# State ex rel. Belt v. City of St. Louis

> Supreme Court of Missouri · March 26, 1901 · 161 Mo. 371

URL: https://www.frixlaw.com/law-library/cases/8013880

## Case

- **Full name:** THE STATE ex rel. BELT v. CITY OF ST. LOUIS
- **Court:** Supreme Court of Missouri
- **Decided:** March 26, 1901
- **Citations:** 161 Mo. 371; 61 S.W. 658; 1901 Mo. LEXIS 118
- **Precedential status:** Published
- **Opinion:** Dissent by Marshall
- **Judges:** Brace, Burgess, Gantt, Marshall, Robinson, Sherwood, Valliant, Views
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8013880

## Opinion text

Dissenting Opinion.
MARSHALL, J.
This is an original proceeding by mandamus to compel the board of public improvements of St. Louis to enter into a contract with relator pursuant to the provisions of an ordinance of the city numbered 19,984. That ordinance, briefly stated, authorizes and directs the board of public improvements to erect and maintain, at such convenient and suitable locations upon the streets as the board may designate, suitable boxes or receptacles for the collection and temporary depositing of such waste paper or other litter as is or is likely to be cast upon the streets, and to provide for keeping such boxes clean, and for the removal of such deposits, and to accomplish the purpose intended, the ordinance directs the board to enter into *387 a contract for ten years with relator, to erect, maintain and keep clean such boxes, and to remove such litter at the relator’s expense and without cost to the city at all.
The consideration to the relator for such work, labor and expense, is that he shall have the right to place on such boxes such advertisements, made of tin or other metal, as might be approved by the board of public improvements, but not such as are of an immoral or disreputable character. The ordinance required relator to make quarterly statements of the amount he receives from such advertisements and to pay the city fifteen per cent of such gross receipts. The ordinance prohibits the erection of such boxes on any block or blocks if a majority of the residents of the block remonstrate against it. It also provides that the relator.shall give a five thousand dollar bond to secure performance of the contract on his part, and for a forfeiture of his rights if he fails to make true and correct returns of receipts, or fails to keep the boxes in a sanitary condition, or fails to remove such deposits from such boxes daily.
The defendants set up three grounds for refusing to enter into such a contract; first, that the ordinance is void because it requires the board of public improvements to make a contract with relator which involves public work; second, that the ordinance is void because it undertakes to grant to relator the right to use the streets for a private purpose; and third, that the ordinance is void because it contains more than one subject.
Every one will, at once, concede that if all or any of these objections is well taken, the ordinance is void.
If the ordinance involves any public work or improvement or repairs thereof, it is void, for section 27 of article 6 of the city charter expressly prohibits the municipal assembly from directly contracting for such matters or from fixing the price or rate therefor, and requires the board of public improvements, in all cases (except in case of necessary repairs requir *388 ing prompt attention) to prepare and submit to the assembly estimates of' the cost of any proposed work, and, under the direction of the ordinance, to advertise for bids and let out such work by contract to the lowest responsible bidder, subject to the approval of the council, and makes any other mode of letting out work illegal and void. Section 14 of article 6 prohibits the assembly from passing any ordinance for the construction or reconstruction of any street, alley or public highway unless such ordinance is recommended by the board of public improvements. .Section 15, article 6, provides that:' “All ordinances recommended by said board shall specify the character of the work, its extent, the material to be used, the manner and general regulations under which it shall be executed, and the fund out of which it shall be paid, and shall be indorsed with the estimate of the cost thereof,” etc.
Section 11, article 6, provides: “The board of public improvements shall recommend to the assembly ordinances for the repairing and cleaning of all streets and highways, and, for the construction of crosswalks, and no ordinance therefor shall be passed without such recommendations.”
