*1 BUCHANAN, Sammy Robert W. K.
Carter, Lockton, M. David
Appellants, KIRKPATRICK, Capaci- His
James C. Secretary
ty As оf State State Missouri, Respondent, Association, Inc.,
Taxpayers Mel Survival
Hancock, Bureau Missouri Farm Feder-
ation, Johnston, and C. R. Intervenors.
No. 62564. Missouri,
Supreme
En Banc.
April 3, 1981. *2 Engle, November election Michael Lerner and Earl J. Kansas ballot. City, appellants. for posture present of the case results from a challenges series of events and court Ashcroft, Gen., M. Atty. Christopher John peti- began filing of the initiative Lambrecht, Allen, Terry Attys. C. Asst. Gen., City, respondent. secretary Jefferson with the tions this amendment *3 4, state July of on 1980.1 Bartlett, City, L.
Alex Jefferson James Robinett, Jr., Springfield, Forrest P. Carson parties jurisdic- assert have Coil, City, and Cullen Jefferson for interve- 126.071, by of 1978.2 tion virtue RSMo § nors. jurisdiction case comes Our to entertain this constitutional validi- from the fact that PER CURIAM. is under ty of the amendment before us appeal case This is before us on from V, 3, challenge. as amend- Mo.Const. art. County of decision of the Circuit Court Cole 3, August 1976.3 ed refusing enjoin respondent, Secretary to judicial notice of the fact We take State, placing proposed of from Constitu- 4, 1980, No. 5 on November Amendment (hereinafter re- tional Amendment No. 5”) approved by by No. of Missouri to as “Amendment was ferred 1, appellants 1.Chronologically 12. file the chal- October events court 1980— may present lenges follows: action in Court of Cole Coun- be described as Circuit ty. 4, July petitions 1. were 1980—the initiative 7, granted present 13. October 1980—leave secretary filed of state. County in ac- to intervene Cоle intervenors tion. 3, September secretary 2. of state 1980— announced the measure would not be on November drawal 9, respondent files an- 14. October with- 1980— ballot because of County swer case. Trial court denies in Cole signatures congres- 6th injunction. petition for sional district. 10, plaintiffs in case No. 15. 5, October September 1980—mandamus action 3. 1980— Bureau, of this motion for clarification by file al. Farm et commenced Missouri 29, September Kirkpatrick, require secretary 1980. Court’s order to to of state 10, congressional signa- clarifica- replace 16. 1980—motion for October the 6th district petitions. No. denied. on the in case tures 17, 9, September appeal writ in 4. 1980—alternative 17. October 1980—notice County issued. in this Motion mandamus Cole case filed Court. 11, September 5. 1980—Sixth District Com- for filed in this court in Missouri clarification Taxation, expedited ap- for Inc. seeks mittee leave case. Reasonable Farm Bureau case. Motion for to in Farm Bureau intervene Missouri peal in this case. filed 20, 18. 1980—motion for clarifica- October 15, September District Com- Farm Bureau 6. 1980—Sixth tion Missouri Bureau case overruled. in Farm in mittee files brief Missouri hearing appeal expedited of this Motion for case. overruled. 16, September argument in 1980—oral 7. 29, January appeal present 19. 1981— case. Missouri Farm Bureau argued in case this Court. 17, September secretary of state 8. certified 1980— other constitutional and three this to 126 are 2. All references ch. 125 ch. voters. to be submitted amendments Missouri, S.S.S.B. Revised Statutes of 658, 1978. 19, September Farm Bu- 1980—Missouri 9. reau case ing respondent 1980, 284, repealed p. of Mo. has Laws 947, decided, Mo., mak- S.W.2d 116, chapters replaced with ch. these them ordering peremptory writ alternative Cum.Supp.1980. RSMo replace signatures. Motion intervene denied. Sixth District Committee to 29, 1980, together September 3. Our order 24, present appel- September 10. 1980— 1, (see paras. subsequent with our orders note lants, plaintiffs, petition-in this Court file obligates supra) opinion seq. our et in our secretary compelling writ mandamus appeal. prompt hearing also Fore- of this See ballot measure from the of state to remove most-McKesson, Davis, Inc. (Case 62514). No. said, “by (Mo. 1972), rea- banc where we September order 11. 1980—court enters importance son of interest denying petition for writ of mandamus questions need for the case and other prejudice subse- No. case quent litigation 62514 “without level, adjudication retain that we will at this by not mooted of issues case....” and decide the election.” 807,187. 1,002,935 a vote of We also take no raised will appellants issues be waived, note of the fact that S.B. repeаling although deemed some matters ob- 52.420, reenacting 1978, designed jected judged RSMo prior to election purpose primary creating a court following different standard election. provisions test of one of the of Amendment posture acknowledge We already No. passed by has been 81st clearly case to leave the issues less tends Assembly signed General into law prefer, we might defined than otherwise the Governor.4 misunderstanding but there is no question There is a serious as to whether basic issues before us. appealable
there is an judgment final The fundamental and basic issues here case, is, or if there whether the same involved are: may mooted been the election procedural there defects in the Were *4 thereby converting this declaratory into a initiative for Amendment No. 5 effect, judgment, originated in this justified enjoining would its Court. of our prior discretionary Because election, being placed on the to prior ballot appellants’ petition denial of for mandamus justify invalidating or which would now our (see 1, para. supra) preju- note “without the election because of such defects? dice litigation to subsequent of issues not validly adopt- 2. Is Amendment No. 5 a by mooted the and election” our refusal for ed amendment? constitutional reason of time constraints expedite to the hearing 1, appeal (see on this note matter We first applicable provi- examine the paras. and, supra) 17 and of because sions Missouri of the Constitution and the general in and pressing interest need implementing statutes. for of presented, determination the issues I, 1, provides: Article § we have all resolved doubts in favor of political power That vested in all and proceeding with the case. We will de- people; govern- derived from the all cline to upon constitutionality rule of right originates ment people, from the as our amendment sister state Michi- upon only, is founded their will and is gan, whose Headlee is the Amendment good solely instituted for 5, for model Amendment No. has done whole. two adoption, occasions since its reason by (Emphasis added.) jurisdictional “factual and In re void.” I, 3, provides: Article § Request