Hunter, D. C., and Jean McCone, Appellants, v. Margaret STRAHM, Respondent
1963 Mo. App. LEXIS 605
April 1, 1963
COUNSEL:
[**1]
John H. Foard, Kansas City, for appellants.
Keith Wilson, Jr., City Counselor, for respondent.
OPINIONBY: SPERRY; PER CURIAM
OPINION:
[*496]
Plaintiffs, citizens, taxpayers and electors of Kansas City appealed from the
judgment of the Circuit Court of Jackson County denying their petition for a
writ of mandamus against defendant, City Clerk of Kansas City.
The facts are not in dispute. Kansas City passed ordinance numbered 27271
which approved
a contract for the
purchase of equipment for use in adding
fluorides to the city water supply. That is the only purpose of the ordinance. It was
not an emergency measure within the meaning of the city charter. Three
additives then being made to the water being used, were for medicinal purposes
and it is stipulated that the use of
fluorides is for the medicinal purpose of hardening the teeth of users and the
prevention of caries in the teeth. Two other properties were being added to
make the water more palatable and usable. Three more were for softening water
and other purposes. There are some
fluorides naturally in the water as presently being used, from the
Missouri River, from which water is taken. It is not contended in the
[**2] case before us that
fluoride is dangerous or harmful to the health of the citizens of Kansas City.
Within forty days after the passage of said ordinance there was filed with
respondent, as city clerk, a referendum petition requesting that said ordinance
be repealed or submitted to a vote of the
electors. This referendum petition consisted of over 1,000 petition papers,
each of which was sufficient as to form, containing more than 18,000 names and
addresses, being substantially more than ten per cent of the total vote cast
for candidates for the office of mayor at the last preceding regular Kansas
City,
Missouri, municipal election. This procedure conforms to that authorized and
prescribed in the charter.
Respondent neither examined said petition nor determined its sufficiency within
ten days after it was filed, nor did she certify to the City Council of Kansas
City, Missouri, that said petition was sufficient, nor notify the committee of
petitioners that she found the petition insufficient. Instead, she
refused to perform these acts, in accordance with instructions from the city
council and, on June 6, 1962, the city council passed a resolution instructing
respondent to take no
[**3] further action on said petition.
Plaintiffs, as citizens, taxpayers and electors of Kansas City, and as members
of the committee of petitioners named in said referendum
petition, seek by writ of mandamus to compel defendant to make such examination
and make such certificate, or give such notice, all as provided in Section 431
and 443 of the city charter.
Defendant contends that only ordinances which are legislative in nature are
subject to referendum under the charter; that ordinance 27271 is not
legislative
but is administrative in effect; and that it is not subject to referendum.
The fluoridation facilities to be acquired under said ordinance are permanent
facilities and the fluoridation of the water supply under said ordinance will
affect water supplied to all subscribers from the Kansas City, municipal water
system. It is the first ordinance passed by the city council which
made
possible the purchase of equipment to be used in the addition of
fluorides to the water supply.
[*497] Section 15 of the Charter provides as follows:
‘Emergency measures shall take effect immediately upon their passage. An
emergency measure is any ordinance passed by the affirmative
[**4] vote of six members of the council for the immediate
preservation of the public peace, property, health, safety or morals, in which
the emergency is set for and defined in a preamble thereto; any ordinance
calling any election, or providing for the submission of any proposal to the
people; any ordinance making an appropriation for the payment of principal or
interest of the public debt, or for current expenses of the
city government; any general appropriation ordinance; any ordinance relating to
the any public improvement to be paid for by special assessment.’
It further provides that all other ordinances shall take effect 10 days after
passage unless steps are taken to refer them.
In Section 430 of the charter it is also provided that all except
emergency ordinances, are subject to referendum. It is contended that
application of these provisions should be made and that it is the clearly
expressed intent of the framers of the charter that the ordinance here under
review shall be subject to referendum.
In McQuillin on Municipal Corporations (3rd. Edition), Section 16.54 it is said:
‘The power of initiative or referendum may be conferred by the sovereignty upon
a municipality
[**5] with respect to any matter, legislative or administrative, within the realm of
local affairs; and often the power, as conferred, is extensive, including all
ordinances and resolutions and practically all actions that might be taken by a
municipal council’.
In 37 American Juris., Municipal Corporations Par. 208 it is said that if a
municipal
corporation has referendum powers it is a matter of statutory construction to
determine the subjects as to which, or when, such powers may be exercised. The
legislature may provide that no action of a municipal council of any kind shall
go into effect without an opportunity for a referendum.
