dissenting.
I respectfully dissent. It is clear, as discussed in the dissenting opinion of Morgan, J., that Proposition # 5 (the so-called Hancock Amendment) contemplates the refund of taxes only to a privileged class of taxpayers, while gathering such monies from all taxpaying citizens, including those less fortunate who pay substantial portions, if not all, of their earnings for the purchase of necessities. The principal tax burden of the latter class is for sales taxes, gasoline taxes, license fees and similar excises, and yet members of that class are denied, by Proposition # 5, due process and equal protection of the laws guaranteed by Fifth and Fourteenth Amendments to the United States Constitution and Árt. I, §§ 2 and 10 of the Missouri Constitution. This denial arises from Proposition # 5 because the excess from sales and similar taxes paid by members of the prejudiced class will not be refunded proportionately to those paying such monies, but instead such excess sales tax and similar excises will be refunded to *17only those persons, individuals and corporations, paying income taxes and in proportion to the amount of income tax paid. Members of the favored class will receive from the refund: (1) Their share of income tax monies, (2) Their share of the sales and other excise taxes refunded, and (3) (quite unfairly and without constitutional justification) Most, if not all, refunds of sales tax and other excises paid by the nonfavored taxpayers. It requires little imagination to foresee that the principal opinion’s failure to deal with the problem will be interpreted as tacitly approving this invidiously discriminatory scheme, which requires dispensing of the refund monies of “sales taxpayers” to another class of Missourians, “income taxpayers,” without the just compensation assured by Art. I, § 10, Missouri Constitution.
Art. I, § 3 of the Missouri Constitution, limiting the amendatory process, recognizes that the people of the State may alter their Constitution, conditioned, however, that “such change be not repugnant to the Constitution of the United States.” Similarly, Art. VI of the United States Constitution mandates that it “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” Proposition # 5 is patently repugnant to the Fifth and Fourteenth Amendments to the United States Constitution, and for that reason, I join the dissent of my brother, Morgan, J., who, addressing the issue sua sponte, properly decided that the proposition was invalid.
Turning to the briefed contentions on appeal, it is clear the trial court, denying the injunctive relief sought, erred on October 9, 1980, when it decreed that certain of plaintiffs’ allegations (appellants here) had been ruled against them on the merits by this Court in its denial of their petition for mandamus on September 29, 1980, in Case No. 62514. Those issues, involving alleged constitutional defects which the trial court assumed we had decided, were:
(1) That the form of the initiative petition did not meet the standard prescribed in § 126.031, RSMo 1978;
(2) That the petition failed to set forth all integrally related sections of the Constitution that would be changed by the proposed amendment; and
(3) That the title on the initiative petition did not. accurately and fairly state the subjects of the proposed amendment.
Without question, the trial court was mistaken, as this Court did not decide, by its September 29th order denying mandamus, the merits of any issue. This is recognized in the statement of the majority, that mandamus was refused on the basis of a “discretionary denial”. Hence, at the very least, we should reverse and remand for proper consideration of those issues framed when the trial court made its erroneous ruling on October 9, 1980, prior to the election. Further, in this suit for injunction, our review is limited under Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), to an inquiry of (1) whether there is substantial evidence to support the trial court’s action, and (2) whether the trial court erroneously declared or applied the law. There was no evidence to support the trial court’s ruling as to issues mentioned above; instead, the evidence (the judgment of this Court discretionarily refusing mandamus September 29, 1980) squarely affronts the trial court’s determination that the issues were res judicata. However, despite the mandate of Rule 73.01 as interpreted by this Court in Murphy v. Carrón, id., the majority ignores the trial court’s error and treats the cause as if this body were a trial court with general original jurisdiction, authorized to receive and decide in the first instance petitions for injunction, and then, rendering a de novo determination, (without mention of the trial court’s action) enters in effect a judgment “affirming” the trial court. This unwarranted ad hoc procedure is further aggravated when the principal opinion indulges a presumption of validity to sustain Proposition # 5 and to uphold the manifestly erroneous decision of the trial court.
