*1 COMMIS OF FUND STATE BOARD Missouri, and of the State SIONERS Dalton, George Donnelly, John M. Phil M. Morris, Bates, M. E. constitut Hubert thereof, majority ing the members Relators, HOLMAN, Auditor of
Haskell Respondent. Missouri,
No. 45678.
Supreme of Missouri. Court
En Banc.
Dec. *2 Dalton, Atty. M. Gen., Robert R. John
Welborn, Atty. Gen., Asst. for relators. Edwards, Frank B. Wright, A. Jackson Fry, Wright, Edwards & Mexico, re- spondent. Thompson, Mitchell, Thompson & Doug- las, Douglas, M. Conerly, P. Richard James Louis, for Expenditure St. Missouri Public Survey, amicus curiae.
DALTON, Chief Justice. Original proceeding in mandamus. Re- compel lator seeks to the State Auditor to with, sign- bonds, complied have been shall stated. law as hereinafter register certain plead- such certificate the same and authenticate been submitted has cause *3 Registration of with the seal of his office.” agreed statement ings, and an briefs of the bond for the reasons was refused facts. respondent’s return stated amended 1955, 3, As- 68th General May On Respondent the bonds- herein. contends that to sembly by submitted resolution ordered registered, not be said cer- should nor the an qualified of the State electors be tificate executed. authorizing to the Constitution Amendment grounds register for refusal up to by of bonds the State the issuance bonds are that the has law not been com- purposes, $75,000,000 as set for certain with; plied and that the so-called Sec. Amendment, which Amend- forth 37(a), enacted; validly Art. was not Ill 37(a), designated be Sec. was to ment (I) That election at which the Amend- III, Missouri. See Constitution of Art. sought January ment be submitted on 867, 37(a), 1955, V.A.M.S.Const. Laws § 24, 1956, was (a) invalid because Con- Art. III. published stitutional Amendment was Thereafter, Assembly passed required by and 2(b),. the mode manner Sec. authorizing issuance and sale Act Constitution; (b) Art. XII of the and be- $75,000,000 amount of of bonds fully title failed to cause ballot state in accordance with of Missouri the State Amendment; purpose of the (II) That proposed of the Amendment proposal while the was submitted in the further, said providing that Act should and a form of Constitutional Amendment it is. upon approval of the said become effective substance a not in Constitutional Amend- the electors the State. Amendment ment, proposition but a the State 3, 769, 1955, p. Laws V.A.M.S.Const. Art. incur indebtedness issue should bonds Thereafter, the Governor 37(a). note. § proposal prop- “the combined into one 9, proclamation on issued his .November osition the incurrence indebtedness and 1955, special January calling a election of the for dis- the issuance State 24, Amend- 195.6,to vote purposes germane and different tinct held, At, special election so ment. and which no-natural one to the other” approved majority Amendment relationships; (III) That 1956, 67,961. February the Gov- On more than one Article amended Amendment proclamation declaring his ernor issued Constitution and violated Sec. that the Amend- election and result of the XII of the Constitution. adopted. See been Section ment had 125.070, V.A.M.S. RSMo prescribed procedure Whether amending the Constitution has been the Board Fund On Com- June whether Constitution has followed 33,540 (See Sections 33.300 to missioners validly judicial question. is a been amended adopted V-A.M.S.) resolution RSMo Lesneur, 410, 434, Edwards issuing first series of bonds to- the 31 L.R.A. Mc State v. $10,000,000 pursuant amount said Bride, . 306 Amendment and No. 1 Constitutional Bond Auditor, Expenditure Survey, presented to the Public re- The Missouri herein, spondent non-profit corporation, permitted has registration. been Laws of 1955, pp. as has filed provides intervene amicus curiae and Missouri issued, seeking should have the when the said bonds brief Amendment de- registered alleged because of failures they office clared void provisions. Auditor; comply “he with constitutional shall endorse substantially urges his that in curiae the same on each bond certificate the is- Amicus respondent, points all of but different suance the conditions of the order. thereof state, training stitutions of this the state Ill the Constitution Section schools, hospitals and state schools provided a limitation debts and on state eleemosynary issues, other institutions bond follows: state, higher this and institutions