In
Spencer v. City of Alhambra, 44 Cal.App.2d 75, 111 P.2d 910, 912 it is stated that all political power is inherent in the people, that by
writing into the charter initiative and referendum laws the people withdrew
from the legislative body and reserved to themselves the right to exercise a
part of their inherent political power and if the subject there
considered had not been excluded from the operation of the initiative, then
that power could be exercised.
The framers of the charter clearly indicated the ordinances that are not
subject to referendum.
[**6] The ordinance here involved is not included therein.
Defendant relies on
Carson v. Oxenhandler, Mo.App., 334 S.W.2d 394, where the court considered the question of whether an ordinance was subject to
referendum and held that it was not. The court said the (general) rule is that
only acts legislative in character are subject to referendum. The rule there
declared was applicable to the facts in that case where the words being
construed were: ‘any ordinance’.
The so called general rule mentioned in
Carson v. Oxenhandler, supra, appears to have its roots in the
necessity for a practical interpretation of charters that use only very broad
terms such as ‘all ordinances’ or ‘any ordinance’. In these situations if a
literal construction were applied, the particular municipality would be placed
in a chaotic situation, for there would be no way to avoid a referendum no
matter what the ordinance involved. However, the
charter of the city of Kansas City carefully and specifically enumerates those
matters not subject to the referendum and thereby avoids the necessity of a
court interpretation contrary to the plain meaning of the language used. These
exempted matters
[*498] are: (1)
[**7] any emergency ordinance: (2) any ordinance calling for any election: (3) or
for the submission of any proposal to the
people; (4) any ordinance making any appropriation for the payment of principal
or interest in the public debt; (5) or for current expenses of the city
government; (6) any general appropriation ordinance; and (7) any ordinance
relating to any public improvement to be paid for by special assessment.
What possible chaos could result to the
city by giving its people the right to decide through the referendum procedure
in view of these numerous and broad exceptions to the referendum power?
Apparently the framers of the charter foresaw none or they presumably would
have enlarged the exceptions. Nowhere in the language used in the charter do
we find the words ‘legislative’ or ‘administrative’. Nor do we believe it
sound for the court to write these words in the charter where there is no
demonstrated necessity therefor.
Aside from any consideration or effect of the general rule applied in
Carson v. Oxenhandler, supra, it is apparent that the St. Louis County Charter itself, as effectuated by
ordinance, makes the essential distinction between
administrative and legislative
[**8] ordinances as the subject of referendum. Article VII Section 77 of the
Charter generally reserves to the people the power to approve or reject any
ordinance of the Council, except emergency measures, but provides in Section 81
of Article VII that the Council
effectuate, by ordinance, the reserved right of referendum.
Pursuant to Section 81, the Council duly enacted Ordinance No. 134 to implement
the initiative, referendum and recall provisions of the Charter. Section 3 of
that unchallenged ordinance provides, ‘Ordinances enacted under and pursuant to
administrative and ministerial authority vested in the Council * * * shall not
be subject to referendum, * * *’.
The Charter
provisions before us bear no resemblance to the above charter provisions as
effectuated by ordinance discussed in
Carson v. Oxenhandler, supra.
Section 15 of the charter specifically provides that but for the exception
therein contained and emergency measures (so declared and receiving 6 of 9
votes) shall be subject to
referendum. Under the new charter the same provisions are carried over except
the ordinance must receive 9 of 13 votes.
It seems clear the framers inserted such provisions in the charter
[**9] with the intent that if an ordinance subject matter of any kind (except for
the specified exemptions) was so controversial it could only get a
bare majority council vote, it should be subject to referendum. The charter
plainly and unequivocally so declares. It neither makes nor suggests any
distinction between matters legislative or administrative.
Therefore, the intent of the charter being clear and the language (Sec. 15)
setting it forth plain and unambiguous, there is nothing for the court to do
but to declare and apply
both the principle and the phraseology.
The judgment is reversed and the cause remanded with directions to the court
to issue its writ of mandamus as prayed.
MAUGHMER, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court.
HUNTER and CROSS, JJ., concur.
BROADDUS, P. J., dissents.
DISSENTBY: BROADDUS
DISSENT: BROADDUS, Presiding Judge (dissenting).