*18In my view, the problem has been subtly warped and attention diverted from the threshold question, which, simply is: Was there compliance with the requirements of the amending process? To amend the Missouri Constitution, proponent must comply with the amending process prescribed by our Constitution and laws. It is not enough to say that the people have the right to change the Constitution and, because an election was held with the issue on the ballot, the discussion is effectively closed. Further, it begs the question to state (as is repeatedly suggested by the majority) that passage in an election creates a presumption of validity which helps satisfy the requirements of the amendatory process. This fallacious presumption of the majority faultily stems from the cited case, Gabbert v. Chicago, 171 Mo. 84, 70 S.W. 891 (Mo. banc 1902), which involved constitutional challenges raised after an election was held. Here, however, the issues were raised and ruled prior to election and we, on this appeal, should review only the trial court’s action for error. It is indefensible to introduce a new fact, not existing at the time of the trial court’s judgment, and employ it to either uphold or reverse the judgment.
The issues are: (1) Was the amending process properly followed? I submit it was not. (2) Should a presumption of validity be raised to protect Proposition #5? I submit it should not.
To be sure, the people may amend the Constitution by initiative, but to safeguard this process and protect against abuse by private interests seeking to impose their will on an unsuspecting public, the framers of our Constitution and the legislature by implementing statute provided the proper manner therefore to insure a true exercise of the people’s will. The point is well stated in Edwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130, 1133 (Mo.banc 1896), cited by the majority, page 11. There, referring to challenges arising after an election had been held, the Court said:
When a constitutional amendment has been submitted, the single inquiry for us is whether it has received the sanction of popular approval, in the manner prescribed by law. (Emphasis added).
Most certainly, we should examine whether the amendatory process was followed at the critical stages, in the manner prescribed by law, in this case involving challenges to that process raised before the election.
I
The organic law and implementing statutes are designed to prevent submission of a carefully packaged or neatly camouflaged proposal containing multiple subjects not easily perceived as such nor readily unraveled by the electorate. In this connection, our Constitution carefully confines the manner for its amendment. Art. XII, § 1 provides
this Constitution may be revised and amended only as therein provided,
and Art. XII, § 2(b) provides that no proposed amendments submitted through the initiative process
shall contain more then one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith. (Emphasis supplied).
That subsection further makes provision for situations, such as here, in which more than one subject is offered for adoption, requiring those subjects be placed in different amendments to “enable the electors to vote on each amendment separately.” (Emphasis added). This Court has condemned the practice of submitting two subjects jointly to the voter, characterizing it as a species of legal fraud, for it compels the voter, in order to obtain what he honestly desires, to cast his ballot for something which he does not understand or in truth want. State v. Holman, 296 S.W.2d 482 (Mo.banc 1956). The proposed constitutional change, containing more than 1,300 words is in the nature of a constitutional revision, rather than a mere amendment, with its nine sections, arguably containing six subjects: (1) Taxation lid (§§ 16, 17, and 18) upon State Government; (2) Spending lid (§§ 18, 19 and 20) upon State Government; (3) Di*19rective dictating the manner (§ 21) in which the funds must be spent by State Government; (4) Taxation lid (§ 22) upon local governments; (5) Limitation upon local governments (§ 22) in obtaining revenues based upon assessments and property; and finally, (6) A novel grant of original jurisdiction to the Supreme Court, thus amending Art. V, §§ 3 and 4, Mo.Constitution. The sixth subject appears in the Proposition’s § 23 which provides that the Supreme Court shall have original jurisdiction when the
state is involved ... to enforce the provisions of sections 16 through 22, inclusive of this article and, if the suit is sustained, [the prevailing party] shall receive from the applicable unit of government his costs, including reasonable attorneys’ fees in maintaining such suit.
This not only alters the Court’s original subject matter jurisdiction by amending Art. V, §§ 3 and 4,1 but imposes as constitutional law, payment by the “applicable unit of government” of the prevailing parties’ costs and attorneys’ fees. The latter hardly seems appropriate for inclusion in the Constitution, but more importantly, this dramatic alteration of our judicial system, including the questions of subject matter jurisdiction, costs, and attorney’s fees, are changes which should only have been considered by the people as a separate amendment. The initiative petition proclaims that Proposition # 5 is amending Article X, the Taxation Article of the Constitution, but § 23 in fact drastically alters Art. V, the Judicial Article. It cannot reasonably be said that this is merely “incidental to and necessarily connected with the control of spending and taxing in the State,” as the majority would have us believe. Instead, it tells us those who prepared and promoted this petition were reluctant (or afraid) to submit this proposition altering the Supreme Court’s jurisdiction in a separate amending proposal or to point out to the voters by reference in the initiative petition the constitutional provisions (Art. V, §§ 3 and 4) so markedly changed. We must be mindful that the initiative process misses the benefit of debate in the houses of our Legislature with input from concerned professionals familiar with the involved problems such as subject matter jurisdiction of courts. Sadly, this and other profound changes were neither separated for individual consideration by the people nor referenced as affecting or altering existing sections of the Constitution.