Erom these charter provisions it is clear that the assembly has no power to pass any ordinance for the doing of any public work or making any improvement or repairs thereof or for cleaning streets or constructing sidewalks, unless the ordinance is recommended by the board of public improvements. The reason for all which is manifest, not only from the charter of the city, but also from the history of the evolution of that charter, and of similar provisions in the charters of other cities.
The board of public improvements is composed of persons specially selected because of their ability and skill to deal with such questions. The members of the assembly are not required to possess and do not generally possess such ability *389 or skill. There are many features of protection preserved to the citizen before even the board of public improvements can recommend such ordinances. There must be notice and public hearings, opportunity to consent or object, given to the citizen before even the board can act. So, while the board is a check upon the assembly, the people themselves are a check upon the board. These provisions are wise and salutary. They afford the greatest opportunity of ascertaining, regarding and protecting the rights of the people, and are safeguards against improper or jobbing contracts.
It may be broadly and emphatically stated, therefore, that no contract for any kind, character or species of public work or improvements or repairs thereof or for cleaning streets, is valid unless the ordinance authorizing it is recommended by the board of public improvements, after it has faithfully complied with all charter prerequisites to its action. This proposition can not be stated too strongly or unequivocally.
If, therefore, the ordinance before the court in this case contemplates, involves or provides for the doing of any public work or the making of any public improvement, or the cleaning of the streets, it falls within the condemnation of the rule announced and is void.
The crucial question, therefore, is, does the erection, maintenance and keeping clean boxes in which waste paper and litter may be deposited, fall within the terms “public work, improvements or street cleaning,” as these words are used in the charter ?
The case of Cole v. Skrainka, 37 Mo. App. 427 , and St. Louis v. Gleason, 89 Mo. 67 , throw no light on the inquiry, for the ordinances questioned in both of those cases were recommended by the board of public improvements, and the attack was upon the alleged failure of the board to obey the charter requirements as to its proceedings, and hence they did not *390 involve'tbe right of the assembly to pass an ordinance unless it was recommended by the board. The ordinance in the Oole case was for the reconstruction of a street, which is clearly public work or improvement; and the ordinance in the Gleason ease was for the establishment of Benton street, which is clearly a public improvement, and such an ordinance is expressly required by section 2 of article 6 to be recommended by the board of public improvements.
The case of State ex rel. Dunn v. Barlow, 48 Mo. 17 , involved this question: Dunn had a contract with the city to light, clean and keep in repair the street lamps, which had been made by the city engineer and extended from time to time, and which was perfectly legal when made. The charter of the city was amended by the Act of March 4, 1870, and it was then provided, for the first time, that the city council should have no power directly to contract for any public work or improvements, or repairs thereof, nor to fix the price or rate therefor, but that the city engineer should in all cases, except in cases of necessary repairs, prepare and submit to the council, plans, profiles and estimates, of cost of any proposed work, and under the direction of ordinance should advertise for bids and let out the work by contract to the lowest and best bidder, subject to the approval of the council. It will be observed that this provision is substantially the same as section 27 of article 6 of the present charter, except that the board of public improvements taires the place of the city engineer. After the act went into effect the city contracted in the manner provided by the charter, with one-Zider to light, clean and repair the street lamps. Thereupon, Dunn brought mandamus, to compel the city comptroller to approve an extension of his contract made by the city engineer on the third of January, 1871, for a year ending March 1, 1872. It was held that the amended charter superseded the ordinance regulation in force when the charter *391 was enacted, and that the power given the city engineer by the ordinance to make such a contract was ipso facto taken away by the amendment to 'the charter. There can be no doubt that the lighting, cleaning and repairing of the street lamps is public work within the meaning of that term as used in the charter of 1870, and in the present charter of St. Louis, and hence 'the municipal assembly did toot then have and has not now the power to directly contract therefor.