I respectfully dissent from the majority opinion herein on the ground that I
deem
[*499] said opinion to be in conflict with the decision of the St. Louis Court of
Appeals in the case of
Carson v. Oxenhandler, Mo.App., 334 S.W.2d 394, and therefore request that this cause be
[**10] transferred to the Supreme
Court.
Hunter, D.C., and Jean McCone, (Plaintiffs) Appellants, vs. Margaret Strahm,
(Defendant) Respondent
1963 Mo. LEXIS 598
12/09/63
PRIOR HISTORY:
[**1]
From the Circuit Court of Jackson County
Civil Appeal From Action for Declaratory Judgment
Judge Richard H. Koenigsdorf
Reversed and Remanded with Directions
OPINIONBY: Holman, J.
OPINION:
[*128] Plaintiffs, as citizens, taxpayers, and electors of Kansas City, Missouri,
filed this suit in an effort to obtain a writ of mandamus commanding defendant,
City Clerk of Kansas City, to take certain action in regard to a referendum
petition which had theretofore been filed with her. The trial court denied the
relief
sought. Upon appeal to the Kansas City Court of Appeals the judgment was
reversed and cause remanded with directions to the trial court to issue its
writ of mandamus as prayed. However, one of the judges dissented because he
thought the opinion was in conflict with the decision of the St. Louis Court of
Appeals in the case of
Carson v. Oxenhandler, 334 S.W.2d 394, and upon his request, the cause was transferred to this court.
State ex rel. Whittington v. Strahm, Mo. App., 366 S.W.2d 495. We will accordingly determine the case
“the same as on original appeal.” Article V, Section 10, Constitution of Missouri 1945,
V.A.M.S.
The facts were stipulated and hence are not
[**2] in dispute. On June 2, 1961, an ordinance was introduced into the City
Council of Kansas City which, omitting formal parts, reads as follows:
“Whereas, the medical profession has determined that fluoridation of public
water supplies is an effective and salutary aid in the care of teeth and
prevention of
decay and diseases thereof, and
“Whereas, the Council of Kansas City deems it in the interest of the health and
welfare of the citizens of Kansas City that they be provided with fluoridation
of the city’s water supply,
“Now, Therefore, be it ordained by the Council of Kansas City:
“Section 1. That the Director of the Water Department be and he is hereby
authorized to make the necessary plans and preparations
for the fluoridation of Kansas City’s public water supply. Such plans and
preparations shall include proper and rigid control of the amount of fluorine
to be used and take into consideration the natural concentration of fluorine of
the Missouri River water in Kansas City. The plans and preparations shall be in
accordance with approved standards
used in other major metropolitan areas.
“Section 2. The Director of the Water Department is authorized to negotiate a
contract
[**3] for a total sum of not more than $65,000 for the initial installation and
equipment charge necessary for the fluoridation of said water supply, said
contract to be submitted to this Council
for approval.
“Section 3. The Director of the Water Department is directed to include in the
future budgets the sum of $50,000 per year to cover the cost of fluoridation of
the water supply.”
That ordinance was assigned to a committee of the council and the committee
held three different hearings thereon in July 1961, at each of which
a large number of persons appeared, some of whom favored the ordinance and
others opposed it. That ordinance was never reported out of the committee and
remained pending until January 12, 1962, when it was
“lost on a semiannual docket clearance.”
On September 22, 1961, a resolution was introduced into, and on the same date
passed, by the
city council, which contained the identical provisions as those in the
ordinance heretofore set out. On March 9, 1962, the city council passed
Ordinance No. 27271 which approved a contract dated March 5, 1962, between
Kansas City and S.R. Brunn Construction Company for the
[*129] purchase of
fluoridation facilities by
[**4] the Director of the Water Department at a cost of $46,510, which ordinance was
the first ordinance passed by the city council which made possible the addition
of
fluorides to the municipal water supply of said city.
Section 430 of the Kansas City Charter provides:
“Any ordinance passed by the council, except
emergency measures, shall be subject to referendum of the electors.” The section further set out the procedure for seeking a referendum. Section
15 of the charter defines emergency measures as follows:
“An emergency measure is any ordinance passed by the affirmative vote of six
members of the council for the immediate preservation of the
public peace, property, health, safety or morals, in which the emergency is set
for [forth] and defined in a preamble thereto; any ordinance calling any
election, or providing for the submission of any proposal to the people; any
ordinance making an appropriation for the payment of principal or interest of
the public debt, or for current expenses of the
city government; any general appropriation ordinance; any ordinance relating to
any public improvement to be paid for by special assessment.”