Advisory Opinion for of Constitu- That this state have the tionality 57, 60, 62, PA 407 Mich. inherent, right sole and regu- exclusive to 322, (1979) N.W.2d re Re- and In late government police the internal and quest Advisory Opinion of Constitution- thereof, and to alter and abolish their 57, ality of 1979 PA 407 Mich. government constitution and form of (1980).5 N.W.2d 686 they may necessary deem it whenever to Questions during argument were raised safety happiness, provided their and such as to procedural whether certain objections change repugnant be not Constitu- by bad been waived reason of the fact tion of the United States. the election prior hearing. was held to this added.) (Emphasis For the same reasons that we choose to proceed appeal XII, with 2(b), we also state that provides part: Article § court, Assembly, Michigan 4. repeals opinions, S.B. unpublished 81st General 5. The by raising salary constitutionality reenacts 52.420 of coun- § also to rule on refused ty by Hampton $100 collectors of second class counties before the amendment the election. per year. Governor, (Mich. 1978); Both S.J.R. No. 81st General As- No. 62138 Oct. sembly, Secretary State, (Mich. Ferency Sept. H.C.S. for H.J.R. Gen- No. 81st No. 61984 passed, Assembly, eral 1978). if would in effect submit repeal to the voters the of Amendment No. adoption amendments to the Consti- tution in lieu thereof. per- be general signed eight 4. Petitions must proposed by All amendments be assembly or the initiative shall sub- in each of two-thirds of cent of voters approval 126.051; for their mitted electors congressional district. Section Const, or ballot rejection official title Ill, art. 50. § pro- No such provided by law.... prescribes form 5. Section 126.061 posed shall contain more amendment circulator’s oath. one and revised article of than amended provides for the attor- 6. Section 126.081 constitution, one аrticle which or new “ballot general formulate the official ney subject more than one shall not contain upon in the which is to be voted title” properly and matters connected there- XII, 2(b). See Mo.Const. art. § election. ... with. (Emphasis added.) qualifications states 7. Section 126.151 penalties. See Mo.Const. signers, III, 49, provides:
Article Ill, art. 50. power propose people reserve reject enact or laws amendments for court provision Two make sections initiative, inde- constitution of initiative legal sufficiency tests assembly, also pendent general if provides 126.071 petitions. Section approve reject by power reserve secretary certify refuses to of state act of the assem- referendum may go sponsors petitions, file provided. bly, except as hereinafter County for mandamus Court of Cole Circuit *5 (Emphasis added.) filing. compel It is also certification and showing peti- that provided upon any that III, 50, part: provides Article § sufficient, may legally the court tion is amendments Petitions constitutional printing upon enjoin the certification and more than one amended shall not contain amendment. Provision the ballot constitution, or of this . and revised article appeals. the expediting made for one which shall not contain new article subject рrop- and matters more than one citi- provides any that 126.081.5 Section therewith, erly and enact- connected any ballot title official zen dissatisfied ‘Be it resolved ing thereof shall be clause to the Circuit may appeal or fiscal note of Missouri people of the state 10 County by petition within Court of Cole be amended that the Constitution attorney by the preparation after its days added.) (Emphasis general. III, 51, provides part: Article § of our is clear the framers Consti- It not be used for the The initiative shall abe intended that the Constitution tution money other than appropriation of abiding allocat- permanent instrument and provided for created and new revenues powers govern- of our defining and ing thereby.... ment. 126, imple- contains the Chapter which Roach, 230 In ex rel. Halliburton State statutes, proce- main menting sets forth the 408, (1910), 689 this Court 130 Mo. S.W. requirements requirements which dural stated: brevity are summarized. sake provisions and amend- Constitutional 126.031,prescribes the form 1. Section relate to to the Constitution ments petition. See also and format first certain fixed law and fundamental Const, Ill, art. 50. § government principles upon signatures 2. Each shall contain of constitu- purpose founded.... congressional one district. Sec- from provisions and amendments tional tion 126.041. prescribe perma- is to Constitution system and a uniform nent framework a full text petition must contain 3. Each 126.041; to the differ- assign government, and copy amendment. Section of the respective departments thereof their ent Ill, art. § Mo.Const.
H
powers
that,
and
“The very
may
duties....
term
be the
whatever
individual
implies
‘constitution’
an instrument of a
opinions
justices
of this court as to
permanent
abiding nature,
...”
folly
the wisdom or
law or consti-
amendment,
tutional
and notwithstand-
433,
694,
230 Mo. at
S.W. at
quoting,
which,
citizens,
Waite,
ing
right
as individual
Livermore v.
Cal.
36 P.
424,
(1894)
added).
exercise,
citizens,
(emphasis
with all other
box,
through
expressing,
ballot
our
It is equally clear that the framers of our
personal
disapproval
approval
pro-
Constitution
recognized
right
inherent
posed
changes, as
constitutional
a court
of the people to amend their Constitution
is,
our single inquiry
have constitutional
I, 1,
stated,
when in
Article
“That all
§
observed,
requirements
political
been
power
limits of
is vested in and derived
power
from
people
I,
3,
regarded?
and in
been
We have no veto.’
...”
Article
people
inherent,
“That
...
1133,
132 Mo. at
at
quoting,
S.W.
right
sole and exclusive
...
to alter and
Cases,
Prohibitory Amendment
24 Kan.
abolish their constitution and form of
(1881) (footnote added).
See also Marsh
government...”
III,
Article
Bartlett,
people
power
“The
reserve
propose
(banc 1938).
and enact
. .. amеndments to the constitu-
”
weighing
Ours is the task of
and balanc
the initiative....
ing two
contradictory
competing con
power
Inherent
people
cepts
stable, permanent
need for
—the
“alter”, “amend”, or “abolish” their Consti-
organic
right
law
inherent
versus the
power
tution is the
right
to amend
change
organic
to alter
law—
wisely or unwisely.
and to make the final determination as to
power
Our
judge
the wisdom of the whether or not this constitutional amend
people in adopting Amendment No. 5 was ment
validly adopted by
has been
peo
most clearly
succinctly
stated
ple. State ex
of Fund
rel. Board
Commis
*6
court
in 1896 in
case of
Edwards v.
482,
Holman,
(Mo.
sioners v.