Thus Proposition # 5 required a voter to cast a single vote for several subjects as one, regardless of whether he approved all or only part of the proposal. For example, a voter may have favored taxing limits but have been opposed to the suggested change in the jurisdiction of the Supreme Court of Missouri. Yet, in the form proposed, he must take neither or both.2 Such dilemmas, compounded by confusion of subjects, are precisely what Art. XII, § 2(b) of the Missouri Constitution is designed to prevent.
The proponent’s failure to separate the included subjects for proper consideration by the electorate as prescribed by the *20amending process renders the Proposition a nullity.
II
It is required “that a proposed amendment by the initiative must disclose (emphasis added) what integrally related provisions of the Constitution it is changing, and that the initiative petition will be legally insufficient if that showing is not made.” Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657, 661 (Mo.banc 1942). The petition failed to reference or disclose in any manner numerous Constitutional provisions changed or repealed by Proposition # 5. The involved sections arguably number as many as 79 sections of the Missouri Constitution. The petition listed or disclosed on the bottom of the back page only 28 sections allegedly affected, thus depriving its signers of vital information regarding the Proposition’s impact. The principal opinion sweeps this allegation of error aside with the generality that the purpose3 of the amendment is to impose financial restraints on state and local government, and the many related sections (e. g., the Judicial Article V) are somehow not directly affected by nor in conflict with Proposition # 5. The majority fails to mention name or number of those sections 4 except to suggest the loose generality mentioned above. The people should not be called upon to vote for such constitutional change unless apprised by the petition of existing sections repealed or substantially altered by the proposal for change.
As previously noted, the presence of § 23 in Proposition # 5 renders it legally insufficient. The majority in footnote 8, page 13, virtually admits this § 23 conflicts with Art. V, §§ 3 and 4, stating that “Our jurisdiction is set forth in Mo. Const, art. V, §§ 3 and 4, which do not extend to suits to enforce the provisions of Mo.Const. art. X” [§ 23 of Proposition # 5 becomes § 23 of Art. X]. Because the petition does not disclose this alteration of Art. V, the initiative must fail.
In addition, as discussed above, § 23 en-grafts a subject other than taxation. Inclusion of this separate subject is abhorrent to Art. XII, § 2(b) and Art. Ill, § 50, and this, too, causes the Proposition to fail. The majority deals with these fatal flaws by first acknowledging that the jurisdiction of the Supreme Court of Missouri (as noted above) is indeed
set forth in Mo.Const., art. V, §§ 3 and 4, which do not extend to suits to enforce the provisions of Mo.Const., art. X. (footnote 8, page 13.)
Stated differently, the majority concedes the present constitutional provisions (prior to § 23 of Proposition # 5), establishing the jurisdiction of this Court, do not permit the commencement of such actions here. The principal opinion proceeds further, stating,
that despite § 23 of the amendment, this Court has no original jurisdiction of suits which seek to enforce the provisions of the amendment, (footnote 8, page 13.)
This, I submit, conclusively demonstrates that Proposition # 5 must fail as violative of the imperative of Art. XII, § 2(b), and Art. Ill, § 50, and the requirement of notice prescribed in Moore v. Brown, supra. Apparently acutely aware of these fatal flaws, the majority comments as follows in footnote 8:
“In short, the provision [§ 23], which is ineffectual with respect to suits being filed in this Court for the reasons earlier stated, is severable. (Emphasis added).
Footnote 8 teaches several things: (1) § 23 indeed introduces a separate subject into the proposed amendment. (2) Art. V, §§ 3 and 4, though undisclosed by the petition, *21are in fact amended by the propositions of § 23. (3) To avoid a collapse of the proponent’s (respondent’s) position, the majority states in one breath that the people may speak their volition by altering the Constitution and have so spoken by amending Art. V, §§ 3 and 4, through proposed § 23, but then rejects that demonstration of the people’s will, and by judicial fiat in footnote 8, holds § 23 of Proposition # 5 unacceptable. However, the flawed Proposition cannot be salvaged by this Court’s unprecedented device of announcing that one portion is ineffectual (and thus implicitly excised) because it conflicts with a prior existing constitutional section on the subject. Nor can the Proposition be shorn up by an arbitrary announcement that § 23 is offensive to the majority’s view of this Court’s jurisdiction and, therefore, confers on the Court the power to arbitrarily accept only selected parts of Proposition # 5. After the vote of the people, by what authority may the majority declare one portion of the amendment “ineffectual” and thus severed, without declaring a failure in the amending process?
