I respectfully dissent.
It would not be difficult to commend the city officials of Kansas City for seeking to alleviate a “financial crises” of the Kansas City School District. When the method used however is contrary to the existing law in Missouri, this court should not place a stamp of approval on it regardless of how worthy the objective. The solution should come from the General Assembly or the patrons of the school district.
My reasons for dissenting are:
1.As provided in Article VI, § 19(a) (all references being to the 1945 Missouri Constitution), charter cities can exercise only those powers that “are consistent with the Constitution of this State.” Financing of public schools by revenue derived from municipal taxes is inconsistent with Article IX, § 1(a), which provides, in part: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the general assembly shall establish and maintain free public schools . . .” (Emphasis added.) The General Assembly has and continues at this time to perform that duty by following Article IX, § 5, which calls for the establishment and preservation of a public school fund for maintaining free public schools (with the high priority of appropriation found in Article III, § 36) plus such ad valorem taxes as are authorized by Article X. Maintenance of public schools by the method in question, in my opinion, is totally inconsistent with that planned by the citizens of this state as now expressed in their constitution. In Grant v. Kansas City, 431 S.W.2d 89 (Mo. banc 1968), this court articulated the meaning of the word “consistent” in Article VI, § 19(a). After the observation was made, l.c. 92[1], that “. . it is sometimes difficult to determine whether a function should be classified as governmental or corporate,” this court did declare that governmental functions are retained by the state unless delegated elsewhere. The constitution of this state makes the establishment and maintenance of public schools a priority governmental function — thus, it is with the state. I have found nothing by research or by reference in the principal opinion delegating that duty to municipalities.
2. Financing of public schools is not a proper subject for municipal taxation. As said in Kansas City v. Frogge, 352 Mo. 233, 176 S.W.2d 498, at 503 (1944): “The state by granting to plaintiff city the right to adopt and frame a charter for its own government did not confer upon plaintiff city the right to assume under its charter all of the powers which the state may exercise within the city, but conferred the right to assume those powers incident to it as a municipality. There are governmental powers, the exercise of which is essential to the prosperity and welfare of the people of a city, yet are not essentially appertaining to city government. These powers, unless delegated by the state, are reserved in the state to be exercised by it.” Regardless of the scope of power that might be given by implication to a charter city, such powers are limited to and must appertain to corporate (municipal) functions. A taxpayer of the city has the right to demand that municipal taxes be used solely for city purposes.
3. The principal opinion is predicated, at least in part, on the statement therein that: “(6) We find no constitutional or statutory provision which expressly denies the City authority to donate money to the school districts.” I would respectfully suggest that the conclusion noted is not only not authority for the decision reached, but that it dictates the opposite result under the law *21of this state. Taxation is based on the power to tax. For instance, as said in United Air Lines, Inc. v. State Tax Commission, 377 S.W.2d 444, l.c. 448[3-6] (Mo. banc 1964): “In a taxing statute there must be specific authority, or authority necessarily implied, for the imposition of a tax upon any particular property.” Of the many cases so holding, perhaps it was stated most emphatically in Leavell v. Blades, 237 Mo. 695, 141 S.W. 893, l.c. 894 (1911), by Judge Lamm when he said: “When the tax gatherer puts his finger on the citizen, he must also put his finger on the law permitting it.”
4. I am convinced that the word “educational” found in Article 1, § 1(39), of the Kansas City Charter was not used in the context which the city and district now give to it. Many cities provide libraries and other facilities of an educational nature, but it is inconceivable that those drafting the charter or the voters approving it contemplated paying taxes to finance the public schools.
5. At the risk of being heretical, I would suggest that the plan approved in the principal opinion effectively disenfranchised the patrons and voters in the school district. Notwithstanding the vote of the taxpayers of the school district, a tax has been imposed upon them now for purposes which they rejected.
6. In effect, the principal opinion approves taxation by the city for financing of public schools but renounces any authority in the city to operate or control the public schools. With the latter I wholly agree, but would suggest that this court need not hide its eyes from what has become a fact of life, i. e., control follows the source of money in any public activity.
7. Taxing residents of Kansas City and dividing the revenue with school districts (operating schools outside the city limits of Kansas City) speaks for itself.
Finding taxation by the city for public school purposes illegal, I would disapprove the same.