These are all the cases that have been cited to show that the ordinance in question relates to public work, and it is too plain to admit of debate that they do not determine or solve or settle the question involved. This leaves this ease without direct, controlling or binding precedent in the decisions of the courts of this State. In fact, no case from this or any other jurisdiction has been cited which attempts to define whether placing such boxes for such purpose on the streets constitutes public work or improvements or not. The solution of the problem must, therefore, be found in fundamental principles or be reasoned out by analogy.
In considering the meaning of the terms, “public works” and “improvements,” used in section 27 of article 6, the provisions of paragraph 2, section 26, article 3, of the city charter, must also be borne in mind. Those provisions are: “The mayor and assembly shall have the power within the city, by ordinance not inconsistent with the Constitution or any law of this State, or of this charter * * * * to establish, open, vacate, alter, widen, extend, pave or otherwise improve and sprinkle all streets, avenues; * * * * to construct and keep in repair all bridges, streets, sewers and drains, and to regulate the use thereof.”
Section 27 of article 6 and section 26 of article 3 are in pari materia, and must be construed together and full force given to every part of each, if possible. It will thus be seen *392 that if the purpose of an ordinance relates to public work or improvements, the assembly can not, under section 2% of article 6, legally pass the ordinance, unless it is recommended by the board of public improvements, and the work must be let by competitive bidding, to the lowest responsible bidder, whereas, if the ordinance simply regulates a particular use of a street, the municipal assembly has full and sole power to deal with the matter, under section 26 of article 3, ánd the board of public improvements has nothing to do with it. The plain reason is that the board is constituted of experts as to the question of “the character of public work and improvements, its extent, the material to be used, the manner and the general regulations under which it shall be executed,” but the assembly is just as qualified as the board to properly and intelligently regulate the use of the streets. In other words, because of their special education and training, the board is given the power to determine, in the first place, the manner, method, character, extent and plans to be observed in creating, doing or making public work or improvements (in this case a street), but the assembly is authorized by the charter to regulate the use of the street after it is improved. The board deals in engineering or building problems, while the assembly deals with governmental questions or questions of proprietorship. An architect is better qualified to judge of the construction of a house than the owner, but the owner is probably better qualified than the architect to judge of the-business question of what use the house shall be applied to after it is constructed.
There is a practical, common sense and generally accepted difference in meaning between a public improvement and a public use of a public improvement. This difference is recognized in section 26 of article 3, for the mayor and assembly are given power by ordinance, not inconsistent with the other provisions of the charter, to improve, construct and keep in *393 repair all streets and to regulate the use thereof. Thereby, plainly contemplating that if the street is to be improved or constructed or repaired, the provisions of section 27 of article 6 apply, and an ordinance therefor can only be passed when recommended by the board of public improvements, and the work thereby authorized can only be done by contract, let by competitive bidding, but if the ordinance is simply to regulate the use of the street after it is improved or constructed, the assembly alone has power to deal with the question. This distinction is made more apparent if the ordinance should relate to the use of an unimproved street, for in such cases no engineering or expert skill is needed, and the question is purely a governmental or business one, as to whether the use is a proper one.
There is, also, in law and in common sense, a well defined difference between a public improvement and a public utility.
