Summary
In State ex rel. Dalton v. Dearing, 364 Mo. 475, 263 S.W.2d 381, 386 (1954), the Missouri Supreme Court refused to invalidate a gubernatorial appointment to a metropolitan transportation commission made 67 days after the time fixed in the Constitution.
Summary of this case from Redmond v. CarterOpinion
No. 43830.
January 11, 1954.
The facts and holding of the opinion are adequately summarized in the headnote.
QUO WARRANTO: Constitutional Law: Municipal Corporations: Joint Board of Freeholders: Delay in Appointing 19th Member: Constitutional Provision Directory: Valid Board. In creating a joint board of freeholders to establish a metropolitan mass transportation district in St. Louis and St. Louis County pursuant to Sec. 30, Art. VI of the Constitution there was a delay of more than the 30 days provided by Sec. 30 (b), Art. VI, for the appointment of the 19th member of the board by the Governor. Said 30 day provision is directory only and the board was validly created. The writ of quo warranto is quashed.
WRIT QUASHED.
John M. Dalton, Attorney-General, and Fred L. Howard, Assistant-Attorney, for relator.
(1) The purported board of freeholders, which respondents purport to constitute, was not and is not legally constituted, and respondents are, therefore, usurping, intruding into and unlawfully holding office as members of such board of freeholders, because the respondent Will B. Dearing, not having been appointed by the Governor until April 1, 1953, and being the last member appointed, and the last certification of the petition having been made by the officials in general charge of elections in the County of St. Louis on January 23, 1953, the appointment of the board of freeholders which respondents purport to constitute was not completed within the mandatory constitutional requirement that "The appointment of the board shall be completed within thirty days after the certification of the filing of the petition. * * *." Sec. 30 (b), Art. VI. Constitution 1945. (2) Constitutional provisions are mandatory, and directions given therein respecting time or modes of procedure for the exercise of a power create a presumption that the power should be exercised only in that time and mode. Cooley's Constitutional Limitations. 8th Ed., Vol. 1. pp. 159-160. 164: 11 Am. Jur., Secs. 69, 70, pp. 686.688. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 446 S.W. 40; State v. Campbell, 210 Mo. 202, 109 S.W. 706; State v. Skillman, 209 Mo. 408, 107 S.W. 1071; State v. Warner, 220 Mo. 23, 119 S.W. 399: State ex rel. United Rys. Co. v. Public Service Commission, 270 Mo. 429, 192 S.W. 958; State ex rel. Rice v. Edwards, Mo., 241 S.W. 945; State ex rel. City of Dexter v. Gordon, 251 Mo. 303, 158 S.W. 683; Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609; School Dist. of Agency v. Wallace, 75 Mo. App. 317; State v. Tooker, 15 Mont. 8, 37 P. 840; State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941, (3) The respondents who were appointed as the city's nine members of said board, having been appointed on December 23, 1952, and the certification of the petition to the mayor of the city having been made by the officials in general charge of elections in the City of St. Louis on December 11, 1952, such respondents were not appointed within the ten-day period prescribed by the constitutional mandate that "* * * within ten days after the certification the mayor and the judges of the circuit court of the city shall assemble in joint session * * * and proceed to appoint the city's nine members of the board. * * *." Sec. 30 (a), Art. VI. Constitution 1945; Authorities cited under Point (2), supra. (4) The provisions of Section 30 (a) and (b) of Article VI of the Constitution of 1945 contemplate and intend that the power granted the people of the city and county of St. Louis by those sections should be exercised by elections upon a plan prepared by a single, solitary board of freeholders, and not by numerous elections upon numerous plans prepared by a number of such boards. A board of freeholders having been organized and functioning prior to the completion of the organization of the board which respondents purportedly constitute, the earlier board pre-empted the field. Sec. 20 (a) and (b), Art. VI Constitution 1945: Authorities cited under Point (2) supra.
Roberts P. Elam for respondent.