In compliance with the procedure specified in
[**5] the charter there was filed with defendant, within the time provided, a
referendum petition containing more than 18,000 names and addresses. Section
430
requires referendum petitions to contain signatures equal to 10% of the total
vote cast for mayor at the preceding regular municipal election and it was
stipulated that at the last election, which occurred in 1959, said total vote
was 94,305; it was also stipulated that, upon the filing of said referendum
petition, defendant refused to examine same and to certify as to its
sufficiency and that she was instructed by the city council, by resolution, to
take no further action on said referendum petition.
The agreed statement also specified that at the time in question Kansas City
was adding eight different compounds to its water supply, all of which were for
the purpose of purifying, softening, improving the taste of, and regulating the
acid-alkaline balance of the water; that the purpose of purchasing the equipment, as
provided in the ordinance under consideration, is to add
fluorides to the water supply for the medicinal purposes of hardening the teeth and
preventing dental caries; that Missouri River water, from which all water
[**6] for the system is taken, contains a quantity of natural
fluorides,
but additional
fluorides have never before been added by Kansas City to its municipal water supply;
that the fluoridation facilities to be acquired are permanent facilities and
the fluoridation provided for under the foregoing ordinance will affect the
water supplied to all persons who subscribe for water from the Kansas City
municipal water
system.
It is the primary contention of plaintiffs, as disclosed by their pleadings and
briefs, that the ordinance in question, not being an emergency measure, is
referable under the charter provision. It is the position of defendant that
under the provisions of the charter, only legislative ordinances are referable,
and that Ordinance No. 27271 was an administrative and not a legislative
ordinance and hence was not the proper subject of a referendum petition.
The opinion of the Kansas City Court of Appeals pointed out that the charter
provided that all ordinances were referable, except those specifically
described in Section 15 of the charter, and held that the framers of the
charter intended that any ordinance (except those specifically exempted) was
subject to referendum
[**7]
regardless of whether it might be classified as legislative or administrative.
The question has been briefed as to whether administrative ordinances are
subject to referendum under the provisions of the Kansas City Charter. It is
conceded that ordinances legislative in character (unless specifically
exempted) are referable. We note in an annotation on the subject that
“it is the general rule that initiative
[*130] and referendum provisions are applicable
only to acts which are legislative in character, and are not applicable to
those dealing with administrative or executive matters.”
122 A.L.R. 769. Reference has heretofore been made to the case of Carson v. Oxenhandler, in
which it is said:
“The rule that only acts legislative in their nature are subject to referendum
is particularly applicable in the field of municipal
corporations. The legislative body of a municipality, whether it be designated
a city council, board of aldermen, or otherwise, is frequently called upon to
act in an administrative as well as a legislative capacity by the passage of
ordinances and resolutions. From an early date in the history of the right of
referendum it has been recognized that to subject
[**8] to referendum any
ordinance adopted by a city council, whether administrative or legislative,
could result in chaos and the bringing of the machinery of government to a
halt. * * * The general rule which has developed is stated in
Seaton v. Lackey, 298 Ky. 188, 182 S.W.2d 336, 338, as follows: ‘Although initiative and
referendum provisions widely differ in their terminology, it is the general
rule that they are applicable only to acts which are legislative in character,
and not to those dealing with administrative or executive matters. * * *.’”
334 S.W.2d at 339.
In Carson, the St. Louis Court of Appeals held that the provision of the St.
Louis County Charter
providing for referendum of
“any ordinance” should be construed as intending that only ordinances of a legislative nature
should be the subject of referendum. The court then decided that the ordinance
under consideration was legislative in character and thus subject to
referendum. The portion of the opinion in Carson which construes the charter
provision in regard to the question of its application to ordinances
legislative or administrative is a most learned and informative discussion and
no doubt is of great assistance
[**9] to anyone interested in the subject. However, we regard it as dictum for the
reason that the opinion held the ordinance under consideration to be
legislative in character which, without question, was subject to referendum.
In the case before us we do not
consider it necessary or proper to construe the charter provision and determine
whether administrative ordinances are subject to referendum thereunder. This
for the reason that we have decided that the ordinance in question is
legislative in nature, and it is conceded that an ordinance of that character
is subject to referendum. Therefore, any construction of the charter provision
would be dictum.
