We prepared a dissent in this case, but a change in the original opinion has rendered a part of what we urged, in great detail, unnecessary. Then we have since also an amended separate concurring opinion, which can now be noticed. We are therefore withdrawing our original dissent and filing in lien thereof this opinion.
There are two cases pending here. The instant case, and the case of State ex rel. Rosebrough Monument Co., Relator, v. City of St. Louis et al., being our No. 28364. In both cases the amendments to the St. Louis Charter of April 5, 1927, are challenged, although, it might be said, the challenges are upon somewhat different grounds. Each case involves improvements of streets under these charter amendments. The Rosebrough Monument case, supra, having been first assigned to us, the briefs and records in both cases have been used. Between the two cases all the questions we shall discuss have been raised, or are necessarily involved. These questions, as well as those suggested more particularly in the opinions (the principal and concurring opinions in the instant case), now before us, we shall briefly discuss. The questions are of importance, because contractors have to sell their tax bills in order to do such work, and all questions (both Federal and State, if involved), should be determined, rather than leave it to litigation when tax bills are sued upon later. Not only should they be determined, but should be determined right. Of the questions, as we see the records before us, in their order.
I. Counsel in the two cases do not agree as to constitutional sources of power for making amendments to a St. Louis Charter. In the Rosebrough Monument Co. case, supra, it was contended that the power to amend a St. Louis charter came fromSources Sections 16 and 17 of Article IX of our Constitution.of Power. The opinion before us, in the instant case, properly rules to the contrary. The constitutional provisions applicable to St. Louis are Sections 20 to 25 (both inclusive) of Article IX of the Constitution. Neither Section 7 nor Sections 16 and 17 of Article IX apply to St. Louis. [City of St. Louis v. Sternberg, 69 Mo. l.c. 297; Kansas City v. Stegmiller, 151 Mo. l.c. 204; State ex rel. v. Mason, 153 Mo. l.c. 52; St. Louis v. Dorr (dissenting opinion of SHERWOOD and BURGESS, JJ.), 145 Mo. l.c. 499: State ex rel. v. Mason, 155 Mo. l.c. 501; City of St. Louis v. Bircher, 76 Mo. l.c. 433-434: State ex rel. v. Clayton, 226 Mo. l.c. 302.] *Page 525
Thus far we agree to the opinion in the instant case. This is only of importance in that it furnishes us a common ground for discussing the real vital issues. These we shall discuss pointedly and as briefly as we can in the paragraphs following.
II. In this case counsel contend that there is no constitutional authority giving the city the right to amend the charter adopted in 1914 and adopted under the authority of new Section 22 of Article IX, which new Section 22 was adopted in 1902. [Laws 1905, page 320.] The opinion rules contra,Power to and to this ruling we dissent. Some underbrush shouldMake and be cast aside first. Let us emphasize here that theto Amend. question of the right to amend a charter by virtue of constitutional grant to write and adopt a charter isnot in this case, because the amendments to the Charter of 1914 (involved here) were not so made. These charter amendments were originated by city legislative proposal. The power granted to St. Louis to write a charter is by the last part of new Section 22 of Article IX. The grant is to elect thirteen freeholders to write and frame a charter, and then let the people adopt such framed charter. It reads: "and the lawmaking authorities of of such city may order an election by the qualified voters of the city of a board of thirteen freeholders of such city to prepare a new charter for such city, which said charter shall be in harmony with and subject to the Constitution and laws of the State, and shall provide, among other things, for a chief executive and at least one house of legislation to be elected by general ticket. Said revised charter shall be submitted to the qualified voters of such city at an election to be held not less than twenty nor more than thirty days after the order therefor, and if a majority of such qualified voters voting at such election ratify such charter, then said charter shall become the organic law of such city, and sixty days thereafter shall take effect and supersede the charter of such city and all special laws inconsistent therewith."
The grant to write is to thirteen freeholders. If this constitutional authority to write covers the right to amend, it means to amend through the same kind of a body as is authorized to write, i.e. a board of thirteen elected freeholders. The constitutional grant to frame a charter also provides for the notice, i.e. not less than twenty nor more than thirty days notice. If the power to amend comes from the grant to write a charter, such power to amend must follow the course (as to notice and otherwise) of the power to write. The vote to adopt is a majority of the qualified voters "voting at such election." The amendments of 1927 to the Charter of 1914 were not made in accordance with the constitutional grant of power to write and adopt a charter, so that, even if a grant of the right to write and adopt a charter carried with it the right to amend, *Page 526 no attempt was made to thus amend the Charter of 1914, in April, 1927. On the other hand, these amendments were by city legislative proposal, and strictly within the letter of the first clause of new Section 22 of Article IX, which reads:
"The charter so ratified may be amended by proposals therefor submitted by the law-making authorities of the city to the qualified voters thereof, at a general or special election held at least sixty days after the publication of such proposals and accepted by three-fifths of the qualified voters voting for or against each of said amendments so submitted."
There is no contention that these amendments were not proposed and adopted under the constitutional provisions, supra. They were so adopted, and the question here is, whether or not this constitutional provision applies to any charter of St. Louis, except the Charter of 1876. So we repeat, that the question as to whether or not a grant of power to write and adopt a charter, carries with it the right to amend such charter, is not in this case at all, and cannot be under the facts. This underbrush, suggested in briefs, is cast aside.
