State Ex Inf. Attorney-General v. Maitland

The majority opinion refers to the rejection of an opinion previously written in this case. The opinion referred to was written by me and reached a conclusion different from that reached by my learned brother GRAVES and met the fate indicated. However, I remain unconvinced and feel that the duty rests upon me to state as briefly as possible the reasons for my dissent.

My learned brother, in his usual terse and vigorous style, has stated the facts more briefly than was done in the rejected opinion, but has covered them adequately for an understanding of the case, and I will not undertake to deal with the facts further than may become necessary to state my position.

I. The points discussed in paragraph one of the majority opinion were not raised in the briefs. I do not think their consideration necessary in order to determine the rights of defendants involved here. The rule is well settled that parts of an act (or a charter provision) may be vulnerable to attack and the remainder of the act may stand. The portions ofProvision the charter amendment criticised do not affect theInvalid creation of a separate water department or the rightsin Part. of defendants to fill and discharge the duties of the office of commissioners of such department. It will be time enough to determine the various powers of the water commission when it seeks to exercise the powers of the office and such powers are challenged.

II. The first contention of informant and relator is that Amendment No. 1 (which included the repeal of *Page 362 Article XI and the adoption of new Articles XI and XI-A) was not legally and regularly submitted in accordance with Section 16, Article IX, of the Constitution ofValid Submission Missouri, as it existed prior to Novemberof Charter Amendment. 2, 1920, under which the existing charter of Kansas City was passed and adopted, nor was such amendment submitted in accordance with the provisions and requirements of Section 34, Article XVIII, of the Charter of Kansas City, Said section of the charter of Kansas City is as follows:

"This charter may be amended at any time by a proposal therefor made by the law-making authorities of the city, published for at least thirty days in three newspapers of the largest circulation in the city, one of which shall be a newspaper printed in the German language, and accepted by three-fifths of the qualified voters of the city voting at a general or special election. The city may, by ordinance, subject to all laws, provide as to the form of submitting to such voters at any election any proposed amendment, and for ascertaining the results of the election on such proposed amendment, and making proper record of the fact."

So far as the provisions for publication of notice are concerned, the provisions of said section of the charter are in almost the exact language of old Section 16, Article IX, of the Constitution. The only provisions in either old Sections 16 and 17, or new Sections 16 and 17, for publication of notice of election for adopting either an entirely new charter or amendments to an existing charter, are contained in old Section 16 and new Section 16. Old Section 16 made no provision whatever regarding the publication of notice of election for the adoption of an entirely new charter, but provided that when a charter was once adopted it could be amended by a proposal from the law-making authorities published for at least thirty days in three newspapers of largest circulation of said city, one of which shall be a newspaper printed in the German language, and acceptance by three-fifths of *Page 363 the qualified electors voting at a general or special election. Said Section 16 dealth both with the adoption of a charter as a whole and with amendments to an existing charter. New Section 16 deals exclusively with the submission of a new charter and new Section 17 with amendments to an existing charter. It is only in new Section 16 that any provision for notice of any election is now found. It is insisted that this provision applies only to the election to vote upon an entirely new charter, or amendments submitted to the electors by a charter commission as provided for in new Section 17. Said new Section 17 also provides for the submission of amendments to the charter proposed by the legislative authority or by petition of not less then ten per cent of the qualified voters of the city. Only proposals by the law-making authorities were provided for in old Section 16. It was upon the petitions of electors that the legislative authority submitted the charter amendment in question.

It is the contention of informant and relator that the provision for publication of notice of elections in new Section 16 does not apply to amendments proposed by petition or by legislative authority, and that as to such amendments the provisions of Section 34, Article XVIII, of the charter stand unrepealed; that the charter amendment here under consideration, having been published in only one newspaper for three weeks, was therefore not legally adopted.

It will be noticed that Section 34, Article XVIII, of the charter makes no provision whatever for amendment of the charter upon proposal by petition of the qualified voters of the city, and therefore no provision for publication of notice of election upon a proposal so submitted. The reason for this is that old Section 16, Article IX, of the Constitution made no provision for such proposal. New Section 17 provides for both, as well as proposals by a charter commission, but makes a clear distinction between them. Proposals by petition were not included in the words in Section 34, Article XVIII, of the *Page 364 charter "by a proposal therefor made by the law-making authorities of the city," for the obvious reason that the qualified voters were not authorized thus to petition when that section of the charter was adopted. The words refer to the submission of a proposal originated by the legislative authority, and not to the ordinance provided for in new Section 17, Article IX, of the Constitution submitting proposals originated by petition. In the absence of direction in the charter concerning the manner of giving notice of election to vote upon charter amendments thus proposed by the qualified voters, it is apparent that the legislative authority of the city had the right to provide any sort of notice it deemed sufficient if such notice was calculated to and did give reasonable notice to the voters. The legislative authority required the giving of the very notice specified in new Section 16, Article IX, of the Constitution as to framing new charters, and such notice must therefore be regarded as sufficient and reasonable, because it meets the constitutional standard.

