(dissenting).
I respectfully dissent, because I do not believe the people of St. Louis can constitutionally turn over to a foreign body the fixing of minimum salaries for its firemen.1
The majority opinion relies principally on Kirby v. Nolte, banc, 351 Mo. 525, 173 S.W.2d 391, saying it settles the question. This overlooks the marked differences between the situation in Kirby and the present case. In Kirby, the limitation imposed on the board of aldermen as to salaries for city employees was in the form of a recommendation from a local civil service commission, not an unalterable minimum set by an outside body over which the citizens of St. Louis had no control. In my opinion, the language of the Kirby case quoted on page 459 of the majority opinion cannot properly be read to authorize a charter amendment which is as radically different as this is from what was before the court in the Kirby case. It is true that in the Kirby case the effect of the civil service commission amendment was that the aldermen were limited to acting on the recommendation of the commission. But the court compared it to other limitations in the St. Louis charter where the board of aldermen could act only upon recommendations of the St. Louis board of public service in some instances, or the St. Louis board of estimate and apportionment in others. The court found twelve such instances in the charter, all involving local boards or commissions and said these did not violate the separation of powers. In *465every instance, these boards or commissions were either appointed by the mayor or made up of elected city officials. The people, therefore, could make themselves heard and felt through their elected officers, and, most importantly, the board of aldermen was not required to accept the recommendation of the commission. It could reject any recommendation. Thus in practice the people of St. Louis or the board of aldermen had not been deprived of power to exercise effective control over municipal salaries.
But in the charter amendment before us, an outside body, over which the city or its people have no control, has been designated to set the salary floor for the firemen, which the city must accept and somehow pay. Niether the civil service commission nor the board of aldermen have any choice except to accept as the minimum rate for the St. Louis firemen whatever the general assembly sets as the rate for the St. Louis police. The obvious intent and purpose of the charter amendment is that the function of fixing the salary floor for the St. Louis firemen will be performed by the legislature. We would be blind to reality hot to know that the general assembly will have to do, and will do, the actual job of legislating, complete with hearings, pressures, and lobbying, on minimum salaries of some 1100 firemen every time it passes on salaries for some 2225 police. The legislature will set the minimum, but St. Louis will have to find the money to pay.
The charter amendment before us is a classic example of vesting power without also imposing responsibility. It violates the distribution of powers clause and I do not believe the Kirby case in any way authorizes what is being attempted here.
While the majority opinion does not discuss the matter, it cites and relies on both City of Springfield v. Clouse, banc, 356 Mo. 1239, 206 S.W.2d 539 and State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532, which applied the separation of powers clause to municipalities, one to a city of the second class and the other to a home rule charter city.
It has been pointed out that “The problem of the delegation of powers is a refinement of the broader doctrine of the separation of powers. If a department of government cannot assume powers beyond a 'proper sphere,’ then a department of the government cannot divest itself or another department of its proper power by delegating or transferring the power to a third department ...” Sutherland, Statutory Construction, Ch. 3, p. 55. In the case at bar one of the powers of St. Louis, under its charter, Art. I, Sec. 1(20), is “To provide and maintain a fire department.” Necessarily this requires setting the salaries of the firemen as well as raising the money to pay them. It is the setting of the salary floor which the people of St. Louis are attempting to divest or foist on the legislature.
The majority opinion makes frequent reference to the will of the people being supreme and compares the charter amendment before us to a hypothetical example of the people of the state of Missouri adopting a constitutional amendment establishing the salary of the governor at a percentage of whatever the salary is of the President. No doubt such an amendment would be valid, even though it would in effect turn over to Congress the fixing of the salary of the governor. It might violate the separation of powers concept, but nonetheless the people of the state would be acting, and since their power is supreme, their action would be invalid only if it violated the federal constitution.
But this does not mean the people of St. Louis are supreme in the same sense, or that the charter amendment before us is somehow valid because it was adopted upon a vote of the people of St. Louis. Unlike the people of the state of Missouri, the people of St. Louis, are subject to Art. II, 1945 Constitution, and what the people of Missouri might be able to do about the governor’s salary does not mean the people *466of St. Louis could decide to set the salary of the mayor at whatever the salary is of, say, the mayor of Chicago, or Tulsa, or the governor of Kansas or Missouri, any more than could the people of St. Louis, just because they are the people, validly amend their charter to provide for a one-man dictator form of government. All these examples would be invalid as violating the separation of powers clause of the state constitution.
The majority opinion mentions State ex rel. Everett Fire Fighters Local No. 350 v. Johnson, 46 Wash.2d 114, 278 P.2d 662, which held unconstitutional a charter amendment giving an outside agency the right to set the salaries of firemen, because it was an abdication of responsibility beyond the power of the people of the city or its city council to make. The majority opinion says the Everett case is distinguishable because the fixing of wages of municipal employees was a legislative function and Washington had a statute which fixed the legislative power in the mayor and city council, so neither the council nor the people by initiative charter amendment could confer on someone else the right to fix the salaries of municipal firemen, but that there is no such statute in Missouri.
However, the rationale of the Everett case calls for an outcome opposite that of the majority opinion, because Art. II of the Missouri constitution, establishing the separation of powers, confides legislative power to the department in which it belongs (in a home rule charter city this means in the council or in the people when they legislate by popular vote) and operates to prohibit (as effectively as the Washington statute) the city council of St. Louis or the people of St. Louis from turning the legislative function of fixing minimum salaries for the St. Louis firemen over to an outside third body. As was said in Everett at 278 P.2d 1. c. 666: “If the council had no legal right to (sic) so abdicate its responsibility in this matter, the people of Everett had no right, under Art. XI, § 10 of the state constitution to require the council to do so . . . ” The aforesaid Art. XI, Sec. 10 of the Washington constitution contains the same language about a home rule charter being “consistent with and subject to the Constitution and laws of the state” as our own constitutional home rule charter provisions did at the times here involved, so the Everett case is closely in point.
St. Louis cannot exist without a fire department. In practice it must, under the charter amendment, pay whatever firemen’s minimum is established through the action of the legislature in setting the police salaries. This exposes St. Louis to the risk of having to cripple the ability of the fire department to protect the citizens by reducing its size or crippling the city by having to pay minimum wages above its ability to pay, by reason of a salary minimum set by someone else, over which it has no veto or control, although being responsible for raising the money to pay for it. I do not believe the voters of St. Louis can constitutionally adopt a charter amendment which puts the city in this position.