of edu- assembly power shall have no to contract or state, cation of this for building ad- any liability contracting authorize the ditions thereto and buildings additional therefor, to issue bonds necessary, furnishing and for except (1) to refund outstanding bonds ” * * * equipping improvements *. (2) on the recommendation of *4 the governor, temporary liability for a The Assembly, Act of the 68th General by be incurred reason of unforeseen emer- 1955, p. providing Laws for the is- gency * * * deficiency revenue, or casual of suance the in the event bonds the (3) liability when the exceeds posed Amendment should become effective dollars, million assembly the upon approval state, by the electors of the amendments, as on constitutional or the carried a title in which was the reviewed people by initiative, may the also submit a purposes proposed same stated containing amount, measure purpose the following Amendment and the also added liability, and terms the of and if the meas- “ * * * proposed from the Amendment: approved by ure is a majority qual- of the providing for the creation of the Second ified electors voting the state thereon of Building Sinking Bond Interest and election, at liability may the the be incurred Fund; providing payment the for the of * * V.A.M.S.Const, *.” art. § portion proceeds of income the of the state levy- fund; providing tax such into for the by It will be noted that reason of the ing up- and collection a direct annual of tax section, above the General has on tangible property all taxable in the state power no to contract or authorize con- the to pay principal of the interest tracting of*any liability of the or to proceeds bonds where the of tax the income therefor, issue except bonds as stated insufficient; providing payment for the therein, liability and when the exceeds one redemption of interest on and said of may million dollars a measure be submitted by Board of Fund Commission- amount, containing purpose and terms ^‡ ^ ^ CITS liability approval rejection by of or majority qualified electors of the respondent’s We voting
state thereon not consider at election. shall points in they the order in which were sub In this mitted, instance 68th General As- but shall consider ballot title sembly proposed submitted the Was the election Amendment first. invalid on the $75,000,000 for the ground bond issue Senate that “the ballot title failed to state 9, which, fully Resolution No. purpose including Amendment?” Re Joint title, printed spondent covers some three pages. says The “the ballot title failed give purpose title of resolution stated the intelligent true and statement of pur proposed Amendment poses proposed follows: constitutional amend “ * * * to authorize the General As- authority sup ment.” The cited in sembly to a debt liability port contract or on this contention 125.030, is Section behalf the state of Missouri and to This pro RSMo V.A.M.S. section that, issue bonds the state of Missouri vides when to an Constitutional Amend Seventy-five amount exceeding proposed, not Million Secretary ment of Dollars ($75,000,000) purpose copy Attorney for the shall to Oie send a repairing, remodeling or rebuilding, provide or who “shall and return to the secre repairing, remodeling rebuilding an tary state official ballot title for such buildings properties all or proposed constitutional amendments.
penal, reformatory may correctional and title in- official ballot be distinct from the posed liability required to be or bonds were consti proposed title
'legislative
of such
amendment au-
stated
the measure or
express in
shall
tutional amendment
thorizing
the issuance of
liability
purpose
twenty-five words
exceeding
Except
the bonds.
for the constitutional
amendment.
such
constitutional
* *
*
amount,
limitation
no amendment
is dissatisfied
who
Any citizen
authorization would have
provided
title
ballot
with the official
n *
*
required.
purpose of
may appeal
primary
been
attorney general
au-
to secure this
amendment was
court
the circuit
his
from
decision to
* *
ap
fully
thorization
No
days
ten
petition within
A full statement of the
stated.
the decision
from
peal shall be allowed
could
sought
be obtained
ballot
use of the funds
official
attorney general on
remaining
ten
been stated in
within
is taken
the same
title unless
ad-
words available. Even
filed with
number of
days
such decision
after
“penal, cor-
alleged omitted words
dition of
secretary of state.”