In the following paragraphs we take up the question suggested in the first lines of this paragraph, but will dispose of a little more underbrush first.
III. In these two cases there is an attempt to give too much weight to mere charter provisions. It would seem that we were trying to revert to the once much pressed view (long since exploded — in fact exploded shortly after its appearance), that the charter of a city (adopted under constitutionalParamount grant) was the constitution of the littleAuthority. municipality, and stood in a different class to mere legislative charters, such as we have for cities of the first, second, third and fourth classes. We had occasion recently to review this matter in a case that Division One had sent to Court en Banc upon its own motion, because of seeming conflict with a case from Division Two. The conceived conflict had no reference to this question, and hence we use here some thoughts expressed and approved, by Division, in Tremayne v. City of St. Louis, 320 Mo. ___, 6 S.W.2d 935. In that case we said:
"We shall take the applicable statutes first, because, in a broad sense, the Charter of St. Louis cannot contravene a state statute. `Notwithstanding the provisions of this article (Art. IX), the General Assembly shall have the same power over the city and county of St. Louis that it has over other cities and counties of this State.' [Sec. 25, Art. IX, State Constitution.] `Such charter and amendments' (of the city of St. Louis) `shall always be in harmony with and subject to the Constitution andlaws of Missouri.' [Sec. 23, Art. IX, Const. of Missouri.] *Page 527
"The making of a city charter, under constitutional authority, is a legislative function. [Morrow v. Kansas City, 186 Mo. 685.] This is true whether such charter is made by the General Assembly of the State, by general laws, as in the case of cities of the first, second, third and fourth classes, or by a vote of the people in designated cities under constitutional provisions, as in St. Louis and Kansas City. In both cases the charters are mere legislative acts. `A charter is the organic law of a city in this State, whether it emanates from the General Assembly, or is framed and adopted by the people of the municipality by authority of the Constitution.' [Kansas City v. Oil Co., 140 Mo. l.c. 471.] So that legislative acts (which are the charters of four classes of our cities) are the same in character as are the special charters voted by the people of cities having voted special charters under the Constitution. They are each mere legislative acts (one class by the General Assembly, and the other by direct vote of the people, as the legislators, under the authority of the Constitution), and in this sense stand on a par. It is only by reason of constitutional direction that a state law may supersede and thwart a charter provision. These directions (from the Constitution) we have set out, supra, in so far as they apply to the city of St. Louis.
"But the charter provisions, in order to avoid conflict, do not have to accord with the state law in mere matters of detail. The charter provisions must not be out of harmony (in the public policy and otherwise) with the general laws of the State, and the public policy therein announced. [Kansas City v. Oil Co., 140 Mo. l.c. 469.]"
Even subsequently passed statutes, if in spirit and in public policy they conflict with a St. Louis city charter provision, annul and kill the charter provision at once. Charters are thus, and thus only, kept in harmony with constitutional and statutory provisions. After the adoption of the Charter of 1914 there was published the Revised Code of St. Louis annotated by Hugh K. Wagner, which volume covers not only the Charter of 1914, but the applicable laws of the State pertaining to the city of St. Louis, as well as constitutional provisions so pertaining. In an extended note on the 1914 City Charter, at page 529 of the volume, the annotator has well said:
"The charter must always be in harmony with the Constitution and laws of the State. [See cases heretofore and herein below cited; also State ex rel. v. Telephone Co., 189 Mo. 83, 88 S.W. 41; State ex rel. v. Police Commissioners, 184 Mo. 139, 71 S.W. 215, 1133. 88 S.W. 27; Ewing v. Hoblitzelle, 85 Mo. 76 (discussing the objects in view in adopting the St. Louis Charter); State ex inf. v. Lindell Ry., 151 Mo. 182, 52 S.W. 248 (same); State ex rel. v. Stobie, *Page 528 194 Mo. 14, 92 S.W. 191 (see discussion as to St. Louis Scheme and Charter in both majority and dissenting opinions); State ex rel. v. Kimmel, 256 Mo. 611, 165 S.W. 1067.]
"Hence, and also because the power of the Legislature to supersede or modify the charter or ordinance provisions exists,it follows that when the ordinance or charter provisions are, orbecome, in conflict with prior or subsequent state statutesembodying state policy or with the Constitution, such ordinances or charter provisions are or become void, and must yield to the higher law. [Levy v. Kansas City, Kan., 168 F. 524, 93 C.C.A. 523, 22 L.R.A. (N.S.) 862; State ex rel. v. Stobie, 194 Mo. 14, 92 S.W. 191, 200 (holding a provision in the Scheme repealed by the Police Act); St. Louis v. Meyer,185 Mo. 583, 84 S.W. 914; State ex rel. v. Police Commissioners, supra; Badgley v. St. Louis, 149 Mo. 122, 50 S.W. 817 (declaring a charter provision void as contrary to the Code of Civil Procedure); Ford v. Kansas City, 181 Mo. 137, 79 S.W. 923; State ex rel. v. Railway, 117 Mo. 11, 22 S.W. 910; St. Louis v. Bernard, 249 Mo. 51, 155 S.W. 394; State ex inf. v. Business Men's Club, 178 Mo. App. 551, 163 S.W. 901; Ewing v. Hoblitzelle,85 Mo. 76; State ex rel. v. Bell, 119 Mo. 75, 24 S.W. 765; State ex rel. v. Matthews, 94 Mo. 117, 7 S.W. 17.]"
