# Padberg v. Roos > Supreme Court of Missouri · April 11, 1966 · 404 S.W.2d 161 URL: https://www.frixlaw.com/law-library/cases/9672367 ## Case - **Full name:** Godfrey P. PADBERG, Samuel B. Murphy, Arthur S. Margulis and Harry N. Softer, Members, All Constituting the Board of Election Commissioners of St. Louis County, Missouri, Plaintiffs-Respondents, v. Lawrence K. ROOS, County Supervisor, John O’Hara, Maurice Osborn, Gerald A. Rimmel, Edward E. Murphy, Jr., Brainerd W. La Tourette, Jr., Boris M. Martin and Maurice L. Stewart, Members of the County Council, Dorothy Wilson, County Clerk, and St. Louis County, Missouri, a Municipal Corporation, Defendants-Appellants - **Court:** Supreme Court of Missouri - **Decided:** April 11, 1966 - **Citations:** 404 S.W.2d 161; 1966 Mo. LEXIS 765 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Finch, Storckman, Hyde, Eager, Donnelly, Holman, Henley, Don-Nelly - **Cited by:** 10 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/9672367 ## How later opinions describe it (automated extraction) - finding an ordinance’s provision changing employees’ status invalid in these circumstances ## Opinion text On Motion for Rehearing PER CURIAM. In their motion for rehearing respondents urge that the judicial power to determine whether an emergency in fact exists is limited to a review of declarations of emergency by a legislative body. It has no application, say respondents, to declarations by the people in their charter, and such determinations are conclusive on the courts and not subject to any review. The cases of State ex inf. Taylor, Attorney General, ex rel. Kansas City v. North Kansas City, Mo., 228 S.W.2d 762 , and State ex rel. Asotsky v. Regan, 317 Mo. 1216 , 298 S.W. 747 , 55 A.L.R. 773 , are cited as being in support of this proposition. The later of these two cases is the North Kansas City case. What we say herein would apply in principle to a discussion of the Asotsky case, and hence we will discuss only the North Kansas City case in this per curiam. O.ne question decided in the North Kansas City case was that an ordinance adopted by the City Council of Kansas City was an emergency measure. Kansas City was a constitutional charter city and its charter contained a provision that “any ordinance * * * providing for the submission of any proposal to the people” was an emergency ordinance. In the title of the ordinance which was adopted, as well as in the body thereof, it was declared that the ordinance was an emergency measure. The court’s opinion referred to the fact that the city charter did contain the provision above referred to and that it was “not an unlawful or unreasonable one.” This language seems to say that this charter provision made an ordinance submitting a proposal to the people an emergency measure in and of itself. However, in the same opinion, 228 S.W.2d on page 773, the court recognized that “it is the function of the courts in a judicial proceeding to determine whether a statute or an ordinance is in fact an emergency measure within the law.” Subsequently, the opinion went on to say: “This proposal requiring a submission to the people for their approval or rejection in an election was an emergency measure. Relator’s City Council had the lawful right to so denominate this an emergency measure and we hold that in fact it was such.” (Emphasis supplied.) Thus, the court noted in the North Kansas City case that the City Council in its ordinance declared it to be an emergency ordinance, and the court then held that the ordinance, passed by the City Council, was in fact an emergency measure. The court thereby exercised the judicial function of making such a determination. It thus appears that the court assigned two bases for its decision upholding the ordinance as an emergency measure. It cannot be said that the decision is based solely on the proposition that the charter provision conclusively made the ordinance an emergency measure, because, in that event, the court would not have gone ahead and judicially determined that it was an emergency measure in fact. Missouri is in accord with the prevalent view that a legislative declaration stating an act to be an emergency measure is entitled to great weight, “but is not conclusive, because the courts possess the final authority to determine whether an emergency in fact exists.” 16 Am. Jur.2d, Constitutional Law, § 171, p. 390. See also 37 Am.Jur., Municipal Corporations, § 152, p. 765; Annotations: Emergency Clause in Ordinance, 35 A.L.R.2d 586 , 55 A.L.R. 779 . Such right is not conferred specifically in any constitutional provision but is an inherent judicial function applicable alike to enactments of the state legislature and of municipal bodies. Whether respondents are correct in their contention that the charter declaration of emergency is conclusive upon the courts *171 involves a consideration of (1) the status of a county or city and of a charter which it adopts, and (2) the nature of the authority of the court to judicially determine whether an emergency in fact exists. A county or a city, charter or otherwise, is imperium in imperio, that is, a government within a government. The people of a county or city, as such, are not sovereign. A non-charter county or city has the powers conferred on it by the Constitution and statutes of the state. A charter does not transform a county or city into a government apart from and superior to the state. Provisions of a county or city charter which substitute for state legislation with respect to that particular county or city must conform to the Constitution and laws of the state in matters of general interest and statewide concern and are, subject thereto. Such charter provisions, in so far as that county or city is concerned, have the force and effect of a statute of the legislature and can be declared invalid for the same reasons as acts of the legislature. Kansas City, Missouri v. J. I. Case Threshing Machine Co., 337 Mo. 913 , 87 S.W.2d 195, 202 . In addition, of course, the charter must conform to the general laws of the state and when the provisions thereof do not so conform they are invalid. The contention that provisions of a county or city charter are inviolate because they were made by the people themselves rather than a legislative body is not sound. An example will illustrate. In McDonnell Aircraft Corp. v. City of Berkeley, Mo., 367 S.W.2d 498 , this court held invalid an amendment to the charter of the City of Berkeley whereby it had annexed additional territory. The city had followed its charter in making the annexation. The contention was made that this annexation in the form of a charter amendment was an action of the people themselves acting under authority of the Missouri Constitution to adopt an amended charter and that such action was not subject to judicial review as to reasonableness. This court expressly held that this action by the people themselves was subject to judicial review and the annexation was held to be arbitrary and unreasonable, and therefore invalid. Thus, the action of the people in the form of an amendment to their charter was not conclusive on the courts and was not immune from an examination as to reasonableness. See also City of Hannibal v. Winchester, Mo., 391 S.W.2d 279 . We desire to make it clear that our decision in this case does not affect the result in State ex inf. Taylor, Attorney General, ex rel. Kansas City v. North Kansas City, supra. That case was correctly decided in that the decision of the court rests primarily on its holding that the emergency declared by the City Council was in fact an emergency. Other considerations mentioned were unnecessary to the opinion. HOLMAN, HENLEY and DONNELLY, JJ., dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9672367. Public record. Not legal advice.