The intent of the people in adopting Sections 16 and 17, Article IX, of the Constitution, evidently was to do away with the cumbersome and expensive method of giving notice of elections upon proposed charter amendments provided for in old Section 16. In old Section 16 the provision for publication of notice for thirty days in three newspapers of largest circulation, one of which shall be a newspaper printed in the German language, was only applicable to amendments of the charter. No specific direction was therein contained covering publication of notice of elections to decide upon the adoption or rejection of a completecharter. It is hardly conceivable that the Legislature in submitting the proposed constitutional amendment and the people in adopting it intended completely to reverse the requirements and provide only for publication of notice of election on complete charters.

New Section 17 of the Constitution of Missouri authorizes *Page 365 the legislative authorities of the city to provide by ordinance that any proposed amendment shall be submitted at a general election or at a special election, if called for in the designated manner. Publication of notice of the proposed amendment to Article XI of the charter, as actually provided for by the legislative authorities of Kansas City, was in full compliance with the provisions of new Section 16, Article IX, of the Constitution of Missouri, and such publication should be deemed to be sufficient.

It, therefore, becomes unnecessary to determine the effect of other publications of notice as set out in defendants' amendment to their answer or the effect of the construction placed on Section 34, Article XVIII, of the charter by the city officials, as shown by the Stewart affidavit.

The distinction sought to be drawn in the majority opinion between charters adopted before and after the adoption of new Sections 16 and 17 of the Constitution does not appeal to me as sound. The position taken, drawn to its legitimate conclusion, would deny to cities organized under special charter on November 2, 1920, the right to amend such charters at all, because old Section 16, authorizing such amendments, was repealed and the right of amendment would exist only as to charters adopted since November 2, 1920. The charter provision of Kansas City relating to amendments must fall with the repeal of old Section 16 of the Constitution which furnished the authority for that charter provision. The only way remaining to change the charter in any way would be to adopt a charter as a whole. This is the logical conclusion that must be reached. I cannot concur in any such proposition.

III. It is contended that the ordinance submitted and the ballot contained two or more separate, distinct and independent propositions or measures as a single proposition in Amendment No. 1, thereby compelling the voter to accept or rejectDoubleness. all, and therefore such amendment to the charter was not *Page 366 legally adopted because afflicted with the vice of doubleness.

The restrictions upon the power of governmental bodies forbidding the submission of two or more questions or propositions in one ballot are not found in constitutional or statutory provisions, but such practice is denounced by the courts as a fraud upon the voters. Such procedure enables municipal authorities to tie up a proposition, unable to stand on its intrinsic merit, with one for which there is great public demand, and, by thus tying them together, compel the voters to accept or reject both, or by a series of logrolling and trading insure support for the united propositions which would be denied each or some of them individually, if submitted separately. The Missouri cases relied upon by informant and relator are cases wherein independent proposals for the issuance of bonds were submitted and voted for in one ballot. The majority opinion does not so confine the rule, and sound public policy may extend the rule to other propositions. On the other hand, sound public policy required that the proposition to repeal Article XI of the Kansas City Charter be linked inseparably with an enactment making provision for the immeasureably important water supply and fire protection of an already great and rapidly growing city. Disaster might follow repeal of Article XI without making provision for lodging the powers therein provided for in some other department or departments of the government. Suppose Article XI of the charter had been repealed and new Article XI had carried and Article XI-A had been defeated at the election on them separately. The city would have been without provision for a fire department. The very reasons which argue against doubleness in submitting proposals under the taxing power, arguefor the submission of the question of the lodgment of control of the water department and the fire department in one proposition and on one ballot. To submit them separately would surely invite public disaster. The several *Page 367 propositions are not only not independent, but completely dependent on one another. The provision naming defendants as the first water commissioners was also a dependent proposition, although it need not necessarily have been included. I think there is no merit in the contention.

IV. Another contention of informant and relator, not discussed in the majority opinion and not required to be discussed therein, because of the conclusion reached, is that the provision in Article XI of Amendment No. 1 of the charter, that defendants should constitute the first water commissioners,Appointments: violates Section 14 of Article IX of theBy Charter Constitution of this State, because defendantsAmendments. were neither elected nor appointed. Said section is as follows:

"Except as otherwise directed by this Constitution, the General Assembly shall provide for the election or appointment of such other county, township and municipal officers as public convenience may require; and their terms of office and duties shall be prescribed by law; but no term of office shall exceed four years." (Italics ours).

