dissenting.
I respectfully dissent.1
If there is but one thing I have learned in the judiciary, it is that a principal opinion which cannot stand as written without later purporting to answer the dissents- which it invites is an opinion flawed from the beginning.
The time has come for government at all levels to get honest with the people. This also applies to the judicial branch. There is no excuse for the judiciary hiding either its own acts or the acts of the executive or legislative branches behind high-sounding legal phrases. I refer to the use of very legal sounding phrases, such as: “the statute is not shown to be arbitrary or capricious,” “the challenges have failed to overcome the presumption of constitutionality,” “statutes are presumed to be constitutional until the contrary is shown,” “every indulgence must be made in favor of the legislature’s handiwork,” or “we are unable to say that the legislature’s choice lacked any rational basis,” all appearing in the principal opinion.
*927One cannot dispute that the primary obligation of all courts to the people is that, in construing constitutions, statutes, instruments, or documents, the words used by the drafters should be given their clear, plain and unambiguous meaning. No one could state the rule better than Robertson, J., (concurring herein) where he states “ ‘ ‘[i]t is, of course, fundamental that where the language of a statute is plain and admits of but one meaning there is no room for construction.’ This rule applies with equal force to constitutional provisions.’ ” (Citations omitted.) If there is found to be an ambiguity or conflict in the words used in any of these, the courts then resort to the long-accepted rules and presumptions of interpretation and construction utilized by prior courts in arriving at what was meant by the persons who used the ambiguous words in question.
There is only one issue: is there a clear, unambiguous meaning to the words of Article X, Section 4(b) of the Missouri Constitution, or, is there a conflict and ambiguity which the Court is required to resolve?
The words in question used in this case were chosen by the elected representatives of the people of Missouri and approved by the people to amend their constitution. Mo. Const, art. X, § 4(b). So that there can be no accusation of misrepresentation of those words, they are set forth in full, together with those of preexisting section 4(a) of Article X of the Missouri Constitution, with the words particularly applicable to this case underlined.
Section 4(a). Classification of taxable property — taxes on franchises, incomes, excises and licenses. All taxable property shall be classified for tax purposes as follows: class 1, real property; class 2, tangible personal property; class 3, intangible personal property. The general assembly, by general law, may provide for further classification within classes 2 and 3, based solely on the nature and characteristics of the property, and not on the nature, residence or business of the owner, or the amount owned. Nothing in this section shall prevent the taxing of franchises, privileges or incomes, or the levying of excise or motor vehicle license taxes, or any other taxes of the same or different types.
Mo. Const, art. X, § 4(a) (emphasis added).
Section 4(b). Basis of assessment of tangible property — real property — taxation of intangibles — limitations.—Property in classes 1 and 2 and subclasses of those classes, shall be assessed for tax purposes at its value or such percentage of its value as may be fixed by law for each class and for each subclass. Property in class 3 and its subclasses shall be taxed only to the extent authorized and at the rate fixed by law for each class and subclass, and the tax shall be based on the annual yield and shall not exceed eight percent thereof. Property in class 1 shall be subclassed in the following classifications:
(1) Residential property;
(2) Agricultural and horticultural property;
(3) Utility, industrial, commercial, railroad, and all other property not included in subclasses (1) and (2) of class 1.
Property in the subclasses of class 1 may be defined by law, however subclasses (1), (2), and (3) shall not be further divided, provided, land in subclass (2) may by general law be assessed for tax purposes on its productive capability. The same percentage of value shall be applied to all properties within any subclass. No classes or subclass shall have a percentage of its true value in money in excess of thirty-three and one-third percent.
Mo. Const, art. X, § 4(b) (proposed by Mo. Laws 1982, p. 734; adopted at special election of August 3, 1982) (emphasis added).
The Constitution of 1875 provided that “All property subject to taxation shall be taxed in proportion to its value.” Mo. Const, of 1875, art. X, § 4. This was an absolute prohibition on classification for tax purposes. Metal Form Corp. v. Leachman, 599 S.W.2d 922, 925 (Mo. banc 1980).
