The merits or demerits of the proposed charter or any part thereof are, of course, none of our concern. Our province is limited to the legal questions raised in connection with its submission.
The first question called to our attention is whether the document proposed by the charter commission is a new charter or an amendment. Plaintiff, the taxpayer, contends that it is an amendment *Page 580 to the present charter. Defendants, members of the charter commission, members of the city council, and the city clerk, insist that it is a new charter. The trial court held it to be a new charter. The clear intention of the charter commission is that it is a new charter. As observed by the trial court, there is nothing to indicate that the proposed charter is a mere subterfuge in form of an amendment while pretending to be a new charter. It is suggested by counsel that the provisions of the new proposed charter that are similar in wording or substance with the provisions of the present charter be counted, and then that the changed or dissimilar provisions in the two documents be also counted. That may be a way of determining the question, but as the provisions of a charter are of different importance, and the dissimilar provisions, although fewer, may be of vital importance, it seems that a purely mathematical calculation and determination therefrom is unsound. From the very nature of things, there are bound to be many provisions in a present city charter and a proposed charter that are similar in substance if not in language.
In the instant case, the trial court has passed on this disputed question and found that the document drawn by the charter commission is a proposed new charter, and not an amendment to the present one. In my opinion that finding is correct.
The question then arises: If this document is a proposed new charter and not a proposed amendment to the present charter, is there legal authority for its submission? Appellants claim that no such legal authority exists. Respondents, the members of the charter commission, contend that the proposed submission is authorized, and therefore legal.
By an amendment to Minn. Const. art. 4, § 33, adopted in 1892, special legislation as to cities and villages was wholly prohibited. This created difficulties, unnecessary here to enumerate, in the administration of municipal public affairs, as no amendments or additions could be made to the charters under which the municipalities were operating, and special new charters could not be granted. To relieve the situation, it was thought wise to authorize municipalities *Page 581 to frame and adopt their own charters. The adoption in 1898 of § 36 of art. 4 of the constitution, the so-called "Municipal Home Rule Provision," followed, to provide the remedy. This amendment reads in part as follows:
"Any city or village * * * may frame a charter for its own government as a city consistent with and subject to the laws of this state, as follows: [stating procedure]. Such charter * * * [if ratified] shall * * * become the charter of such city or village as a city, and supersede any existing charter andamendments thereof, * * *.
"Before any city shall incorporate under this act thelegislature shall prescribe by law the general limits withinwhich such charter shall be framed. * * *
"The legislature may provide general laws relating to affairs of cities, * * * which shall be paramount while in force to the provisions relating to the same matter included in the local charter herein provided for." (Italics supplied.)
In 1909 the legislature adopted c. 236 (L. 1909). Section 1 of such act (now M.S.A. 410.23) reads:
"Any city in this state which now has, or may hereafter adopt, a so-called 'home rule' charter by and under the provisions of section 36, article 4 of the constitution, and of any statutes enacted in pursuance thereof, is hereby authorized and empowered to frame, submit and adopt a new charter in the same manner and mode as is by law provided for the original adoption of such so-called 'home rule' charter."
Under this statute, the city of Minneapolis is "authorized and empowered to frame, submit and adopt a new charter," unless § 410.23 is invalid as being in contravention of Minn. Const. art. 4, § 36. Inquiry must therefore be made to determine whether § 410.23 contravenes and is consequently unconstitutional. If § 410.23 is constitutional, then it follows, of course, that the proposed new charter may be submitted; and if adopted it becomes the charter of the city. Nowhere in art. 4, § 36, does it state that *Page 582 there can be but one "home rule" charter adopted by a city; and nowhere is there any provision prohibiting the legislature from authorizing cities already operating under a home rule charter from adopting a new one.