(1) The respondents are the validly appointed and acting members of a board of freeholders as provided for by Sections 30(a) and (b) of Article VI of the Constitution of 1945, and are not usurping, intruding into or unlawfully holding office as members of such a board of freeholders, because although the nineteenth, or "outstate," member of such board was not appointed until 67 days after the last certification of the petitions for the creation of such board of freeholders, his appointment was valid notwithstanding the constitutional provision that the appointment of the board should be completed within 30 days after the certification of such petitions, in that the constitutional provision is to be construed neither strictly nor liberally, but the language thereof is to be given a fair interpretation, with a view to ascertain and give effect to the intent of its framers and of the people who adopted it. State ex rel. Lashly v. Becker, 290 Mo. 560, 235 S.W. 1017, 1020 [3]; Riesterer v. Horton Land Lumber Co., 160 Mo. 141, 61 S.W. 238; Graves v. Pureell, 337 Mo. 574, 85 S.W.2d 543, 546 [3]; State ex rel. Harry L. Hussman Refrigerator Supply Co. v. City of St. Louis, 319 Mo. 497, 5 S.W.2d 1080, 1084 [4]; 16 C.J.S., Sec. 16, p. 51. (2) Principles governing the construction of statutes are applicable to the construction of constitutional provisions. State ex rel. City of Carthage v. Hackmann, 287 Mo. 184, 229 S.W. 1078, 1080 [3]; State ex rel. Harry L. Hussmann Refrigerator Supply Co. v. City of St. Louis, 319 Mo. 497, 5 S.W.2d 1080, 1084 [4]. (3) The constitutional provision is to be construed as directory, rather than mandatory, because it deals with matters of form or machinery, merely, rather than with matters of substance. State ex rel. Rogersville Reorganized School Dist. v. Holmes, Mo., 253 S.W.2d 402, 404 [1]; State ex rel. Thompson v. Winnett, 78 Neb. 379, 110 N.W. 1113; Commonwealth v. Griest, 196 Pa. 396, 46 A. 505; Davis v. Wood, 7 Mo. 162; City of Cape Girardeau v. Riley, 52 Mo. 424; State v. Foster, 61 Mo. 549; Creason v. Yardley, 272 Mo. 279, 198 S.W. 830; Riesterer v. Horton Land Lumber Co., 160 Mo. 141, 61 S.W. 238; State ex rel. Norvell-Shapleigh Hardware Co. v. Cook, 178 Mo. 189, 77 S.W. 559. (4) There is no result, prescribed by the Constitution, which shall follow if the appointment is not done within the time limited. State ex inf. Atty. Gen. ex rel. Lincoln v. Bird, 295 Mo. 344, 244 S.W. 938, 939 [3]; State ex rel. Rogersville Reorganized School Dist. v. Holmes, Mo., 253 S.W.2d 402, 404 [2]; State ex rel. Attorney General v. Mead, 71 Mo. 266. (5) The nature of the act required to be performed by the constitutional provision is not such that the designation of the time within which it is to be performed must be considered as a limitation on the power to perform it. State ex inf. Gentry v. Lamar, 316 Mo. 721, 291 S.W. 457, 458 [2]; St. Louis County Court v. Sparks, 10 Mo. 117; Mead v. Jasper County, 322 Mo. 1191, 18 S.W.2d 464, 465 [1]; State ex rel. Rogersville Reorganized School Dist. v. Holmes, Mo., 253 S.W.2d 402, 404 [3]. (6) Although the city's nine members of the board of freeholders which respondents constitute were appointed more than ten days after the certification of the petition, and the filing thereof, to the mayor of the City of St. Louis by the officials in general charge of elections in the city, the validity of their appointment is not affected by that fact, because the Constitution does not require the appointment of the city's nine members within ten days after such certification. It requires only that a call be made within that period, by the mayor of the city, for a meeting for the making of such appointments, and such call was so made. Sec. 30 (a), Art. VI, Constitution 1945. (7) The appointment of the city's nine members of the board was made at a meeting which duly convened within ten days after the certification of the filing of the petition, and which had been duly and regularly adjourned to a later date in order that the business, which could not be finished at the first day of the meeting, might be completed. This was within the specific language of the constitutional provision. (8) In any event, the constitutional provision as to the time for the appointment of the city's nine members of the board was, at most, directory merely, and was complied with substantially. Authorities cited under Point (1), supra. (9) The fact that, prior to the completion of the appointment of respondents as a board of freeholders to prepare a plan "for the functional administration of mass transportation services," there had been duly appointed, qualified and acting another board of freeholders to prepare a plan "for the functional administration of sewer services," does not affect either the validity of the appointment of the respondents or the legality of the board of freeholders which respondents constitute. The constitutional provisions contemplate and provide for the existence of as may boards of freeholders to prepare as many plans as may be necessary for the exercise of the powers granted by those constitutional provisions, and do not intend or contemplate that such powers must be exercised and exhausted by the vote of the people upon a single plan prepared by a single, solitary board of freeholders. Sec. 30 (a) and (b), Art. VI. Constitution 1945; Authorities cited under Point (1), supra.