296 S.W.2d
484
Lesueur,
410,
(banc
132 Mo.
tations of the constitution have been in- formed understanding people fringed upon. aWhen constitutional probable proposed submitted, effects of the amend- amendment has been the sin- ment, (2) gle a inquiry prevent self-serving for us is whether it fac- has re- ceived the popular approval, imposing upon people sanction from its will in the prescribed by manner law. without their So full realization of the effects Brewer, 6. Justice David J. United States Su- preme Court 1890-1910. procedural advertising bally-hoo the amendment. The safe- favor of
guards
designed
than
adoption
are all
to assure that
of the amendment. Other
desirability
proposed
advertising,
amendment
for the extraneous
judged by
people
petitions appears
best
to be in
format
voting booth.
compliance
require-
with the
substantial
Ill,
ments of Mo.Const. art.
place in
It is of
that at no
interest to note
126.031
126.061.
§§
either the Missouri Constitution or in the
implementing
granted
statutes is
court
We do not
either deviation or
condone
power
enjoin
an amendment from
from,
variation
or addition to either the
ground
being placed
upon
the ballot
imple-
requirements of the Constitution and
passed
if
that it would be unconstitutional
menting
statutory
or the
forms
statutes
the voters. Moore v.
adopted by
we
suggested therein and
would caution
Brown,
256, 264, 165
350 Mo.
those who
use the initiative in the
would
(banc 1942). It is also with some inter-
practices
against indulging
similar
future
not
est that we note that we have
been
including
materials. We do
extraneous
presented with nor have we found a Missou-
believe, however, that in this case the
not
ri
a
amendment
case where
constitutional
as
citizenry,
accustomed
are
Missouri
actually
following
set aside
its
has
been
advertising, were ei-
seeing
reading
adoption by
people.
prejudiced by
or were so
ther so confused
statements,
advertising graphs and
as
already
has
Since the amendment
invalidating
justify our
the amendment
demon
adopted
people
been
and the
the will of the
as
overriding
will,
duty is not to
strated their
this Court’s
expressed by
adoption of the amend-
their
amendment,
seek to
but to
condemn the
ment.
possible.
if
uphold
seek
it
Gabbert
Co.,
Chicago,
Ry.
I. & P.
R.
II
(banc 1902).
16 Am.
S.W.
See
Jur.2d Constitutional Law 56.
Appellants
have denominated as
peti
objection that
substantive their
background
is in
It
called
encompass
single subject
than
tions
more
procedures fol-
upon to examine both the
procedural,7
their
and have denominated
No.
proponents
lowed
of Amendment
upon
objection
petitions
that the title
getting
5 in
it on the ballot and to examine
subject
did not
state the
fairly
of the amendment
substantive content
amendment.
question of
in order to answer the ultimate
Ill,
5 consti-
*7
provides
whether or
Amendment No.
safe-
the
Mo.Const.art.
§
to
tutes a valid amendment
the Missouri
“more
guard against petitions containing
subject
properly
Constitution.
con-
one
and matters
than
added.)
(Emphasis
nected therewith.”
I
procedures
the
126.081 sets forth
Section
request the
secretary
for
of state to
Appellants, both before and follow
election,
prepare
to
and draft the
ing
objected
attorney
have
to the form
of the same
upon
ground
and subsection 5
petitions
ballot title
or format of the
anyone
authorizes
“dissatisfied”
extraneous matters
statute
contained
constituting
to resort to the courts. Ei-
statements
with the title
graphs
such as
and
Brown,
were therefore substantive
nature. 350 Mo.
165 S.W.2d
7. In Moore v.
350
Objections
pro-
1942)
(banc
alleged
to
at
165
at 662.
that an
defect
S.W.2d
657
indicates
normally
requirement
if not
are
waived
to
cedural defects
is substantive if it relates
applicable
a
election,
Burns,
prior
to
State v.
constitutional amendments
raised
all
convention,
163, 174,
(1943), objection
legislative
res-
whether initiated
proce-
require-
no
petitions.
are not. Since
The
to substantive defects
initiative
olution or
ment that
being
objections
single
any
here
treated as
to a
dural
be limited
amendment
signifi-
special
requirement
subject
is
no
waived
distinction
matter and
single article
cance.
within a
amendment
contained
ther of
these matters is reviewable
prepared by
The official ballot title
prior
courts
to election. We
these
attorney general
address
provided:
together
issues
scope
because
or
breadth
except
yearly
Limits state
for
taxes
of Amendment No. 5
fairness of the
adjustments based on total
incomes of
title
scope
which describes
breadth
persons
emergencies; pro-
in Missouri or
the amendment are so interrelated.
fee
without
hibits local tax or
increases
expansion
popular vote. Prohibits state
stated,
Generally
pur
the central
responsibility
of local
without state fund-
pose of Amendment No. 5 is to limit taxes
ing.
savings
No
or costs to the state or
by establishing tax and revenue
limits
governments
local
can be
be-
determined
expenditure limits for the state and other
definitions,
provi-
of the
cause
formula
political subdivisions
which
not be ex
exceptions
sions and
allowed
approval.
ceeded without voter
Amend
proposal.
ment No.
is popularly
described as “the
amendment,
tax
spending
lid”
words
appeared
petitions
title
The
which
on the
which also reflect
purpose.
its central
To
as
states
follows:
accomplish the
purpose,
central
the amend
An Amendment
to the
Constitution
ment authorizes certain formulas for estab
the State of Missouri
Article
amending
X
lishing the limits
provides
a
for
method
taxation,
relating
of the Constitution
the repayment of taxes collected in excess
including
to,
but not limited
limitations
of the
The
limit.
amendment further seeks
governmental expendi-
on taxation and
prohibit
the state
avoiding
from
pur-
tures and the effectuation of such
defined limit or
shifting
limits
pose.
governmental
responsibilities or the shift
Both
official
title and the
ing
responsibility
payment
for either
appear
title
required
all notices
to be
existing
newly
governmental
created
re
published by
secretary
The
of state.
sponsibilities.
is
Provision made
emer
questioned
official ballot
title was never
gencies. Provision is made in
section 23
pursuant
126.081.
give taxpayers
amendment to
polit
ical
standing
subdivisions
2(b)
enforce the
Article XII
of the Constitu
amendment
the courts.8
tion states that
such proposed
“No
amend-
“
Standing
party’s
Therefore,
‘persona!
focuses on
despite
a
we note that
23§
of the
”
controversy.’
amendment,
stake in
original jurisdic-
Si-
outcome
has no
Court
Morton,
727, 732,
erra Club v.
provi-
405 U.S.
92 S.Ct.
suits
seek to
which
enforce the
1361, 1364,
(1972), quoting,
provision pur-
L.Ed.2d 636
sions of the amendment.