*928In 1945, Missouri adopted a new constitution which provided three classes of property for tax purposes, (1) real property (2) tangible personal property, and (3) intangible personal property. In 1982, Missouri amended its constitution by adopting Article X, Section 4(b) which allowed limited, specified subclassifications of the classes set forth in Mo. Const, art. X, § 4(a). Clearly, the people by the amendment, took real property and divided it into three subclasses, (1) residential, (2) agricultural, and (3) commercial. Mo. Const, art. X, § 4(b) (adopted 1982).
The people said that property in the subclasses of class (1) “real property,” i.e., (1) “residential property,” (2) “agricultural property,” and (3) “commercial property,” “may be defined by law.” Having so said, they added these limiting words: “however, subclasses (1), (2), and (3) shall not be further divided, ...” Mo. Const, art. X, § 4(b) (emphasis added). The people then provided that farm land could be assessed on “its productive capability” as opposed to its costs; that the same percentage of value shall apply to all property within any subclass, and, that no real property could have a percentage in excess of thirty-three and one-third percent of true value.
Based upon prior taxing practices in this state, I doubt that there was a Missouri citizen who did not realize that this would ultimately result in agricultural property getting the lowest rate, residential the next lowest, and commercial property, the tax on which would pass back to the general public through pricing of products and services, being taxed at the highest rate. This the people could do, unless this classification had no rational basis and thereby offended the equal protection guaranteed by the United States Constitution, a question not raised by any party.
Surely no one could logically and rationally argue that the grant of the power to define property within the subclasses of real property was a grant of the power to destroy the classification just created. The word “define” has never before been so used. That is not its clear, unambiguous meaning. This is particularly true where the power to define is followed by the expressly limiting words “however, subclasses (1) [residential], (2) [agricultural], and (3) [commercial] shall not be further divided.” Mo. Const, art. X, § 4(b) (emphasis added). Is it possible that words could have been chosen having a clearer and more unambiguous meaning? The clear, unambiguous meaning of the words used constitutes an absolute prohibition against further subclassifying “residential” property.
Where is the ambiguity in the words “residential property” that would permit the legislature or authorize us to say that “residential property” is one thing if it contains not more than four units, and something else if it contains more than four units. There is no ambiguity. The clear, unambiguous meaning of “residential property” is property in which people reside. The Missouri General Assembly has defined “Residential Housing” to mean “a specific facility, work or improvement within this state, undertaken primarily to provide dwelling accommodations....” § 215.010, RSMo 1978. The United States Congress has defined the term “residential building” to mean “any structure which is constructed and developed for residential occupancy.” 42 U.S.C. § 6832 (1982). The Oxford English Dictionary defines “residential” as “1. Serving or used as a residence; in which one resides_ 2. Connected with, pertaining or relating to, residence, or residences (in general or specific sense)_,” and “residence” as “5. The place where one resides; one’s dwelling place; the abode of a person_” 8 Oxford English Dictionary 517-19 (2d ed. 1961). Webster’s Dictionary defines “residential” as “la; used, serving, or designed as a residence or for occupation by residents ... 3: of, relating to, or connected with residence or residences_” Webster’s Third New International Dictionary 1931 (4th ed. 1976).
Attributing to the words of Article X, Section 4(a) and 4(b), their clear and unambiguous meaning and their usual custom*929ary usage meaning, these sections specifically prohibit doing exactly what the legislature did when it adopted § 137.016.1(1), RSMo Cum.Supp.1984.
