*1 City Cоrporation; Louis, Municipal St. Baum v. Clarence Joseph L. Moore, Hannauer, Charles James A. Waechter, Stephan of Wagner, Election Commissioners M. Henry of St. Louis Treasurer of Menne, Louis; Louis, Defendants, Comptroller City of St. Nolte, Louis Gray, Dieterle, Mrs. Catherine Cox, F. J. William Claud C. (2d)W. Soffer, Appellants 48. Max O’Tolle . 123 Two, December Division Krathy Joseph Robert appellants. Nessenfeld *2 Moore, J. respond
Hiram Lusser and Emmett Golden Rene ent. *3 respondent, plaintiff filed
WESTHUES, was C . This suit Louis, city against taxpayer of the citizen and below, as a city and thе treasurer commissioners city, election holding city of an election threatened to comptroller voting on two ordinances purpose for the called to be A city number initiative under the taxpayers of said pеtition seeking to intervene in filed suit petition granted. as defendants. The This trial court en- judgment plaintiff’s enjoining tered a defendants, favor elec- commissioners, tion from an election, and the treasurer comptroller paying expenses from be to incurred intervening such an From this defendants appealed. be purpose of the two ordinances best stated (a)
by quoting the thereof. The title Ordinance titles to reads .follows: “ providing acquisition five fare ‘An ordinance for the of a cent transportation system, estimating municipal the cost of such mass system twenty-five authorizing dollars, at million the issuance twenty-five utility million revenue bonds in the amount. mortgage to- pay therefor, system, on such to secured dollars ” system.’ for gether pay an appropriation (b) follows: title Ordinance read “ May election on providing an ‘An ordinance revenue proposition utility issue to vote on the pay the ac- twenty-fivе million dollars to in the amount of bonds ’ ’’ system. transportation municipal fare mass quisition of cent five charged election commissioners were petition that petitions initiative which threatening pursuant to call an election $8,000 officials; had filed with the $65,000 expense of was intended incurred and a further petitions. signatures checking incurred alleged cost on was also $200,000. petition then in excess of said The. *4 of Sections ordinances were void becаuse charged proposed the follows: city Section reads as 2, 22, Article of and the ordi- public service by board of 1. Recommendation “Section public work improvement. ordinance public work or nances —No аdopted, repairs thereof, be any kind, shall improvements or or of public service board of prepared the and recommended unless thereon.” estimate of the cost endorsed with an not had Public Service the Board of It was admitted con Appellants proposed either ordinances.. recommended quoted do above in the section restrictions contained that the tend enact ordinance desire to people apply not when 1 of which charter, Section of the provisions under follows: as reads ‘ ‘ people initiative. —The adopted by Ordinances including option, propose to their ordinances power, at have shall adopt charter, this amendments proposing ordinances same at the with the board polls, effect if adopted the same as of aldermen approved being known mayor, such as the initiative. sub- provided, It shall hereinaftеr be exercised ject provisions to the of this charter.”
It has Al definitely Board decided this court that the dermen adopt any of the of St. Louis have does not 1, ordinance which Ar provisions Section come within the 22, supra, ticle unless recommended of Public Mo. Service. In the case American Tobacco Co. banc held Co., 502, Railroad 247 Mo. this en court adopt that the Board not even of Aldermen could public improvement, improvement bеen recommended which Service, Public where the Board of the ordinance plans the Board were variance with the ordinance and Aldermen at It was prepared recommendations Public Service. Board of not, any the Board there decided that of Aldermen could circumstances, by that pass such ordinances unless recommended question is, then in Sec board. in this do the restrictions case tion Article when ordinances'are apply will be provisions think so. charter? We exceptions are made. are all-inclusive. No noted that restrictions The section reads: prepared and adopted, . unless
“No ordinance . . shall be . by the board. . .” recommended not all-inclu- of Section provisions
The initiative Article are sive. section reads: propose
“The ordinances people power, ... shall have polls, the same effect adopt . . . same at mayor, aрproved by the adopted by aldermen and board ours.) provisions (Italics subject charter.” this . . . why good the citizens adjudicated reasons find in the cases We example, For their charter. large city place such restrictions following made the supra, case, this court in the American Tobacco l. c. will comments which be found l. c. 553: can man, lawyer layman, intelligent he or my “In no opinion, Louis, in connec- of St. read those improve- regarding- general provisions thereof with the tion design it except that was any conclusion, ments, and come to work every character kind and thereof that framers *5 thereof, repairs should and reconstruction improvement, or the or imрrove- of public board control of the supervision and be under any or of that character improvements or work ments, that no and binding without or be valid should doing of contract for 743 d by authorized ordinance by board, recommеnde said after faith fully complying all requirements prerequisite its premises. action in the purpose The clear of charter is and was provide a wise, comprehensive, symmetrical system durable, and public improvements create of public works, and á board and place charge thereof, it in with power