What do the words "except as otherwise directed by this Constitution" mean? They do not refer to the officers named by the Constitution itself, because the use of the word "other" shows conclusively that the officers for which the General Assembly shall provide are in addition to those named in the Constitution.

It seems clear that the scheme of government and schedule of officers, which cities of over 100,000 population could and now can adopt under the provisions of old and new Sections 16 and 17 of Article IX, come within the "except as otherwise directed" clause of Section 14, Article IX. The General Assembly is not required to make provision for officers of cities under special charters, because they may adopt such sort of government *Page 368 for themselves and such officers to administer the same as they choose. The only restriction upon such cities is that the provisions of their charters shall be "in harmony with" (old Section 16) or "consistent with" (new Section 16) and subject to the Constitution and laws of this State. Even the requirement in old Section 17, Article IX, that "it shall be a feature of all such charters that they shall provide, among other things, for a mayor or chief magistrate, and two houses of legislation, one of which at least shall be elected by general ticket," was omitted in new Sections 16 and 17.

Kansas City has adopted its charter under said Section 16 and provided therein for a mayor as its chief executive officer and vested in him "power to appoint, in the manner provided in this Charter, all city officers, agents and employees not elected by the people or otherwise appointed." (Italics ours.) Under the reservation "or otherwise appointed" it was and is entirely competent for the people of Kansas City to provide for appointment to office by an officer or department of the city government other than the mayor. Why, then, was it not proper for the people to adopt a charter amendment providing for the creation of an office and designating the official by name? We are not referred to any constitutional provision or act of the General Assembly with which such charter amendment is in conflict. Section 14 of Article IX of the Constitution is in part a command to the General Assembly, and in part a restriction upon it. It is not a restriction upon the freedom of action of cities organized under special charter.

The word "appointment" is not restricted to the act of the executive in designating a person to fill an office. It is defined in Webtster's New International Dictionary, "1. Act of appointing," that is, the act of assigning or designating. "e. Designation of a person to hold an office or discharge a trust." True, the same dictionary uses as an illustration "a power ofappointment to office is an executive power and involves the right to *Page 369 exercise judgment or discretion in the selection of the person appointed." But the executive is the appointing power, because so designated in the Constitution or charter. Section 11, Article V, Missouri Constitution, provides that the Governor shall appoint persons to fill vacancies. But the Constitution has provided for at least one exception in Section 11, Article IX, by directing that vacancies in the offices of sheriff and coroner shall be filled by the county court.

So it is under the charter of Kansas City. Where the office is not elective and the officer or agent is not "otherwise appointed," the power of appointment is vested in the mayor. But where the charter amendment named the first water commissioners, such officers were "otherwise appointed." The designation of these officers by name in the amendment may be said to be an appointment in the sense of the words "otherwise appointed" in the charter, and this is so, although such words include as well appointments to be made by other designated officials. Naming the water commissioners in the amendment comes within the definition of "appointment" given above, to-wit, designation of a person to hold office.

Informant and relator rely on the cases of State ex. rel. Board of Control v. City of St. Louis, 216 Mo. 47, l.c. 95, and State ex inf. Hadley v. Washburn, 167 Mo. 680, l.c. 691. But these cases deal with Section 14, Article IX, as a restriction upon the power and duty of the General Assembly in creating county, township and municipal offices other than those established by the Constitution. The acts of the General Assembly are there held to be within the provisions of said section. Provisions for creating city offices and determining how they shall be filled, in cities operating under a special charter, must be held to be within the exception noted in said Section 14, Article IX. The cases are therefore not in point.

It is true the names of defendants as the first water commissioners were not printed on the ballot; neither *Page 370 were many other of the propositions in the proposed new article of the charter covered by Amendment No. 1. The proposal was published in full, and the voters had the required notice of the contents of the proposal. It was not necessary to print the amendment in full on the ballot. I think there is no merit in the contention.

V. It is next contended that the provisions of Article XI in Amendment No. 1 of said charter fixing the terms of the offices filled by defendants at a longer period than four years also violates Section 14, Article IX, of the Constitution. What I have said under Paragraph IV applies equally to thisTerms in Excess contention. It was competent for Kansas City toof Four Years. provide in its charter for any sort of government for itself it saw fit, limited only by the provision that such charter be consistent with and subject to the Constitution and laws of the State. The General Assembly has not undertaken to legislate on the subject of water commissioners or other officers of cities under special charter or to prescribe their duties or fix their terms of office. The provisions of Section 14, Article IX, limiting the terms of officers to four years, refer only to offices created by the General Assembly. The creation of the various offices of Kansas City and the prescribing of the duties thereof and the fixing of the respective terms come within the exception contained in the first clause of said section. The contention is without merit.

