154 Mo. 434 | Mo. | 1900
Lead Opinion
SEPARATE OPINION.
In my opinion the discussion of the previous decisions of this court in the Dorr, Scarritt, Mumane and like cases, is .not necessary to the proper disposition of this case.
The Legislature of Missouri, in obedience to the plain constitutional mandate contained in section 7 of 'article 9 of the Constitution of 1875, provided for the organization and classification of cities and towns, and made four classes. Westport, by virtue of those laws became a city of the fourth class, and was such when the act of 1893 was enacted.
The title of the act of 1893 is as follows: “An Act concerning’ sewers and drains for cities in the State having special charters which now or hereafter contain more than two thousand and less than thirty thousand inhabitants, and for cities of the third and fourth class.” [Laws 1893, p. 101.]
Section 7 of article 9 of Constitution provides that “the power of each class” [of cities or towns] “shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers, and be subject to the same restrictions.”
This act is one which undertakes to grant powers to cities of the fourth class, which they did not possess under.their general statutory charter previous to 1893.
Has the proviso enabled one or more cities of the fourth class to acquire powers not possessed by others of that class, and thus violated the command of section 7 of article 9 of the Constitution?
The proposition is that because Westport and other cities of the fourth class have voted to avail themselves of the power conferred by this act, whilst other cities of the fourth class have not, or may not elect to do so, the inevitable result is that cities of this same class do not have the same powers, and thereby the prohibited result has been indirectly reached.
It is admitted that the tax bill in this case was issued under the act of 1893 and not under the act of April 11, 1895, which is not open to the objection now being considered.
It must be conceded, I think, that if the act of the Legislature had on its face conferred upon Westport, alone, of all cities of the fourth class, this power to issue special tax bills in payment of district sewers and withheld that power from other cities of the fourth class, it would have been a palpable violation of section 7 of article 9 of the Constitution, which requires that all cities of the ■same class shall have the same powers and be subject to the same réstrictions.,,
The purpose of classification would be nullified if the Legislature could take one city out of its class and endue it with powers not granted to all the others. The object to be attained by the seventh section of article nine of the Constitution was well understood when the people adopted that instrument as the organic law of the State. In a word, it was to produce uniformity in the municipal charters of the State, so
Section 7 of 'article 9 of the- Constitution was further re-enforced by section 53 of article 4 which placed certain limitations upon the general power of legislation otherwise conferred upon the legislative- branch of the State government, and expressly prohibited the Legislature from passing any local or special law “incorporating cities, -towns, villages, or changing their charters.”
D-oes this act destroy the uniformity of powers of cities of the fourth class? It is most strenuously insisted that because it is a general act and therefore not a violation of section 53 of article 4 of the Constitution, it is necessarily valid. I agree that it is now too late to disturb the long line of decisions in this State which uphold the power of the Legislature to enact a law which in itself is a -complete rule of conduct, but which only becomes applicable in a given county or city when such county or city elects by a vote of its electors to avail itself of the privileges granted by such a law. Such laws have long withstood the objection -that -they are an unauthorized delegation of the law-making power. [State v. Binder, 38 Mo. 450; Opinion of the Judges, 55 Mo. 295; State ex rel. v. Pond, 93 Mo. 606; Ex Parte Swann, 96 Mo. 44; State v. Moore, 107 Mo. 78; State v. Searcy, 111 Mo. 236; State v. Watts, 111 Mo. 553; State v. Wingfield, 115 Mo. 428.]
If there was no other provision of the Constitution gov
It is urged that it is inconsistent to say that it is a general law 'and yet unconstitutional because it violates section Y of article 9 of the Constitution, but my understanding is that full force and effect must be given to all parts of .the organic law, and while the law may be general in form, still if in another particular it collides with another express provision of the Constitution, 'there is no inconsistency in holding it invalid because of the latter vice..
In support of the act of 1893 it is said when it left the hands of the Legislature it conferred the same powers upon all cities of the fourth class, but is it not plain that this is true only until such time as one of said cities adopted its privileges, and the moment it availed itself of the act, that instant i-t became possessed of powers different from others of its class? It is true that if no city of the fourth class ever adopted it no diversity of powers would follow its enactment, but just as soon as Westport or any other city of the fourth class acting for itself chose to avail itself of the privilege granted to construct sewers and make their cost a special improvement tax chargeable upon the individual taxpayers of the designated sewer district, such city brought about that difference in the powers of cities of its class which the Constitution forbade.
Such a construction imports an exception into the Constitution which its framers refused to permit. When the Constitution says that all municipal corporations of the same class shall have the same powers it means what it says, and not that all of the same class shall have the same powers except such as elect to have different powers, the Legislature consenting thereto.. The limitation was placed on the Legislature and is expressed as clearly as language can define human thought and purpose.
That the result of all legislation for the several classes of cities was the object which the convention had in view is obvious. It says “the power of each class shall be defined by general laws,” so that “all municipal corporations of the same class shall have the same powers.” In a word; pass general laws for the government of each class, but see to it that when your laws go into effect, the consequence shall be that each class shall at all times have the same powers and be subject to the same provisions, that is to sav, you shall not go ■through the form of passing general laws which nominally confer the same powers upon a given class, but which inevitably produce diverse powers the moment such laws are put into practical operation. How can it be said that when this act went into effect in Westport, and did not go into operation in all those cities of the fourth class which declined to avail themselves of it, that it was- uniform in all cities of the fourth class. It certainly can not he saved by the suggestion that it was possible for all cities -of that class to adopt it and thereby again bring about -the uniformity which the adoption by some and neglect to adopt by others had destroyed.
The purpose of -the Constitution was that the laws enacted for each class should have uniform operation, not uniformity only so long as they should, lie dormant and unexecuted. The uniformity of the laws for each class was not to be 1-eft to the chance that all of the same class would adopt
Such is the construction of similar provisions in other states. Thus in People ex rel. v. Cooper, 83 Ill. loc. cit. 590, 591, Mr. Justice Schofield, speaking for the court said, “We think it necessary to add, that it is the substance, and .not the mere form given to the enactment, which must determine its constitutionality. If the act must necessarily produce a result clearly and unquestionably forbidden by the Constitution, it can not be upheld, whatever may be its form or profession. It is not admissible, either by the letter or the spirit of the Constitution, that dissimilarity in character of organization or powers, in municipalities of the same class or grade, shall be created or perpetuated by enactments of the General Assembly.” See, also, McConihe v. State ex rel. McMurray, 17 Fla. 238; State ex rel. v. Copeland, (Minn.) 69 N. W. Rep. 27.
In my opinion therefore the Act- of 1893 is unconstitutional and creates a dissimilarity in the powers of cities of the fourth class, in defiance of section 7 of article 9 of the Constitution, requiring uniformity in the laws governing each class of cities.
Moreover, the Act of 1893, creates a new or fifth class of cities, to-wit, that class which should exercise its option to avail itself of the Act of 1893, and thereby have the powers therein granted 'and necessarily different from Ml the other cities of its previous class which did not exercise that option, •whereas the Constitution limits the power of the Legislature to the creation of four classes only.
I do not agree to the conclusions my brother Marshall draws from the decisions of this court. I do not agree that the Legislature can pass a special or local act amending the charter of a city as to its municipal affairs by conforming to section 54 of article 4 of the Constitution as to notices, etc.
Having considered the ease as best I could in the time I have had, I think the judgment of the circuit court holding the tax-bills void, should be affirmed.
Concurrence Opinion
SEPARATE OPINION.
1. I concur in the opinion of Judge Marshall as to that unspeakable anomaly in jurisprudence, commonly called the “Murnane Case.” And while I feel gratified that my views in Dorr’s Case, 145 Mo. 466, as to the meaning of certain passages in the Constitution of 1815 are fully supported by the debates of the convention of that year, yet I do not believe that much reliance can be placed on those debates or that they can be safely resorted to in the endeavor to find out what the framers of that instrument meant.
On this point Judge Cooley observes: “Eor as the Constitution does not derive its force from the convention which framed, but from the.people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. These proceedings therefore are less conclusive of the proper construction of the instrument than • are legislative proceedings of the proper construction of a statute; since in the latter ease it is the intent of the Legislature we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives.” [Cooley’s Const. Lim. (6 Ed.), p. 81.]
2. And now as to the rule of “stare decisis,” and its alleged applicability to the case at bar:
The ease (opinion of the Judges) reported in 55 Mo. 295, in relation to township organization, having been decided years before the convention of 1875 was called, I freely confess myself unable to see how that and other like decisions based upon the constitutionality of a law under the then constitution, could be the source from whence could be derived the rule which would make those decisions binding under a constitution so radically different as that of 1875 from that of 1865.
Besides, in the case of Lammert v. Lidwell, 62 Mo. 188, Wagner, J., while approving the rulings on the Township Organization Law, 55 Mo. 295, in which he had concurred, and in State ex rel. v. Wilcox, 45 Mo. 458 on the School Law, in which he wrote the opinion, and State v. Field, 17 Mo. 529; State ex rel. v. Scott, 17 Mo. 521; and St. Louis v. Alexander, 23 Mo. 513, those circumstances are pointed out in which matters may be, and may not be, referred to a vote of the people. The difference between the former and the latter class of cases consists in this, that in the former the law takes effect, proprio vigore, without seeking or requiring any adventitious aids, and is in relation -to matters “purely locad and municipal.” In such case, the vote of the people in favor of granting a license to sell liquor or a petition signed by them for the same purpose and to the same effect, is a mere permissive incident not- in any manner affecting the validity of the previously enacted and previously operative law which punishes the infractions of its edicts, and only stays its punishing hand when the shield of a legally granted license is interposed. And the same rule holds good as to the vote (ex
In State ex rel. v. Scott, supra, Gamble, J., clearly pointed out the distinction between acts which may or may not be referred to popular -action, by remarking: “It may be proper, however, to state that it is not by any means ol-ear to the minds of the court that -the act under consideration is, or professes to be, a delegation of legislative power. The establishment of a county, upon the consent of th-e inhabitants to assume the consequent burdens, is not like the submission of a law affecting private rights to the vote of the inhabitants of a particular locality to determine whether it shall be in force or not.” [State ex rel. v. Scott, 17 Mo. loc. cit. 525].
It was this position which I endeavored to maintain in the Maggard-Pond Case, holding that while the Legislature, might in circumstances already cited, authorize a vote -to be -taken, yet that this could not'be done wh-ere such vote was to change in a county the general criminal law of this State. But my efforts were wholly ineffective.
If the people may be authorized by vote to say what shall be the punishment of murder, or what the statute of “Descents and Distributions” in any county, instead of being
Tbe Constitution specifically provides just when and where a vote of the people may he taken, and by so doing the framers of that instrument necessarily excluded all implication .as to authority to vote being granted to the people, in any other cases than those mentioned.
The doctrine of expressio unius, etc., is as applicable to constitutional construction as to statutory, as was contended for by me in State ex rel. v. Seibert, 123 Mo. 424, for the first time in a dissenting opinion.
On this topic, 'an 'eminent jurist and author says: “We are not therefore to expect to find in a constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in -an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to* be measured the power which can he exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times and modes of proceeding in which a power should be exercised, there is at least a strong presumption that -the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument, when we infer that such directions are given to any other end. Especially when, as has been already said, it is hut fair to presume that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to
Touching the same topic, Denio, C. J., says: “But the affirmative prescriptions and the general arrangements of the Constitution are far more fruitful of restraints upon the legislature. Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision. The frame of the government; the grant of legislative power itself; the organization of the executive authority; the erection of the principal courts of justice, create implied limitations upon the lawmaking authority as strong as though a negative was expressed in each instance.” [People v. Draper, 15 N. Y. 544. See, also, State ex rel. v. Seibert, loc. cit. 435 et seq.]
And although my contention was vain in that instance, yet in the recent case of Citizens’ Nat. Bank v. Graham, 147 Mo. 250, the dissenting opinion on the point mentioned, became that of this court.
This case so recent and so decisive of the point of the •applicability of the rule of expressio unius would seem to overthrow the doctrine of “stare decisis” so far as it relates to the present ease. But a more -cogent reason for the non-applicability of that rule to this case is afforded by -the pregnant and -obdurate fact that the point now under consideration, to-wit, the validity of a vote taken where not expressly authorized by the Constitution, never was considered or passed upon by this court, and of course that point never could fall within the rule, “stare decisis.”
3. The prohibitions contained in section 53 of -article 4 of the Constitution in relation to amending, etc., the -charters of cities by passing local or special laws are absolute prohibitions; they admit of no exceptions 'and are qualified by none. I therefore do not subscribe to the doctrine announced on p. 504 of the opinion under review in the following language: “I further believe that the ends sought to be attained by laws
If, on the other hand, the sentence quoted does not mean as above indicated, then I can not subscribe to it because I do not know what it ¿loes mean.
I regret that my confinement to my room has prevented a more full expression of my views.
SEPARATE OPINION.
This case is here on a certificate of the judgment of the circuit court of Jackson county, as authorized by section 2253, Revised Statutes 1889. The printed abstract of the entire record filed by appellant in pursuance to the requirement of that section is as follows:
“This is a suit to remove a cloud from the title of seventeen lots in Vanderbilt Place, an addition to Kansas City, Mo., owned by plaintiff, caused by seventeen tax bills, issued by the city of Westport, Mo., against said lots and to defendant, for the building by him of a sewer, in sewer district number four, within which said lots are located. It alleges that the ordinance of said city for said work was approved August 6, 1895, and that the contract with defendant was dated August 27, 1895, and that the tax bills bear date January 10, 1896.
The petition alleges Westport to Lave been, at said dates, a city of the fourth class.