“In reference to what constitutes legislative and what administrative
action in connection with restriction of the power of initiative or referendum
to legislative matters it has been said that action relating to subjects of
permanent and general character are usually regarded as legislative, and those
providing for subjects of temporary and special character are regarded as
administrative. * * * The test of what is a legislative and what is an
administrative proposition * * * has further been said to be whether the
proposition
[**10] is one to make
new law or to execute law already in existence. Again, it has been said: ‘The
power to be exercised is legislative in its nature if it prescribes a new
policy or plan; whereas, it is administrative in its nature if it merely
pursues a plan already adopted by the legislative body itself, or some power
superior to it.’” 5
McQuillan, Municipal Corporations, 3rd Ed.,
§ 16.55, pp. 254-256.
No case has been cited (and we have found none) which involves the same
situation as the one before us. Missouri cases on the subject are
Carson, supra, in which an ordinance authorizing the county to enter into a cooperation
agreement with its Housing Authority was
held legislative, and
State ex rel. Wilkinson v. Edwards, 305 Mo. 431, 266 S.W. 127, wherein an ordinance authorizing the city counsellor to
[*131] institute condemnation action to acquire a bridge approach was also held to be
legislative.
We readily agree that the ordinance before us has the appearance, upon casual
examination, of an
administrative one. If, instead of fluoridation equipment, it had approved a
contract for the purchase of a pump for routine use by the water department, we
would unquestionably
[**11] hold it to be administrative because, as a usual rule, ordinances providing
for the purchase of equipment are administrative. However, we must not
restrict ourselves to a
casual examination of the ordinance but must look to its substance and
determine the real purpose thereof and that which it will accomplish.
If the first ordinance introduced had been passed we do not see how anyone
could reasonably have contended that it would not have been legislative in
character. This because it provided a new declaration of public policy for the
permanent practice of
fluoridation of the water furnished residents of the city and made provisions
for the means of putting that policy into effect. If we are correct in the
foregoing conclusion, that ordinance would have been subject to referendum.
However, it was apparently abandoned in committee and instead a resolution
containing the same provisions was introduced and adopted. We do not think
that resolution had any lawful
effect. In matters of that nature the council can only act by ordinance. See
Charter Sections 1(61) and 2. It is significant that the defendant does not
contend that it had any legal efficacy. And the resolution was
[**12] not subject to referendum. Charter Section 430.
Shortly thereafter the ordinance in question was adopted. It is
stipulated that it
“was the first ordinance passed by the City Council of Kansas City, Missouri,
which made possible the addition of
fluorides to the municipal water supply of said city.” As stated, it appeared to be a routine ordinance for the purchase of equipment
but, actually, it would accomplish much more. That ordinance legally
inaugurated for the
first time, the practice of fluoridating the Kansas City water supply. It did
so as effectively as could have been done if the first ordinance, so providing,
had been enacted. We take judicial notice of the fact that the question of
fluoridating the water supply has been a highly controversial one. If we
should overlook the real substance of this ordinance and hold it to be
administrative, the voters (assuming, but
not deciding, that an administrative ordinance is not referable) would be
denied the right to refer it simply because of the type of ordinance finally
adopted. The maneuver within the council of abandoning the first ordinance and
thereafter adopting the resolution and purchase ordinance may or may not
[**13] have been conceived in order to preclude the right of referendum in
regard to this matter, but, regardless of the intent, the result would have
been the same.
Defendant makes the contention that the ordinance under consideration is
administrative rather than legislative because it is in accord with the
long-established policy of Kansas City of adding medicinal compounds to the
water supply in the interest of the public health. It is said that (1)
chlorine is added
for the
“medicinal purpose to attack biologicals in the water”; and (2) aluminum sulphate and ferric sulphate are added for the
“medicinal purposes to coagulate macroscopic matter in suspension in the water.” We think the addition of
fluorides goes beyond the policy established by the addition of the chemicals heretofore
specified. Those
now being added are used for the purpose of their effect upon the water, i.e.,
making it pure and palatable, while the sole purpose of adding
fluorides is for the therapeutic effect it will have upon the person drinking the water.
This contention is ruled against defendant.
For the reasons heretofore stated, we have concluded that Ordinance
No. 27271
[*132] is legislative in
[**14] character and effect and is therefore subject to referendum.
The judgment is reversed and cause remanded with directions to the trial court
to issue a peremptory writ of mandamus as prayed for in the petition.
All concur.
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