*5
reformatory
rectional and
institutions of
ballot title transmitted to the
The official
state,
training
the
schools” would
the
state
“Pro-
secretary
was as follows:
of state
twenty-
of
required
have
a title in excess
Number 1
Amendment
posed Constitutional
title
constituted
five words. The
furnished
Assembly)
by
General
the 68th
(Submitted
compliance with
and sufficient
a substantial
suggestion
is no
the statute. There
Con-
of the
to
III
“Amendment
Article
attorney
not, “to
best
general
the
the
did
thereto
adding
new section
stitution
impartial
and
ability,
his
a true
give
of
37(a) authorizing
Section
to be known as
purposes
proposed
of
of
the
statement
the
$75,000,000
Assembly to issue
the General
citizen
No
amendment.”
constitutional
rebuild, repair
remodel
build,
or
in
to
bonds
appeal
right
to
of
the
availed himself of the
eleemosynary and educa-
buildings at state
court,
remedy pro-
which
the
circuit
was
institutions.”
tional
by the
election
not
vided
statute. The
appeal
took an
to the
No citizen
circuit
by
any
reason of
failure of
invalid
attorney
decision
of the
from
court
fully
purpose
title
state the
of
ballot
concerning the form of the
general
ballot
amendment.
title.
adoption
alleged
the amend
Was
that,
in
apparent
order to
It is
reduce
ground
that more than
ment invalid on
purpose of
Amend-
the stated
amendment was sub
one
printed
pages
(covering some
ment
2½
being
special
election without
mitted
words,
twenty-five
very
matter)
enable the electors to
so
submitted
purpose
could
statement
separately?
amendment
Sec
on each
vote
principal purpose
pro-
of the
The
made.
Constitution,
XII of the
tion
to authorize the
posed Amendment was
part, provides:
than
“More
one amend
$75,000,000
Assembly
issue
the same election shall be so
ment at
sub
37, Art. Ill
because Sec.
of the Con-
bonds
the electors
as to enable
to vote
mitted
provided
expressly
stitution
Gen-
separately.”
In Gab
each
power
had “no
eral
contract
Co.,
Ry.
P.
Chicago,
I. &
bert v.
R.
contracting
any
lia-
authorize
891, 897,
70 S.W.
court
state, or to issue
bility of the
bonds there-
requirement
said:
amendments
for,” except
exceptions
under
men-
separately
mandatory,”
submitted is
shall
apply,
tioned,
pro-
which
not
did
and the
held
court
that whether two
and the
amend
liability
bond issue
posed
exceeded one
jointly submitted or only
ments were
use
dollars.
of the
million
judicial question.
was a
money
limitations thereon was
bond
respondent
is contended
Ill,
It
prohibited
Sec.
but
'
provision
of this
a violation
amount, purpose
reason
terms of the
question,
37(a), Art.
of bonds
pro
stated and to
extent
Ill,
enacted,
validly
payment.
vide for
has not been
because
their
The essential and
proposition
proposal
question
into one
decisive
is
is
combined
whether
measure
is-
the incurrence of indebtedness and the
valid
form and substance and
valid
ly
state for distinct
adopted.
submitted
suance of bonds
germane one to
purposes not
and different
reads,
measure
part,
submitted
other;
proposal
con-
because the
follows: “Section 37(a).