In State ex rel. Simpson v. City of Mankato, 117 Minn. 458,136 N.W. 264, 41 L.R.A. (N.S.) 111, the question was raised as to the constitutionality of a charter providing for a commission form of government. The legislature had passed an act permitting cities to adopt a commission form of government, two of the features of such charter being that (1) the mayor is a member of the legislative body; and (2) the commissioners are both legislators and administrators, while art. 4, § 36, provides that "It shall be a feature of all such charters that there shall be provided * * * for a mayor or chief magistrate, and a legislative body of either one or two houses." The claim was made that a charter which gives to such body (legislative) both executive and legislative powers and includes in its membership the chief executive of the city is not in accordance with the provisions of the amendment. The court said (117 Minn. 463,136 N.W. 265):
"The relator has cited many authorities to support the proposition, propounded by Chief Justice Start in Cooke v. Iverson, 108 Minn. 388, 397, 122 N.W. 251, 254 [52 L.R.A. (N.S.) 415), that, 'when the language of the Constitution is positive and free from all ambiguity, courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning.' That this is the true canon of construction in applying constitutional provisions, cannot be doubted. We again declare, as was declared by the Chief Justice in Cooke v. Iverson, supra, that 'we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power.' But from this canon of constitutional construction we cannot slip so readily into the position into which the relator, seemingly unmindful of another great canon of the law, has slipped, and declare that, because of the constitutional requirement that the so-called home rule charters must provide for a 'mayor or chief magistrate and a legislative body,' the *Page 583 legislature, whose will, except as restricted by the Constitution, is equally the will of the people, may not authorize the freeholders of a city to invest their mayor or chief magistrate with power to participate in the deliberations of the local legislative body, and to give the latter the power to participate in the administrative functions of the city.
"We must not forget that the voice of the legislature is the voice of the sovereign people, and that, subject only to such limitations as the people have seen fit to incorporate in their Constitution, the legislature is vested with the sovereign power of the people themselves. In other words, the provisions of a state Constitution do not and cannot confer upon the legislature any powers whatever, but are mere limitations in the strict sense of that term, and the legislature has all the powers of an absolute sovereign of which it has not been divested by the Constitution. [Citing cases.] In determining, therefore, the constitutionality of an act of the legislature, the canon of constitutional construction above recited must be applied, together with that other equally as sacred canon that every intendment must be indulged in favor of the constitutionality of an act of the legislature. State v. Corbett, supra; 3 Dunnell, Minn. Digest, § 8931."
In State v. Corbett, 57 Minn. 345, 350, 59 N.W. 317, 318,24 L.R.A. 498, Mr. Justice Mitchell, speaking for the court, said:
"Except where the constitution has imposed limitations upon the legislative power, it must be considered as practically absolute; and to warrant the judiciary in declaring a statute invalid they must be able to point out some constitutional limitation which the act clearly transcends."
The first and main question, then, for determination is not whether the constitution authorized the law of 1909, but whether such act contravenes any provision thereof.
In Farrell v. Hicken, 125 Minn. 407, 412, 147 N.W. 815, 817, L.R.A. 1915B, 401, this court stated: *Page 584
"* * * But we must bear in mind that, as far as power of legislation is concerned, the state Constitution is an instrument of limitation, not of grant. We need not search in it for authority for this legislation. We need look in it only for prohibitions. No constitutional authority to legislate upon this subject is required. The power of the legislative authority to legislate is plenary, unless the Constitution has deprived it of that power."
See, Lommen v. Minneapolis Gaslight Co. 65 Minn. 196, 207,68 N.W. 53, 54, 33 L.R.A. 437, 60 A.S.R. 450; State ex rel. Simpson v. City of Mankato, 117 Minn. 458, 136 N.W. 264,41 L.R.A.(N.S.) 111, supra.
In State ex rel. Meighen v. Weatherill, 125 Minn. 336, 339,147 N.W. 105, 106, to the same effect, we stated:
"* * * for that department [legislative] is clothed with the right to exercise any and all powers of government where no restrictions are expressly or by necessary implication imposed by the Constitution. Or, as otherwise expressed, the Constitution is generally construed as a limitation and not a grant of power. State [ex rel. Simpson] v. City of Mankato,117 Minn. 458, 136 N.W. 264, 41 L.R.A. (N.S.) 111. And where a particular act of the legislature is questioned on constitutional grounds it is not the justification therefor that must be pointed out, but the clause or provision of the Constitution which prohibits its enactment. Black, Const. Law 35."