Tbe defendant answered, but it was in the nature of a demurrer. It admits all the allegations of the petition except that charging the Act of 1893 to be unconstitutional and tbe one charging that the work was not done under the Act of April, 1895, and that Westport voted to build sewers' under the Act of 1893, on the 20th of September, 1894.
The case was submitted upon an agreed statement of facts, which, in brief, is as follows:
1. That plaintiff was and is the owner of the lots described.
2. That defendant was and is the owner of the tax bills.
3. That at the dates alleged, Westport was a city of the fourth class.
4. That the tax bills were issued for building a sewer in district number four, and that the lots axe in said district.
5. That Westport was divided into sewer districts by-ordinance, approved February 27, 1895.
6. That the fax bills are dated January 10, 1896; that
“Special Sewer Tax Bill No. A.
(Issued under ordinance No. 1373.)
“State of Missouri, Oity of Westport, ss.
“This is to certify that the following described real estate situated within the corporate limits of the city of Westport, county of Jackson and state of Missouri, to wit: Lot-, addition-, has been charged with the sum of-dollars, and - cents, as a special tax for constructing a sewer for sewer district number four, as provided by ordinance number 1375 of the city of Westport, Missouri, entitled, ‘An ordinance to construct sewers in sewer district number four, in the city of Westport, approved August 6, -189'5. Said work has been completed under contract let for the purpose by George J. Baer, the contractor to whom this tax bill is issued in part payment thereof, and the sum mentioned has been duly apportioned and charged against the aforesaid land, being one-third of the amount of the special tax against said land as provided by law, for its proportion of the costs of said work, and the same is a lien against said land.
“This tax bill bears interest at the rate of ten per cent per annum from date of issue until paid, 'and the same is payable on or before one year after said date.
“Issued and certified by me, at the city of Westport, Mo., this 10th day of January, 1896.
“-Oity Engineer.”
7. A copy of the ordinance number 1375, entitled “An ordinance to construct sewers in district number four,” and approved August 6, 1895, was incorporated therein. It is in the usual form for such ordinances and no objection is made
A copy of the contract under which defendant did the work was attached thereto; it is in the usual form and no objection is made in this respect. It recites that it was made under ordinance number 1375.
9. A copy of the ordinance approving the said contract, entitled, “An ordinance to confirm contract with George J. Baer for constructing sewer in sewer district number four,” Approved September 3, 1895, was submitted.
10. The work was fully completed under said contract by defendant, according to its terms, and afterwards the tax bills were issued.
11. The contractor did his work in good faith and plaintiff, at no time, objected to the doing of the work.
12. The work so done was paid for by tax bills ‘and the tax bills referred to in the petition have never been paid.
The title of the act of 1893, referred to is: “An act concerning sewers and drains for cities in the State having special charters, which now or hereafter contain more than 2,000 and less than 30,000 inhabitants, and for cities of the third and fourth classes.”
“Section 1. In every city in this State having a special charter, which now or hereafter contains more than two thousand and less than thirty thousand inhabitants, and in every city in this State, of either the third class or of the fourth class, the acting municipal authorities thereof, upon a vote by ballot of two-thirds of the qualified voters of such city, voting at an election held for that purpose, in favor of adopting the provisions of this act, shall have power by ordinance to provide drains and sewers for the same, and to enforce and regulate connections therewith........The proposition to adopt the provisions of this act may be submitted at any regular municipal election, or at a special election authorized by ordinance fox that puxpose. In either case the submission shall be pursuant to'ordinance, and on not less than ten days’ notice thereof, signed by the mayox of such city, and published at least once a week in some newspapex published in the county dn which such city is situated, and having a circulation in.such city. Such election shall be conducted in accordance with the law governing regular municipal elections in such city. The ballots voted in favor of such proposition shall have written or printed thereon the words, ‘for establishing sewers,’ and the ballots voted against such' proposition shall have written or printed thereon the words, ‘against establishing sewers.’ "When the result of such election shall be ascertained, the same shall be declared by the mayor of such city by proclamation, which shall be spread upon the records of such city, and all courts shall take judicial notice of such elections and of the results thereof.”
The cixcuit court declared the act of 1898 to be unconstitutional, decreed the tax bills to be null and void, and removed the cloud caused by them on plaintiff’s property, and the defendant appealed to this court.
The plaintiff contends that the Act of 1893, is unconsti
I.
A chronological and analytical review of the previous pertinent decisions of this court construing the constitutional provisions involved is a proper and necessary preface to the discussion and decision of the case at bar. Eor a correct appreciation of the reasons given for the results reached in those decisions it is necessary to set out in full these provisions of the Constitution. In the division of the power’s of the state among the 'three branches of government, section 1 of article 4 of the Constitution provides that: “The legislative power, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives to be styled “The General Assembly of the State of Missouri.’ ”
Among the limitations thus placed upon the full legislative power vested by this section in the General Assembly, are those enumerated in section 53 of article 4. That section provides: “Sec. 53. The General Assembly shall not pass any local or special law:” [Here follow thirty-two subjects, which are particularly named, as to which -the prohibition against special or local laws applies, inter alia], “Incorporating cities, towns or villages, or changing their charters;” and the enumeration of specific prohibitions is then followed by the sweeping prohibition that: “In all other cases where a general law can be made applicable, no local or special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined, without -regard to any legislative assertion on that subject.”
The complement of the meaning of this constitutional
“Sec. 54. No local or special law shall be passed unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall state the substance of the contemplated law, and shall be published at least thirty days prior to the introduction into the General Assembly of such bill, and in the manner to be provided by law. The evidence of such notice having been published shall be exhibited in the General Assembly before such act shall be passed, and the notice shall be recited in the act according to its tenor.”
Section Y of article 9 provides: “Sec. Y. ' The General Assembly shall provide, by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the power of each class shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. The General Assembly shall also make provisions by general law, whereby any city, town or village, existing by virtue of any speeiaLor local law, may-elect to become subject to, and be governed by, the general laws relating to such corporations.”
(1880). In State ex rel. Lionberger v. Tolle, 71 Mo. 645, it was contended that section 820, Revised Statutes 1879, “which requires the judges of -the circuit courts in all cities having over 100,000 inhabitants to award to the newspaper therein being the lowest bidder and having a designated circulation the printing of all legal notices,” was special legislation, and therefore unconstitutional, but the court, speaking throughEough, J., said: “Nor do we think th.e act in question is a special law within the meaning of the Constitution. The distinction between general and special laws is clearly laid down by the supreme court of Pennsylvania in Wheeler v. Philadelphia, 77 Pa. St. 338, 348. It is there held, That a
(1881). In State v. Kring, 74 Mo. 612, the act of March 26, 1881, which provided that where a change of venue was applied for in the criminal court of St. Louis no special judge should be elected, but the court should request the judge of any other circuit or criminal court to try the ease, was attacked as special legislation, and this court, speaking through Henry, J., said: “The act of 1881 is a special law, applicable to the St. Louis criminal court only, and, therefore, in conflict with the Constitution; section 54 of the 4th article of the Constitution, providing in what manner local legislation may be obtained, has no application, because section 53 is an absolute prohibition of local or special legislation on the subject therein specified.” It will be noted that this decision does not harmonize with what was said in State ex rel. v. Tolle, supra, as to laws being valid, even if local or special, if passed pursuant to a constitutional mandate, nor does it harmonize with other cases hereinafter referred to, which hold that laws like the act of 1881, therein construed, are not local or special, but general, because the people of the whole state have or juay have an interest in the administration of justice in all parts and in every part of the state.
(1882) . In State ex rel. Harris v. Herrmann, 75 Mo. 340, the Notary Act of 1881 was challenged as being local and special, because, although it related to the appointment of
(1883). In Eyerman v. Blaksley, 78 Mo. 145, it was contended that section 25 of article 6 of the charter of St. Louis, which made special tax bills prima facia evidence that the work and material charged in such bill had been furnished, of the execution of the work, of the correctness of the prices charged and of the liability of the person therein named as the owner of the land charged with such bill to pay the same, was a local law, as to St. Louis, and hence violated the provision-of section 53 of article 4, which prohibits the General Assembly from passing any local or special law “changing the rules of evidence in any judicial proceeding or inquiry before courts, justices of the peace, arbitrators or other tribunals.” Henry, J., however, said: “That is ’an inhibition, not against any change of rules of evidence, but against a change of the rules of evidence with respect to causes pending when the change is made.”
This contention treated the charter of St. Louis like a legislative act, and it was so dealt with by the court.
(1884). In Rutherford v. Heddens, 82 Mo. 388, the act of March 28, 1881 (Laws 1881, p. 69), authorizing cities acting under special charters and containing more than 30,000 and less than 50,000 inhabitants to establish, maintain and keep in repair sewers, was claimed to be a special law and hence violative of those provisions of section 53 of article 4, which prohibit the General Assembly from passing any
(1884). Ewing v. Hoblitzelle, 85 Mo. 64. Article 2 of the charter of St. Louis -provided for registration -and elections in tha-t city. The General Assembly, by an act approved March 31, 1883 (Laws 1883, p. 38), provided for registration and elections “in cities having a population of more than one hundred -thousand inhabitants.”
The act- was challenged as special, and hence obnoxious to section 53 of article 4. Norton, J., said: “No- donbt can exist as to the constitutionality of the- said act of 1883, in so far as it relates to the registration of voters in cities having & population in excess of 100,000, for by section 5, article 8, of the Constitution, it is expressly declared that ‘the General Assembly shall provide by law for the registration of voters in cities and counties having a population of more than 100,000 inhabitants, and may provide for such registration in cities having -a population exceeding 2-5,000 inhabitants, but not otherwise.’ This section of the Constitution, in so far as it relates to cities containing more than 100,000 inhabitants, is imperative and mandatory, -and the legislature could no-t refuse to obey the mandate without disregarding a plain duty.” Then -after holding that the duty to regulate registration carried with it the right to regulate elections, the learned judge said: “It is also insisted by plaintiff that the said act of 1883 is -a local and special law, and is, therefore, in contravention of section 53, article 4, -of the Constitution, which, among -other things, provides that the general Assembly shall not pass any local or special law regulating the affairs of cities, changing -tire charters thereof, providing the manner of
(1890). State ex rel. Attorney-General v. Miller, 100 Mo. 439. In this case the act of March 30, 1887 (Laws 1887, p. 272), which fixed the number of directors in public school boards and provided for their election, “in all cities of this State now having, or hereafter attaining, a population of over 'three hundred thousand inhabitants,” was attacked on the ground, inter alia, that it was a local or special law and in conflict with section 53, article 4, which provides that “the General Assembly shall not pass any local or special law.......regulating the management of public schools, .......creating corporations, or amending, renewing, extending or explaining the charter thereof.......In all other cases where a general, law can be made applicable, no local or special law shall be enacted.” Black, J., said: “The general observation made in Wheeler v. Philadelphia, 77 Pa. St. 338, That a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special, and comes within the constitutional prohibition,’ was approved in Ewing v. Hoblitzelle, 85 Mo. 75, and in State ex rel. v. Tolle, 71 Mo. 650,” and after analyzing these cases he added: “The rule that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things is a special law, is but a statement of a general rule and was only intended as such when laid down in Wheeler v. Philadelphia, supra, as will be seen from the context of the opinion. A law which applies to certain school corporations only may be general, or it may be special. Much depends upon the particular matter of which the legislature is treating.
Then after declaring the act in question to be a general law, and not a local or special one, on the ground that whilst at the time of its passage it could apply only to the city of St. Louis, still it would -also apply to any other city in the State that might afterwards attain a population of 300,000, he concluded as follows: “Since there is a growing disposition to evade the prohibitions against special laws, we repeat that peculiarities and differences, which will serve to -distinguish persons -or things as -a class for many purposes, do not necessarily furnish any basis whatever for a legislative classification. To j ustify such legislation the distinguishing f eatures must be such as to call for and demand -a separate rule of statute law.”
The difficulty left by this decision is that the distinguishing features or peculiarities which can give rise to the necessity for an act, are not specified, so that the legislature, or the bar, can understand and observe them, but. two- -acts may be passed in the same terms, relating to different subjects, and one may be held general and the other special, and no one will know which is general and which is special until the Supreme Court says there are distinguishing peculiarities which gave rise to the necessity for the one and not for tho other.
(1891). State ex rel. Hughlett v. Hughes, 104 Mo. 459.
The act of April 11, 1889 (Laws 1889, p. 68), fixing
Brace, J., put the constitutionality of the act upon the ground that it was simply an act passed pursuant to the constitutional mandates, and added: “The due administration of the laws of the State is more largely dependent upon the prompt, proper and efficient exercise of its power, than upon all other governmental agencies. Every citizen of the State is- interested in such an administration, not only in the particular locality in which he may happen to reside, but in -every nook and corner of the State; for he can not tell in what hour he may need the protection of these laws administered by this tribunal, nor in what part of the State........No law' can be either special or local, within the meaning of the Constitution, which results directly or indirectly from a specific constitutional requirement.”
(1893). Lynch v. Murphy, 119 Mo. 163, involved the constitutionality of the Act of March 8, 1893 (Laws 1893, p. 150), which amended the act of March 20, 1891, by increasing the dramshop license and requiring two-thirds thereof to be set apart as -a special road fund.
Burgess, J., said: “It is -also insisted by counsel for plaintiffs that said acts -are in conflict with section 53 of article 4 of the Constitution; that it is a special law; that it regulates the -affairs of townships; creates new offices; refunds moneys legally paid into the treasury and grants special privileges. In support of this contention, he relies upon State ex rel. v. Herrmann (75 Mo. 340); but in that case it was expressly said ‘that a statute which relates to persons or things, as a cla-ss, is a general law, while a statute which relates to particular persons or things of a class, is -special.’ ” And upon the faith of that principle, the -act under consideration was held constitutional.