In addition to
state
and issue
tract liabilities
exceptions
made in Section
insti-
improvements at
building
state
General Assembly
power
shall have
to con-
widely
character
different
tutions of
tract, or to authorize
of,
contracting
scopes
purposes
different
with widely
debt or liability on
state,
behalf of the
more than
submission
to issue bonds or other evidence of indebt-
amendment,
so
been
which
therefor,
edness
not exceeding
ag-
vote
the electors to
submitted as to enable
gregate
Seventy-five Million Dollars
separately.
on each amendment
($75,000,000), for
repair-
“ * *
urged that the measure submitted
ing, remodeling or rebuilding, or of re-
a constitutional
the character of
lacks
pairing, remodeling and
rebuilding
* * *
contain
does not
buildings
properties
at all or
principles
the government
penal,
reformatory
correctional and
in-
founded,
regulate
the division
does
stitutions
this
the state training
pur-
to what
powers or direct
sovereign
*6
schools,
hospitals
state
and state schools
is
pose
powers
entrusted
each of
and other eleemosynary institutions of
* * *,
and the manner of its exercise
this
and
higher
institutions of
educa-
merely
issuance
bonds
but
authorized the
tion of this
state
addi-
for building
purposes
various different
state for
tions thereto and
buildings
additional
amount, purpose and
submits
necessary, and for furnishing and equipping
liability. It is also contended
terms
* * *
improvements.
such
a
No.
submitted
Resolution
9
that "Joint
improvements for
proposition
building
for
“Such bonds shall
be issued
statutes,
operating under
institutions
state
Board of Fund Commissioners
such
other,
having
amount,
distinct
from
time,
time
may
from
to
as
nec-
scope, distinct, one
objects
purposes,
essary
carry
to
on the building program as
is made to
Reference
from the other.”
by the
determined
Assembly.
General
The
172, 174, 175, 191, 192, 216, 217
Chapters
proceeds of the sale
or sales of
bonds
V.A.M.S.,
1949,
219,
dealing with
RSMo
paid
issued hereunder shall into the
institutions covered
different
treasury
state
and be credited to
fund
question
“the
argued
is
It
resolution.
designated
to be
the ‘Second State Build-
questions,
distinct
whether or
ing
proceeds
The
Fund’.
of the sale of
other,
sub-
related,
to the
the bonds herein authorized shall be ex-
single proposi-
people
pended
as
purposes
mitted
for the
for which the
fair and honest
tion,
essence of a
is of the
bonds are hereinabove authorized to be
* * *
election.”
issued.
The General Assembly
shall enact such laws as
bemay
necessary
contention
the measure sub
carry this
to
effect.”
into
Sen
is in the form of
mitted
9,
ate
Resolution
1955,
No.
Laws
Joint
amendment,
such in
is not
substance
but
867.
proposition
is
that it
rather
that the
incur indebtedness
and issue
state
upon
The rule of law relied
by re
pur
of no merit.
is
measure
bonds
spondent
stated
is well
in Hart v. Board of
exception
an additional
39,
to add
ports
Education,
36,
to
Mo.
441,
S.W.
rel;
37, Art. III to authorize the
ex
Smith,
issuance
and in State
Becker
v.
City
also
Joplin
ex
v.
as
cites State
rel.
75 S.W.2d
Mo.
1087;
Wilder,
116 S.W.
follows:
City
ex
Bethany
Allen,
rel.
186 Mo.
v.
submis-
i
“doubleness” in
“The vice of
County
State ex rel. Pike
S.W.
universally
is
condemned.
sions at elections
Gordon,
v.
268 Mo.
88.
species
fraud
regarded
legal
is
as a
voter,
compel
or-
may'
because
’
Respondent argues that the Amend
wants,
to
get
earnestly
what he
der
ment now
practically
before the court
not want.
which
something
he does
for
vote
speaking “a blank
check
authorize
Callahan]
inf. Barrett
State [ex
Assembly
building
make
im
Maitland,
246 S.W.
296 Mo.
provements
virtually
all
institu
inhibiting
has
doubleness
The rule
272.
tions of
directly
the state other than those
tersely
as follows:
stated
been
connected
government,
“
as state
buildings,
building
office
court
propositions
united
cannot be
‘Two
the capitol.” Respondent says that,
ex-
have one
so
in the submission
only
expenditure
limitation
pression
of this
propo-
the vote answer
both
money set
sitions,
out
may be
induced
thereby
voters
is that
improve
it is
propositions
building
to be for
to vote on both
who
agree
ments.” We
questions
not have done so if the
had been
gave
Ed.)
authority
the General
singly.’