Carr,
186, porting
place jurisdiction
Baker v.
369 U.S.
suits in
S.Ct.
such
(1962).
efficacy
Standing
State” as 40(a), subjects. involved-several different Appellants next contend that the difficulty holding that all of We found no consti not list all the initiative did connected” “properly these matters were being changed by the provisions tutional purpose of “conservation” with the central re procedural proposed This amendment. thereby possible the creation making Halli quirement originated in State ex rel. as we Department Missouri of Conservation Roach, burton S.W. it no more difficult today. know We find it (banc 1910). opinion, Halliburton In the say all of Amendent No. sections stated, the Court Judge writing for Fox with its central “properly connected” through submitted amendment If is] [an governmental purpose limiting taxes and initiative, manifestly provision as Missouri. expenditures within initiative and referen contained petition shall that ‘the dum amendment Likewise, examination of the an title text of the measure so the full include provisions petitions before us In oth complied with. proposed’must be the title the amendment disclose words, truly if it an amendment er subject give adequate notice does Constitution, the full text of the *9 amendment. the of the provision what amendment and amend must it undertakes to Kirkpatrick, 606 Constitution
In Union Electric
petition.
in the
(Mo.
1980), we held that:
be embraced
banc
S.W.2d
436-37, 130
695, (empha
230 Mo. at
with the full
of the
there
S.W. at
text
amendment
“
added).
existing provi-
sis
published
‘any
should be
which would be
sions of the constitution
Brown,
In Moore v.
”
abrogated thereby.’
350 Mo. at
altered or
(banc 1942),
this Court inter-
664. There is no such
165 S.W.2d at
preted
requirement
the Halliburton
as fol-
requirement
provisions.
for our initiative
lows:
necessary
give
That is not
in order to
the
just
We have
indicated
views
the
that
a fair
of what
prospective signer
realization
existing
provisions may
constitutional
be
being
sign.
he is
He is interested
asked
by implication
amended or
repealed
proposed
amend-
aspects
the broad
through an initiative amendment. But in
ment, not the minute details.
repeals
favored,
case such
are not
and there
repug-
must be irreconcilable
Appellants
pro-
various constitutional
cite
nance
between
two....
All
changed or
by
visions
will be
affected
thаt
more should
be
true when such re-
allege,
Nowhere do they
amendment.
pugnancy
pointed
must be
out in
ab-
see, any provisions
nowhere do
stract, and
pending
not in a
controversy
petitions
listed on the
that are in direct
based on facts. Time alone can ferret
repug-
irreconcilably
conflict with or are
out all the consequential and
con-
remote
Following
nant
Constitution.
flicts between statutes or constitutional
Moore,
against
we must rule
reasoning
provisions in all their implications. We
appellants
point.
on this
requirement
therefore think the
in the
case,
proposed
Halliburton
that
IV
amendment disclose the constitutional
Appellants contend that Amend
provisions
change,
it
seeks
refers only
prohi
ment No. 5 violates the constitutional
to cognate provisions which are in direct
bition
that “The initiative shall not
used
conflict —as
were
ones
that case.
for the appropriation
money.
...” Mo.
V
placing of
Amendment No. 5 on the
approved by
where it was
people,
ballot
Appellants contend that Amend
thereby
adopted
becoming validly
a
amend-
ment No. 5 is invalid because it is in actuali
ment to the Constitution of Missouri. The
aty
legislative act and not a constitutional
denying
judgment
ap-
of the circuit court
amendment, citing
ex
State
rel. Halliburton
secretary of
pellants request that the
state
Roach,
(banc
rary it was not part permanent of the law MORGAN, J., separate dis- dissents of this state “and should not be submitted sepa- and concurs senting opinion filed cognomen under the false of an amend RENDLEN, J. dissenting оpinion of rate Bartlett, ment.” Marsh v. (banc 1938). In the RENDLEN, Judge, dissenting. case, instant language of Amendment clear, as It is dis- respectfully dissent. I No. 5 does not any temporal establish limits dissenting opinion Morgan, of cussed in Rather, for its operation. the provisions of J., (the # 5 so-called Han- Proposition they may amendment are such that Amendment) contemplates refund cock permanent become a part the law of of tax- privileged taxes to a class Missouri. gathering from payers, while such monies citizens, less taxpaying including all those VI if pay portions, who fortunate substantial “inherent, The right” sole and exclusive all, earnings purchase their for the not of the and abolish to amend “alter of the The principal necessities. tax burden their of government” constitution and form taxes, taxes, gasoline latter class for sales subject expressly provisions to the made excises, yet license fees and similar change repugnant “such be not to the denied, by Propo- are members of that class Constitution of the United States.” Mo. protection equal # due process sition Const, I, art. § 3. and Four- guaranteed by Fifth laws alleged It is argued neither nor United States teenth Amendments proceeding that Amendment No. 5 violates I, 10 of the and Árt. §§ Constitution or is repugnant to the United States Consti- This denial arises Constitution. Missouri required tution. We not therefore are the excess 5# because Proposition from on this do choose to examine or rule paid by mem- taxes and similar from sales issue.9 not be class will prejudiced bers paying to those proportionately We conclude that there was substantial refunded monies, excess sales instead such but compliance provisions such with the Con- will be refunded excises and similar tax implementing stitution and the statutes pay tax. We who the income argument to the rich In turned oral there was brief discussion legal perceive issue such a urged how unable that section fact some have an prior of such 18(b) relating the existence repayment could arise of excess revenues required then, be might would Even evidence be violative of excess. hereafter collected any alleged inequity degree equal protection process provisions to establish and due argument the classification S. is that and the reasonableness U. Constitution. would, part, for the most to be resolved. taxes or revenues would have (the poor) re- from masses taken *11 (1) of the corpora- peti- and That the form initiative persons, individuals only those pre- the standard tion did not meet propor- and in tions, taxes paying income 126.031, 1978; RSMo scribed in § paid. income tax to the amount tiоn (2) class will receive failed to set forth petition That the of the favored Members related the integrally all sections of share of income (1) Their the refund: from would changed Constitution that be of the sales and monies, (2) Their share tax amendment; by proposed the refunded, (3) (quite excise taxes other justifi- (3) constitutional peti- That on the initiative unfairly and without the title fairly all, accurately tion did Most, refunds of sales tax cation) if not not. subjects proposed state the paid by the nonfavored excises other amendment. imagination little to requires It taxpayers. opinion’s failure principal that trial court mis question, Without was foresee will problem interpreted taken, decide, with the did not by deal as this Court its mandamus, September denying invidiously discrim- order tacitly approving this 29th recognized This is any merits of issue. scheme, requires dispensing inatory majority, in the statement of man taxpayers” refund monies “sales damus was refused on the basis of a “dis Missourians, class of another “income Hence, very cretionary denial”. at