In Williams v. Evans, 139 Minn. 32, 165 N.W. 495, L.R.A. 1918F, 542, the rule is again stated as follows:
"The state legislature possesses all legislative power not withheld or forbidden by the state or Federal Constitution."
See, also, to the same effect State ex rel. Kelly v. Wolfer,119 Minn. 368, 377, 138 N.W. 315, 319, 42 L.R.A.(N.S.) 978, Ann. Cas. 1914A, 1248; State v. M. O. Power Co. 121 Minn. 421,428, 141 N.W. 839, 842; State ex rel. Smith v. City of International Falls, 132 Minn. 298, 156 N.W. 249. *Page 585
There is nothing in art. 4, § 36, which by words or by necessary implication restricts the legislature in giving authority to municipalities to adopt a second charter. And, as was said in State ex rel. Meighen v. Weatherill, 125 Minn. 336,339, 147 N.W. 105, 106, supra, "where a particular act of the legislature is questioned on constitutional grounds it is not the justification therefor that must be pointed out, but the clause or provision of the Constitution which prohibits its enactment." It is impossible to point out the clause or provision in art. 4, § 36, which prohibited the legislature from passing L. 1909, c. 236, nor can the prohibition be found by necessary implication.
The whole purpose of art. 4, § 36, was to give municipalities greater freedom of action. Appellants are now attempting to place upon the municipality restrictions that certainly were not intended. As was said in State ex rel. Smith v. City of St. Paul, 128 Minn. 82, 89, 150 N.W. 389, 392, supra:
"* * * Manifestly the purpose of article 4 was to give cities the maximum freedom of self-government consistent with the general welfare of the state * * *."
Counsel for appellant members of the city council quote from Switzer v. State ex rel. Silvey, 103 Ohio St. 306, 312,133 N.E. 552, 554, where it is said: "Where constitutions speak, statutes should be silent." The converse must be equally true, that where constitutions are silent on matters such as here involved statutes may speak. In the instant case, the constitution is silent as to second charters. It is silent where it might have prohibited the legislature from authorizing cities operating under a home rule charter from adopting a second. Furthermore, there is no apparent valid reason why such a prohibition should have been made. Why should the city not have a continuing right?
In two jurisdictions, where no statute similar to L. 1909, c. 236, had been enacted, the supreme courts have held, under constitutional provisions very similar to that of Minnesota, that a municipality did not exhaust its authority to adopt a second charter by the adoption of a first home rule charter. *Page 586
In Reeves v. Anderson, 13 Wash. 17, 19, 42 P. 625, 626, the constitutional provision reads as follows:
"* * * Such proposed charter shall be submitted to the qualified electors of said city, and if a majority of such qualified electors voting thereon ratify the same, it shall become the charter of said city and shall become the organic law thereof, and supersede any existing charter, including amendments thereto, and all special laws inconsistent with such charter. * * * Such charter may be amended by proposals therefor submitted by the legislative authority of such city to the electors thereof at any general election, after notice of such submission published as above specified, and ratified by a majority of the qualified electors voting thereon."
The court said (13 Wash. 21, 23, 42 P. 626, 627):
"We think that the right to make a new charter is included within the constitutional grant of power to 'frame a charter;' that the right is a continuing right, and that by the act in question the legislature has made it possible for the people to exercise such constitutional right to create a new charter. * * *
* * * * *
"We think that the power to frame a charter for themselves is a continuing right vested in the voters of the city, and that it does not become exhausted because once exercised. We agree with counsel for respondent that the object of the constitutional provision is to confer upon the large cities of the state the power of local self-government (subject, as already stated, to general laws) and that this right to 'home rule is not limited at all in point of time.' "
In Morrow v. Kansas City, 186 Mo. 675, 685, 689,85 S.W. 572, 574, 575, where the court held that the power conferred by the constitution was continuing, so that a city to which the section applied did not exhaust its constitutional grant by having once adopted a charter thereunder, it said:
"* * * the people having vested in the city and its inhabitants the power to frame and adopt a charter, we can see no reason why the exercise of it in 1889 should forever tie the hands of the city *Page 587 from adopting a new charter in harmony with the conditions and necessities which its growth may require, or unforeseen exigencies may demand, for the welfare of its people.