(2d
submitted
21 Enc.Law
program,
determine
building
subject
The soundness
the general
doc-
only
wit,
imposed,
to the limitation
embodied in this
not been
trine
rule has
questioned
limitation
and the
any decision
the amount
limitation
this court.
Gordon,
proceeds
of the sale
bonds
County]
State ex rel.
[Pike
**
expended
purposes
could be
“for
together and
tunity
vote
to
on the
building
* *
im-
*_»
provements
respective
for the
state insti-
Brown,
The rule is stated
tutions;
Moore v.
and that “voters who wished to
improve
165 S.W.2d
Mo.
as fol-
restore
350
the penitentiary
“Furthermore,
accept
if
buildings
the amendment
were forced to
prop-
lows:
be
whole,
or multifarious
defect
is
osition as
including
sub-
building
double
stantive,
program
measure will
other eleemosynary
-be void
all
even
or edu-
* *
theory
The
adopted,
cational
institutions of the
is that
if
state.” Re-
required
spondent’s
supported
not to be
ought
theory
to
people
vote
separate propositions
provisions of
or more
the amendment
upon.
on two
voted
they
accept
improvements
one,
building
must either
No
were
so that
proposed,
both;
any
per-
particular
such a
also that
course
or dirécted for
reject
ordered
in-
* *
Respondent
logrolling.
stitution and no amount of bonds or funds
mits
(cid:127)
.program
were
benefit
cordance with
building
adopt-
allotted to or set aside for the
ed.
particular
The extent
institution.
i
amount, type
building program,
of the
Sedalia,
In Willis
v.
Dist. of
School
buildings,
selection of their loca-
(quoted
S.W.
within the
tion and all
rested
such matters
Smith, supra,
State ex rel. Becker
v.
Assembly
sole discretion of the General
“
S.W.2d
576),
‘Th'e
court said:
program
building
and the extent of the
plan
oneness
singleness
buil'cl
of the
to
amount,
any, of
if
would determine the
schoolhouses in a
school district
shown
terms,
Amendment, by its
the bonds. The
very
as dis
necessities of the case
any one of
no
funds to
made
allotment of
tinguished
The
from
courthouse case.
claimed
alleged twenty-three
institutions
directors
obliged
of the district were
purview
amend-
be
within
prepare school facilities for all the chil
only gave the
ment. The
dren of
impartially
the district
un
as one
contract,
Assembly power
or to
“to
General
dertaking.
comprehending
The notice
of,
debt or
contracting
authorize
buildings
school
for the district as a whole
issue
liability
and to
on behalf of
single
purchase
was as
as the
of furniture
of indebtedness
bonds or other evidence
for the different rooms of the same school
limitations,
therefor,”
only two
all
buildings
house.
fact that the
should
$75,-
not exceed
(1) that
amount should
be located at
points
convenient
in different
000,000
(2)
proceeds
parts of the district does not make the
expended
purposes
“for the
for which
multiple
scheme
if
more than
all the
authorized
the bonds are hereinabove
buildings
grouped
together
issued.”
”
place.’
Chicago,
And see Gabbert
R.
Co.,
Ry.