Constructing or improving a street, an alley, or wharf, a sewer, a drain, a public highway of any kind, waterworks, gas works, and other like matters, constitute a public improvement, and all work done in relation to repairing, lighting and cleaning streets is public work. Ordinances relating to such matters can only be passed upon the recommendation of the board of public improvements. But among the public utilities which the assembly may, without the recommendation of the board of public improvements, permit the street to be used for, may be mentioned, as illustrations merely, street cars, telegraph, telephone, electric light, heat and power poles and wires, gas pipes, water pipes, subways, overhead or underground street car wires, and the like. [2 Dillon on Mun. Corp. (4 Ed.), sec. 680, et seq.] In short, as is well stated by Judge Dillon (2 Dill. Mun. Corp., sec. 703, note 1, p. 844), “In the absence of special constitutional restrictions, and where property rights are not invaded, the power of the Legislature over all streets *394 and highways and public places, and their uses, is plenary.” And the same learned author, section 688, says: “The power of the public, or of the municipal authorities representing by delegated authority the public" (as shown above, this power is expressly delegated to the assembly of St. Louis by section '26 of article 3), “over streets, is not confined to their use for the sole purpose of travel, but they may be used for many other purposes required by the 'public convenience. The uses to which streets in towns and cities may legitimately be put are greater and more numerous than with respect to ordinary roads or highways in the country. With reference to the latter, all the public requires is the easement of passage and its incidents ; and hence the owner of the soil parts with this use only, retaining the soil, and, by virtue of this ownership, is entitled, except for purposes for repairs, to the earth, timber, and grass growing thereon, and to all minerals, quarries and springs below the surface; and he may maintain actions against those who obstruct the road or interfere with his rights therein. But with respect to streets in populous places the public convenience requires more than the mere right to pass over and upon them.” Illustrating the difference of the uses which a city may authorize of its streets, the author devotes seventy-six pages (pp. 811 to 894) to the enumeration of uses which has been held legal and proper, all of which falls within the term, public utilities, and not one of which can be classified as public work or improvements. It is true that in some degree every improvement is a public utility and likewise every utility is a .public improvement. Among lexicographers a distinction is made between a public improvement and a public utility, and by some a public utility is distinguished from a public use, and it is said, “Utility is somewhat more abstract and philosophical than usefulness or use, and it is often employed to denote adaptation to produce a valuable result, while usefulness denotes *395 the actual production of such result,.” [Standard Dictionary, title, Utility.] But no layman, lexicographer or lawyer has ever failed to mark the difference between an improvement and a use of a street, and the instances above cited clearly define that difference to the judicial mind.
It is manifest that this ordinance does not rest upon the power or duty to clean the streets, and if it did it would be void under section 17 of article 6 of the charter, because such ordinances must be recommended by the board of public improvements. The purpose of the ordinance and the practical utility or use to the public is to prevent the streets from being littered, by affording storekeepers and the general public a convenient and suitable place to deposit litter, instead of sweeping it, or throwing it upon the street, thereby making them dirty and making it necessary for the city to go to the expense of cleaning them. The city charter requires all ordinances for cleaning the streets to be recommended by the board of public improvements, and that course is observed as to cleaning the streets. But while a sidewalk is a part of a street, the city does not clean the sidewalks. It requires the abutting property owner to do that work. [Rev. Ord. St. Louis, sec. 374, art. 9, ch. 14.] The city ordinance also makes it a misdemeanor for any person to deposit dirt or rubbish of any kind or description upon any street, alley, or public or private highway. [Rev. Ord. St. Louis, sec. 375.]
Storekeepers, therefore, will he benefited by this ordinance by being afforded convenient and suitable receptables for depositing the waste paper and litter that daily accumulate in their stores. This is itself no smáll or inconsiderable utility and saving to them, and therefore the use of the street for this purpose is a legitimate public use, and the power, under the city charter is vested solely and exclusively in the assembly, and the hoard of public improvements has no control over such *396 matters or over ordinances authorizing such a use. This ordinance, therefore, does not involve public work, and hence the first objection of the defendants is untenable.
II.
It is argued that the use of the streets authorized by this ordinance is for a private purpose.
That is, it is claimed that the ordinance authorizes the relator to place advertisements on the boxes, and hence the profit to the relator is the primary purpose of the ordinance, and this being a matter of private gain the use is private and not public.