just taxpayers,” compensation without the least, we should reverse and remand for I, assured Art. Missouri Constitu- proper of those consideration issues framed tion. when the made trial court its erroneous I,Art. Constitution, 3 of the Missouri ruling prior on to the elec October limiting the amendatory process, recognizes Further, tion. suit injunction, in this the people alter State their our under review is limited Rule 73.01 and Constitution, conditioned, however, Carron, Murphy (Mo. 536 S.W.2d change “such repugnant be not to the Con- 1976), inquiry (1) banc to an whether stitution of the Similarly, United States.” there is evidence support substantial Art. VI of the United States Constitution action, (2) trial court’s and whether the trial mandates that it be the supreme “shall law court erroneously applied declared land; judges and the in every state law. There evidence support was no shall be thereby, bound anything in the trial as to ruling court’s issues mentioned constitution or laws of above; state to the instead, (the evidence judgment contrary notwithstanding.” Proposition discretionarily this refusing man 29, 1980) # 5 is patently September damus repugnant squarely to the Fifth af fronts the trial court’s determination that Fourteenth Amendments the United However, judicata. issues were res de Constitution, reason, States and for that I spite the mandate of Rule 73.01 as inter join brother, J., dissent of my Morgan, preted Carrón, Murphy this Court who, addressing sponte, the issue sua prop- id., the majority ignores trial court’s erly decided proposition that the was inval- body error cause as if and treats the id. general original were a trial court Turning to the ap- briefed contentions on jurisdiction, authorized receive and de peal, court, it is clear denying the trial petitions cide in the first for in instance injunctive sought, relief erred on October junction, then, rendering a de novo 1980,when it plain- decreed that certain of determination, (without mention of the trial allegations tiffs’ (appellants here) had been action) judgment court’s effect a enters against ruled them on merits “affirming” the trial court. This unwar Court in its denial of their ranted procedure aggrava ad hoc further mandamus September in Case opinion ted when principal indulges issues, No. 62514. involving Those alleged presumption validity to sustain Proposi constitutional defects which trial court # uphold manifestly 5 and to erro decided, assumed we had were: neous decision of the trial court. view, popular approval, subtly pre- manner my problem
In has been law. (Emphasis added). warped from the scribed and attention diverted which, simply Was question, threshold is: certainly, Most we should examine whether requirements compliance there with the *12 process amendatory the was followed at the amending process? To amend the Mis- stages, prescribed in manner by critical Constitution, proponent comply souri must law, involving challenges in this case to that amending prescribed by process with the the election. process raised before enough is not our Constitution and laws. It I say right to to and, change the because an Constitution organic implementing and The law stat- election was held with the issue on the designed prevent submission of utes are ballot, is effectively the discussion closed. carefully packaged neatly camouflaged a Further, (as begs question it to state containing multiple subjects proposal not majority) repeatedly suggested by the easily perceived readily as such nor unrav- passage presump- election creates a an connection, In this by eled the electorate. helps satisfy which the re- validity tion of carefully our Constitution confines process. quirements amendatory XII, manner for its amendment. Art. 1§ majority presumption This fallacious provides case, Gabbert faultily stems from the cited and may be revised this Constitution (Mo. Chicago, v. S.W. only provided, as therein amended 1902), involved constitutional banc which XII, pro- no 2(b) provides Art. and held. an election was
challenges raised after through the submitted posed amendments Here, however, were raised and the issues process initiative we, ap- this prior to election and ruled amended more then one shall contain court’s peal, should review the trial constitution, or this and revised article of action It to intro- for error. is indefensible shall not contain one new article which fаct, existing duce a new at time subject prop- matters more than one and judgment, employ it to trial court’s and (Emphasis erly connected therewith. judgment. uphold either or reverse the supplied). (1) amending The issues are: Was provision for further makes That subsection I it was process properly followed? submit here, more than situations, in which such (2) validity presumption not. a Should adoption, requir- for subject one is offered #5? I protect Proposition be raised to in different subjects placed ing those not. submit it should to vote the electors to “enable amendments sure, amend the people may (Empha- To be separately.” on each amendment initiative, safeguard but to added). Constitution has condemned sis This Court against process protect and abuse subjects jointly submitting two practice of seeking impose their private interests voter, characterizing species it as a unsuspecting public, voter, the framers fraud, will on an compels it legal legislature by desires, of our Constitution and honestly what he order to obtain proper implementing provided statute he does something which cast his ballot for true manner therefore to insure a exercise in truth want. State not understand or well stat people’s point 1956). will. The (Mo.banc Holman, 296 S.W.2d Lesueur, change, ed in Edwards con- proposed constitutional 1896), 1130, 1133(Mo.banc cited 1,300 is in the S.W. than words taining more revision, There, referring rather majority, page of a constitutional nature had amendment, an election nine sec- challenges arising after with its mere than a (1) held, subjects: been said: six tions, containing arguably 18) upon (§§ State lid has Taxation When a constitutional amendment Government; (2) (§§ Spending lid submitted, us single inquiry been Government; (3) Di- 20) upon State the sanction of is whether it has received dictating (§ 21) rective merely manner in which be said that this is “incidental spent by the funds must be State Govern- connected with necessarily the control ment; (4) (§ 22) upon Taxation lid local State,” spending taxing in the as the governments; (5) upon Limitation local Instead, us majority would have believe. it governments (§ 22) obtaining revenues prepared promoted tells us those who upon based property; assessments and petition (or afraid) were reluctant finally, (6) grant original juris- A novel proposition altering submit this the Su- Court, Supreme diction to the thus amend- preme jurisdiction separate Court’s V, ing Art. 3 and Mo.Constitution. §§ amending proposal point or to out to the subject appears Proposi- The sixth voters reference in the initiative provides tion’s 23 Supreme that the (Art. V, provisions the constitutional 3§§ *13 original jurisdiction Court shall have when 4) markedly changed. so We must be process mindful that the initiativе misses state is involved ... to enforce the the benefit of debate in of our the houses provisions through of sections 16 in- Legislature input from pro- concerned and, clusive of this article if the is suit prob- fessionals familiar with the involved sustained, prevailing party] shall re- [the subject jurisdiction lems such as matter ceive applicable from the govern- unit of Sadly, profound courts. this and other costs, ment his including reasonable