A reading of these cases will be at least enlightening to one who conceives that there is something sacred about a mere city charter provision, or to one who conceives that such a charter is to the city what the Constitution is to the State. In Ewing v. Hoblitzelle, 85 Mo. l.c. 75 et seq. it is said:
"The next and last objection to the validity of the act, which we shall notice, is that it is in violation of Sections 21, 22, 23, 24, and 25 of Article 9, of the Constitution. It is argued that inasmuch as these sections authorized the voters of the city of St. Louis to frame and adopt a charter for the government of the city, which, when adopted in the manner therein provided, should take the place of and supersede the charter theretofore granted by the Legislature and all amendments thereto, as to all matters of local self-government created an imperium inimperio, and as to such matters the city was emancipated from state and legislative control. These sections will satisfactorily show, if examined by themselves, and would show, were it in our province to examine them in the light of the debates when they were the subjects of discussion in the Convention which formulated the Constitution, conclusively, that the chief object sought to be accomplished by them was not to emancipate the city from legislative control, but to allow it to enlarge its limits and cut it loose, when thus enlarged from the county, so as to free it from county government and exempt the property therein from taxation for county purposes. It is true that constitutional authority was *Page 529 given to the people of the city to frame and adopt a charter which should supersede the charter and all amendments to it in existence at the time of its adoption, but the idea that it was thereby intended to create a sovereignty, and deny to the State the right of control, is, we think, completely overthrown by the following limitations or conditions imposed by Section 23, Article 9, viz.: `Such charter and amendments shall always be in harmony with and subject to the Constitution and laws of the State of Missouri.' `Subject to,' that is, placed under the authority, the dominion, of the Constitution and laws of the State. That it was never designed to free the city from state control is further shown by Section 25 of Article 9, which is as follows: `Notwithstanding the provisions of this article, the General Assembly shall have the same power over the city and county of St. Louis that it has over other cities and counties of this State.'"
This Ewing case has stood the test of time. The doctrine there announced is as much the law to-day as it was the day it was an-announced. There is much in some of the writings upon this case that smacks strongly of the "imperium in imperio" doctrine as to matters of local self-government for St. Louis. Such views were thoroughly exploded by the Ewing case, and sad will be the day when such a view (as urged by counsel, but denied by the court in Ewing's case, supra) shall ever become law in this State. Up to this good hour our court has stood with a firm face against it, with only an occasional muttering to the effect that such a charter is to the city what the Constitution is to the State. These mutterings are without foundation. They would establish home rule for such cities by ordinances rather than by state laws.
With the underbrush cleared, we can now take up some of the real questions in these two cases. We say two cases, because when you write in one you write for both.
IV. Prior to the Charter of 1914 the city of St. Louis had the Charter of 1876, adopted in 1876, under the authority of Section 20 of Article IX of the Constitution of 1875. No other charter could be adopted under the authority of said Section 20 of Article IX of the Constitution, because the same or similar conditions could not thereafter exist. In otherExclusive words when there was a separation of the city ofLimitations St. Louis, from the county of St. Louis (withof Amendments. added territory and change of boundary lines), by the adoption of the Scheme and Charter authorized by Section 20 of Article IX, said Section 20 was no longer constitutional authority for the writing and adoption of another charter for the city. It became a dead letter in this regard. It was so recognized, when in 1902 Section 22 of Article IX was amended, the several portions of which new Section 22 of Article IX we have *Page 530 quoted, supra. Section 20, supra, was never recognized as a continuing authority to adopt charters for the city. With this out of the way, we come to the question as to the alleged grant of power to amend a charter (subsequently adopted), under new Section 22 of Article IX. This calls for a comparison of old Section 22 with new Section 22, and the consideration of both with reference to Sections 20 to 25, inclusive, of the Constitution prior to the amendment of Section 22 in 1902. As said, Section 20 of Article IX of the Constitution of 1875 authorized the submission of a scheme for (1) the separation of the city of St. Louis from the county of St. Louis, (2) for enlarging the city by taking in additional territory, and (3) providing for named conditions to be met by reason of the separation, both as to the government of the county and the city. The facts are that Sections 20 to 25 of the Constitution were dealing with this single thought in view. Future charters for the city were not mentioned nor provided for, and evidently never thought of at the time the Constitution of 1875 was written. Not until 1902 was it thought advisable to authorize the city to write and adopt a new charter. Up to that time amendments to the Charter of 1876 were deemed sufficient, although such amendments could not be made oftener than once in every two years, and the vote required to be obtained was almost prohibitive.
But to a comparison of the old and new Section 22 of Article IX. Original Section 22 provided for amendments to "the charter so ratified" (in 1876, when the county and city were separated by the Scheme and Charter), and reads;
"The charter so ratified may be amended at intervals of notless than two years, by proposals therefor, submitted by the law-making authorities of the city to the qualified voters thereof at a general or special election, held at least sixty days after the publication of such proposal, and accepted by atleast three-fifths of the qualified voters voting thereat."