* * * * *
"* * * It ordains that 'any city' of more than one hundred thousand inhabitants may frame a charter for its own government. It does not say any unchartered city of that population, or a city having a general legislative charter, or one having a special legislative charter prior to the adoption of the Constitution, may frame its own charter, but 'any city' of the requisite population, which will include one that has already framed and adopted a charter, and it is not for the courts to import into the Constitution a proviso that 'any city' of the requisite population which has not already availeditself of this grant, may frame and adopt its own charter.
"The grant is broad and unrestricted. But this is not all. This section provides further that a charter so framed and adopted shall 'supersede any existing charter or amendments thereof.' Here it is seen again, that the charter so framed will supersede any existing charter, a freeholders' charter as well as any other.
"But it is urged that the Constitution simply provides for an amendment, and does not contemplate a new freeholders' charter after one has been framed and adopted. * * *
"We can not bring ourselves to the view that it was intended to confine these cities to the amending plan."
The wording of the provision of the constitution of Missouri, as will be seen from the above, is very similar to art. 4, § 36, and the above reasoning applies fully to our situation. The Missouri court continues (186 Mo. 690, 85 S.W. 575):
"We think that the power conferred by section 16 of article 9 of the Constitution of Missouri upon cities having more than one hundred thousand inhabitants is a legislative power conferred directly upon such city and its people, and such being its nature, it is a continuing one, in the absence of a constitutional prohibition; that there is no such prohibition in the Constitution; that the *Page 588 mere fact that such a charter may be amended in the manner prescribed in this section of itself does not amount to a prohibition to frame and adopt a new charter, but that the section has a two-fold object, and points out a method for the obtaining of each without destroying the other."
These two cases clearly support respondents' position. In view of the provisions of the constitution, there can be no reason for holding that the power once exercised is exhausted and that there exists in the municipality no further power to frame and adopt a second or any other home rule charter. The same reason for adopting the initial, or original, charter applies to a new charter. New times demand new instrumentalities. The only case which may be considered contra is Blanchard v. Hartwell, 131 Cal. 263, 63 P. 349. In view of the difference in the constitutional provisions, it may not be said to be an authority contra to the cases from Washington and Missouri. The provisions of the California constitution are declared mandatory and prohibitory, "unless the contrary was expressly stated" with reference thereto. The California court adopted a strict construction, but it was confronted with a prohibitory and mandatory organic law. The Missouri court plainly points out the situation confronting the California court.
In passing upon the constitutionality of enactments, a cardinal rule is that every reasonable doubt must be resolved in favor of the constitutionality of a legislative act. It was so stated by Mr. Justice Mitchell in State ex rel. Hagestad v. Sullivan, 67 Minn. 379, 383, 69 N.W. 1094, 1095. In Lommen v. Minneapolis Gaslight Co. 65 Minn. 196, 207, 68 N.W. 53, 54,33 L.R.A. 437, 60 A.S.R. 450, Mr. Justice Mitchell stated the rule as follows:
"Inasmuch as the legislature is a co-ordinate branch of the government, the courts do not sit to review or revise their legislative action; and hence, if they hold an act invalid, it must be because the legislature has failed to keep within its constitutional limits. * * * Except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute. *Page 589 * * * Neither are courts at liberty to declare an act void merely because, in their judgment, it is opposed to the spirit of the constitution. They must be able to point out the specific provision of the constitution, either expressed or clearly implied from what is expressed, which the act violates. Moreover, courts will never declare a statute invalid unless its invalidity is, in their judgment, placed beyond reasonable doubt. Cooley, Const. Lim. c. 7."