This is an amended information in the nature of quo warranto brought by the Attorney General directly in this court and submitted on briefs. We have jurisdiction because it is an original remedial writ. Art. V. Sec. 4, Const. Mo. 1945. It involves a construction of Art. VI. Sec's 30(a) and 30(b), Const. 1945.
Sec. 30(a) authorizes the people of the city and county of St. Louis to consolidate their respective territories and governments [382] into one political subdivision under the municipal government of the city, and, among other things (4) to establish a metropolitan district or districts for the functional administration of services common to the area included therein. In this case it is proposed to establish a metropolitan mass transportation district.
The power so given must be exercised by vote of the people of the city and county upon a plan prepared by a board of freeholders consisting of nineteen members, nine of whom shall be electors of the city and nine from the county, along with one from some other county. Upon the filing with the officials in general charge of elections in the city of a petition proposing the exercise of the powers granted by said constitutional provisions, signed by registered voters of the city in a number equaling 3% of the total vote cast in the city at the last general election for governor, and the certification thereof by the election officials to the mayor and governor, the following takes place.
Upon call of the mayor within ten days after the certification, the mayor and the judges of the circuit court of the city shall assemble in joint session at the city hall and proceed to appoint the city's nine members of the board of freeholders, not more than five of whom shall be members of or affiliated with the same political party. Each member so appointed shall be given a certificate certifying his appointment signed by the mayor and attested by the seal of the city.
Upon the filing with the officials in general charge of elections in the county of a similar petition signed by registered voters of the county, in such number as shall equal 3% of the total vote cast in the county at the last general election for governor, and the certification thereof by the county election officials to the presiding judge of the circuit court of the county and to the governor, the judges of the circuit court, probate court and county court, or other governing body, of the county within ten days after said certification.
And upon the call of the presiding judge (they) shall assemble in joint session at the court house of the county, and appoint the county's nine members of the board of freeholders, not more than five of whom shall be members of or affiliated with the same political party. Each member so appointed shall be given a certificate of his appointment signed by said presiding judge and attested by the seal of said circuit court.
Sec. 30(b) provides that upon certification of the filing of such similar petitions by the officials in general charge of elections of the city and county, the governor shall appoint one (the nineteenth) member of the board of freeholders, who shall be a resident of the state, but not of either the city or county. He shall be given a certificate of his appointment signed by the governor and attested by the state seal. * * The appointment of the board of freeholders shall be completed within 30 days after the certification of the filing of the petition, and at 10 o'clock on the second Monday after their appointment the members of the board shall assume the discharge of their duties, and meet from time to time.
It is their duty to prepare and sign a duplicate plan for the proposed district improvements and return it to the officials having general charge of city and county elections within one year after the appointment of the board of freeholders. The election officials shall submit the plan to the voters of the city and county in separate elections to be held within 90 days after the filing of the plan and not on or within 70 days of any state or county primary or general election in the city or county.
If a majority of the qualified electors of the city and county voting on the plan in their separate elections shall vote therefor, then at such time as shall be prescribed therein the same shall become the organic law of the territory therein defined, and shall supersede all laws, charter provisions and ordinances inconsistent therewith relating to said territory.