In 1902 (at the general election on November 4th of said year) this old Section 22 of Article IX of the Constitution of 1875 was repealed, and the following new section in lieu thereof was adopted:
"Section 22. The charter so ratified may be amended by proposals therefor submitted by the law-making authorities of the city to the qualified voters thereof, at a general or special election held at least sixty days after the publication of such proposals and accepted by three-fifths of the qualified voters voting for or against each of said amendments so submitted; and the law-making authorities of such city may order an election by the qualified voters of the city of a board of thirteen freeholders of such city to prepare a new charter for such city, which said charter shall be in harmony with and subject to the Constitution and laws of the State, and shall provide, *Page 531 among other things for a chief executive and at least one house of legislation to be elected by general ticket. Said revised charter shall be submitted to the qualified voters of such city at an election to be held not less than twenty nor more than thirty days after the order therefor, and if a majority of such qualified voters voting at such election ratify such charter, then said charter shall become the organic law of such city, and sixty days thereafter shall take effect and supersede the charter of such city and all special laws consistent therewith." [See Laws 1905, p. 320, and Laws 1901, p. 263.]
Under this constitutional provision the new City Charter of 1914 was framed and adopted, and become effective August 29, 1914.
The amendments attacked in this proceeding are amendments to the Charter of 1914. The contention is that there is no constitutional authority to amend the Charter of 1914, that the reference made in new Section 22 of Article IX of the Constitution, as well as the old Section 22 of said article, is only to the charter adopted in 1876, when the Scheme and Charter were submitted and adopted, under the Constitution of 1875, and not to any subsequent or other charter. The scheme had to be adopted by both the county and city of St. Louis, but the charter was to be adopted by the voters in the city, as such city was enlarged by the proposed new charter. In other words, all voters within the extended limits of the new charter had the right to vote for or against said new charter. This particular question involves a construction of new Section 22 of Article IX of the Constitution, and more particularly the first part thereof. It will be noted that the first part of this new Section 22, adopted November 4, 1902 (Laws 1905, p. 320), has just two parts, and these are separated by a semicolon only. Save a few scattering commas, there is not another punctuation mark therein, save the period at the end thereof. The two parts deal with separate subjects. The first part deals with amendments to a charter, and the second with the making of a new and complete charter. Singularly the subject of amendments to a charter is dealt with first, and not after the provision for making a charter. This first portion is practically taken from the Constitution of 1875, Section 22. That we may have them together for this discussion we shall recopy both of them here at this point. The whole of old Section 22 of Article IX of the Constitution of 1875, reads:
"The charter so ratified may be amended at intervals of notless than two years, by proposals therefor, submitted by the law-making authorities of the city to the qualified voters thereof at a general or special election, held at least sixty days after the publication of such proposals, and accepted by atleast three-fifths of the qualified voters voting thereat." *Page 532
Note closely the italicized words above. These italics are ours and put herein for the purpose of making a comparison of wording. The first portion of new Section 22, Article IX, reads:
"Section 22. The charter so ratified may be amended by proposals therefor submitted by the law-making authorities of the city to the qualified voters thereof, at a general or special election held at least sixty days after the publication of such proposals and accepted by three-fifths of the qualified voters voting for or against each of said amendments so submitted."
Now compare the two. If you strike from old Section 22 the italicized words, which are in three separate places, thus (1)"at intervals of not less than two years," (2) "at least," and (3) at the end the word "thereat," and in lieu of the word"thereat" substitute the words "for or against each of said amendments so submitted," you have the first portion (all that portion down to the semicolon) of new Section 22 of Article IX. Thus we have the origin of this clause of new Section 22 of Article IX. What does it mean, when it says: "The charter soratified may be amended, etc.? Keep in mind that there was then only the one charter (that of 1876), which was ratified under the provisions of the original Constitution of 1875, at the time the Scheme and Charter were ratified and adopted. We cannot write constitutions by uncalled-for construction when the language is plain. The words "so ratified" mean something that has been done, and not something to be done in the future. So also the words "The charter so ratified" mean an existing charter, and not one to come into existence later. The Charter of 1914 had neither been written nor ratified at the time the foregoing language was used in the amendment of 1902. This entire portion of new Section 22 of Article IX can only refer to the Charter of 1876 and not to the Charter of 1914. This amendment of 1902 dealt with two subjects, (1) amendments to the existing charter "so ratified," and (2) with the method of making and adopting a new charter. But the new Section 22 of Article IX says nothing about how to amend charters made and adopted in the future. How easy it would have been to have written it so as to cover both the existing charter, and those to be made thereafter under the authority granted in the latter portion of the said new Section 22 of Article IX. It may have been thought that provisions for amendment would be inserted in any new charter that might be adopted thereafter, and that such would suffice. This question we do not now rule. We have no fault to find with the rule announced in Morrow v. Kansas City, 186 Mo. 675, l.c. 683. Once clearly granted, by the Constitution, the right to frame and adopt charters, is a continuing one, so long as the constitutional provision stands. The same is true of the broad and unqualified right to amend. *Page 533
We fully agree that the right, when once given, both as to new charters and amendments, "is a continuous one, in the absence of constitutional prohibition." But, confining our remarks to the right to amend, we say that it must be unqualifiedly given. In other words there must be no limitations on the right to amend found in the constitutional provision granting it. Here we have in plain language a limitation, i.e. the city is only granted power to amend an existing charter, and none given as to future charters. It may be conceded that the right to make and adopt a charter is, of itself, sufficient to authorize the inclusion in that charter of a provision as to how amendments might be made, but that is foreign to the exact question before us now, and we do not rule the matter. It suffices to say that the Constitution in express terms granted the right to amend an existing charter, and is absolutely silent as to future charters. This is ominous. Usually the granting of a right in one form, excludes the idea of any additional grant pertaining to the same subject. It appears to us clear that the constitutional provision does not authorize the amendments made to the Charter of 1914. How easy it would have been to have so worded the Amendment of 1902 as to cover both the existing charter and future charters. The language used by the Constitution-writers is plain, and it is not for us to change or rewrite it. At the expense of brevity we want to reiterate in a way.