The act of March 19, 1881 (incorporated in Revised Statutes 1889, under article 5, chapter 153), providing for the appointment of a court stenographer by the court having jurisdiction in cases of felony “in cities having a population of over one hundred thousand,” was called in question as being a special law.
Gantt, P. J., said: “Now, if as respondent contends, article 5 of chapter 153, Revised Statutes, 1.889, was intended to apply to tire city of St. Louis alone, and to a state of facts then existing, it was, and is, a special law, and falls within the prohibition of section 53, article 4, of the Constitution of Missouri, but a statute applicable to all cities of a certain population is a general law, when it prescribes a rule for future government in all such cities as may, in course of time, reach the requisite population, and is not restricted by its provisions to a state of facts then existing, and not applicable to any other city which may in the future attain that population. [State ex rel. v. Tolle, 71 Mo. 645; Dart v. Bagley, 110 Mo. 42; State ex rel. v. Herrmann, 75 Mo. 340; Wheeler v. Philadelphia, 77 Pa. St. 338.] Acts of the legislature are to be construed as having a prospective operation unless the contrary is plainly manifest. Now, there is nothing in this act that restricts it to St. Louis, nor is there a provision in it which would not apply as well to one city of one hundred thousand population as another, hence, the act is not open to the charge of being a special law. An act which embraces all persons ‘who are, or who may come into like situations, and circumstances, is not a special act” [Humes v. Railroad, 82 Mo. 221.]” Accordingly the act was held to be unconstitional.
(1894). State ex rel. Donham v. Yancy, 123 Mo. 391. involved the constitutionality of the act of April 7, 1893 (Laws 1893,p. 133),creating the office of clerk of the criminal court of Greene county, and it was claimed that it was in
Burgess, J., delivering the opinion of the court, held that the act was in no sense special or local, but was an act relating to the administration of the law, in which all the people of the State have an interest, without regard to the location of the court, and was passed pursuant to a constitutional mandate, and added: “Whether an act of the legislature be a local or general law must be determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which it operates, and if it affects equally all persons who come within its range it can neither be special nor local within the meaning of the constitution.”
(1894). Murnane v. St. Louis, 123 Mo. 479, involved the constitutionality of the act of March 14, 1893 (Laws 1893, p. 59), relating to the construction of streets in cities of this State that have or may hereafter have a population of 300,000 or more, and it was contended, first, that the charter of St. Louis could not be amended by the General Assembly, in this manner, under section 7 of article 9; and, second, that the act was a local or special law, and therefore in conflict with section. 53 of article 4, of the Constitution.
Barclay, J., held, 1st, that the act of 1893 did not relate to a subject which concerns the relations of the city to the State; 2d, that the act was not one passed pursuant to a constitutional mandate, but pertained to a matter of strictly municipal regulation; 3d, that in legislating as to cities, the General Assembly must legislate according to the classification required by section 7 of article 9; 4th, that the act of 1893 was a local or special law and hence void under section 53 of article 4.
It must be noted that none of the previous decisions as to what constitutes a local or special law were overruled in terms, and also that the doctrine of legislation as to' cities by the classifications prescribed by section 7 of article 9, was
It must be observed that the doctrine of State ex rel. v. Miller, 100 Mo. l. c. 448, laying down the rule that “there must be some distinguishing peculiarity which gives rise to a necessity for the law as to the designated class,” is quoted approvingly, and 'as the majority of the court did not concur in the doctrino of legislation by classification it must be that this act was held to be special because it presented no such distinguishing peculiarity that gave rise to such a necessity, although the act is in the same general form as the act held to be valid in the Miller case.
(1894). Kansas City ex rel. v. Scarritt, 127 Mo. 642.
The act of April 1, 1893 (Laws 1893, p. 43), was held in this case to be unconstitutional for two reasons: first, because the legislature had no power to amend the charter of Kansas Oity, which was framed by the people of that city under the authority of section 16 of article 9, in respect of a matter of local municipal government, that section providing that such a charter could be amended by the action of the people of the city, “and not otherwise;” and, second, because, legislation for the regulation of “strictly local concerns, must not only be general in form, to comply with the demands of other parts of the constitution (Art., 4, sec. 53), but it must likewise conform to the' classification of cities, and of charter powers, prescribed by section 7 of article 9.”
Barclay, J., referring -to section 7 of article 9, said: “The force and scope of this part of the fundamental law were
As hereinbefore shown only a minority of the court concurred in this idea in the Murnane case. In this case Brace, O. J., Gantt, Macearlane and Eobinson, JJ., concurred with Barclay, J.; Sherwood, J., concurred in reversing and remanding, and Burgess, J., concurred in the result, but did not wish to be understood as approving the decision in the Murnane case.
This case, therefore, is the first case in this State where the classification of cities required by section 7 of article 9 has been held to be a limitation upon general legislative acts, and this idea is found in no other case except in St. Louis v. Dorr, 145 Mo. 466.
(1895). Dunne v. Kansas City Cable R’y Co., 131 Mo. 1.
In this case the -act of April 1,1891 (Laws 1891, p. 172), regulating the selection of petit jurors in counties in this State “now containing or which may hereafter contain a city having, according to the last preceding national census, more than fifty thousand inhabitants and less than three hundred thousaxld inhabitants,” was -attacked as violative of section 53 of article 4.
Macearlane, J., said: “Since the adoption of the Constitution containing these limitations upon legislative, power this court has passed upon numerous laws to determine whether -they fell within the legislation prohibited by this section of the Constitution. In these decisions the distinction between general and special legislation has been very clearly drawn. The governing rule has been 'that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special.’ [State ex rel. v. Tolle, 71 Mo. 650; State ex rel.
“But statutes which were restricted in their application to one or more counties or cities, with no provision by which those subsequently attaining the specified number of inhabitants might enjoy the benefits or powers conferred by the act, have been held to fall under the prohibition. [State ex rel. v. Herrmann, supra; State ex rel. v. Wofford, 121 Mo. 68; State ex rel. v. County Court, 89 Mo. 237.]
“But mere form of legislation without regard to its operation will not suffice to relieve it of its special or local character. If in its practical operation it can only apply to particular persons or things of a class, then it will be a special or local law, however carefully its character may be concealed by forms of words. [Murnane v. St. Louis, 123 Mo. 491; State ex rel. v. Herrmann, supra.]
“There must also be some distinguishing peculiarity, which gives rise to a necessity for the law as to the designated class. It is said by Black, J.,speaking for the entire court: ‘A mere* classification for the purpose of legislation without regard to such necessity is simply special legislation of the most pernicious character and is condemned 'by the Constitution. Mere differences which -would serve for a basis of classification for some purposes, amount to nothing in a classification for legislative purposes, unless such differences are of a character as, in the nature of things, to call for and demand separate laws and regulations.’ State ex rel. v. Miller, supra,
Thus the learned judge embraced in his definition of general or special legislation every doctrine or principle that had been previously enunciated in Missouri, except the necessity for legislation by classification under section 7 of article 9, and concluded by holding the act under consideration unconstitutional.
(1895). State v. Grannemann, 132 Mo. 326.
The validity of the act of March 18, 1895 (Laws 1895, p. 150) prohibiting any person from carrying on the business of barbering on Sunday, was called in question under section 53 of article 4. Burgess, J., held that a general Sunday law, applicable to all kinds of labor was constitutional, but a law directed against a particular class of labor only, was special, saying: “The object of the constitution is manifest. It was to prohibit special and local legislation and to substitute general law in place of it, wherever, by a general law, the same ends could be accomplished.”
(1896). State v. Gritzner, 134 Mo. l. c. 528.
The constitutionality of section 3931 and 3932, Revised Statutes 1889, prohibiting dealing in options, was attacked under section 53 of article 4. Sherwood, J., cited and approved the definition of what constitutes general and what special laws, as set out in the Tolle case (71 Mo. 650), and the Herrmann case (75 Mo. 340), and said: “The constitution was intended to be a practical instrument, one for every day’s use, and not one which would hamper legislation at every turn, and restrict it in every enactment.”
(1896). State v. Walsh, 136 Mo. 400, decides that the pool selling act of March 12, 1895 (Laws 1895, p. 150),
(1896). State v. Thomas, 138 Mo. 95, declared the pool-act of 1891 (Laws 1891, p. 122), which prohibited selling pools on races run outside of this State but did not apply to those run inside of this State, to be a special law, -and therefore in conflict with section 53 of article 4, for substantially the same reasons given in the Walsh case, supra.
(1897). Kansas City v. Marsh Oil Co., 140 Mo. 458.
In 1885 the General Assembly passed an act (Laws 1885, p. 47), providing a mode of procedure for condemnation of land for municipal purposes, -and in 1887 (Laws 1887, p. 37) it amended that act. These acts have been carried into the Revised Statutes of 1889, and appear as section 1815. The law is unquestionably general, and applicable to every city of whatever classification or population. In 1889, Kansas City adopted a charter, pursuant to the provisions of section 16 of article 4 of the Constitution, and some of the details in the mode -of procedure in condemnation cases prescribed by that charter were different from the general law (sec. 1815, R. S. 1889.) Kansas Oity proceeded in this case according to its
Properly considered this case holds that cities may adopt charters, under section 16 of article 9, but that such charters and all amendments thereto must, in all their essential features, always be in harmony with and subject to the Constitution and laws of the State. And this is the plain mandate of section 16.
1898. St. Louis v. Dorr, 145 Mo. 466.
This case involved the constitutionality of the act of March 26, 1891 (Laws 1891, p. 47), which authorized cities of 300,000 inhabitants or more “or which shall hereafter reach said population” to establish, by ordinance, boulevards. It was contended that the act violated these provisions of section 53 of article 4 of the Constitution which prohibit the General Assembly from passing any local pr special law,” authorizing the laying out, opening, altering or maintaining roads,
Barclay, J., held the act unconstitutional, for the following reasons: 1st, because it did not conform to the classification of cities required by section 7 of article 9, but would have the effect of dividing cities of the first class into two classes, thus creating five classes of cities, while section 7 permitted only-four; 2d, because in Kansas City v. Scarritt, 127 Mo. 642; Kansas City v. Ward, 134 Mo. 172, and Kansas City v. Marsh Oil Co., 140 Mo. 458, it had been held that, “so far as concerns the local affairs of Kansas City, its present charter can not be amended by an act of the Legislature,” and “section 25 seems to us to give no sanction to the holding that the charter of St. Louis is subject to amendment by the General Assembly in these particulars wherein the freeholders’ charter of Kansas City (for example) is exempt from such amendment .......The variation of phraseology by the use of the words ‘and not otherwise’ (in section 16) indicates no difference of intent as to the mode of amendment, when the other parts of that article are considered. The method of direct amendment of the St. Louis charter is obtained by section 22 and that method is exclusive-, subject, however, to the repeated qualification that the charter of St. Louis and those of all other cities in the State are subject to the Constitution and laws of the State.” It was -also held 'that the State could legislate as to matters “which involve the relations of the city to the State,” as declared in Tolle’s case, Iioblitzelle’s case, etc. It was further said: “Legislation on local topics, properly comprehended in municipal charters, must be enacted in the manner defined by section 7, by general laws, the nature of -which is indicated explicitly, viz.: ‘So- that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.’ And
Thus the classification doctrine in legislation was again announced, and for the first time the doctrine was stated that notwithstanding the express reservation of power in the legislature contained in section 25 of article 9 of the Constitution .the General Assembly could not amend the charter of St. Louis, but that the people of that city had the exclusive right to amend that charter under section 22 of article 9, as it had been held in the Scarritt case that the people of Kansas City had the exclusive right to amend the charter of their city, except 'always “in respect of those topics which involve the relations of the city to the State.”
Hence the act under consideration was declared unconstitutional.
(1899). Kansas City v. Stegmiller, 151 Mo. 189.
Section 1880, Revised Statutes 1889, provides for the extension of the limits of cities of over 100,000 inhabitants organized under special charters pursuant to section 16 of article 9. This section was amended by the act of 1895 (Laws 1895, p. 54) so as to require the ordinance extending the limits to be in the form of a proposed amendment to the charter to be submitted to the people. Kansas City proceeded in conformity to these statutory provisions and extended its limits so 'as to tabe in the city of "Westport. The defendant therein, who was the former collector of Westport, refused to recognize the right of Kansas City to the money he had collected for the city of Westport, so the case above styled was instituted. It was contended by defendant, “that the act of the Legislature is void, because special, and creates another class of cities, and is an attempt to amend the charter on a local subject in defiance of the Constitution.”