VI. The final contention is that the provision of new Article XI of the charter designating defendants as water commissioners by name is special legislation andSpecial Legislation: violative of Section 53, Article IV of theCharter Amendments. Constitution.

Assuming that the amendment to the charter is of such character as to be denounced as special legislation if enacted by the General Assembly, I am persuaded there is nothing in Section 53, Article IV, denying the *Page 371 right of the electors of Kansas City to enact such provisions in their charter any more than there is anywhere any prohibition upon the people of the whole State preventing them from adopting a constitutional amendment of such character. Section 53, Article IV, withholds from the General Assembly the right to pass local or special laws. The Constitution nowhere so restricts the powers of electors of cities over 100,000 inhabitants in framing or amending their charters. It may be that if the General Assembly passed a similar law, it would conflict with said constitutional restriction. This does not mean, however, that the people of Kansas City are above the General Assembly. It does mean that neither the Constitution nor the General Assembly has attempted to prevent the people from writing such provisions into their charters, and, therefore, such charter provision is not inconsistent with either the Constitution or laws of the State. That charter provisions shall be consistent with and subject to the Constitution and laws of the State, is the pole star by which electors must guide and shape their course in framing their charters. Unless shown to be in such inconsistency, it is not the province of the courts to declare void charter provisions of whatsoever character.

Cases are cited by relator which appear on casual examination to conflict with the foregoing. For instance, Hays v. Poplar Bluff, 263 Mo. 516, in a case where an ordinance passed by the council of that city was held invalid as special legislation. The ordinance was sought to be justified by a provision in the general law relating to cities of the third class. It was held that the General Assembly itself could not pass such a law, and that it was beyond the power of that body to confer power to pass such ordinances upon the city council. The city in question only had such powers as the General Assembly expressly delegated to it. Not so in the case of a city under special charter.

So in Ex parte Lerner, 218 S.W. (Mo.) 331, an *Page 372 ordinance enacted by the legislative authority of St. Louis, a city under special charter, was held invalid as a special or local law.

Also, in St. Louis v. Quarry Construction Co., 244 Mo. 79, anordinance making it unlawful to work a stone quarry within the city without having obtained the permission of the city by a proper ordinance was held invalid as a local or special law. And in St. Louis v. Russell, 116 Mo. 248, an ordinance authorizing lot owners in any block to determine whether a livery stable could be operated in said block was held invalid because legislative power was attempted to be delegated by the mayor and municipal assembly and because it permitted discrimination.

Other cases of similar character can doubtless be found. But we think there is a difference between ordinances enacted by thelegislative authorities of a city, whether such city is organized under general law or special charter, and charter provisions formally and solemnly ordained by the electors of such city in their sovereign capacity and acting as principals and not as legislative agents. This distinction seems to have been recognized in St. Louis v. Quarry Construction Co., supra, wherein, BROWN, C., at page 488, said:

"These provisions of the Constitution of 1875" (referring to Sec. 53, Art. IV) "are founded in the conviction that personal and property rights of the citizen have need of protection against the arbitrary and irresponsible exercise of thelegislative power — arbitrary because the motive of the Legislature cannot, in the absence of some constitutional restriction, be questioned, and irresponsible because legislators are not responsible in damages for injuries suffered by reason of their legislative acts. It is illogical to suppose that, in matters affecting the security of the citizen with respect to his person and property, the municipal corporation, in itslegislative capacity, should not be subject to the same restrictions as the Legislature from which it derives its powers. *Page 373 This question also presented itself to the people in their capacity of makers of the organic law, so that in authorizing the charter which we are now considering, they provided, as we have already seen, that it `shall be in harmony with and subject to the Constitution and laws of the State.' The Constitution is largely devoted to the restriction of the legislative power in the granting of special privileges, and in the enactment of special and arbitrary legislation affecting the rights of the people, and we cannot harmonize with these restrictions an unlimited power to grant special privileges, and by speciallegislative act to discriminate between individuals of a municipality with respect to the use of their property and the conduct of their business." (Italics ours).

The provisions of Section 53, Article IV, are not leveled against legislative power generally, but against the exercise by the General Assembly of its legislative power within the prohibited field. The electors of cities over 100,000 population, in the adoption of amendments to their charters, are not hampered by such restrictions. For the mayor and council of cities under special charter to enact ordinances amounting to special legislation would not be consistent with such constitutional restrictions upon the General Assembly, but such constitutional restriction has not been imposed either against the people of the State or of such cities in framing constitutions or charters or amendments thereto. Within their appropriate sphere and limited only by the Constitution and laws of the State, the people of Kansas City are the final and supreme authority in determining the character of their local government, the manner in which their ordinances shall be enacted, the designation of their officials and the methods by which they shall be selected.

For the reasons above outlined, I respectfully, but earnestly, dissent. Higbee, J., concurs herein. *Page 374