The St. Louis City Charter of 1876 was one adopted under the authority of Section 20 of Article IX, of the Constitution of 1875. This Section 20 could not apply to any charter thereafter to be adopted. The powers "that be" so thought when they procured the adoption of the Amendment of 1902. Section 20 of Article IX as first written in 1875, was authority (1) for a scheme to separate the city of St. Louis from St. Louis County, and to enlarge the limits of such city, and (2) to adopt a charter for the government of such enlarged city. When the separation was made, no such situation as was dealt with in the Constitution of 1875, Section 20, Article IX, could ever after occur. In other words, no other charter could be adopted by the city of St. Louis under the authority of this Section 20 of Article IX. This, for the simple reason that (after the separation of county and city), Section 20 could not apply to conditions thereafter. So while, as a rule, the grant of power to adopt a charter is a continuous one, the peculiar situation as to St. Louis County and the city of St. Louis (dealt with by Section 20 of Article IX) could never thereafter arise. It was never claimed that the city of St. Louis could have adopted a new charter (such as it did adopt in 1914) by virtue of the grant made in Section 20 of Article IX. So that the only power left in the city (after the separation of county and city) was the right to amend the Charter of 1876. *Page 534 It is clear to our mind that one purpose of the constitutional amendment of 1902 (new Section 22 of Article IX) was intended to facilitate amendments to the Charter of 1876. There were two obnoxious limitations (as the people evidently thought) in old Section 22 of Article IX. First, the amendments could not be made oftener than every two years, and (2) an amendment, or amendments, had to receive three-fifths of the votes cast at theelection, and not merely three-fifths of the votes cast upon the amendment or amendments. Under the old Section 22 it was harder to carry amendments, because of the requirement of three-fifths of the votes cast at the election. Voters frequently do not vote upon these special propositions, while voting at the election, so that there might be more than three-fifths of the votes cast upon the charter amendments, in favor of the amendments, and yet there would not be three-fifths of the votes cast at the election in favor of the amendments. These two hindering limitations the constitutional amendment of 1902 eliminated, but the purpose was to eliminate them to facilitate amendments to the Charter of 1876. The Constitution-makers (the people), in 1902 had no idea when the city of St. Louis would want to make a new charter, as provided for by the second clause of new Section 22 of Article IX, but they desired to remove these two obnoxious restrictions in old Section 22 of Article IX, so that amendments could more readily be made to the Charter of 1876. To our mind this was the sole and only purpose of the first clause of new Section 22 of Article IX, adopted in 1902. After the separation of city and county, there was no constitutional authority given for the adoption of another or a new charter or a new charter for the city of St. Louis. The power to amend the Charter of 1876 was hampered by the two restrictions discussed, supra. The new Section 22 was designated (1) to facilitate amendments to the Charter of 1876, and (2) to authorize the city to frame and adopt a freeholders' charter, if it so desired. It is ominous that the grant to amend precedes the grant to frame a charter. Had the Constitution-makers desired to make this clause as to amendments apply to the freeholders' charter thereafter to be adopted, if ever, the natural place for the provision as to charter amendments would have been after the provision authorizing a new charter. Learned counsel for the city, in the brief, saw this point and undertake to break the force of relator's contention. They would have us construe new Section 22 as if the provision for amendments did, in fact, come after the provision for a new charter, and in that way refer to the charter or charters thereafter to be adopted. If courts wrote constitutions we might do this, but so long as our duties are to construe constitutions and not to write them, we must (in construing the instrument) take it just as it is written. We should not transpose the clauses thereof so as to *Page 535 give it a meaning absolutely different from that expressed therein, leaving the clauses in the position as written and adopted. We can see reasons for writing and adopting the amendment of 1902 just as it is. With the changes so as to facilitate amendments to the old charter, it might have been thought, the city could get along without a new charter for some time, and as a fact it did so get along for twelve years. Then it might have been thought that when the city did adopt a new charter provisions for its amendment could be made therein. As a fact they did provide for amendments of the Charter of 1914, but not through legislative proposal. But of this later. The point here is that the very location of the two clauses, i.e. (1) that as to the amendments, and (2) that for a new charter, precludes the idea of the provision as to amendments being applicable to any new charter. Constitution-makers do not always desire to grant too much power to cities. It may be that it was thought that too much latitude as to amendments was not a good thing — especially amendments by city legislative proposal. It may be that they thought that new charters could be adopted with greater thought and care, than is usually given to mere amendments. But, be this as it may, it is clear that this constitutional provision (as to amendments) was not intended to apply to future charters, but to the Charter of 1876. It may be that the mere shifting and transposing of the clauses would make it apply to future charters, but courts are not to transpose clauses to change meanings, and a transposition of these clauses in new Section 22 does change the meaning.