Gantt, C. J., in an opinion in which the whole court, in banc, concurred, except Sherwood,!., who was absent, said:
[Rutherford v. Heddens, 82 Mo. 338; Rutherford v. Hamilton, 97 Mo. 543; Kelley v. Meeks, 87 Mo. 396.] Again we think it is plain that the framers of the Oonstitution ex vi termini excluded from its legislatme classification the dtp of .St. Louis, which it expresslp authorized to adopt its own scheme and charter, and all such cities as it authorized by section 16, article 9, to frame avid adopt their, own charters. These cities constitute two constitutional classes distinct from those-chartered and classified by the Legislature. Lt follows that the Legislature map legislate directly for these constitutional cities without infringing the Oonstitution, and in legislating therefor it does not create a new class but simply
This decision wipes out the “classification” doctrine, under section 7, of article 9, as announced in the Muroane, Scarritt and Dorr cases, and demonstrates that there are seven classes of cities contemplated by article 9 of the Constitution, viz.: the four classes that section 7 requires the General Assembly to divide the cities of the State into; those cities
This decision also demonstrates that the doctrine that acts applicable to cities must not only be general but “must be enacted in the manner defined by section 7” (that is, according to the classification of cities made by the General Assembly pursuant to the command of section 7) would nullify section 16 of article 9 and render it impossible for the Legislature to pass a general law which could apply to those cities organized under section 16. The same would he true as to those cities existing under special charters granted prior to the adoption of the Constitution, and also as to St. Louis. No general law conformed to the classification prescribed by section 7 could apply to any such cities. This decision also clears up much of the confusion which existed as to the validity of laws applicable to cities of a specified population, and properly holds that such laws apply not only to all the cities that liad the specified population at the date of the passage of such laws, hut also to any city that thereafter attains such a population. This must he trae, else a city organized as a city of the fourth class under section 7, could never he governed by a general law applicable to a city whose population classified, it as properly belonging to the third or second or first class.
This decision also shows that section 7 was intended solely to classify the cities and was not intended as a limitation upon the form or character of legislative enactments.
Other cases have been decided, in which the question of “special law” was raised, but tbe acts construed were so manifestly general and in no sense special, that the reasons given
The cases reviewed may properly be grouped according to the principles they announce as follows:
1. “A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special.” [State ex rel. Lionberger v. Tolle, 71 Mo. 645; State ex rel. Harris v. Herrmann, 75 Mo. 340; Rutherford v. Heddens, 82 Mo. 338; State ex rel. Attorney-General v. Miller, 100 Mo. 439; Lynch v. Murphy, 119 Mo. 163; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Yancy, 123 Mo. 391; Dunne v. K. C. Cable Ry. Co., 131 Mo. 1; State v. Grannemann, 132 Mo. 326; State v. Gritzner, 131 Mo. 528; State v. Walsh, 136 Mo. 400; State v. Thomas, 138 Mo. 95; Kansas City v. Stegmiller, 151 Mo. 189.]
2. To make a law general it must not only relate to persons or things as a class, but, “there must be some distinguishing peculiarity which gives rise to a necessity for the law.” [State ex rel. Attorney-General v. Miller, 100 Mo. l. c. 448.]
3. To make a law general it must not only relate to persons or things as a class, ,but it “must be enacted in the manner defined by section 7, article 9,” i. e., it must conform to the “classification” of cities required by that section. [Murnane v. St. Louis, 123 Mo. 479; Kansas City v. Scarritt, 127 Mo. 642; St. Louis v. Dorr, 145 Mo. 466.] This point was made by counsel in Rutherford v. Heddens, 82 Mo. 388, but was ignored by the court.
1. General laws may be passed changing or amending the charters of cities -existing under special laws passed prior to the adoption of the Constitution of 1875. [Rutherford v. Heddens, 82 Mo. 388; Kelley v. Meeks, 87 Mo. 396; Ruther
5. Laws passed pursuant to an express mandate of the Constitution may be either general or special. [State ex rel. Lionberger v. Tolle, 71 Mo. 645; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Dolan, 93 Mo. 467; State ex rel. Hughlett v. Hughes, 104 Mo. 439; State ex rel. v. Yancy, 123 Mo. 391; State ex rel. v. Higgins, 125 Mo. 364; Kenefick v. St. Louis, 127 Mo. 1; Spaulding v. Brady, 128 Mo. 653.]
6. The State has a right to enact laws which relate to the purely local affairs of a city, whether the city framed its own charter under a constitutional grant of power or derived its charter from a legislative grant. [State ex rel. v. Walton, 69 Mo. 556; State ex rel. v. Tolle, 71 Mo. 645; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Dolan, 93 Mo. 467.]
7. The State has no right to amend the charter of a city, by either a' general or special law, in matters of purely local concern, which do'not affect the relations of the city to the State. [State v. Kring, 74 Mo. 612; Murnane v. St. Louis, 123 Mo. 479; Kansas City v. Scarritt, 127 Mo. 642; St. Louis v. Dorr, 145 Mo. 466.]
8. The General Assembly has control over the revenues of a city as well as over those of the counties or of the State, and can direct how they shall be expended. [State ex rel v. Board of Education, 141 Mo. 45.]
9. A law applicable to cities of a specified-population is general, notwithstanding at the date of its passage there is only one city in the State with the specified population, if it will in the future apply to any other -city in -the State that afterwards attains such specified population. [State ex rel. v. Wofford, 121 Mo. 61; Kansas City v. Stegmiller, 151 Mo. 189.]
10. General laws applicable to cities need not conform to
11. Legislation in regard to a class of'persons is proper, but a natural class can not be split in two and different rules be'enacted for each class. [State v. Walsh, 136 Mo. 400; State v. Thomas, 138 Mo. 95.]
Of these cases those embraced in the 2, 3, and 7 groups are no longer the law in this State. The cases collected in the other groups have survived the test of practical experience and correctly declare the law on the subjects treated by them.
II.
The proceedings and debates-of the convention that framed the Constitution of 1875 throw a flood of light upon the true meaning of sections 53 and 54 of article 4, ‘and sections 7, 16, 20 to 25 of article 9. The record of these proceedings and debates embraces sixty-one volumes of about three hundred pages each, and it is to be regretted that they have never been printed or even indexed, for hid away among their pages, some of which have never been even cut apart since they left the hands of the binder, the true meaning of the framers of the Constitution when they adopted these new provisions of the organic law, is fully expressed and so clearly set forth that if they had been in print much of the uneer2 tainty and confusion that has found place in some of the adjudicated cases, construing these sections, would have been ■avoided, and the General Assembly would have had a sure and safe guide to follow in framing laws touching the subjects they treat of.
It is a surprising fact that article 9, as revised and finally adopted by that convention, has remained among these records with its pages fastened together at the top and side ever since 1875, and that for twenty-four years no one has ever, hitherto, .opened them in search of the truths and wisdom they have concealed.
It was also made plainly apparent by the discussions that it was to be the policy of the Constitution to require general laws to be enacted in a-11 practicable oases and to prohibit special laws in the instances enumerated in section 53, because interested and selfish persons had procured the improvident passage of improper special laws and the localities affected by them had no notice of the proposed laws until after they had become effective statutes. But it was not the purpose to prevent absolutely the passage of local or special laws, for section 54 permitted the passage of some laws if notice of intention to apply therefor was published in the locality to be affected, specifying the substance of the contemplated law. In this way the evil of special laws was intended to 'be avoided, by having the people notified of the proposed law in ample time to protest against such a law.
This idea is expressed in the address to the people which was adopted by -the convention (Proceedings convention, 74th day, p. 28) explaining the Constitution which, speaking of the
But as it pertains to the case at bar, much greater light is thrown upon the subject by the proceedings and debates in that convention on the 48th, 72d and 73d days. [Proceedings convention, 48th day, p. 133; proceedings convention, 72d day, pp. 38 to 165; proceedings, 73d day, p. 198.]
Section 7 of article 9 as it now appears in the Constitution is made up of sections 6 and 7 of article 9 as they were reported to and adopted by the- convention, and was compressed into one section (section 7) by the revising committee, and finally passed as a revised section. Section 6, aforesaid, was as follows: “The General Assembly shall provide, by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four, and the powers of each class shall he defined by general
Section 7, aforesaid, was as follows: “The General Assembly shall pass no local or special law incorporating any city, town or village, or changing or amending the charter of any city, town or village; but the General Assembly shall make provisions, by general law, whereby any city, town or village existing by virtue of any special or local law may elect -to become subject to and governed by the general laws relating to such corporations.”
Mr. Shanklin, of Grundy, moved to strike out the first part of the 7th section prohibiting the General Assembly from passing any special law incorporating any city, town or village or changing or -amending their charters, pointing out that section 53 of article 4 covered the point. [Proceedings convention, 48th day, p. 134.]
Mr. Black, of Jackson, opposed the amendment, and the amendment was lost (p. 137). But the committee on revision compressed the two sections into one and omitted the part Mr. Shanklin had tried to have stricken out, and changed the phraseology of the last part of the original section 7 from, “but the General Assembly shall make provisions, by general law,” etc., so as -to read: “The Genferal Assembly shall also make provisions by general law,” etc. (p. 198), and in that form it was finally adopted by the convention, and it so appears in the Constitution of 1875.
The greatest light, however, is thrown on sections 53 ■and 54 of article 4, and on -section 7, of article 9, by the proceedings and -debates of the convention on the adoption of sections 20 to 25 of article 9, which was the scheme reported by the St. Louis delegation in that convention for the separation of the city and county of St. Louis and for -a -charter for the city. The scheme as reported by that delegation (now
Mr. Gantt, of St. Louis, referred to the provisions (now sections 20 and 23) requiring the charter and amendments to b.e in harmony with the Oonstitution of Missouri, and said: “We intended to leave our charter subject to any general law upon that subject which the General Assembly might at any time see fit to enact, and such I think is the plain interpretation of the instrument which we lay before you, but we do wish, Mr. President, not to be disquieted and rendered anxious by an evil which has hitherto worried and pillaged us for thirty or forty years. We are perfectly willing and we remain necessarily subject to the Constitution and general laws of the State, and the General Assembly is prohibited from passing any special law and will be unless we authorize it by the amendment of the member from Oarroll. We propose to frame our charter and our government in entire harmony with them, .and at any time hereafter the General Assembly by passing a general law may require a modification or repeal if you will” (72d day, p. 54 to 56). Mr. McCabe, of Marion, agreed with Mr. Hale, of Oarroll, that the people of
After a debate between Mr. Halliburton, of Sullivan, and Mr. Broadhead, chairman of the St. Louis delegation, as to the power of the General Assembly to amend or repeal by a general law the charter proposed for St. Louis, which the former doubted and the latter contended could be done, under the scheme as it then was (72d day, p. 71), Mr. Adams, of Cooper, offered an amendment to that part of the proposed charter as follows: “The General Assembly shall have the same power over the city and county of St. Louis after the separation as before, and maypass laws for the assessment and collection of revenue and other purposes in such territory as though no such separation had been made” (72d day, p. 71). Mr. Gantt, of St. Louis said he had no objection to the amendment, and Mr. Broadhead said the same, adding, however, that the 4th section (now section 23) covered the same point (72d day, p. 71). Mr. Shanklin, of Grundy, said the charter would have to be in harmony with the laws in existence when the charter was adopted, but he did not know whether the proposed charter would have to be in harmony with laws subsequently enacted (72d day, p. 72). Mr. Broadhead, of St. Louis, said that was also covered by the 4th section (now section 23). Mr. Gantt, of St. Louis, denied that the proposed charter would be a constitutional charter beyond the control of the legislature, and contended that the proposed scheme only provided a different instrumentality for framing the charter, i. e., the freeholders instead of the legislature (p. 74).
Mr. Pulitzer, of St. Louis, said that as far as he was concerned and as far .as the people of St. Louis were concerned, ■as he was advised — he wanted it taken out of the power of the legislature to alter, amend or repeal the charter of St. Louis by any kind of a law; that the proposed charter simply con
Mr. Broadhead, of St. Louis, said he was sorry to see the position taken by Mr. Pulitzer, as it gave ground for the apprehensions of the gentleman from Marion, Mr. McCabe (p. 83).
He added that the amendment of Mr. Hale or some such amendment ought to be adopted, for he did not want the city of St. Louis taken out of the law-making power of the State (p. 86), and said, “All I ask is that we shall not give to the General Assembly power by special act to alter or change the charter of the city of St. Louis, but it shall be in accordance with the provisions of general laws” (p. 87).
Mr. Mudd, of St. Louis, offered the following amendment: “Provided that nothing in this article shall be so construed as to exempt said city from the operation of any general law which may be enacted regulating and incorporating cities” (p. 90).
Mr. Hale, of Oarroll, said he was not sure the end could be reached by a general law and hence suggested an amendment authorizing the General Assembly to alter, amend or repeal by special law (p. 90).
Mr. Shanklin, of Grundy, said: “If the member will examine the article on legislative department or limitation upon legislative proceedings, he will find the General Assembly has the right to pass any special law it may deem proper where a general law can not he made applicable” (pp. 90, 91).
Mr. Hale said that would not apply to St. -Louis as its charter was a constitutional enactment (p. 91).
Mr. Taylor, of St. Louis, said, the proposed charter only authorized the people to frame their own charter instead of having the General Assembly do so, but it was required to be in harmony with the Constitution and laws of Missouri (p. 93),
Mr. Spaunhorst, of St. Louis, said, the purpose was to enable the city of St. Louis to regulate its own internal affairs
Mr. Todd, of St. Louis, said two of the St. Louis delegation were in favor of giving St. Louis a charter that should be subject to and in harmony with the Constitution, not with the laws of Missouri, so as to take it out of the power of the General Assembly to change it (p. 101).
Mr. Eyan of Webster, said he was willing to give St. Louis all she wanted, provided she was held subject to the laws of the State, just as other cities are (p. 109).
Mr. Gottschalk, of St. Louis, called attention to1 section 7 of article 9, requiring the classification of cities, and said the General Assembly could by general law alter, amend or repeal the charter of St. Louis at any time by passing a law relating to cities of 100,000, which it would call a general law but which would apply only to St. Louis because it was the only city that had 100,000 (pp. 114, 115); he also said that the purpose was to leave St. Louis subject to general laws, but to prevent special laws being passed before the city knew anything about them (pp. 117 and 118); he also called attention to section 53, article 4, “the General Assembly shall not pass any local or special law incorporating cities, towns or villages or changing their charters,” and to section 54, article 4, which allows special or local laws to be passed by giving notice (p. 118). •
Mr. Hale, of Carroll, asked if section 53 and 54, article 4, applied to the charter of St. Louis (p. 118).
