STATE of Missouri ex rel. William H. WHITTINGTON, Gale E. Lord, William Paul Hunter, D. C., and Jean McCone, Appellants, v. Margaret STRAHM, Respondent

No. 23771

KANSAS CITY COURT OF APPEALS, MISSOURI

366 S.W.2d 495; 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said ordinance there was filed with respondent, as city clerk, a referendum petition requesting that said ordinance be repealed or submitted to a vote of the electors.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.


State Of Missouri Ex Rel. William H. Whittington, Gale E. Lord, William Paul Hunter, D.C., and Jean McCone, (Plaintiffs) Appellants, vs. Margaret Strahm, (Defendant) Respondent

No. 50140

Supreme Court of Missouri En Banc

374 S.W.2d 127; 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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