The second clause of the first sentence or paragraph of new Section 22 of Article IX is the only authority for St. Louis to make a new charter. Owing to changed conditions (the separation of county and city), Section 20 of Article IX is no longer applicable or effective, as we have said, supra. This second clause in new Section 22 does not even allow a new charter to be proposed by the city legislature. Such body may provide for a board of freeholders to prepare a charter, but there is no power given for a legislative proposal of such a charter. We note this to show how carefully the Constitution-makers were keeping away from city legislative proposals. If this provision stood alone, it is clear that a board of freeholders would have to be elected whenever a change in charter provisions was desired. Amendments to the charter could only be made in that way. However, it may have been thought that the power to make and adopt a charter authorized the writing in that charter the method for its own amendment. However, we need not speculate, so far as the view of the thirteen freeholders, or charter-writers, is concerned. They did think that they could provide, in the charter, for its own amendment, and did so provide. Article V of the Charter of 1914 covers the subject of "The Initiative," and Article VI *Page 536 then follows and covers the subject of "The Referendum." Section 1 of Article V of the charter reads:
"Section 1. The people shall have power, at their option, to propose ordinances, including ordinances proposing amendments tothis Charter, and to adopt the same at the polls, with the same effect as if adopted by the board of aldermen and approved by the mayor, such power being known as the Initiative. It shall be exercised as hereinafter provided, subject to the provisions of this Charter."
In this we see the clear right to amend the Charter of 1914, but not by legislative proposal, as the amendments of 1927 were made. These charter framers thought they could provide for amendments to the charter, and did provide for such, but not by legislative proposal, but by initiative proposal. In no place in this Charter of 1914 did the framers provide for amendments by legislative proposal. Had they construed the first clause of new Section 22 of Article IX, as being applicable to new charters, they would not have so written Section 1 of Article V of the charter, because it would have contravened this first clause in new Section 22 of the Constitution. The charter could not provide for initiative amendments (as it does), when an applicable constitutional provision provided otherwise. So we reiterate, these thirteen writers of this Charter of 1914 did not think that the first clause of new Section 22 of Article IX applied to the charter that they were writing. There were some good lawyers in this list of thirteen freeholders, as we now recall it. Of course this act of providing for the amendment of the charter which they were preparing by the initiative only is strongly indicative of their construction of the first clause of new Section 22 of Article IX, supra. It is only valuable here on the theory that their construction aids this court in now construing the same matter. To our mind the history of the whole transaction, as to new Section 22 of Article IX, is indicative of the fact that these old fellows (in 1902), who were interested in the matter of a constitutional grant of power to the city of St. Louis to make a new charter, did not want to trust amendments thereto to legislative proposals. They had no doubt watched city legislation. They therefore provided for more speedy methods of amending the old charter, and for the making of a new one by thirteen men of ability, and if later the new one was to be amended let it be done by thirteen freeholders, who would give the changes serious consideration. We suggest that this idea might have been in the minds of those interested in the government of the city, and in the procurement of the Amendment of 1902 to the Constitution. But whatever may have been in the background, it is clear to my mind that there was never an intention to make the first clause of new Section 22 applicable to anything save and except the Charter of 1876. It could have been so easily written in *Page 537 plain language if it was intended to make it apply to both the old and the new charter. It was not so done, and intentionally so, in my judgment. Of a very similar situation in State ex inf. v. Maitland, 296 Mo. l.c. 352, we said: "It would have been much easier for the Constitution-makers to have used language to cover all charters, rather than to have made the designation which they did." And this court in banc did not hestitate to hold that the language used did not refer to the old charter, but to the one adopted under the amendment. We there ruled that the language was such that it applied only to future charters — just the reverse to what we have here. The principle, however, is the same. For a fuller discussion see 296 Mo. l.c. 352 et seq.
The expression "the charter so ratified" cannot refer to boththe Charter of 1876 (and we know it was intended to and didrefer to that charter) and a future charter. This, because the two could not be ratified in the same way. "So ratified" must refer to either time or manner of ratification, or both. If it refers to either it cannot, in the situation we have here, refer to anything but the Charter of 1876. No other charter can beratified in the manner, nor at the time, of the ratification of the Charter of 1876.
V. (A) Before going to another proposition, we want to reiterate and emphasize what we have last said above. We say (1) that the words "the charter so ratified" refer to the time or manner of ratification, or to both, (2) that there is and can be no doubt that they (at least) referred to the Charter of 1876, and (3) that they could not and did not refer to a future charter of St. Louis, because no future charter could be ratified in the manner as was the Charter of 1876, nor at the time of the ratification of such Charter of 1876. In other words, if this language referred to the Charter of 1876, it could not, by the very force of the different conditions and situations, refer to any future charter. With this we pass to a thought we had in mind when we started this subdivision of this opinion.