Mr. Gottschalk, answered, “yes” (p. 118).
Mr. Hale expressed doubt (p. 118).
Mr. Gottschalk said the General Assembly could pass a special law changing the charter of St. Louis by giving the, notice (p. 119).
Mr. Johnson, of Cole, said, “Disguise this question as we will this proposition amounts to the establishment in the city of St. Louis of a people with -the power of local self-government, and that means not only regulating their own local, individual affairs, but regulating those local affairs in their relation with the balance of the State, and the only limitation there is placed upon the city of St. Louis having all the powers of a free and independent government is that their constitution with their ordinances, which are their laws, shall not come in conflict with an express provision of the Constitution or some general law of the State, and I say bringing the rules of strict construction to apply, that any law or any provision of the charter adopted in St. Louis that was not in express conformity with the provisions of the Constitution of this State or some provision of some general law of the State would fail. Those laws affect us all as well as the residents of St. Louis; we have to go there; we have to do business there and therefore we are subject to their laws and all their regulations. I don’t think an experiment of this kind has ever -been tried in a republic. I don’t think there has ever been a free city in the world where the laws have not become obnoxious to the people of the State outside of the city” (pp. 122, 123, 124).
He also argued that if the General Assembly had power by general law over St. Louis it ought to have direct power by special law (p. 125).
Mr. Broadhead, replied that a special law would apply only to St. Louis and to no other city in the State and that would be contrary to the provision of section 53 of article 4 (p. 125).
Mr. Johnson, said St. Louis was being made a special
Mr. Shanklin, said that under the proposed power the city of St. Louis would be subject to the Constitution and general laws of Missouri, and to such special laws as the legislature might pass after three months notice (p. 130).
Mr. Adams, of Cooper, asked leave to change his amendment so as to read, “Notwithstanding the provisions of this article the General Assembly shall have the same power over the city and county of St. Louis as it has over other cities and counties in this State” (pp. 130, 131).
Mr. Mudd withdrew his amendment (p. 131).
Upon suggestion of Mr. Norton, Mr. Adams offered the above amendment as a substitute to Mr. Hale’s amendment (p. 131).
The substitute was adopted by a vote of 51 ayes, 4 noes (p. 132).
Mr. "Wagner, of Scotland, moved to amend sections 1 and 4 (now sections 20 'and 23) so as to insert after the word “with” the words “and subject to,” and after the word “constitution” the word's “and laws,” so as to make section 1, read, “By a charter in harmony with and subject to the constitution and laws of Missouri,” .and section 4, to read, “such charter and amendments shall always be in harmony with and subject to the Constitution and laws of Missouri” (p. 133).
Mr. Broadhead, chairman of the St. Louis delegation, accepted the amendment (p. 133), and the scheme for the separation of the city and county of St. Louis, and for a
It is a noteworthy fact that the original proposition for the charter of St. Louis, as introduced in the constitutional convention by the St. Louis delegation, provided in section 3 thereof (now sec. 22) that the charter so adopted could be amended by the vote of the voters in St. Louis “and not otherwise,” and that Mr. Norton, of Platte, moved to strike out the words, “ and not otherwise,” and that Mr. Broadhead said there was no objection to striking out those words, but Mr. Taylor of St. Louis objected, and that the motion to strike out was adopted by the convention without division (pp. 137, 138).
Thereupon section 6 of the proposed bill (now section 16, article 9) was taken up, Mr. Priest of Ralls said he understood that (section 6) was intended by the St. Louis delegation as an alternative proposition to enable St. Louis to adopt its own charter if the people did not adopt the scheme proposed in sections 1 to 5 of the bill (now sections 20 to 25 of article 9), (72d day, p. 156).
Mr. Spaunhorst, of St. Louis, said that was partly the intention, but the St. Louis delegation wanted it adopted so that if the people of St. Louis and St. Louis county should vote down the proposition to separate the city and county and the city could not adopt its own charter under section 1 to 5 (now sections 20 to 25) the city of St. Louis could frame its charter under section 6 (now section 16). Mr. Gottschalk and Mr. Taylor, of St. Louis, expressed the same idea (72d day, pp. 158 to 161).
Mr. Crews, of Eranklin, moved to amend said section 6, so, as to change it from cities having 200,000 inhabitants, as the section then read, to cities having 100,000 inhabitants, in order that other cities, beside St. Louis, might have the right to frame their own charters, when they attained a population of 100,000.
It will be observed that the convention was very particular when adopting sections 20 to 25 to keep St. Louis within, the lawmaking- power of the State, and struck out of section 22 the words, “and not -otherwise,” so as to exclude the idea that its charter could only be amended by the people of that -city, but when section 16 (the alternative proposition originally designed to enable St. Louis to adopt its own charter, if the scheme for the separation of the city and county failed, and subsequently extended so as to apply to any other city that-should thereafter come within its scope) was -adopted, it failed to strike -out the words “and not otherwise.” This section, as -shown by the remarks of Mr. Priest, of Ralls was not carefully considered by th-e convention, because the members thought if sections 20 to 25 were adopted, St. Louis would not ask for the adoption of this alternative scheme. Hence those words remained in section 16. But it is clear, from what Avas said and done in the convention, that the members of that convention did not intend to'allow cities organized under that or any other section to be beyond the legislative control of the State, and all the St. Louis delegation, except Mr. Pulitzer -and Mr. Spaunhorst, that h-ad framed both the schemes, expressly disclaimed that such Avas the intention or true meaning of those words. This is shoAvn by the remarks of Mr. Broadhead, Mr. Gantt, Mr. Mudd, Mr. Todd, Mr. Taylor -and Mr. Gottschalk, of the St. Louis delegation, -and is proved to be the intention of the convention by the remarks of Mr. Hale, Mr. McCabe, Mr. Halliburton, Mr. Adams, Mr. Sha-nklin, Mr. Fyan, and Mr. Johnson, above set out, and by the fact that when the vote on the motion to strike those words out of section 22 was taken, it was carried without division. In short the scheme of divorcing any city from the control of the State, in respect to any matter, whether in respect to its
Moreover it is clear, as shown by the speeches of Mr. Broadhead, Mr. Gantt, Mr. Todd, Mr. Taylor and Mr. Gottschallc, all eminent lawyers, that the words, “and not otherwise,” can not be properly construed into meaning that such charters could not be amended by general laws (or by special laws passed after notice given, as provided by section 54 of article 4) enacted by the legislature, and. that they are mere words of limitation upon the power of' the people of such cities to amend their own charters; that is, that the people could amend the charter by a three-fifths vote and not otherwise; or in other words that the charter could not be otherwise amended by the people than by a vote of three-fifths of the people. ■ The power of the State to amend such charters is nowhere referred to directly or indirectly in section 16.
These excerpts from the proceedings and speeches of the convention that framed the Constitution of 1875 prove that the frameTS of the Constitution intended, especially by sections 53 and 54 of article 4, and sections 7, 16, 20 to 25 of article 9, to accomplish the following purposes:
1. To abolish the evils of special legislation, procured by private persons at the expense of the public interests and without notice.
2. To require all laws, as far as practicable to be general, so as to apply alike to all persons or things of a class. Thereby insuring greater care, deliberation and discrimination in the passage of a law, and putting the representatives from every part of the State upon the alert when any law was to be passed.
3. To allow local or special laws to be passed only after
4. To abolish the granting by the general assembly of special charters to cities and to require the General Assembly to provide for'four classes of cities, thereafter to he organized, and to provide for their government by general municipal - corporation laws, so that all cities of the same class should be governed by the same laws.
5. To permit cities theretofore chartered by special acts to continue to exist under such charters, and to invite them but not compel them to come in under the general municipal corporation laws.
6. To permit the city and county of St. Louis to separate, by a vote of their people, and. to authorize the people of St. Louis to adopt a charter for their own government, hut to require that such charter and all amendments thereafter adopted by the people should always he in harmony with and subject to the laws of Missouri, in respect to the relations of the city to the State and in respect to matters of purely local concern, 'which might then he in existence or which the general assembly might thereafter at any time enact in a general form or in a special form after notice.
I. To permit St. Louis, if the scheme for the separation of the city and county failed to be adopted by those people, to frame its own charter, and also to permit any other city, organized under a prior special law or under the general municipal corporation laws, enacted by the General Assembly under the mandate of section I, that might at any time thereafter have a population of 100,000 inhabitants, to' frame its own charter, with the right to the people to amend the same, at any time, if three-fifths of the people of such city voted in favor of the amendment, and not otherwise by the people, but to be at all times a part of the State of Missouri, subject to the general laws enacted by the lawmaking power of the
Thus it will appear, from even a casual examination, that the results reached by this court in the groups of cases aforesaid that have survived the test of experience, and the purposes shown to have been intended by the framers of the Constitution, are identically the same. And considering that those results have heretofore been reached by the judiciary without the aid of the purposes expressed by the framers of the Constitution, it is not only somewhat surprising but extremely flattering.
rn.
In the light of the foregoing nothing more need be said about what constitutes a general and what a special law.
It is proper to add, however, that general laws applicable to municipal corporations could not be framed in accordance with the four classes of 'cities required by section 7, article 9, for the reason that there are seven classes of cities recognized and authorized by article 9: 1st, cities that existed under special laws passed prior to 1875; 2d, the four classes of cities required by section 7; 3d, the city of St. Louis, organized under sections 20 to 25; 4th, cities organized under section 16.
If the legislature was limited, in passing general laws, to the classification of cities required by section 7, it is demonstrably true that no general laws could be passed which could apply to cities organized under special acts prior to 1875, or to St. Louis, or to cities organized under section 16, for they do not, could not, and were not intended to come within the four classes required by section 7. The result would be that no general law could be passed which would apply to those three classes of cities, and yet it was the declared prime purpose of the Constitution that only general laws should be
Neither is there any longer any room for the contention that as to mere matters of local concern or in matters not pertaining to the city’s relation to the State, a city is beyond legislative control. This was the idea advanced by Mr. Pulitzer and Mr. Spaunhorst in the constitutional convention of 1875, and repudiated by that convention by a vote of 53 to 4 (Proceedings, 72d day, p. 135).
And this is necessarily true, as it is easy to show. A city derives all its powers, expressly or incidentally or by implication, from the charter granted to it by the State. It is a creature of the State and can never be greater than its creator. Prior to 1875 those charters were granted by special acts of the legislature. Since then those organized under section 7 get their charters under the general municipal corporation laws enacted by the legislature. In whichever way +hey derive their powers, the law passed by the General Assembly must specify regulations for all those matters respecting the relation of the city to the State, and also for all those
This being true it can not fairly be said, in view of what was said and done by the framers of the Constitution, that it was intended that the legislature should and might and alone could amend the charters of those five classes of cities in any respect, whether it pertained to matters of local concern or not, but could not by general or special law amend the charters of cities organized under section 16, or of the city of St. Louis,, in matters of purely local concern, for such a construction would take such cities out of the control of the State, which the framers of the Constitution expressly refuséd to permit, and would divide the cities of the State into two' classes, where they are naturally only one in respect k> being under State control. The Constitution intended, and this court has decided (cases cited in 4, 6, 8 groups ante) that all charters of all cities, however organized, can be amended, and that local affairs, even as to how local revenues shall be expended.by the city, can be controlled by proper laws passed by the General Assembly.
Measured by these principles and proceedings the act of March 18, 1893 (Laws 1893, p. 101), is a general and not a special act, for it applies to all cities having a special charter and that now have or may hereafter contain a population of more than 2,000 and less than 30,000 inhabitants and also to all cities of either the third or fourth class, and hence comes within the principles of the first group of .cases, ante.
The act is not invalid because it does not conform to the classification of cities required by section 7, article 9, for the legislature is not limited to that classification in enacting laws (for that would be impracticable and impossible), but it may legislate by general laws, so as to embrace all cities however organized or chartered or so as to embrace any class of cities authorized by the Constitution either singly or in groups, for such laws relate to a natural, constitutional class. By the term “general laws” here employed is meant laws which may in time apply to any locality that may come within their scope.
YI.
This leaves for consideration the last and most difficult question in this case. The act of 1893 provides that it shall apply to such of the specially chartered cities having the specified population and to such of the cities of the third and fourth classes, as shall, by a two-thirds vote of its qualified voters, vote, “in favor of adopting the provisions of this act.”
It is argued that this violates the provision of section 7, article 9, which requires, “that all municipal corporations of the same class shall possess the same powers and be subject to the same restrictions;” in this, that if some of the designated cities vote to adopt the provisions of the act and others do not, all of the cities of the designated class will not possess the same powers and be subject to the same restrictions. And
This reasoning’, whatever may be said of it as regards cities of the third and fourth classes, manifestly has no application to cities existing under special charters granted prior to 3875, for section 7 of article 9 does not deal with them, further than to invite them to come in under the general laws, nor was it intended or required by any provision of the Constitution that the charters of such specially chartered cities should be alike, or that all such cities should be possessed of the same powers or be subject to the same restrictions. .This court has decided in the 4th group of cases, ante, that the General Assembly can amend the charters of such specially chartered cities, and this principle is admitted even in the cases which announced the necessity for legislation by classification under section 7 (St. Louis v. Dorr, 145 Mo. l. c. 483; Murnane v. St. Louis, 323 Mo. l. c. 488) although it is not stated in those cases by what logic this can be d'one as to specially chartered cities when it is denied that it can be done as to other cities specially chartered under other constitutional provisions and which can no more be brought within the classification of cities required by section 7, than the cities which were specially chartered prior to 1875.