The total absurdity of the result reached by the principal opinion and the concurring opinion can only be understood when you realize that they take that part of subclass 1, “residential property,” having in excess of four living units, and make it a part of subclass 3 “commercial” property, while subclass 3 is stated by the Constitution to include “utility, industrial, commercial, railroad and all other property not included, in subclasses (1) (residential) and (2) (agricultural) of class (1) (real property).” Mo. Const, art. X, § 4(b) (emphasis added). What, pray tell, do residential buildings having more than four units have in common with “utility, industrial, commercial, railroad and all other property not included in subclasses (1) [residential] and (2) [agricultural] of class (1) [real property].” Mo. Const, art. X, § 4(b) (emphasis added).
I am shocked at the majority’s disregard for the rights of the renting population of the state. By refusing to read the plain words adopted by the people in Mo. Const, art. X, § 4(b), in their plain and ordinary meaning, the majority places this Court’s approval upon the most regressive tax statute ever devised. While there are a few affluent who rent as a matter of choice, the great majority who reside in rental units do so because of their financial inability to buy their own residences. Anyone who thinks that the tax on the rental residences will not be passed on to the renter by the owner thinks and reasons in a vacuum. The price in Missouri for being compelled to rent a residence will be that the renter will pay indirectly approximately seventy percent more residential real estate tax than those who are fortunate enough to be able to own their residence. This places the heaviest tax burden on those who can least afford to bear it. The ability of Missouri renters to achieve the dream of residential ownership will be put off in time in the same proportion that the seventy percent additional indirect but very real residential real estate tax bears to their otherwise savable income.
The only hope for the renting population of this State lies in finding a higher court which may recognize that the right of this Court to misconstrue its own Constitution is limited by the Federal constitutional requirement that there must be a rational basis for the resulting classes, which is discussed by Rendlen, J., in his dissent. When those who are compelled to rent ultimately bear seventy percent more residential real estate tax than those of us who are more fortunate and can own our residence, there can be no rational basis for such a classification either by statute or by judicial misinterpretation.
The renting population of this State is a substantial part of Missouri’s population. It is unfortunate that the important question of whether the rental property in which they live shall bear almost seventy percent more real estate tax than the residences of the more fortunate who own their homes should be decided by a split court, the regular members of which are evenly divided on this question.
I would set aside the submission and have the cause reargued before the regular Court. In the alternative, I would affirm the trial court and hold § 137.016.1(1), RSMo Cum.Supp.1984, to be unconstitutional.
I concur in the separate dissenting opinions of DONNELLY, J. and RENDLEN, J.
. My brother, Robertson, J., in his concurring opinion, has stated: “I write separately for the purpose of explaining why the rather winsome arguments of the dissenters do not persuade me, despite my personal agreement with the result the dissenters reach.”
The Oxford English Dictionary defines "winsome" to be "1. pleasant, delightful, agreeable,” ”3. Pleasing or attractive in appearance, handsome, comely; of attractive nature or disposition, of winning character or manners,” and "4. Cheerful, joyous, gay." 12 Oxford English Dictionary 180 (2d ed. 1961). "Winsome” means "winning; charming; engaging.” The American Heritage Dictionary 1469 (1970). Webster’s defines "winsome” as "causing joy or pleasure: AGREEABLE, PLEASANT, WINNING.” Webster’s Third New International Dictionary 2622 (4th ed. 1976).
"Winsome” is synonymous to "winning,” "agreeable," “alluring," "likable,” "delightful," "cheerful,” “courteous,” "winning," "engaging," "charming,” "pleasing,” "enjoyable,” “exquisite,” “fair,” "pretty," “handsome,” “graceful,” “delectable,” "elegant,” "prepossessing,” and "refined.” Roget’s Thesaurus 1177 (3d ed. 1946); J. Rodale, The Synonym Finder 1346 (1978).
It is difficult for me to understand how one so politically oriented could in one breath find the arguments of my brothers Donnelly and Rend-len, JJ., so "winning,” “agreeable,” "attractive,” "pleasing," "alluring,” "engaging,” "fair,” and "refined,” and in the next breath publicly state that they are unpersuasive. It is even more difficult for me to understand how he agrees with the dissenters’ result and yet concurs in the result reached by the principal opinion.