(B) In the Charter of 1914 the city of St. Louis undertook to provide for legislation by both initiative and referendum. It placed the legislative department of the city (in this respect) in the same position as the State under Section 57 of Article IV of the constitution. See Articles IV, V and VI of the Charter of 1914. Article IV, in Section 1, of this charter, vests the legislative power of the city in a board of aldermen, "subjectto the limitations of this charter." The limitations are found in the two succeeding articles (V and VI), the first of which provides for initiation of ordinances, by the people, and the second for the referendum of ordinances passed by the city Legislature. Section 19 of Article IV of said charter reads: *Page 538
"Sec. 19. No ordinance, unless it be an emergency measure, shall take effect until thirty days after its approval by the mayor or thirty days after adoption over his veto."
Then in the original charter, Section 20 of said Article IV, an emergency measure is thus defined:
"Sec. 20. An emergency measure is any ordinance necessary for the immediate preservation of the public peace, health, or safety and declared to be an emergency measure; any ordinance calling or providing for any election or vote by or submission to the people; any ordinance making an appropriation for the payment of principal or interest of the public debt, or for current expenses of the city government; any general appropriation ordinance; or any ordinance fixing any tax rate; but no ordinance granting, enlarging or affecting any franchise or amending or repealing any ordinance adopted by the people under the initiative shall be an emergency measure."
To obviate the required time as provided in Section 19, supra, and to foreclose and prevent a referendum of street improvement ordinance, the Third Amendment of 1927 added the words in black type to said Section 20 of Article IV of the Charter of 1914. The section as amended reads:
"Section Twenty. An emergency measure is any ordinance necessary for the immediate preservation of the public peace, health or safety, or providing for public work or improvementsof any kind or repairs thereof, or establishing a benefit ortaxing district or a sewer district, or a joint sewer district, and declared to be an emergency measure; any ordinance calling or providing for any election or vote by or submission to the people; any ordinance making an appropriation for the payment of principal or interest of the public debt, or for current expenses of the city government; any general appropriation ordinance, or any ordinance fixing any tax rate; but no ordinance granting, enlarging or affecting any franchise or amending or repealing any ordinance adopted by the people under the initiative shall be an emergency."
What we have said in previous paragraphs suffices to rule this case, but we cannot refrain from suggesting that what is an emergency measure (under initiative and referendum provision) has been definitely held to be a court question, and not a legislative question. In other words, the lawmakers cannot by calling a measure an emergency measure make it such, and thus take it out of the referendum. Nor does Section 36 of Article IV of the State Constitution suffice for this purpose. We have construed our constitutional provision (Sec. 57, Art. IV) in this light. Some of the cases will be pointed out, infra. The charter of a city cannot go beyond the State Constitution, so construed, and make a matter an emergency *Page 539 measure, when in fact, it is not such. All charters are subject to the Constitution, and the construction given by this court of the Constitution is binding in the construction of charters. The city charter on Initiative and Referendum cannot be opposed to the public policy of the State, as such public policy is found in the Constitution and laws. The clear purpose of amending Section 20 of Article IV of the Charter of 1914 was to cut out the thirty days required to elapse (by Section 19 of Article IV of the charter) before the ordinance could become effective after being signed by the mayor, and by this Amendment Three (which is one especially attacked in this case) to make the mere improvements of streets emergency measures, and thus cut off referendum ofsuch ordinances. It is a clear effort to make an emergency measure out of a thing not in fact an emergency matter, by asimple legislative declaration. Making and amending city charters are only legislative functions. [Morrow v. Kansas City,186 Mo. 675.]
The people in adopting a charter for St. Louis in 1914 (and for that matter at any time theretofore, since 1875) were exercising this purely legislative function under the constitutional grant of power. When they wrote therein provisions for the initiative and the referendum, such provisions must accord with, and not be contrary to the State constitutional provisions with reference to these subjects. In other words, the charter provision cannot contravene the State Constitution. These charter provisions must accord with the general public policy of the State.
On the question of local self-government in cities adopting their own charters, the most liberal case, of the older cases, is Kansas City v. Oil Company, 140 Mo. 458. Yet this Oil Company case (140 Mo. l.c. 472) cites with approval State ex rel. Kansas City v. Field, 99 Mo. 352 (opinion by BLACK, J.), and the Field case (99 Mo. l.c. 355) cites with approval the old case of Ewing v. Hoblitzelle, 85 Mo. l.c. 76. On page 76 of the Ewing case is the discussion of the "imperium in imperio" contention, as to purely local matters in those cities having special charters, which contention is soundly condemned by NORTON, J., writing for an undivided court. Even in the Oil Company case (140 Mo. l.c. 471), GANTT, J., said:
"A charter is the organic law of a city in this State, whether it emanates from the General Assembly, or is framed and adopted by the people of the municipality by authority of the Constitution. Being a law for the government of themunicipality, it is binding upon all courts, and it violates no principle of our government to say that the courts, when called upon, must enforce these municipal laws unless they conflictwith the Constitution, and are not in harmony with theConstitution and laws, and, as already said, mere differences in details do not render such laws inharmonious. So long as Kansas *Page 540 City, under its special charter, does not invade the province of general legislation, or attempt to change the policy of theState `as declared in her laws for the people at large, it willnot be held to be out of harmony with such laws, notwithstanding the provisions of the special charter may be different from the general statutes prescribed for the government of other cities in their local affairs."