The act of 1893 is, therefore, not in conflict with section 7 of article 9, as it applies to cities specially chartered prior to 1875.
There is force in the contention as applied to cities of the third and fourth class, but when closely analyzed it will be seen that the argument is not tenable if the previous decisions of this court are to be adhered to. It has been held that it is competent for the legislature to enact a law, which is a complete rule of conduct, but which shall apply to only such localities as vote to have it apply to such localities. [State v.
The crucial question in this case therefore is whether the, act of 1893 violates the Constitution because it contemplates that it shall apply in only such of the designated cities as vote to adopt the provisions of the act.
The identical question was extensively debated in the Constitutional Convention of 1875.
When section 53 of article 4 was under consideration, Mr. Edwards, of Iron, moved to amend the last paragraph so as to insert after the prohibition against enacting a special or local law by the partial repeal of a general law, the words, ‘‘or enact a general lam which by its provision is to be in force and effect onl/y in such counties as first by a vote of the people
Mr. Nickerson, of Johnson, objected to the amendment because it would affect the township organization laws. A vote was then taken and the amendment was adopted (46th day, p. 111). Afterwards a motion to reconsider was introduced and prevailed (46th day, p. 127). The amendment was then considered very fully. Mr. Wagner, of Scotland, supported the amendment because he did not believe it right to leave questions of that kind to the people of a county blit favored general laws applicable to the whole State (46th day, pp. 113, 114). Mr. Mudd, of St. Louis, opposed the amendment because he favored the stock law (p. 115). Mr. Cottey, of Knox opposed the amendment because he favored the township law (p. 117).
Mr. Hale, of Carroll, opposed the amendment because it would almost destroy the power of the legislature; because laws that would suit one locality would not suit another, laws that would suit- a large city would not suit an agricultural district — and the people of each locality should have a right to say whether the law should apply to them or not; cited the stock law and the township law (pp. 118 to 121).
Mr. Halliburton, of Sullivan, favored the amendment because it would stop -the passage of special laws under the guise of general laws (pp. 122, 123). Mr. Massey, of Newton, said, under the first section of this article, it is provided: “The legislative power shall be vested in a Senate and House of Eepresentatives to be styled the General Assembly;” and asked Mr. Hale how the stock law or township law could be reconciled with this section: “Where is the lawmaking power in such cases ?” (pp. 124, 125). Mr. Hale answered that the
Mr. Bradfield asked if there was anything in the Constitution that prohibited the General Assembly from passing a stock law in certain counties. Mr. líale replied that a special stock law was not 'prohibited (p. 128). •
Mr. Shanklin said special stock laws could be passed without requiring the ratification of the people; that section 54 provides a method of passing special laws (pp. 128, 129).
Mr. Hale asked if he thought a local law applicable to St. Louis or Boone county, would be constitutional (p. 129).
Mr. Shanklin answered that where a local law was desirable and a general law could not be made applicable, the local law could be passed by following the provisions of section 54 (pp. 129, 130).
Mr. Gottschalk opposed the amendment, instancing the-extending of a city’s limits by a vote of the people, under a general law, while the Constitution prohibited the Legislature from passing a special act changing the charter of a city (p. 130). Referred to allowing the city and county of St. Louis to vote to consolidate or separate, (p. 131); favored leaving such laws to be adopted by a vote of the people of each locality (p. 132).
Mr. Lackland said that the amendment conflicted with section 13 (now section 54, article 4) which provides that in some cases local or special bills may be passed upon notice being given (pp. 132-133). The object of which was to obtain
Mr. Bradfield said the object of the amendment was not to prevent proper special legislation but to prevent special legislation under the guise of a general law (p. 133).
Mr. McAfee asked if a general stock law could not be passed which would affect only the counties voting to accept it (p. 134).
Mr. Bradfield said the General Assembly could not pass any local or special law which is specially prohibited, but outside of such prohibited laws it could do so (p. 134-135) and that special stock laws and township laws were not specially prohibited (p. 135).
Mr. McAfee replied that a special law could not be passed where a general law could be made applicable, which was a judicial question, and said that the Supreme Court would always decide that -a general stock law could be made applicable without resorting to a special law (p. 136).
Mr. Bradfield answered that it depended upon the meaning of the word “applicable” — “If it is suitable or practicable” (p. 136).
Mr. Brockmeyer said the view taken was that if the object to be accomplished was local, a general law applying to the whole State would not be “applicable,” hence a local law could be passed (p. 137), and that if this had not been his understanding he would never have voted- for the prohibition against local or special laws, because some localities needed laws which others did not (p. 138), and so a general law would not cover their diversified interests (p. 138).
Mr. Alexander opposed the amendment because it would affect the stock law (p. 141).
Mr. Johnson, of Cole, said: “I understand the object of this section to be not only to reduce the amount of legislation but to establish uniformity of laws throughout the State. Now to my mind unless this amendment is -adopted we might
A vote was then taken and the amendment was rejected. Ayes, 22; noes, 31 (p. 148).
It thus appears that after adopting a prohibition against laws which should apply to only such localities as by a vote of the people of such localities was made applicable thereto, the framers of the Constitution reconsidered their action, and fearing that such a prohibition in the Constitution might affect the- validity of the stock law or the township law, the local option law or some other law, which had theretofore been passed in that form, and being in favor of giving the people of each locality the right to vote for or against adopting such a law, the majority of the convention refused to embody such a provision in the Constitution.
The 'argument against the validity of laws of this character is, briefly, that a law is a rule of conduct prescribed by the lawmaking power of the State; that the lawmaking power is by article 3 of the Constitution vested in the legislative branch of the government, except in the specific cases where the power to adopt a law or make a law applicable is reserved by tbe Constitution to tbe people, and hence that laws of this character, commonly called “local option laws,” are not laws at all, but are unconstitutional delegations of power by the Legislature to the people and therefore are abdications of power by tbe lawmakers and so are void. The argument further employed is that the Constitution specifies by sections 2, 3, 4, 1, 9, 16, 20 to 23 of article 9, and by section 12, of article 10, wben tbe people of a locality bave a right to vote whether a law shall apply to them or not, and that upon the principle of “expressio unius est exclusio alterius,” it was
The matter is thus left in this shape: this court in the township organization law (55 Mo. 295), advised the Legislature that laws of this character would be constitutional; the Legislature has since passed many such laws, presumably upon the faith of that advice; the framers of the Constitution of 1875 expressly refused to put a prohibition against snch laws in the Constitution because they believed in the stock laws, the township organization laws, the local option laws, and the like; this court has many times since declared such laws constitutional; there is no express provision in the Constitution allowing such laws as the act under consideration, but the express reservation of power to the people is contained in the sections of the Constitution above quoted; the legislative power of the State is vested in the General Assembly, but it has been thus decided- in this State that such laws are not a delegation of legislative power, but that they are perfect laws, capable of applying to every part of the State, -and that the vote of the people does not create but- only puts in effect the law in each locality.
Speaking for myself alone, I believe that on principle acts which are referred to the people of the whole State for adoption or rejection, are not complete or perfect laws; that they are a delegation and abdication of legislative powers and duties, which was unwarranted under the Constitution of 1865, and is without authority under the Constitution of 1875; that it is a solecism to say a law is a law which requires any act to he performed by the people at large 'after it leaves the bands of tbe Legislature, to make it effective all over tbe State.
I further believe that- local laws upon -all subjects not expressly prohibited -by section 53 of article 4, can be directly and constitutionally passed for the benefit of any locality thal
No clearer exposition of the rule as to local option laws has ever been given than that stated by Wagner, J., in State ex rel. v. Wilcox, 45 Mo. 458, where, after stating the position taken by the opponents of the rule to be that it “is not a law of its own force, enacted by the lawmaking power of the land, but depends for its existence upon a vote of -the people of the locality where it is sought to be made operative,” he said: “It is undoubtedly true that under our form of government, laws must be enacted by the legislative bodies to which the legislative power is committed by the Constitution. The legislators can not divest themselves of the responsibility of enacting laws by a reference of the question of their passage to their constituents. One of the earliest eases on the subject is Barto v. Himrod, 4 Seld. 483, where the legislature of New York framed a law concerning free schools. The Legislature did not enact or adopt the law; but the tenth section of the act declared that the electors should determine by ballot, at" the next annual election, whether the -act should or should not become a law. There it will be perceived that the Legis-. lature merely proposed the law, and left its enactment to the people. The' court of appeals held that the law having never been passed by the Legislature — the only body under the Constitution that was competent to pass a law — it was void and of no effect......Now, the Legislature can not propose a law, and submit it to the people to pass or reject it by a general vote. That would, indeed, be legislation by the people. But the proposition can not be successfully controverted that a law may be passed to take effect on the happening of a future
This case was cited and approved in the opinion given by Judges Adams, Wagner, Sherwood and Ewing on the Township Organization Law, 55 Mo. 295, and substantially the same reasoning was employed, as will appear by the following excerpt from that opinion: “This Township Organization Law contains no provisions, so far as we are able to see, prohibited by the Constitution. It is a general law made for the whole State, and by the terms of the act itself took effect from and after its passage. Every county in the State may avail itself of the privileges offered by this law by a majority vote of its people. It is left to the option of the counties, whether they organize under the law or not. If
The act there said to be constitutional contained a section which provided: “This act shall apply to and be in force in all counties adopting tbe act to provide for Township Organization, and takes effect from and after its passage.” It also provided for an election by the people of a county to- determine whether the law should apply to such county, and if a majority of the legal voters of the county voted for such township organization, “then the county shall be governed by and subject to, the provisions of this act, on and after the first -Tuesday in April next succeeding.” It will he noted that of all the judges then composing the bench of this court, Judge Vories alone dissented from this opinion, and that he 'held that such a law was unconstitutional because it was a •delegation of legislative power, and that it would apply to only such counties as voted to adopt the act, thereby making tbe law different in different counties, or if no county voted to adopt -it, then it would be a dead letter, and hence he concluded that such an act was not a law at all, for its validity, its force and its taking effect were dependent upon some power other than the lawmaking power of the State.
All the local option decisions in our State are based upon the reasoning employed in the "Wilcox case, and in the opinion on tbe Township Organization Law.
Substantially the same reasons have been given in other
It is- -also held that a law can not be made dependent upon its acceptance or adoption by the people, in California, Iowa, Massachusetts, Nevada, New Hampshire, New York, Ohio and Pennsylvania (6 Am. & Eng. Ency. of Law, p. 1022, note 7). In Pennsylvania (Locke’s Appeal, 72 Pa. St. 508), it was held that if the Legislature had the power to make the law dependent upon a vote of a majority of the voters, it could also confer that power upon a minority, and in California (Ex parte Wall., 48 Cal. 313), it was held that the legislature has no more right to refer such a question to the whole people than it has to refer it to a single individual, and in Ohio (Railroad v. Clinton Co., 1 Ohio St. 77), it was held that the people had, by the Constitution, vested the power to make laws in the General Assembly, and that, “to allow the General Assembly to cast it back upon them, would be to subvert tifie Constitution and change its distribution of -powers, without their action or consent.” On the other hand, it was held in Vermont (State v. Parker, 26 Vt. 357), and in Wisconsin (Dowling v. Ins. Co., 92 Wis. 63), that the question of when an act
And a law which is complete in all its provisions when it leaves the legislative branch of government, but leaves it to the option of the people of each locality in the State to become subject to it or to adopt it, has been held to be constitutional in New Hampshire (State v. Noyes, 30 N. H. 279), in Texas (Johnson v. Martin, 75 Texas 33), in Wisconsin (State ex rel. v. O’Neill. 24 Wis. 149), and in West Virginia (Rutter v. Sullivan, 25 W. Va. 427). But in Massachusetts (Opinion of Justices, 160 Mass. 586), it was held that such laws could not be made subject to acceptance or adoption by a vote of the people, if they related to matters of general concern to the State at large, and were only permissible when they related to matters of mere local importance.
Thus reason, principle and the distribution of power? under the Constitution condemn such laws,-as applied to the State at large, and while there is a great conflict in the precedents in other States upon the validity of such laws, as applied only to matters of local concern, the almost universally recognized rule is that although as a general proposition of law legislative powers can not be delegated at all, still if the law is complete when it leaves the hands of the legislature and the option is given to a political subdivision of the State or to a locality to adopt it or not by a vote of the people, such option does not make the law unconstitutional; in this respect agreeing with the decisions heretofore rendered by this court, which were based upon the idea that a law could 'be passed which should not take effect except upon the happening of a subsequent contingency or condition, and that the vote of the people was such a condition.
Speaking of laws which are made to depend for 'their application upon a vote of the people, Sedgwick in his work on the Construction of Statutory and Constitutional Law, p. 134,
The author then points out (p. 135 note a) that statutes creating municipal corporations or imposing liabilities upon them or authorizing them to create debts or to make improvements, and depending for their application upon a vote of the locality, have been sustained in New York, California, Mississippi, Maine, Missouri, Pennsylvania, Tex-as, Tennessee, Wisconsin and Florida. He also shows that school laws or any local laws come under the same principle, citing Bull v. Read, 13 Gratt. 78, and Hobart v. Supervisors, 17 Cal. 23. He concludes his discussion in this way: “In general, statutes fully enacted by the legislature may be conditioned in their operation, to take effect upon some future event. [State v. Parker, 26 Vt. 357; Bull v. Read, 13 Gratt. 78; State v. Kirby, 29 Md. 85; Peck v. Weddell, 17 Ohio, N. S. 271.] And it has been held that if a general law is passed to take effect at one or the other of two specified times, the question may be referred to
The same author in further illustration of the rule, points out that in New York (Thorne v. Cramer, 15 Barb. 112, and Barto v. Himrod, 4 Seld. 483), an act- to establish free schools in that State which by its terms was to become a law only in case the people of the whole State voted to adopt it, was held to be entirely void; and in Pennsylvania (Parker v. Commonwealth, 6 Barr 507), an excise statute which was made to depend for its adoption upon a vote of the people of the whole State was likewise held void; and that in Indiana a provision was put into the Constitution that: “No law shall be passed, the taking effect of which shall be made to depend upon 'any authority except -as provided in the Constitution.”