and see that all public work desired system. conform should to that object placing system improvement in the hands of the public, board was tо secure to the property and owners of the affected the work, the benefit of knowledge, skill, un and unaffected; body biased men, a of scientific in local fluences, public improvements. incident all v. Butler, [State Mo. 77 S. W. Bambrick Campbell, App. v. 460.]” Again in State ex rel. Belte City Louis, Mo. l. c. 379, 380, 61 658,W. l. c. this said: court ‘‘ purpose of restricting the freeholders in thus assembly sought They manifest twofold. a experi- to create board whose ability ence and especially duty would fit it for the contracting system a vast of public improvements, and whose should estimates guide upon assembly entering and, guard them; secondly, to against extravagance by requiring that, work public before was done, be-expert оrdered to there should thereof.” estimates made The enactment of an ordinance under charter, for a improvement which was not recommended Service, interrupt Board Public the scheme destroy purpose оf the restrictions in Section Article contained
supra, effectively adopted such ordinance Board of power Aldermen. Restrictions on of Aldermen of Board applicable ordinances are rule enaсt as a provisions. Supreme Court en bane State Burlingame al., of California 277 Pac. held in Hurst v. (6-8), zoning adopted through l. c. that a upon the hearings initiative was void because no had been had what, zoning required Note ordinance аs act. court said:
“It is the law this an ordinance established state that of a state the initia county the electors of a or this legislation legislative body such as the tive law must constitute granting, county tinder the -law. or to enact body. рowers defining of such limiting [Newsom Super Sup.), 270 Pac. Galvin v. Board of (Cal. Supervisors See, also, Hopping Council of Pac. visors, 195 Cal. 977; Hyde Wilde, 605, 150 Pac. Richmond, Cal. City White, 36 Nev. State ex Davies App. Cal. *6 334, is con 110, (N. S.) 136 Pac. 50 L. A. too R. clear It 195.] Burlingame had troversy the that, if-the board of trustees of without; compliance re adopted question with the the quirements Zoning would Act above said- ordinance the outlined the inoperative equally clear that infir have been is and void. It mity purported adoption of the ordinance would not be cured the also, [See, initiative law.” the electors the under the Supervisors Pac. al., Newsom et al. v. Board of 676.] 951, Juris, 585, is Corpus section general rule stated as follоws: ordinance, by-law, or measure only
“For obvious reasons such an municipal council to power of a is within the be submitted its council, if the adopted adopt; not valid pass or if it would the electors.” vote of an affirmative cannot be infirmities cured language, is in the State ex same To effect and somewhat the 110, l. 111 said: (4), where the court 136 Pac. c. White, (Nev.), rel. v. pro- city charter provisions of the referendum “The initiative and ordinances, the adoption but additional for the vide an method the validity to adds no pursued additional fact such method is that adopted would-be void -If the ordinance ordinance. adoption the vote be cured its infirmity not council, the would Portland, 53 Ore. City of city.- [Long the electors of Gid- Pac. Zeigler, 26 Okla. 98 Pac. Brazell dings (Cal.), 133 479.]” Trustees We, therefore, provisions- rule that Section Article the-city apply the initiative as well ordinances by the -Board Aldermen. This of. is harmony provides with' Sеction Article which shall subject.-to Any be exercised charter. interpretation other very'purpose defeat
Appellants equity that a assert court of without enjoin upon proposal election an initiative. Thеre are many cases where of an election under initiative and enjoined; example Kaesser v. referendum has Beck see [For Hall, er, rel. D. ex 35 N. State Supreme case Court N. W. In the latter of North Da 281.] gave enjoin kota oí question power-of courts special Many an cases were there attention. authorities and equity that a court of and reviewed. It decided considered also, Cunningham, State good power. [See, had such еx cause be seen under what 440, 51 W. remains to then Wis. 724.] enjoin In this equity may an a court of circumstañces pur election for the sought plaintiff case $200,000. petition pose saving- chargéd, and it was admitted of Public Service f not passage recommended o ordinances: charter declared such a necessary prerequisite recommendation to be a validity of the ordinances. essential Since this preliminary step taken, nullity. was not the election would In such have *7 a a equity situation court of thereby holding
an election and save Hall, N. 159 N. useless ex v. 35 D. W. [State 281; City Petersburg al. (Fla.), State ex rel. v. et of St. So. 110; 175; Roper Hathaway S. Gilley Lumpkins (Tex.), & v. 163 W. City Supp. 266 N. Y. 148 Misc. Oneonta, Griffith Education, E. et al. Board of N. C.
Murray Irvan, Ky. 290; al. v. et Cascaden Iowа, N. Waterloo, 673.] Education, supra,
In the case of Griffith al. v. Board of court said: injunction will generally
“But that an issue restrain it is held it, holding there is no an election where result waste of such where Fleming, 34 51 W. Neb. public funds. [Solomon ” R, L.C. 1001.] Bohling, CC., concur. Cooley affirmed. C., is foregoing opinion
PER CURIAM.:—The by Westhues, judges All the concur. court. opinion adopted as Joseph Casey, Ludwig, June Martin Platt, Platt, Pearl Carl Daisy through Next her by Platt, Platt, Robert Platt Camp and N. Tillie A. Friend, Rebecca Weber, Platt Sam Respondent (2d) . 123 S. W. Appellants, William Platt, bell, Two, 20, 1938. December
Division