at- changes separated were neither for individ- torneys’ fees in maintaining such suit. by ual people consideration nor refer- only This not original alters the Court’s affecting altering enced as or existing sec- subject jurisdiction by matter amending tions of the Constitution. V, 4,1 Art. imposes 3 and but §§ as constitu- Proposition required Thus # 5 a voter to law, tional payment by “applicable unit a single subjects cast vote for several government” of the prevailing parties’ one, regardless approved of whether he all costs and attorneys’ fees. The hardly latter only part or proposal. example, For appropriate seems for inclusion in the Con- may a voter taxing have favored limits but stitution, but importantly, more this dra- opposed suggested have been change judicial matic alteration of our system, in- jurisdiction Supreme Court of cluding questions subject jur- matter Yet, proposed, Missouri. in the form he isdiction, costs, fees, attorney’s are dilemmas, must take neither or both.2 Such changes which should have been con- compounded by subjects, confusion of by sidered separate as a amend- XII, precisely 2(b) what Art. of the Mis- § ment. The petition proclaims initiative designed prevent. souri Constitution is Proposition amending X, # 5 is Article Constitution, Taxation Article of the proponent’s The separate failure to but 23 in drastically V, § fact alters subjects Art. included proper consideration the Judicial Article. It reasonably cannot by prescribed electorate as V, 3, provides appeals may Art. § as follows: the court of original issue and determine supreme Supervisory ap- The court remedial writs. shall have exclusive authori- pellate jurisdiction validity involving ty supreme in all cases over all courts is vested in the treaty of a or appropriate delega- statute of the United court which make States, provision or of a statute or power tions of this ... state, constitution of this the construction of state, any examples suggest revenue laws of this the title to 2. Other themselves. A voter punish- state office and all cases where the necessarily opposed spending not to deficit but imposed imprisonment ment is death or favoring a tax lid must have voted in favor of life ... suрport the deficit control in order to the tax V, 4, provides Art. § as follows: Similarly, lid feature. a voter favor of a supreme 1. The court shall have lid, spending opposed controlling but how superintending control over all courts and money may spent required was to vote in ap- tribunals. Each district of the court money spent favor of the directive as to how peals general superintending shall have con- spending in order to vote in favor of the lid juris- trol over all courts and tribunals in its feature. supreme diction. The court and districts of Proposition
amending process provisions renders the a extend to suits to enforce nullity. Proposition art. X” 23 of # 5 Mo.Const. [§ 23 of Because peti-
becomes Art. § X]. not disclose this alteration of Art. does II V, fail. the initiative must It is required proposed “that a amend above, addition, In en- as discussed 23§ (em ment the initiative must disclose grafts subject other than taxation. Inclu- added) phasis integrally provi what related separate subject sion of this abhorrent to changing, sions of the it is Constitution Ill, this, XII, 2(b) Art. and Art. petition will be legally the initiative too, The Proposition causes the fail. showing if that is not made.” insufficient fatal majority deals with these flaws Brown, Moore acknowledging jurisdiction first that the 1942). (Mo.banc petition The failed (as Supreme Court of Missouri noted to reference or disclosеin manner nu above) is indeed provisions changed merous Constitutional V, Mo.Const., set art. 3 and §§ forth repealed Proposition # 5. The in to suits to enforce which do extend many volved number as arguably sections Mo.Const., (foot- art. X. provisions as 79 sections of the Missouri Constitution. note page 13.) listed disclosed the bot *14 majority differently, concedes Stated the of page only tom the back sections al provisions (prior present the constitutional affected, legedly its depriving signers thus 5), establishing # the Proposition to 23 of § the regarding Proposi of vital information Court, permit the jurisdiction of this do opinion sweeps impact. principal tion’s The of actions here. The commencement such allegation gen this of error aside with the proceeds further, stating, opinion principal erality purpose3 the that the of amendment amendment, this despite 23 of the impose is financial restraints on state that § original jurisdiction no of suits government, many Court has and local and the related provisions seek to enforce of (e. g., V) Article are which sections Judicial amendment, 8, 13.) (footnote page directly by in somehow not affected nor Proposition majori The conflict with # 5. This, submit, conclusively I demonstrates fails number of those ty to mention name or Proposition that # must fail violative 4 except suggest gener the loose sections XII, 2(b), Art. and imperative § of the of ality The should mentioned above. 50, Ill, notice requirement Art. and the § upon not be to vote for such constitu called Brown, Ap- prescribed supra. in Moore v. change apprised by peti tional unless flaws, these parently acutely aware of fatal existing repealed tion of sections or sub majority as follows in foot- comments proposal for stantially altered note 8:
change. short, 23], provision “In [§ being respect with suits ineffectual noted, of 23 previously presence As § for the reasons earlier filed this Court legally Proposition # it insuf- 5 renders added). stated, (Emphasis is severable. 8, page majority ficient. The in footnote 13, things: (1) 23 admits 8 teaches several virtually § conflicts Footnote § V, 4, separate subject into introduces a stating Art. and that indeed §§ (2) V, Art. proposed forth in amendment. jurisdiction §§ “Our set Const, by the 4, 4, though petition, V, which do not and undisclosed art. and §§ 38, IV, 25, 37(a), 37(b), 38(a); §§21, Purpose misleading and Art. term in this 3. is a context. 37, XII, 26, 27, 29, 34, 35, 40(a), 2(b) 30(b), 32(a), 37(a), proper term from Art. is “sub- § 47, V, 4; ject 41, 42, 48; properly 43(a), matters connected there- Art. 3 and §§ and 24, (Emphasis supplied). VI, 19(a), 20, 22, 25(d), 25(e), with.” Art. §§ 2, 27; IX, 4; X, 2(a), 2(b), §§ Art. §§ Art. appellants 11(b), 4(a), 4(b), 6(a), 6(b), 8, 10(c), 11(c), 4. The list the sections Constitutional I, altered, and, as follows: Art. XII, contend are 11(d); Art. 6. § 16, 37, 2, 7, 17, 36, 27; Ill, 18(b) Art. §§ §§ propositions fact amended of harmful effects from these inactions (3) propo- opinion’s 23. collapse principal To avoid been compounded § position, the (respondent’s) majority nent’s employment presumption of a people may states one breath that the suffraged is valid. recently amendment speak by altering their volition the Consti- requests The three consider denials so spoken by amending tution and have Art. the issues occurred as follows: V, 4, 23, through 3 and proposed but §§ § petition for was FIRST: A mandamus rejects peo- then of the demonstration brought Proposition # 5 by proponent will, ple’s by judicial fiat in footnote on September praying that we or- Proposition unacceptable. holds 23 of # 5 Secretary replace der State to certain However, Proposition the flawed cannot be signatures petitions recently initiative salvaged by unprecedented this Court’s de- Court, filed. in the exercise of This its announcing vice of portion one is inef- discretion, petition, proponent’s honored (and excised) fectual implicitly thus because issuing September the alternative writ on existing a prior it conflicts with constitu- Opponents Proposition filed tional subject. section on the Nor can the September 11, their motion to intervene on Proposition up be shorn arbitrary an to raise seeking many issues 23 is announcement that offensive to the now before Court. motion This was majority’s jurisdiction view this Court’s denied September day but on that and, therefore, confers on the Court the was preliminary peremptory. writ made arbitrarily power accept only selected September opponents SECOND: On parts Proposition # 5. After the vote of (present appellants) filed their people, by authority may what the ma- writ compel Secretary mandamus jority portion declare one amend- of State to remove the measure from the severed, ment “ineffectual” and thus with- September ballot. On en- declaring out a failure amending *15 order, tered explanation, deny- its without process? ing mandamus, the opponents’ for III adding only that order was “without prejudice subsequent litigation