III
It also appears that the proposed amendment violates Art. Ill, § 51, avowing that the “initiative shall not be used for the appropriation of money other than of new revenues created and provided for thereby....”
IV
By presuming validity of the amendment, the principal opinion improperly penalizes appellants in the quest for adjudication of their claims challenging the validity of Proposition # 5. During the two months prior to the election, opponents of Proposition # 5 (now Amendment to Art. X) petitioned this Court in three different proceedings to decide their challenges to the Proposition. These efforts were made in timely fashion, prior to submission of the issue on the ballot in November, 1980. In each of these proceedings, this Court refused to consider their claims, without the benefit of opinion or exposition of rationale. The harmful effects from these inactions have been compounded by the principal opinion’s employment of a presumption that the recently suffraged amendment is valid. The three denials of requests to consider the issues occurred as follows:
FIRST: A petition for mandamus was brought by proponent of Proposition # 5 on September 5, 1980, praying that we order the Secretary of State to replace certain signatures on initiative petitions recently filed. This Court, in the exercise of its discretion, honored the proponent’s petition, issuing the alternative writ on September 9, 1980. Opponents of the Proposition filed their motion to intervene on September 11, 1980, seeking to raise many of the issues now before the Court. This motion was denied September 19, but on that day the preliminary writ was made peremptory.
SECOND: On September 24, opponents (present appellants) filed their petition for writ of mandamus to compel the Secretary of State to remove the measure from the ballot. On September 29, this Court entered its order, without explanation, denying the opponents’ petition for mandamus, adding only that the order was “without prejudice to subsequent litigation of issues not mooted by the election.” Hence, in an exercise of discretion we entertained the proponent’s petition for mandamus, but without reason given, we issued a “discretionary denial” of the opponents’ petition. The issues were then matters of great importance and pressing concern ripe.for determination, unhampered by any presumption of validity, but the Proposition’s opponents were turned aside by our “discretionary denial” of the writ. The irony lies in the fact that we now consider the challenges because (according to the principal opinion, Page 9) “of the general interest in and the pressing need for determination of the issues presented...” (Emphasis ours). Though the pressing need and general interest were brought to our attention and urged upon us in September, and October, 1980, we remained unimpressed with that “need” and “general interest” and refused to consider the claims during those months.
*22THIRD: Still persevering, on October 1, 1980, the Proposition’s opponents (appellants here) brought the present action for injunction in the Circuit Court of Cole County. Appellants’ petition was denied there October 9,1980. Because of the trial court’s apparent uncertainty as to the meaning of this Court’s brief order of September 29, 1980,5 petitioners moved in this Court on October 10, for clarification of its enigmatic order, but that motion too was summarily denied here on the date of filing. On October 17,1980, in probably their most critical attempt to bestir this Court, appellants (opponents) filed their notice of appeal from the Cole County Circuit Court’s judgment, and an accompanying motion for expedited appeal. Three days later, this Court, again without opinion or comment, overruled that motion, refusing to hear the issues which appellants repeatedly sought to present, prior to the November election. The majority asserts our refusal to expedite the hearing on appeal was “for reason of time constraints.” (page 9). This assertion is note borne out by the record. Thus, in spite of this Court’s refusals to act in September and October of 1980, and notwithstanding this Court’s order of September 29, 1980, stating that our action would not prejudice subsequent litigation of issues not mooted by the election, the majority now prejudices appellants for the so called lateness (the election has taken place) by raking a presumption of validity to defeat their claims.