"This rule has always obtained in this state," this court commented in Farrell v. Hicken, 125 Minn. 407, 413,147 N.W. 815, 817, L.R.A. 1915B, 401. See, also, Curryer v. Merrill,25 Minn. 1, 4, 33 Am. R. 450; State ex rel. Benson v. Peterson,180 Minn. 366, 230 N.W. 830; State ex rel. Olsen v. Board of Control, 85 Minn. 165, 88 N.W. 533; State v. Bridgeman Russell Co. 117 Minn. 186, 134 N.W. 496, Ann. Cas. 1913d 41; State ex rel. Simpson v. City of Mankato, 117 Minn. 458,136 N.W. 264, 41 L.R.A. (N.S.) 111; State ex rel. Wilcox v. Ryder,126 Minn. 95, 147 N.W. 953, 5 A.L.R. 1449; Reed v. Bjornson,191 Minn. 254, 253 N.W. 102; Muller v. Theo. Hamm Brg. Co.197 Minn. 608, 268 N.W. 204; State ex rel. Pearson v. Probate Court, 205 Minn. 545, 287 N.W. 297, affirmed 309 U.S. 270,60 S. Ct. 523, 84 L. ed. 744, 126 A.L.R. 530; Dimke v. Finke,209 Minn. 29, 295 N.W. 75; State v. Minnesota Federal S. L. Assn. 218 Minn. 229, 15 N.W.2d 568.
Under the above test of constitutionality, it is clear that L. 1909, c. 236, is a valid enactment. If a valid enactment, the city of Minneapolis has the authority to submit a new charter to the voters. It violates neither the wording or spirit of the constitutional provision.
In Farrell v. Hicken, 125 Minn. 407, 412, 147 N.W. 815, 817, L.R.A. 1915B, 401, where an election contest arose in the first election which followed the adoption of a second home rule charter, this court said:
"* * * The people of the city of Duluth, pursuant to the authority granted to them by the Constitution and laws of the state, adopted this charter for their own local government at a popular election, by a vote of at least four-sevenths of the electors voting." *Page 590 When the court refers to the laws of the state, it seems reasonable to assume that it had in mind also L. 1909, c. 236, § 1. But it may be that no one, including the courts, had in mind the contention for invalidity now raised in the instant case in the three cases which came to this court after the adoption of the second home rule charter by the city of Duluth in 1912. In all the cases it was apparently assumed that the city had authority to adopt a second home rule charter. In Standard Salt Cement Co. v. National Surety Co. 134 Minn. 121,123, 158 N.W. 802, a case where reference was made to the second home rule charter of the city of Duluth, the court said:
"On December 2, 1912, the city ratified a new charter. * * * The charter became effective and superseded the former charter on January 2, 1913. Woodbridge v. City of Duluth, 121 Minn. 99,140 N.W. 182."
In the three Duluth cases it must be said that the validity of the second charter was not an issue.
Since § 36, the constitutional amendment, was adopted in 1899, and since § 410.23 has been on our statute books since 1909, and since numerous second charters have been submitted, and of those submitted 17 have been adopted and operated under, it seems like a belated discovery that home rule cities have exhausted their authority to adopt a second charter and that they lack constitutional authority to do so. One Minnesota city is now operating under its third home rule charter. Charter elections are, as a rule, hotly contested; yet, until now, no one, so far as the records indicate, has contended that a city has no constitutional authority to adopt a second charter.
In view of the fact that the whole purpose of art. 4, § 36, was to give municipalities greater freedom in the handling of their own municipal affairs, it could not have been the intention of the electors in adopting the amendment to permit a municipality to adopt only one charter, and, by this adoption, exhaust its authority. Freedom to act but once is a very limited freedom. After once acting, the municipality would be shackled against the adoption of a new *Page 591 charter to meet situations which arise in an age where municipal problems and functions not only are greatly increasing, but are also becoming more complicated and involved, requiring more efficient instrumentalities with which to meet them.
For the reasons above set forth, I respectfully dissent.