It also to of issues appears that the proposed amend- Hence, Ill, not mooted 51, by ment violates election.” an avowing Art. shall exercise of discretion we entertained the the “initiative not be used appropriation proponent’s mandamus, money petition for but other than of new provided given, revenues without we a “discre- created for there- reason issued by....” tionary opponents’ petition. denial” of the The great issues then matters of im- were
IV portance ripe.for concern de- pressing termination, By аmendment, unhampered by any presump- presuming validity of the tion principal penalizes Proposition’s oppo- but the opinion improperly validity, appellants nents quest adjudication by were turned aside our “discretion- challenging ary irony their claims validity denial” of the writ. The lies in Proposition During # 5. the two months the fact we now consider chal- election, prior opponents Proposi- lenges to the (according principal because to the (now X) # 5 peti- opinion, 9) tion Amendment to Art. Page general “of the interest in proceed- tioned this Court three different and the need pressing for determination of ings challenges Propo- presented...” (Emphasis ours). decide their the issues Though sition. These were in timely pressing efforts made need and in- fashion, prior brought to submission of the issue on terest were to our attention and November, urged October, the ballot in In upon September, each of us in proceedings, these this Court refused to unimpressed remained with that claims, consider their “general without the benefit of “need” and and refused interest” opinion exposition or of rationale. claims during The consider the those months. occurred, e., tions persevering,
THIRD: Still on October date i. Proposition’s opponents (appel 9, 1980, prior to the election. The October herе) brought present lants action for light of trial court ruled the issues in the injunction in the Circuit Court of Cole presented at a time when no facts then County. Appellants’ petition was denied occurred, we must review election had 9,1980. there Because of the trial October light.6 the facts in the same apparent uncertainty court’s as to the meaning Sep of this brief order of Court’s V 29, 1980,5petitioners tember moved in this petition is the instrument The initiative Court on October for clarification of its containing amendment circu- proposed order, enigmatic but that motion too was among least signatures lated for at 8% summarily filing. denied here on the date of Congression- the voters in two-thirds of the 17,1980, probably their most On October al That the electorate Districts. Court, attempt appel to bestir this critical proposal submitted concerning informed (opponents) appeal lants filed their notice of solicitors, the proponent’s to them County judg from the Cole Circuit Court’s 126.031, Legislature provided by has ment, accompanying and an motion for ex petitions shall be that such RSMo later, appeal. pedited days Three “substantially” prescribed in a form. The Court, comment, again opinion without Legislature formulated the exact lan- has motion, refusing hear overruled that petition, demonstrat- guage for an initiative appellants repeatedly sought issues which permissible ing an intent to circumscribe its present, prior to the November election. overstepped the proponent contents. The majority expedite The asserts our refusal to petition’s safeguard limits of this as to the hearing was “for reason of appeal majority, “All of form. As stated 9). time constraints.” This asser (page safeguards designed procedural these Thus, is note out the record. borne either, (1) informed under- promote an spite of this refusals to act in Court’s standing by people probable ef- September not and October of amendment, (2) proposed fects of the withstanding Septem order of this Court’s impos- prevent self-serving faction from stating that our action would ber subsequent litigation ing upon will without their prejudice not of issues its election, the amend- majority mooted full realization of the effects of so called prejudices appellants upon now for the 11). petition, (Page ment.” (the place) by lateness election has taken amending process predicated, which the *16 validity to defeat raking presumption proposed con- on its reverse side the bears their claims. amendment, sixty-four requiring stitutional printed display lines to the fifteen sections that the same issues majority states 1,300 containing than subsections more judged by a different standard” may “be to this voluminous revi- words. In addition 9) because were (page not enter- (erroneously enti- sion of Constitution prior to the election. This unfair tained amendment), bears ex- petition tled an presumption validity should be raised designed sway propaganda tensive only delay if cause for can be traced promoter’s point of view. On voter been com- appellants or if their suit had approximately 35% petition, the front of the However, such menced after the election. (outside space the area reserved review, appellate not the case. In this printing is devoted signatures) allocated the trial court’s ac- are bound to evaluate amendment, up- petition ... seek to proceeding, but condemn 5. In the mandamus Chicago, prej- citing September possible”, Gabbert “without hold it if was denied (Mo.banc 1902). litigation subsequent of issues not udice to 70 S.W. law mooted the election.” Page of decisional This statement Gabbert, inapposite the va- because persists penalizing majority opinion challenged 6. The election. after the lidity was appellants by stating “seek to that we will not to advertising copy. back, On the more prescribed form from the variations Such than 22% the area printed allocated mat- deserve the 126.031, RSMo ter is devoted to such material, including view are my admonishment, but court’s charts and more copy. hard-sell This form in noncom- to declare sufficient richly deserves the following admonishment the law to under insufficient pliance of the majority: “we would caution those by the certification proposal’s support who would use the initiative in the future against on the bal- inclusion indulging in Secretary of State practices similar of in- cluding extraneous (Page 12). materials.” lot.7 showing front copy appendix I for a
7. See petition. back *17 I
APPENDIX
26 judgment
I
discussing
questions,
would reverse the
of the trial
In
these
the con-
court,
injunction
and because the issue of
is
flicting powers
of the
and State
viable, would,
longer
no
I
for the reasons
view,
governments
brought
must be
into
herein,
set
proposed
out
declare the
amend-
supremacy
respective
and the
of their
ment
nullity.
a
laws,
opposition,
must
when
are
be settled.
