ex rel. Tate v. Sevier, 333 Mo. 662, 62 S.W.2d 895, 87 A.L.R. 1315. The General Assembly had passed a bill calling an election for the purpose of electing delegates to a state convention to vote upon ratification of a proposed amendment to the Constitution of the United States. A petition was filed with the Secretary of State asking that said bill be referred to the people for their approval or rejection as provided by the referendum provisions of the Constitution and statutes of Missouri. The Secretary of State refused to accept the petition and a proceeding in mandamus was filed to compel him to accept the filing. In denying the writ of mandamus, Judge Frank, speaking for this court en banc, pointed out that the Legislature in this activity in connection with ratification of a proposed amendment to the federal Constitution was not acting in a discharge of its legislative duties. The court then said, 62 S.W.2d 1. c. 898: “It therefore follows that when the Legislature enacted House Bill 514, which provides the method for assembling a convention, it was not, strictly speaking, performing the functions of a legislative body for the state, but was acting as a representative of the people, pursuant to authority delegated to it by the federal Constitution to provide a method for obtaining and assembling conventions to represent the people in ratifying or rejecting proposed amendments to the federal Constitution. Such enactment was, therefore, not lawmaking for the state, and for that reason is not subject to the referendum.

“Without doubt the enactment of House Bill 514, providing for the assembling of the convention, was but a necessary preliminary step preparatory to the final action of the state acting through the convention. If the final action of the convention is not a legislative act, it must logically follow that a preliminary step preparatory to such final action is not a legislative act. It is a familiar adage that the whole is not different from the parts of which it is composed. Under any view of the case, House Bill 514 is not an act of the legislative assembly within the meaning of the referendum provisions of the state Constitution, and for that reason is not subject to the referendum.”

By the same reasoning, the action of the people in voting on proposed charter amendments would not be a legislative act, and consequently the preliminary step of proposing such constitutional amendments and providing for a vote thereon by the people would not be a legislative act and would not be subject to referendum. This is consistent with the decisions in the Lesueur, Kirby and Atterbury cases.

Section 18 of Article III of the Charter, the section relied on by respondents, deals with emergency ordinances. Does it apply to constitution making or merely to legislation? The very reason for emergency legislation is a manifest necessity for immediate legislative change. This is the basis for making the legislation effective at once rather than after the usual delay between passage and effective date (this also involves preventing the greater delay involved in referendum of legislative proposals). As stated in 82 C.J.S. Statutes § 401c, page 965, “Broadly speaking, an emergency justifying the legislature in making a statute effective on its passage consists in an unforeseen combination of circumstances calling for immediate action to preserve the public peace, health, or safety, or to support the state or its existing institutions.”

The two charter amendments proposed by ordinance dealt with making the office of County Highway Engineer appointive rather than elective, and extending the merit system to certain employees. These amendments could not become effective unless and until approved by a vote of the people. This is true of every charter amendment proposed by ordinance. It cannot become effective immediately. It is simply the preliminary step in the process of charter amendment. It initiates a proposal on which the electorate will decide. It is for this reason that this court consistently has held that such acts by the legislative body need not comply with constitutional title requirements for legislation, need not comply with constitutional requirements as to a particular number of readings, and need not even comply with constitutional provisions that legislative acts be presented to the executive officer for his approval or veto. Likewise, the section of the charter dealing with emergency legislation is not germane to the constitution amending process. The action of the legislative body simply is the initial step therein. No new law dealing with some emergency exists after the legislative body has enacted the amendment proposal. This conclusion is not the enunciation of any new. doctrine or principle. It merely applies what this court has stated over a long period of our state’s history in the Lesueur, Kirby, Atterbury and Sevier cases, as well as the principle of Hollingsworth v. State of Virginia.

Even if we assume and hold that Section 18 is applicable to the charter amending process, we still conclude and hold that the two ordinances were adopted and should have been submitted to a vote of the people. The ordinances must be emergency ordinances to fall within the terms of Section 18. This court has held repeatedly that the question of whether a legislative act is in fact an emergency measure is a judicial question, not a legislative one. Such cases have involved both statutes and ordinances. State ex rel. Asotsky et al. v. Regan, 317 Mo. 1216, 298 S.W. 747, 55 A.L.R. 773; State ex inf. Taylor, Atty. Gen., ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762; Inter-City Fire Protection District of Jackson County v. Gambrell, 360 Mo. 924, 231 S.W.2d 193; State ex rel. City of Charleston v. Holman, Mo., 355 S.W.2d 946.