Prior to November 1, 1952, petitions were duly filed pursuant to the foregoing [383] constitutional provisions of Art. VI, Sec's 30 (a) and (b) for the establishment of a "metropolitan district for the functional administration of sewer services common to the city of St. Louis and the county of St. Louis." The appointment and organization of a board of freeholders pursuant thereto was duly completed by January 12, 1953, and said board of freeholders has been since its appointment, and still is, acting and functioning as such.
Likewise prior to November 1, 1952, similar petitions conforming to the requirements of said Sec. 30(a) as to the number of signing registered voters, were duly filed with the election officials of the city and county, for the appointment of a board of freeholders for the establishment of a "metropolitan district for the functional administration of mass transportation services common to the city of St. Louis and the county of St. Louis."
As will be seen, the foregoing procedure contemplated the establishment of two boards of freeholders, one for the functional administration of sewer services and the other for the functional administration of mass transportation services. The appointment and organization of the first board of freeholders [for sewer services] was completed by January 12, 1953, and it has been functioning ever since.
On December 11, 1952, the officials in general charge of elections in the city of St. Louis, that is to say the Board of Election Commissioners, duly made certification of the petition in the second suit governing mass transportation. On December 13, 1952, the mayor of the city of St. Louis issued a call for a joint meeting of the mayor and circuit judges of the city to be held at the City Hall on December 18, 1952, to act upon said petitions for mass transportation services. Being unable to complete their work they adjourned or recessed until December 23, 1952, when they found the required percentage of registered voters had signed, and appointed as the city's nine members of the board of freeholders, the following: Agatha Becker, Robert B. Brooks, Richmond C. Coburn, Donald Gunn, Mary Hall, John I. Rollings, Albert Schindler, Chester Stovall and Charles M. Warner. All of these were duly given their respective certificates of appointment.
Also on December 11, 1952, supra, when the freeholders' petitions for mass transportation services were filed, certification thereof was made to the Governor [then Hon. Forrest Smith]. And it appears without question that these certifications were received at the office of Governor Smith on December 12, 1952. But for some reason they were not called to his attention, or to the attention of Governor Donnelly, his successor in office, until more than 30 days after January 23, 1953. Upon receipt and verification of that information Governor Donnelly appointed the nineteenth member of the Board of Freeholders, respondent Will B. Dearing of Jefferson County, on April 1, 1953.
In the meantime on January 23, 1953, the officials in general charge of elections in the county of St. Louis duly made certification of the foregoing freeholders' petition for functional administration of mass transportation services, and on January 31, 1953, upon call of the presiding judge of the circuit court of St. Louis County, the judges of the circuit and probate courts of the county and the members of the County Council [the governing body of the county] assembled in joint session and appointed the respondents John J. Cole, Howard Elliott, S. Joseph Flori, John W. Gieseeke, Fred H. Graf, Leo J. Hayes, Martin J. Jaeger, Kurt A. Schrader and William Wynn, as the county's nine members of a board of freeholders.
Each was duly given a certificate of his appointment. But not until more than 30 days after January 23, 1953, did the incoming Governor Phil M. Donnelly become informally, and for the first time, apprised of the aforesaid certification by the Board of Election Commissioners of the City of St. Louis of the filing of the last mentioned freeholders' petition for the functional administration of mass transportation services. And he did not make the appointment [384] of the nineteenth member of the Board of Freeholders, Will B. Dearing, until April 1, 1953, after verifying the foregoing information.
The Attorney General, relator, assigns three reasons why the proceedings in this case fail to show the board of freeholders was legally appointed, and on the contrary establish that it was not. The first reason is that Dearing, the last member of the board, was not appointed by the Governor until April 1, 1953, whereas the last certification of the filing of the petition for mass transportation services was made by the election officials of St. Louis County on January 23, 1953, two months and seven days (67 days) earlier, whereas Art. VI, Sec. 30(b) of the Constitution provides the appointment of the board of freeholders "shall be completed within 30 days after the certification of the filing of the petition."