The majority states that the same issues may “be judged by a different standard” (page 9) because they were not entertained prior to the election. This unfair presumption of validity should be raised only if cause for delay can be traced to appellants or if their suit had been commenced after the election. However, such is not the case. In this appellate review, we are bound to evaluate the trial court’s actions as of the date they occurred, i. e., October 9, 1980, prior to the election. The trial court ruled the issues in the light of the facts then presented at a time when no election had occurred, and we must review the facts in the same light.6
V
The initiative petition is the instrument containing the proposed amendment circulated for signatures among at least 8% of the voters in two-thirds of the Congressional Districts. That the electorate may be informed concerning the proposal submitted to them by the proponent’s solicitors, the Legislature has provided by § 126.031, RSMo 1978, that such petitions shall be “substantially” in a prescribed form. The Legislature has formulated the exact language for an initiative petition, demonstrating an intent to circumscribe its permissible contents. The proponent overstepped the limits of this safeguard as to the petition’s form. As stated by the majority, “All of these procedural safeguards are designed either, (1) to promote an informed understanding by the people of the probable effects of the proposed amendment, or (2) to prevent a self-serving faction from imposing its will upon the people without their full realization of the effects of the amendment.” (Page 11). The petition, upon which the amending process is predicated, bears on its reverse side the proposed constitutional amendment, requiring sixty-four printed lines to display the fifteen sections and subsections containing more than 1,300 words. In addition to this voluminous revision of the Constitution (erroneously entitled an amendment), the petition bears extensive propaganda designed to sway the voter to the promoter’s point of view. On the front of the petition, approximately 35% of the space (outside the area reserved for signatures) allocated to printing is devoted *23to advertising copy. On the back, more than 22% of the area allocated printed matter is devoted to such material, including charts and more hard-sell copy. This form richly deserves the following admonishment of the majority: “we would caution those who would use the initiative in the future against indulging in similar practices of including extraneous materials.” (Page 12). Such variations from the form prescribed in § 126.031, RSMo 1978, not only deserve the court’s admonishment, but in my view are sufficient to declare the petition in noncompliance and insufficient under the law to support the proposal’s certification by the Secretary of State for inclusion on the ballot.7
*24APPENDIX I
*25
*26I would reverse the judgment of the trial court, and because the issue of injunction is no longer viable, I would, for the reasons set out herein, declare the proposed amendment a nullity.
. Art. V, § 3, provides as follows:
The supreme court shall have exclusive appellate jurisdiction in all cases involving the validity of a treaty or statute of the United States, or of a statute or provision of the constitution of this state, the construction of the revenue laws of this state, the title to any state office and in all cases where the punishment imposed is death or imprisonment for life ...
Art. V, § 4, provides as follows:
1. The supreme court shall have general superintending control over all courts and tribunals. Each district of the court of appeals shall have general superintending control over all courts and tribunals in its jurisdiction. The supreme court and districts of the court of appeals may issue and determine original remedial writs. Supervisory authority over all courts is vested in the supreme court which may make appropriate delegations of this power ...
. Other examples suggest themselves. A voter not necessarily opposed to deficit spending but favoring a tax lid must have voted in favor of the deficit control in order to support the tax lid feature. Similarly, a voter in favor of a spending lid, but opposed to controlling how money may be spent was required to vote in favor of the directive as to how money is spent in order to vote in favor of the spending lid feature.
. Purpose is a misleading term in this context. The proper term from Art. XII, § 2(b) is “subject and matters properly connected therewith.” (Emphasis supplied).
. The appellants list the Constitutional sections they contend are altered, as follows: Art. I, §§ 18(b) and 27; Art. Ill, §§ 2, 7, 16, 17, 36, 37, 37(a), 37(b), 38, and 38(a); Art. IV, §§21, 25, 26, 27, 29, 30(b), 32(a), 34, 35, 37, 37(a), 40(a), 41, 42, 43(a), 47, and 48; Art. V, §§ 3 and 4; Art. VI, §§ 19(a), 20, 22, 24, 25(d), 25(e), and 27; Art. IX, §§ 2(a), 2(b), and 4; Art. X, §§ 2, 4(a), 4(b), 6(a), 6(b), 8, 10(c), 11(b), 11(c), and 11(d); and, Art. XII, § 6.
. In the mandamus proceeding, the petition was denied September 29, 1980, “without prejudice to subsequent litigation of issues not mooted by the election.”
. The majority opinion persists in penalizing appellants by stating that we will not “seek to condemn the amendment, but ... seek to uphold it if possible”, citing Gabbert v. Chicago, 171 Mo. 84, 70 S.W. 891, 895 (Mo.banc 1902). Page 12. This statement of decisional law is inapposite because in Gabbert, the validity was challenged after the election.
. See appendix I for a copy showing the front and back of the petition.