Judge Coolet, in his invaluable work on Constitutional Limitations (6 Ed.), p. 137 et seq., discusses the subject in such a masterful manner as to preclude further argument on the subject. He says: “One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws can not be delegated by that department to any body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is changed. The power to whose judgment, wisdom and patriotism this high prerogative has been entrusted can not relieve itself of the responsibility by choosing other agencies upon which the power shall.be devolved, nor
“Rut it is not always essential that a legislative act should be a completed statute which must in any event take effect as law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event. Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not at their option. A private act of incorporation can not be forced upon the corporators; they may refuse the franchise if they so choose. In these eases the legislative act is regarded as complete wheu it has passed through the’ constitutional formalities necessary to perfected legislation, notwithstanding its actually going into operation as law may depend upon its subsequent acceptance. ¥e have elsewhere spoken of municipal corporations, and of the powers of legislation which may be and commonly are bestowed npon them, and the bestowal of which is not to be considered as trenching upon the maxim that legislative power must not be delegated, since that maxim is to be understood in the light of the immemorial practice of this country and of England, which has always recognized the propriety and policy of vesting in the municipal organizations certain powers of local regulation, in respect to which the parties immediately interested may fairly be supposed more competent to judge of their needs than any central authority. As municipal corporations are mere auxiliaries of the state government in the important business of municipal rule” [the same doctrine was recently reannounced by this court in banc, speaking through Gantt, C. J., in State ex rel. Hawes v. Mason, 153 Mo. 23, and Webb City and Carterville Waterworks Company v. City of Carterville, 153 Mo. 128], “the legislature may create them at will from its own views of propriety or necessity, and without consulting
“Nevertheless, as the corporators have a special and peculiar interest in the terms and conditions of the charter, in the powers conferred and- liabilities imposed, as well as in the general question whether they shall originally be or after-wards remain incorporated at all or not, and as the burdens of municipal government must rest upon their shoulders, 'and especially as by becoming incorporated they are held, in law, to undertake to discharge the duties the charter imposes, it seems eminently proper that their voice should be heard on the question of their incorporation, and that their decisions should ■be conclusive, unless, for strong reasons of state policy or local necessity, it should seem important for the State to overrule the opinion of the local majority. The right to refer any legislation of this character to the people peculiarly interested does not seem to be questioned, and the reference is by no means unusual.
“Eor the like reasons the question whether a county or township shall be divided and a new one formed, or two townships or school districts formerly one be reunited, or a city charter be revised, or a county seat located at a particular place, or after its location removed elsewhere or the municipality contract particular debts, or engage in a particular improvement, is always a question which may with propriety be referred to the voters of the municipality for decision.
“The question them arises, whether that which may be done in reference to any municipal organization within the State may not- also be done in reference to the State at large. May not any law framed for the State at large be made conditional on 'an acceptance by the people at large, declared through the ballot bos ? If it is not unconstitutional to delegate to a single locality the power to decide whether it will be
“If the decision of these questions is to depend upon the weight of judicial authority up to the present time, it must be held that there is ho power to refer the adoption or rejection of a general law to the people of the State, any more than there is to refer it to any other authority. The prevailing doctrine in the 'courts appears to be, that, except in those cases where, by the Constitution, the people have expressly reserved to themselves a power of decision, the function of legislation can not be exercised by them, even to the extent of accepting or rejecting a law which has been framed for their consideration. ‘The exercise of this power by the people in other cases is not expressly and in terms prohibited by the Constitution, but it is forbidden by necessary and unavoidable implication. The Senate and Assembly are the only bodies of men clothed with the power of general legislation. They possess the entire power, with the exception above stated. The people reserved no part of it to themselves (with that exception), and can therefore exercise it in no other case.’ It is therefore held that the legislature have no power to submit a proposed law to the pedple, nor have the people power to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the Constitution. The government of the State is democratic, but it is a representative democracy, and in passing general
In this connection it is meet to pause to note the fact that both Sedgwick and Cooley refer to Barto v. Himrod, 4 Seld. 483, in support of the proposition that it'is not lawful or constitutional to refer an act that affects the whole people to the vote of the people at large, while they hold that acts that are of mere local concern may properly be referred to the people of the locality for their adoption or rejection, and that Barto v. Himrod, related to an act to establish free schools in the whole State, provided the people of the whole State voted to adopt the act. Barto v. Himrod was referred to by Wagner, J., in State ex rel. v. Wilcox, 45 Mo. 458, but the Judge did not point out that in the Barto case the question of adoption was referred to the people at large, whereas in the Wilcox case, chapter 41 of the Eevised Statutes of 1865 was under consideration, and that chapter did not depend for its adoption'upon the vote of the people at large, but was a permissive statute, which enabled any city, town or village, to organize as a school district, upon the people of such city, town or village, voting to adopt or reject the privileges conferred by that chapter. It will thus be seen that the Barto case had no application whatever to the Wilcox case. The distinction, however, was not noted in that case, and every ease since has followed the Wilcox case, but in none of them, has the distinction so clearly pointed out by Sedgwick and Cooley between referring a law affecting all the people to a vote of the people at large, and a law which simply grants a power or permission to a locality to be exercised or not as the people of the locality may decide by vote, been noticed or explained. To this may be attributed much of the confusion in the adjudicated cases and of the diversity of opinion among the judges.
Endlich on the Interpretation of Statutes, sec. 499, p. 102, lays down the rule that statutes may be passed which
Sutherland on Statutory Construction, sec. 75, says: “It is now settled that laws, at least of local application, may be imperative or permissive; they may authorize the people of cities, villages, townships, counties, groups of counties, or other limited districts, not otherwise defined than for the purposes of such acts, to determine for themselves local questions of police, taxation, or any other matter affecting their local welfare; and the law may be conditioned to carry into' effect their determination or option. [Blanding v.Burr, 13 Cal. 343; People v. Salomon, 51 Ill. 37.] They have thus been authorized to decide by popular vote and execute their decision to contribute for the building of railroads or other like public improvements [Starin v. Town of Genoa, 23 N. Y. 439; Clarke v. Rochester, 28 N. Y. 605; Grant v. Courter, 24 Barb. 242; Coming v. Greene, 23 Id. 33; Cincinnati, etc., R..R. Co. v. Commissioners, 1 Ohio St. 77; Hobart v. Supervisors, 17 Cal. 23; Moers v. Reading, 21 Pa. St. 189; Bank of Rome v. Village of Rome, 18 N. Y. 38; Cotton v. Leon County, 6 Fla. 610; Powers v. Inferior Ct., 23 Ga. 65; State v. O’Neill, Mayer, etc., 24 Wis. 149; Alcorn v. Hamer, 38 Miss. 652; Slack v. Maysville, etc., R. R. Co., 13 B. Mon. 1]; to divide a county or organize a new one [People v. Reynolds, 5 Gilm. 1; People v. Burns, 5 Mich. 114]; to establish or remove a county seat [Barnes v. Supervisors, 51 Miss. 305; Ex parte Hill, 40 Ala. 121; Commonwealth v. Painter, 10 Pa. St. 214]; whether there shall be license or prohibition of the liquor traffic [Caldwell v. Barrett, 73 Ga. 604; Hammond v. Haines, 25 Md. 541; Commonwealth v. Weller, 14 Bush. 218; State v. Cooke, 24 Minn. 247; Fell v. State, 42 Md. 71; Locke’s Appeal, 72 Pa. St. 491; s. c., 13 Am. R. 716; Boone v. State, 12 Tex. App. 184; Groesch v. State, 42 Ind. 547; Schullherr v. Bordeaux, 64 Miss. 59; Commonwealth v. Ben
“Acts giving such local options have not unfrequentlv been framed to secure it by making a new law go into effect or not according to the result of a popular vote.
“In State v. Noyes, 30 N. H. 279, the people in a town meeting adopted a general law to suppress bowling alleys, and thereby, pursuant to its provisions, put it locally in operation.
“In Mississippi an act for local taxation was, by its terms, suspended, and ceased to have effect by a protest of a majority of the legal voters. [Williams v. Commack, 27 Miss. 209.]
“By the terms of a local act of Wisconsin it was to be void unless the legal voters of the city to which it was applicable should vote to accept it. It was an act to establish a board of public works. It was held valid; that it was a Constitutional act to take effect or go into operation only upon a contingency provided in the law itself. [State v. O’Neill, Mayor, etc., 24 Wis. 149.]
“In a Virginia act for local free schools it was provided that the act should not be carried into effect until a majority of the people of -the district should approve it. It was sustained as constitutional. [Bull v. Read, 13 Gratt. 78.]
“Such, cases as Rice v. Poster, 4 Harr. 479; Parker v. Commonwealth, 6 Pa. St. 507, now overruled in Locke’s Appeal, 72 Id. 491; Ex parte Wall, 48 Cal. 279, and Maize v. State, 4 Ind. 342, substantially overruled by Groesch v. State, 42 Ind. 547, are now exceptional, and are simply out of harmony with the law as generally held throughout the country.
“On the whole it may perhaps be considered a sound conclusion, and I think it is supported by a preponderance of authority, that whether an act is general or local the legislature may in their wisdom take into consideration the wishes of the public, and determine not to impose a law on an unwilling or non-consenting people. Having the power to make their laws conditional to take effect only on the happening of contingent events, what the event shall be on which the taking effect of an act shall depend is not a judicial question, but wholly and absolutely within the discretion of the legislature like the emergency which will induce them to make an act take immediate effect, and that the result of a popular vote is a contingent event within that discretion.”
Perhaps no clearer opinion has ever been written as to the essential differences between a general law, which -applies to the whole State and which was by its terms made to- take effect only upon a vote in favor of it by the people at large, and a permissive or enabling law which related to a mere local matter, and which was to apply only to such municipalities or localities as by a vote of the people thereof elected to accept and exercise the powers and privileges conferred by the act, than the Opinion of the judges of the Supreme Oo-urt of Massachusetts, given to the House of Eepresenta-tives, on the 2d of February, 1894, and reported in 160 Mass. 586. Three questions were propounded 'by the House of Eepresentatives
“The constitutions of the different states resemble one another in many of their principal provisions, and it generally has been held, whenever the subject has come before the courts, that the legislative power can not be delegated by the legislature to any other body or authority, and that the people themselves have not retained this power except where they have expressly provided for it.
“It is true that a general law can be passed by the legislature, to take effect upon the happening of a subsequent event. Whether this subsequent event can be the adoption of the la,w by a vote of the people has occasioned some differences of opinion, but the weight of authority is that a general law can not be made to take effect in this manner. Whether such legislation is submitted to the people as a proposal for a law, to be voted upon by them and to become a law if they approve it, or as a law to take effect if they vote to approve it, the substance of the transaction is that the legislative department declines to take the responsibility of passing the law; but the law has- force, if at all, in consequence of the votes
“Por these reasons, we are of opinion that the first question should be answered in the negative.
“The second question requires additional consideration. There have been laws from the earliest times which delegated legislative powers to the inhabitants of towns, or permitted legislative powers to be exercised by such inhabitants, over subjects which were declared proper for municipal conduct. Laws conferring additional powers on towns or cities have been passed and made to take effect in any town or city upon acceptance by the qualified voters of the town or city, or of the city council. Some examples are found in Pub. Sts., c. 27, secs. 13, 27, 65, 74. Special laws have been passed conferring special powers on particular towns or cities, and general laws have been passed which relate to towns and cities having a certain population; and the consent of the inhabi
“In Stone v. Charlestown, 114 Mass. 214, it was decided that a statute was constitutional which united two municipalities and provided that the act should not tahe effect xml ess accepted by the voters of the respective municipalities. It was said: ‘Amid all the diversity of opinion upon the mxxeh vexed question, how far statutes may be made contingent upon being accepted by popular vote without violating the principle that legislative power can not be delegated, there is a complete harmony of adjudication in favor of the authority of the legislatxxre, unless controlled by a special constitutional provision upon the subject, to submit statutes dividing or xxniting counties or towns, or establishing or enlarging a city, to a vote of the inhabitants of the territory immediately affected.’
“There has been some conflict of authority upon the constitutionality of what are called local option laws, which have been principally laws regulating the sale of intoxicating liquors, but they have been held to be constitutional by a. majority of the courts which have considered them. They 'have been held to be constitutional in this commonwealth. [Commonwealth v. Bennett, 108 Mass. 27.] In that case it is said: ‘It has been argued in other cases, which have been brought before the court since the argument of the present case, that these statutes axe unconstitutional, because they delegate to cities and towns a paxt of the legislative power. But we can see no ground for such a position. Many successive statutes of the commonwealth have made the lawfulness of sales of intoxicating liquors to depend upon licenses from the select men of towns or commissioners of counties, and such statutes have been held to be constitutional. [7
“It is certainly a difficult question to determine how far the principle of local option can be carried, and to what subjects it can be applied. An act granting to women the right to vote in town and city elections does not relate to the powers of towns and cities, which in some respects may well be different in different towns and cities on account of the number, wealth, and pursuits of the inhabitants. Such an act relates solely to the persons who should be invested with a share of political power. Whether'women should be permitted to vote in town and city elections seems to us a matter of general,. and not of local concern. There is nothing in the history of Massachusetts which tends to show that the right to vote in towns and cities on town and city affairs has ever been regarded as a matter of police regulation or of merely local interest, or as a right which might be granted or withheld by a licensing board. It always has been determined by the legislature by a general law, in force uniformly throughout’the commonwealth.”