The second reason assigned in relator's brief is that constitutional provisions are mandatory, and that directions given therein respecting the time or modes of procedure for the exercise of a power create a presumption that the power should be exercised only in that time and manner, citing 11 Am. Jur., pp. 686-688, §§ 69, 70; 1 Cooley's Constitutional Limitations (8 ed.) pp. 159-160, 164; Harfst v. Hoegen, 349 Mo. 808, 814(1), 815(2), 816(3), 163 S.W.2d 609, 612 (3-7); State ex inf. McKittrick v. Wymore, 343 Mo. 98, 108, 118, 119 S.W.2d 941, 944, and a number of other decisions.
It is said in 11 Am.Jur., p. 686, § 69, supra, that: "The courts usually hesitate to declare that a constitutional provision is directory merely in view of the tendency of the legislature to disregard provisions which are not said to be mandatory. Accordingly, it is the general rule to regard constitutional provisions as mandatory, and not to leave any discretion to the will of a legislature to obey or to disregard them. This presumption as to mandatory quality is usually followed unless it is unmistakably manifest that the provisions are intended to be merely directory. The analogous rules distinguishing mandatory and directory statutes are of little value in this connection and are rarely applied in passing upon the provisions of a constitution.
"So strong is the inclination in favor of giving obligatory force to the terms of the organic law that it has been said that neither by the courts nor by any other department of the government may any provision of the Constitution be regarded as merely directory, but that each and every one of its provisions should be treated as imperative and mandatory, without reference to the rules distinguishing between directory and mandatory statutes."
Likewise, I Cooley on Constitutional Limitations (8 ed.) Vol. 1, pp. 159-160, supra, states: "But the courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done: and they must then be regarded in the light of limitations upon the power to be exercised.
"It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. We are not therefore to expect to find in a constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the time or modes of proceeding [385] in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that mode only; * * *."
The sections involved in this case were adopted in our last Constitution, of 1945. They were taken from the Constitutional Amendment of November 4, 1924, Laws Mo. 1925, p. 414. There have been many changes in the present new constitutional provisions, a large part of which are shown in black type. They are organic and in our opinion were not intended to be open to alteration by statute or construction of the courts. In other words, what they say is fundamental and not open to change, except insofar as interpretation is necessary to arrive at the meaning of the fundamental act itself. When that meaning has been ascertained it cannot be changed even by statute.
It is said in 16 C.J.S., p. 49, § 14: "A constitution should be construed with reference to, and in the light of, well-recognized and fundamental principles lying back of all constitutions. It is to be regarded as fundamental law to which all other laws must yield, and should be interpreted in such a manner as to carry out the broad general principles of government stated therein. Although the meaning or principles of a constitution remained fixed and unchanged from the time of its adoption, a constitution must be construed as if intended to stand for a great length of time."
Further, 16 C.J.S., p. 101, § 49, states: "It is a settled rule of constitutional construction that prohibitive and restrictive provisions are self-executing and may be enforced by the courts independently of any legislative action, unless the context and history of the legislation shows the contrary." And it is also said, 16 C.J.S., p. 120, § 61; "It is an established general rule that constitutional provisions are to be construed as mandatory unless, by express provision or by necessary implication, a different intention is manifest. Usually, therefore, constitutional provisions are mandatory rather than directory, and there are expressions to the effect that all constitutional provisions are mandatory."
The brief for the respondent members of the Board of Freeholders first asserts generally that the constitutional provisions here involved are to be construed neither strictly nor liberally, but are to be subjected to a fair interpretation with a view to ascertaining and giving effect to the intent of its framers and the people who adopted it. It is asserted the principles governing the construction of statutes are applicable to construction of constitutional provisions. On that point five decisions are cited. These cases hold that at least a part of the provisions of our constitution are merely directory or legislative in character.