Note what is said about contravening the public policy of the State, whether such public policy is expressed in constitutional provisions, or in statutory laws. A city charter provision which tramples upon, and is inconsistent with, the public policy of the State must fall. And this is from the most liberal opinion in the State, so far as city charter provisions for local self-government, are concerned.
If the State did not recognize direct legislation by the people, who is there to say that a city (the creature of the State) can contravene this general public policy of the State by charter provisions? Even the Oil Company case, supra (the most liberal of all), condemns it. On the other hand, if the State does establish a system of direct legislation (by initiative and referendum), then the city charter provisions must conform in asubstantial manner to this announcement of the State's public policy. If a city can thus contravene general state public policies, then the municipality (the creature of the State) can legislate as it pleases, irrespective of the public policies of the State, duly expressed in Constitution and general laws. Such is not the law. If it be the law the people of Missouri have adopted many useless constitutional grants to the different classes of cities, and the lawmakers have passed many useless statutes.
By Section 57 of Article IV of the Constitution, the public policy of this State upon the Initiative and Referendum in legislation is announced. This public policy (as to direct legislation by the people), says what kind of legislation shall be exempt from the referendum. To say that a city can ignore this public policy of the State, and preclude all kinds of measures from referendum, by charter provisions, will not do. It would carry into effect the doctrine of "imperium in imperio" condemned in Ewing's case, supra, and from thence on down to this hour. This constitutional provision (Sec. 57, Art. IV) outlines, in a general way, what are emergency measures. No city charter can stand, which goes beyond these constitutional provisions. We mean that an emergency measure in the city charter provisions must not go beyond the general principles of an emergency measure as defined in the Constitution, which definition is a part of the expressed public policy of the State. This court has ruled that whether or not a measure is an emergency measure, within this expressed public policy of the State, is a question for the courts, in the final determination. The legislative *Page 541 determination or declaration is not final. [State ex rel. Westhues v. Sullivan, 283 Mo. l.c. 584, Point V, 224 S.W. l.c. 337 et seq.; State ex rel. Pollock v. Becker, 233 S.W. 641.] In the latter case five of the seven judges agreed upon the rule that what was an emergency measure was a question for the courts. Later cases are to same effect.
Amendment No. 3 to the city charter goes far beyond the public policy of the State, as expressed in the Constitution, when it undertakes to say that the mere improvement of a street is an emergency measure and therefore not subject to referendum. Such a provision, in order to stand, must come fairly within thegeneral class of emergency measures as outlined by the State. State ex rel. Asotsky v. Regan, 317 Mo. 1216, 298 S.W. 747, disposes rightfully of a measure which falls within a fairconstruction of the class of emergency measures covered bySection 57 of Article IV of the Constitution. No uneasiness need be suffered about Asotsky's case, supra. The public safety of the citizens of a city would be absolutely destroyed, if all measures for the raising of revenues to keep the city going as a policing power, for the protection of the lives of its citizens, could be held up by referendum. The city has a right to exist in the matter of protecting the lives and property of its citizens, and to this end to fix tax rates and raise revenue. Such measures are real emergency measures, and within thegeneral terms of Section 57 of Article IV of the Constitution. But how different the mere matter of improving streets. The most that can be said is that such measures, if referred, might produce inconvenience, but they are in no sense emergency measures, as this court has construed our Constitution. In making the improvement of a street an emergency measure, the city charter, as amended April 5, 1927. by Amendment No. 3, contravenes the general public legislative policy of the State, and being a court question, under the construction given to Section 57 of Article IV by this court, we must so rule.
There is one further thought closely related hereto, which we take up next.
VI. If there were nothing else in this case as to Amendment No. 3 to the city Charter of 1914 (made April 5,Amendment 1927). that a mere street improvement is declared toInvalid. be an emergency measure condemns the amendment.
The foregoing is but in accordance with the establishedMissouri rule that whether or not a given legislative measure is in fact an emergency measure is a court question and not finally determined by legislative declaration. This rule applies to city legislative measures as well as to State legislative measures. We cannot say (with any substantial reason therefor) that the rule should not apply to city legislative measures, as well as to State legislative measures. Have *Page 542 these mere creatures of State laws risen to such heights, as to say to this court, You can say what constitutes emergencymeasures in State laws, or State measures, but when you come to municipal alleged emergency measures you must keep your hands off because our legislative body (the people by direct vote) can do as it pleases, and make any measure an emergency by meredeclaration? Such is not sound sense, and therefore not sound law. This court can say whether or not mere street improvements are emergency measures in law or in fact. No court can say thatthey are emergency measures in either fact or law. This short paragraph suffices to direct the quashing of the record in this case, and in the interest of sound jurisprudence it should be done. There are other reasons, but we have trespassed upon time and patience already. We most respectfully dissent to the majority opinion. Gantt, J., joins in these views.