Erom what has been shown, the rule may be stated to be that a law which affects the people of the whole State .can not be made to depend for its validity, its acceptance, adoption or applicability upon a vote of the people at large, for such a law would be an unauthorized delegation of legislative power, but a permissive or enabling law as to matters of mere local concern which confers a power or privilege upon such munici
No law has yet been presented to this court of the character first spoken of. The General Assembly has never passed a law, so far as I am advised, affecting the whole people and made it dependent in any manner upon a vote of the people at large. Every law that has been construed by this court was a law, mandatory, prohibitory, or permissive, which conferred a power or privilege upon a .locality, city, town, township or county, and left it to the political subdivision of the State in its corporate capacity or to the people of such subdivision, to decide whether the power or privilege should or should not be exercised. An examination of the previous decisions of this court shows this to be true. State v. Searcy, 20 Mo. 489, and State ex rel. v. Hudson, 78 Mo. 304, related to the. dramshop law. St. Louis v. Alexander, 23 Mo. 483, related to a stock subscription by a city. State v. Binder, 38 Mo. 450, related to the Sunday law. The Opinion of the Judges in 55 Mo. 295, related to township organization. Lammert v. Lidwell, 62 Mo. 188, related to the stock law. State ex rel. v. Wilcox, 45 Mo. 458, related to the school law. State ex rel. Maggard v. Pond, 93 Mo. 606, related to the local option law; that is, to “An act to provide for the preventing of the evils of intemperance by local option in cmy cournty in this State, and in cities of twenty-fi/oe hund/red inhabitants or more, by submitting the question of prohibiting the sale of iMoxicating Uquors to the qualified voters of such county or city; to provide penalties for its violation, and for other' purposes.” And the cases decided since, all relate to local option laws.
Everyone will at once admit that the laws of a State which affect the whole people must be the same in every part of the State. Ever since the days of Blaekstone (1 Blackstone’s Com., 85) it has been the accepted construction that a public act must affect the whole community alike.
Eor instance, it could not be successfully contended that the criminal laws or the statute of descents, or the statute of limitations, or the laws relating to marriage or divorce, or the land laws, or any other general law in which every citizen is interested, could be legally varied in different localities of the State, by any law or method of procedure whatever. But while this is true it is equally true that general laws which confer a power or privilege upon a city, town, village, township, county, school district, drainage district, or other political subdivision of the State, to be exercised or not as the constituted governmental authorities of such localities, or as the people by their votes, or a petition to the same effect, may- or may not elect to exercise or take advantage of such powers and privileges, is a constitutional act, and is in no proper sense a delegation of legislative powers. Eor instance; the constitution, by section 7, article 9, commands the General Assembly to divide the cities of -the State into four classes, and to prescribe the charters by general law. In doing so certain powers and privileges, which primarily belong to the State, are granted to the municipality, to be exercised by the officers thereof, whenever they see proper, or not at all if they see proper, or such charters may put a limitation upon the powers and privileges granted by requiring that before the constituted authorities shall exercise any given power or privilege, the consent of the people, for whose benefit they were conferred, and who must bear the whole burden incident to the right, must be asked and obtained. The legislature has passed such general laws granting such powers and privileges, but all of the cities have or have not, may or may not ex
It is not uncommon for city charters to confer a power upon a city which the city officers are prohibited from exercising without the consent of the people, and it has never been held unlawful to so limit a power. In fact all municipal governments are agencies of the State, and exercise some powers of the State. But the powers exercised relate only to matters in which the balance of the people are not specially or financially interested; that is, they are local masters, local regulations, with their accompanying and correlative burdens. Being an exercise of a. part of the power of the State, it is as much a delegation of legislative power whether the right to exercise the power granted is left to the pleasure of the officers as it is left to the votes of the people. When carefully scrutinized the difference between the majority and minority opinions in the Maggard-Pond case, so far as they relate to this point, are more seeming than real. The majority opinion reaches the conclusion herein stated, but does not distinguish clearly between laws affecting the whole people and dependent for their existence upon a vote of the people at large, and laws which confer a power upon a locality as to
It is profitable to note that this is exactly what was said in the constitutional convention of 1875, by Mr. Massey, of Newton county when he said: “Such a practice, derived from the French system of submitting a pro jet to be voted on by the people, is strictly unconstitutional.” (Proceedings Constitutional Convention, 46th day, p. 126).
Again in his dissenting opinion in the Maggard-Pond case (678) Sherwood, J., said: “I do not deny but that a local option law could be passed, one that would repeal existing laws and denounce heavier penalties than they do against the sale of intoxicating liquors, and leave the mere incident of allowing the people by their votes to permit or to deny the issuance
Now observe what the majority opinion (p. 622) said: “While this local option act provides that any county, or town', or city of the class named, may, by a majority vote, put such county, town, or city under the operation of the law, it does not refer to them the question of passing a law; that the legislature had already done, and only called upon them to decide by a vote whether -they would accept the provisions of a law regularly enacted by both houses of the General Assembly and approved by the Governor. By its provision the law and not the vote extended its influence over the locality voting 'against the sale of intoxicants. It was the law that-authorized the vote to be taken, -and when taken the law, and not the vote, declared the result that -should follow the vote. The vote was the means provided to ascertain the will of the peo-pl-e, not as to the passage of the law, but whether intoxicating liquors should be sold in their midst. If the majority voted against the sale, the 1-aw, -and not the vote, declared it should not be sold. The vote sprang from the law, and not the law from the vote. By their vote the electors declared no consequences, prescribed no penalties, and exercised no legislative function. The law declared the consequences, and whatever they may be they are -exclusively the result of the legislative will.”
Again, at page 654, the majority opinion quoted and approved what was said by |Wagner, J., in the Wilcox case (45 Mo. 458) in reference to the school laws, as follows: “Now, -the Legislature can not propose a law, and submit it to the people to pass or reject it by a general vote. -That would, indeed, be legislation by the people. But the propo
Thus it will be observed that both the majority and minority opinions proceed from the same premises, to wit, that it is a delegation of legislative power for the Legislature to submit to the people at large for their adoption or rejection a law which affects the whole people, but that it is not a delegation of legislative power for the Legislature to' enact a complete law, conferring a power or privilege upon a locality as to a mere matter of local concern, and leave it to- the will of the constituted authorities of the locality, or to the people thereof, to exercise the power or privilege as they see fit.
The difference, therefore, is not one of principle, but of
Apply these principles to the act now under consideration, and the result is this: By the terms of thait act every city having a special charter, and which now or hereafter contains more than two thousand and less than thirty thousand inhabitants, and every city of the third and fourth class is given power to provide for drains and sewers, but before the constituted authorities in any such city undertake to exercise the power thus conferred they are required to obtain the consent of two-thirds of the qualified voters. This is not precisely the language of the act, but it is the true meaning and import thereof. Drains or sewers in a city are matters of mere local concern. It can make no difference to Kansas City whether Cape Girardeau has sewers or not, and it can make no difference to Kahoka whether Ozark has sewers or not. But it does make a difference to each locality, and each locality or the people thereof must “pay the piper,” whether they have a right and the power to exercise the privileges conferred by the act or not. The act is general 'and not local or special because it deals with all persons or things as a class. Every city holding a special charter and having the specified population and every city of the third and fourth classes is given the privilege and granted the power, which must be exercised or not as the people who are to enjoy the privilege and to bear the burdens, may determine, but the power is conferred and will continue to exist, the right is created and will always be available. The law therefore is a complete law. It needs no adventitious aid such as the vote of the people to breathe life into it. It gives a power and relates to a matter of local concern, just as the general municipal laws confer powers of mere municipal concern. It is permissive and enabling but not mandatory, just as the power to license, tax or regulate occupations or to construct any
If the provision providing for a vote of the people had been left out of this act, and the power to provide drains or sewers had been given to all the cities named in the act, no one would deny its legality. In such a case the constituted •authorities of such cities could have exercised the power conferred by the act whenever they saw fit, or not at all if they saw fit. As hereinbefore shown it is no more unconstitutional to confer upon the people of a locality the right to exercise ■a power granted than it is to authorize the constituted authorities of the locality to exercise such a right. Aye, more, as pointed out, it is lawful to require the consent- of the people -of a locality as a -condition precedent to- the right of the constituted authorities to exercise a power granted.
This -act is not therefore a delegation of legislative power nor -obnoxious to the commands of section Y of article 9 of the Constitution, nor is it a special or local law, and hence it is constitutional.
But it is said that State ex rel. Maggard v. Pond, 93 Mo. 606; State v. Binder, 38 Mo. 450; Opinion of the Judges
It is easy to demonstrate that such a contention is absolutely untenable for the following reasons:
Eirst: Because the act confers the same powers and imposes the same restrictions upon all cities named in the act. It is only a question of whether one or 'all of such cities choose to exercise the' powers granted. If only one so chooses, it does not detract from the right or power of the others to do so. And as is pointed out in the Maggard-Pond case, and in all the other cases, whether one does and others do not exercise the powers conferred does not make the law unconstitutional, does not make the law any the less a general law, does not make the act any the less a complete law when it left the hands of the legislature; and the act of the city does not create the law, but the law creates the right. If this contention is true, then the same objection, for the same reason, would apply to the whole of chapter 30, Revised
Second: The use of the words: “So that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions,” employed in section 7 of article 9, adds no force whatever to the requirement of that section that: “The General Assembly shall provide, by general laws, for the organization 'and classification of cities and towns.......the power of each class shall be defined by general laws.” If the powers of each class can only be defined by general laws then it follows as a legal conclusion that each city of the same class will have the same powers and be subject to the same restrictions, for this is exactly the effect of a general law, and so the addition of these words leaves the act in the same legal shape as if it had simply said, the General Assembly shall provide, by general laws, for the organization and classification of cities into four classes and shall provide, by general laws, charters for their government. Section 7 of article 9 therefore makes no difference whatever when considering local option laws except to restrict such enactments so that each class of cities shall have the same powers, and this they have under this act.
State v. Binder, 38 Mo: 450, was decided in 1866, long before section 7 of article 9, Constitution 1875, was adopted, and construed an act authorizing municipal corporations in St. Louis county to authorize, by a vote of the people, the sale of liquors, on Sunday, when the laws of the State made it
The Constitution of Colorado (section 13 and 14 of article 14) contains a provision which is exactly like section 7 of article 9 of our Constitution, and this provision has been construed by the Supreme Court of that State in Brown v. City of Denver, 7 Colo. 305; Carpenter v. People, 8 Colo. l. c. 124; Darrow v. People, 8 Colo. 426; Rogers v. People, 9 Colo. 454; People ex rel. v. Fleming, 10 Cob. 553. ’ A review of these eases can not be made in the limits of this, already, voluminous opinion, but it is profitable to note the statement in Rogers v. People, 9 Cob. l. c. 454, in speaking
The Constitution of Kentucky (section 156), of "Wyoming (section 1, art. 13), and of South Dakota (section 1, art. 10) contain also provisions similar to section 7 of article 9 of our Constitution. In none of these states, however, have I been able to find any decision which construes that constitutional provision, as it is here contended for.
It is claimed, however, that the proceedings of the constitutional convention of 1875, from which liberal quotations have been herein made, as stated by Judge Cooley, in his work on Constitutional Limitations (6 Ed., p. 81), “are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute; since in the latter case, it is the intent of the legislature we seek, while in the former we 'are endeavoring to arrive at the intent of the people through the discussions and deliberations of th'eir representatives.”
But while it is true the framers of the Constitution only proposed while the people adopted the Constitution, nevertheless the people gave, and could, in the nature of things, give, no reason for adopting it, or keep any record thereof. They each acted on his own understanding of the meaning of the terms employed in the Constitution. ' But they 'acted in the light of current events and had the benefit of the reasons given by the proposers of the Constitution for submitting th'e terms employed in that instrument, and hence it violates no rule of construction for the courts to seek all the light the people had when they acted. Every student of law is
No apology is needed or offered, therefore, for the references herein made to the proceedings of the Constitutional Convention of 1875.
Lastly, it is said that sections 2, 3, 4, 7, 9, 16, 20 to 23 of article 9 and section 12 of article 10 specify when -the people of a locality .shall have a right to vote on a question of the adoption of a law, and that upon the principle of ex-
But it is evident that in all such cases, it is the vote of the people which creates the thing to be done, or the right to be exercised. While here, the right and power is created by the Legislature, and the constituted authorities of the city, town or county or the people thereof only exercise the power already granted. If this was not so, then there would be no city or town or township or school district; for all such spring into existence by virtue of the will of the people deciding to exercise or take advantage óf a power already completely granted, and in the same manner the people under this act only exercise or rather the locality, with the consent of the people, exercises the power conferred by the State. This act is complete. It needs no adoption or ratification by the people. The cities and the people exercise the powers conferred, but' they create no law, nor do they breathe life into' the act. The statute has provided the power and the machinery, the locality and the people simply put the machinery in motion. For this reason this act does not fall within the objection made that the people are required or authorized to vote upon a subject not specially reserved by the Constitution to their decision, but on the contrary vested in another body. If the
Eor these voluminous, and I trust somewhat luminous ' reasons, I think the judgment of the -circuit court should be reversed ‘and the cause remanded to that court with directions to dismiss the bill.
It is therefore ordered by the court that the judgment of the circuit court he affirmed.