Riesterer v. Horton Land Lbr. Co., 160 Mo. 141, 151, 61 S.W. 238, 240; State ex rel. Lashly v. Becker, 290 Mo. 560, 579, 235 S.W. 1017, 1020(3); State ex rel. Harry L. Hussmann Refrg. Supply Co. v. City of St. Louis et al., 319 Mo. 497, 507, 5 S.W.2d 1080, 1084(4); Graves v. Purcell, 337 Mo. 574, 592(2), 85 S.W.2d 543, 547(3); State ex rel. City of Carthage v. Hackmann, 287 Mo. 184, 190, 229 S.W. 1078, 1080(3).
The Riesterer case quotes 1 Story, Constitution, § 451, which says: "It is a settled rule of construction that, `every word employed in the Constitution is to be expounded in its plain, obvious, and commonsense meaning, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understandings. * * *'"
Continuing, the Riesterer case says: "There is a great diversity of opinion as to whether any provision of a Constitution can be construed to be merely directory, and the rule obtains in some jurisdictions [386] that every provision of the Constitution is mandatory." But it goes on to say that in this state provisions of the Constitution have been held merely directory, such as the provision in Sec. 21, Art. III, Const. 1945 that "The style of laws of this state shall be: `Be it enacted by the General Assembly of the State of Missouri, as follows'"; and also the provision that "all writs and process shall run * * * in the name of the `State of Missouri'"; and likewise the formalities with which a bill must be signed in open session, under Art. III, Sec. 30, Const. 1945.
So, also, it is said "The organic law is subject to the same general rules of construction as other laws. due regard being had to the broader objects and scope of the former, as a charter of popular government." [Emphasis ours] State ex rel. Carthage v. Hackmann, 287 Mo. 184, 190, 229 S.W. 1078, 1082(3); State ex rel. Hussmann Refrigerator Supply Co. v. City of St. Louis et al., constituting Board of Public Service of City of St. Louis, 319 Mo. 497, 509, 5 S.W.2d 1080, 1084(4).
Another general rule of importance in determining the true meaning and scope of constitutional or statutory provisions is the intent and purpose of the lawmakers. Graves v. Pureell. 337 Mo. 574, 582(2), 85 S.W.2d 543, 547(3).
In the instant case the powers given the people of the city and county of St. Louis are immune from legislative interference. They were first conferred by constitutional amendment, Laws Mo. 1925, p. 414, and reconferred and broadened in 1945 by Laws Mo. 1945, pp. 44-6. There can be no question about the fact that these powers are vested in the city and county. The question here at issue involves the time limit.
Art. VI. Sec. 30(b) provides the appointment of the board of nineteen freeholders shall be completed within 30 days after the certification of the filing of the petitions for the improvement. The governor did not make the appointment of the nineteenth member of the board until April 1, 1953, which was 67 days too late under the time schedule fixed by Art. VI, Sec. 30(b) of the Constitution, that is to say 30 days after the certification of the filing of the freeholders' petitions, which had been on January 23, 1953.
The latest decision in this state bearing on an analogous question, so far as we have found, is State ex rel. Rogersville Reorganized School District v. Holmes, State Auditor, 363 Mo. 760, 253 S.W.2d 402. That case did not involve a violation of constitutional requirements, but only of statutory requirements affecting the validity of bonds issued by a reorganized school district, the validity of which depended on the validity of the district itself. The reorganization plan had been submitted at one school election and failed to carry. The statute, Sec. 165.693, R.S. 1949, provided in such event that any other plan should be submitted at a second election not sooner than one year nor later than two years after the disapproval of the first plan. The reorganization plan carried at the second election. But it was held five days too late — that is, it was five days later than the end of the two year period allowed for such elections. This court en banc held the election validated the school bonds.
In the instant case it is not contended that the 67 day delay in the Governor's naming of the nineteenth member of the Board of Freeholders for the administration of transportation services invalidated the plan therefore. But it will readily be seen that great inconvenience and delay would result if it involved the preparation of a new plan. And it can hardly be thought the original plan would be valid if it was prepared by only eighteen members, the appointment of the nineteenth member being void.
For these reasons the writ of quo warranto heretofore issued is quashed. All concur in result.