There was no evidence offered by respondents to show that these two ordinances were emergency matters. The ordinances themselves contained no language or statement of emergency or even that an emergency measure was intended. There is nothing in the subject matter of either ordinance which even suggests any emergency. One transfers some employees to the merit system. The other changes an office from an elective to an appointive status. It is hard to imagine anything less emergency in nature. Respondents rely solely on the provisions of Section 18 to make these emergency ordinances. Expressed as a syllogism, their position is: Every ordinance submitting something to a vote of the people is an emergency ordinance under Section 18; Ordinances 3345 and 3346 submit matters to a vote of the people; therefore Ordinances 3345 and 3346 are in fact emergency ordinances. Such a conclusion is at variance with the doctrine that the determination of whether a legislative act is in fact emergency in nature is judicial. We must conclude that these two charter amending ordinances were not in fact emergency measures.⁵ Not being such, they required only four votes for passage under Section 13. In reaching this decision we have considered the Asotsky and North Kansas City cases, supra, cited and relied on by respondents. Asotsky involved a cigarette tax measure and whether it was subject to referendum. The North Kansas City case did involve an ordinance calling an election in connection with a proposed annexation of property which both Kansas City and North Kansas City sought to annex. Both cases recognize that whether a legislative act is in fact emergency is a judicial question. We will not undertake to compare and distinguish. We hold simply, that nothing in either decision leads us to the conclusion that either Ordinance 3345 or 3346 was in fact emergency in nature.

The judgment is reversed and remanded and the trial court is directed to dismiss plaintiffs’ petition and the counterclaim and cross claim of defendants O’Hara, Osborn and Martin. It is directed further to issue its mandatory injunction, prayed for in the counterclaim of appellants, directing plaintiffs, the members of the Board of Election Commissioners of St. Louis County, Missouri, to submit the charter amendments proposed by Ordinances 3345 and 3346 to the voters of St. Louis County, Missouri, at the general election to be held on November 8, 1966.

STORCKMAN, C. J., and HYDE and EAGER, JJ., concur. DONNELLY, J., dissents in dissenting opinion filed. HOLMAN and HENLEY, JJ., dissent and concur in dissenting opinion of DON-NELLY, J.

1 . The Lesueur ease was one in which this eourt considered a suit by a property owner to enjoin the Secretary of State from submitting to the voters of the state a proposed constitutional amendment whereby the seat of government would have been moved from Jefferson City to Sedalia. The resolution had received a majority vote hut it had not been read on three different days in each house of the General Assembly. As the quotation from the Kirby case indicates, this court held in the Lesueur case that the requirement of three readings required by the Constitution did not apply to a resolution proposing a constitutional amendment and that it had been validly passed and should be submitted to a vote of the people.

2 . For cases from other states. containing helpful discussions of this principle that constitutional provisions dealing with legislative requirements are not applicable to acts by the Legislature when acting in its constitution making capacity, see the cases of Commonwealth ex rel. Atty. Gen. v. Griest, 196 Pa. 396, 46 A. 505, 50 L.R.A. 568, and Hutcheson v. Gonzales, 41 N.M. 474, 71 P.2d 140.

3 . Article III, Section 31, reads as follows: “All bills and joint resolutions passed by both houses shall be presented to and considered by the governor, and within fifteen days after presentation he shall return them to the house of their origin endorsed with his approval or accompanied by his objections. If the bill be approved by the governor it shall become a law. When the general assembly adjourns, or recesses for a period of thirty days or more, the governor may return within forty-five days any bill or resolution to the office of the secretary of state with his approval or reasons for disapproval.”

4 .Article IV, Section 8, reads as follows: “Every resolution to which the concurrence of the senate and house of representatives may be necessary, except on questions of adjournment, going into joint session, and of amending this constitution, shall be presented to the governor, and before the same shall take effect, shall be proceeded upon in the same manner as in the case of a bill; provided, that no resolution shall have the effect to repeal, extend, or amend any law.”

5 . For eases in which more pressing matters were held not to be emergencies, see State ex rel. State Highway Commission v. Thompson, 323 Mo. 742,19 S.W.2d 642; Fahey v. Hackmann, 291 Mo. 351, 237 S.W. 752; State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S.W. 327; State ex rel. City of Charleston v. Holman, Mo., 355 S.W.2d 946.