MORGAN,Judge, dissenting.
any
proposition
If
one
could command
respectfully
I
dissent
because
chal-
mankind,
the universal
we
assent
lenged amendment to the Missouri Consti-
might expect it
be this—that the
would
(adopted
5)
tution
by way
Proposition
Union,
government
though
of the
limited
totally
violative of and
inconsistent with
powers,
supreme
sphere
in its
within its
“equal protection”
clause
the United
of action.
to result nec-
This wоuld seem
Constitution in
it
stage
States
sets the
govern-
from its nature.
It is the
essarily
collecting
taxes both from the rich and
all;
delegated
powers
ment
its
poor
but refunding excesses thereof
all;
all,
represents
it
and acts for all.
only to the rich. Even a
inquiry
casual
as
Though
may willing
one
any
State
constitutionality
procedure
to the
of such a
operations,
willing
control its
no State is
flagrant discriminatory
dictates that
The
to allow others to control them.
classification
cannot
thus created
stand.
nation,
subjects
it
on those
on which
can
The
issue was not considered
the ma-
act,
necessarily
component
must
bind its
opinion
jority
presumably because it was
parts.
question
is not left to
But
presented by
parties,
ap-
not
but that
have,
mere
express
reason: the
proach
discharge
does
duty.
our
Al-
terms,
it, by saying,
decided
‘this consti-
court,
though judges of a state
our oath of
tution,
States,
and the laws of the United
requires
uphold
office
that we
the United
pursuance
which shall be made in
there-
States Constitution. As said in Edwards v.
of,’
land,’
supreme
be the
law of the
‘shall
Lesueur,
132
33
Mo.
S.W.
1133
by requiring
that the members of the
(Mo.
1896):
banc
“The constitution is in-
judiciary,
tended for
legislatures,
observance
State
and the officers of the
departments
government.
well as other
departments of the
judicial
executive and
judges
support
The
are sworn to
the consti-
States,
fidelity
shall take the oath of
tution,
provision
and the
for its amendment
it.
obligatory upon
any
is as
the courts as
States,
government
United
of the
part
other
of it.”
then, though
powers,
in its
is su-
limited
jurisdic-
While it is true that this Court’s
laws,
preme;
pur-
when made in
and its
predicated upon
tion cannot be
the exist-
constitution,
suance of the
form the su-
question
ence of a constitutional
not raised
land, ‘any thing
law
preme
below,
preserved
Graybar
City
Kansas
v.
constitution or laws of
State
Co.,
(Mo.1970),Lang
Electric
23
S.W.2d
notwithstanding.’
contrary
Callaway,
v.
S.W.
Delaware,
In Neal
U.S.
(Mo.1896),
equally
it is
true that when we
(1880),
Supreme
L.Ed. 567
Court exam-
jurisdic-
already
original
appellate
provision
ined a
of the Constitution of the
grounds,
other
decide
limiting
right to vote
of Delaware
State
sponte. City of
question
constitutional
sua
provision was
only.
to white males
Such
Co.,
St. Louis v. Butler
alleged
of the fifteenth
to be violative
(Mo.
1949),
378-79
banc
of the Unit-
amendment to the Constitution
authorities cited therein.
challenge, the
sustaining
ed States.
In
supremacy
question
On
said:
Constitution,
quote
we need
United States
adoption of the
Beyond question, the
only from the watershed case McCulloch
effect,
had the
316, 405-06,
Fifteenth Amendment
(4 Wheat.)
Maryland,
17 U.S.
law,
(1819):
to remove from the State Constitu-
27
tion,
provision
refund,
that
despite
restricts
the will never receive a
the fact
right
sufferage
to the white race ....
they may
paid
that
an untold amount
presumption
The
indulged,
should be
sales,
Thus,
property,
use or other taxes.
instance,
the first
recog-
that
the State
blatantly
the amendment
discriminates
nizes,
plain duty,
as is its
an amendment
against
poor
in favor of the rich.
Constitution,
of the Federal
from the
upon
based
Classifications
financial condi
adoption,
time of its
as binding on all of
suspect.
tion or wealth are
Bullock v. Car
its citizens and every department of its
ter,
134, 92
849,
405 U.S.
S.Ct.
challenged being state courts vio- Equal
lative of the Protection Clause of the legalized because it
Fourteenth Amendment
private race discrimination. California
Supreme Court held that the amendment
was indeed in conflict with the United Constitution and struck it down.
States Beitman, Mulkey v. 64 Cal.2d
See: (Cal.1966).
Cal.Rptr.
U.S. the mere of race discrim- authorization
ination fourteenth amendment. violated the case, challenged
In the instant (Proposition 5) goes beyond
amendment far
condoning authorizing discrimination in “equal protection”
violation of the clause of fact, In it United States Constitution. per-
affirmatively mandates that revenue citizenry
sonnel treat classes Missouri reprehensi- is even more
differently; which sorely
ble because it takes from those need-
ing gives those who can tax relief and to receive a refund. The obser-
afford not
vation thus made is not a comment on the amendment,
merits of with which concerned, point
are not to be but
up glaring presence of an unconstitu- being Without face-
tional classification.
tious, suggest that scheme itself I would great Hood con-
would have caused Robin
sternation. HANCH, Respondent,
David F. MANAGEMENT
K. C. NATIONAL
CORPORATION, Appellant.
No. 62647. Missouri,
Supreme Court of
En Banc.
April 11, 1981.
Rehearing May Denied