The same objection can be made, and has been unsuccessfully made, to ordinances granting the use of streets to street car lines, telegraph, telephone, electric light, heat and power lines, gas, water and subway companies, and the like. All such companies are organized for private gain and individuals get, usually, ninety-five per cent (in some cases all) of the profits arising from the use of the streets for such purposes. Yet, because they subserve a public.use — constitute a public utility — the use has uniformly been held public and not private. The same objection as to advertisements can be made to street car lines., for such companies derive a profit from permitting advertisements to be placed in their cars, and the city gets no part of the profits arising from such advertisements, whereas, here the city gets fifteen per cent of the gross receipts. But the fact that the city gets all, or any proportion, or none of the profits arising from advertisements placed on such receptacles or allowed by street car companies to be placed in their cars, or by telegraph or telephone companies to be placed on their poles, does not in any manner even tend to determine the question of whether the receptacles or street car lines or telegraph or telephone poles are or are not public utilities which make the use of the streets public *397 and not private. Neither does the question whether the primary and principal purpose of and inducement to the persons granted such franchises is for private gain, and the public profit or advantage is of only an insignificant and secondary nature, afford a fair or determining test to apply to the validity of such an ordinance. Eor these conditions are present in all cases of public utilities that are furnished by private persons at their own cost. The crucial and final test is, does the use — utility-—subserve a public purpose — does it furnish a natural need of the city or its citizens — does it contribute to his comfort, prosperity or happiness ? If it does, it is public; otherwise, not. The proportion between the public and the private benefit derived from the use is not a determining factor in the problem. If the public is benefited in any degree the use is public, even though the individual who furnishes the small benefit to the public, may be benefited many times as much as the public. The cases of Matthews v. Alexandria, 68 Mo. 115 ; Glasgow v. St. Louis, 87 Mo. 678 ; Cummings v. St. Louis, 90 Mo. 259 ; Glaessner v. Brewing Association, 100 Mo. 508 ; Schopp v. St. Louis, 117 Mo. 131 , and Coal Co. v. Coal Co., 62 Mo. App. 93 , relied upon by the defendants, were all cases where the use of the streets was solely and exclusively for private purposes, and where the public derived not the slightest atom of benefit. Hence, they do not sustain the objection to the validity of this ordinance, but on the contrary illustrate and illumine the differences here pointed out. And when those cases are read in connection with the cases of Julia Building Association v. Bell Telephone Co., 88 Mo. 258 ; Railroad Co. v. St. Louis, 66 Mo. 228 ; Porter v. Railroad, 33 Mo. 128 , and the multiplicity of cases cited by Judge Dillon (2 Dillon on Mun. Corp., pp. 817 to 894) relating to allowable uses of a street by individuals or private corporations whose primary object is private gain, but which furnish a public utility in some modicum, the conclusion is logically and legally irresistible that this ordi *398 nance falls within the latter class of cases, and is a legal exercise of the governmental power conferred by the charter upon the assembly of St. Louis, and that the purpose is public notwithstanding eighty-five per cent of the profit enures to a private person.
It is urged, however, that it would enable the relator to place in front of a merchant’s store an advertisement of his rival in business, and hence the ordinance is unfair. This might be a proper argument when made to the assembly against exercising its charter power in considering and adopting the ordinance, but the power being vested in that body, the courts have no right to review it or reverse its conclusions. But the objection at once fades away when the ordinance itself is examined, for section 3 vests the power in the board of public improvements to designate the location of all boxes, and section 4 prohibits the placing of any advertisement on the boxes “until the same shall have first been submitted to and approved by the board of public improvements of said city,” and section *7 makes it unlawful to place any such receptacles on any block if a majority of the residents of the block object to it. These appear to be ample answers to the possible injury suggested of having a rival’s business advertised in front of one’s store.
III.
There is no merit in the objection that the ordinance is void because it contains more than one subject. The purpose is single. The incidents are germane to the subject. The title expresses the object and the body of the bill carries into effect the object expressed. The title is not a cloak to hide the object intended. The title is not required to be* an analytical index to the body of the bill. [Lynch v. Murphy, 119 Mo. 163 .]
For these reasons I think the peremptory writ should be awarded.
Sherwood, J., concurs in my views.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8013880. Public record. Not legal advice.