supra,
I. & P.
171 Mo.
promote
duty
It was the
was not the submission of differ- many amendment amend- propositions ed merely ent than because the differ- more of Article the Consti- tution ent state institutions were and located at differ- that doing so violated Sec. places 2(b) XII, ent and were intended to serve Art. of the Constitution.” It purposes pointed different is first or functions. out that power the ap- to propriate money levy and taxes is vested expressly The Amendment limits the Assembly General by Sec. Art. may liability amount which of be incurred Ill, and Secs. 23 and Art. IV of the and, further, purpose the states for which It Constitution. is then insisted that the may the funds be used. General As- provisions of the amendment requiring the sembly authority had the to determine the transfer of funds proceeds from the of the respective needs of the and, institutions and income tax if proceeds such should be purports the amendment give to it the au- insufficient for the purpose, requiring the thority liability, to incur issue bonds and levy upon of a tax the sole authority of proceeds allocate the of the bonds comptroller between the deprives the General As- the several enumerated, institutions sembly in ac- to that extent powers of granted state, or by contracting
to further the of it the Constitution. It is of the liability However, deprives the Gen- issue we said amendment to bonds if therefor. appropriate eral Assembly power of to assume either the that the amendment be ar- to the state revenue and -or new certain amount of amended revised article ticle, the in- con- necessary single the to service it amendment extent is subject made tains no appropriation the is “more mat- debtedness as than one properly General (cid:127)the the ters amendment and connected therewith.” Sec. 23 and Assembly, thereby, amending 2(b), Secs. Art. XII. is Art. of Constitution. It of IV the provisions amend- Respondent the
further said the admits that concerning from the General ment loans provided pay- for means for the Revenue to be made is- Fund ment of the which to be were interest, without principal paying safeguard sued. is It provision be prior that requiring respond- expressly payment the bonds which schools, public amends says free article ent made amended more than is also Art. IX. 3(b), turn, re- changes Constitution, Sec. which X, of the spondent 2(b) says, contrary that Sec. Sec. out pointed that provides Missouri Respondent reviews these of Art. XII. by the be exercised may provisions, power Comptroller taxing follows: “The purposes Assembly for state required transfer, monthly, General at least amend- that proceeds tax, insisted it then the state after income X, vests amends proportionate therefrom deducting ment officer. in an executive taxing power part support appropriated thereof for the these contentions considering public schools, Before free to the credit of ex- that be noted (Second) Building State Interest Bond provides pressly Sinking Fund until there shall have necessary bemay laws such enact been shall to said transferred Fund the amount effect”; and into carry this him by certified to Fund Board of enacted, Laws been has legislation money Commissioners as amount of appropriations 1955, p. required payment interest Legis- Session Extra made the bonds for the next succeeding fiscal Ses- Extra Laws in 1956. lature year for the maintenance sinking of a seq. sion, p. 1 et pay fund said bonds maturing in such succeeding If, next year. fiscal Art. XII of Constitu- Section time after issuance of relies, provides, respondent tion, bonds, apparent it should become proposed amend- “No part, Comptroller proceeds amended than one more contain ment shall tax will State income not suffice for the constitution, or this article and revised *9 payment the principal and interest ma- not contain shall new article one turing accruing and on said bonds during prop- subject matters and than more year, fiscal the next a direct tax shall be It will be noted therewith.” erly connected tangible on all taxable property levied in question does not amendment that payment for the State said bonds article, amended or revised an to be purport the interest that will accrue thereon. only an article, but amendment new nor a Comptroller is then The State to directed Ill, by adding a further 37, of Sec. the rate of taxation necessary determine by imposed limitations to exception certify that rate to to the County which, except Ill, for the 37, Art. Sec. County each exceptions, State Clerk authority granted Comptroller appropriate or other offi- shall the General that vides City of St. Louis. cial then contract authorize power to no have stitution, duty people extend of these officials to had the right upon it.” tax to collect the tax books and amend the Constitution in such manner desirable, long as was thought so for provides further amendment as it compliance was done with Revenue transfer of the State funds from terms of existing Constitution. 16 C. subsequent Fund re-transfer and for J.S., Law, 7, Constitutional 32. “It § into provides paid further that “All funds themselves, people, fundamental Building Interest Bond Second State are bound *. their Constitution own ap- stand Sinking Fund shall be they Where provided a method therein action propriated legislative without it, amending they conform must of said interest payment principal and procedure. Any course other * * bonds. *.” be revoluntionary said.” the cases have Brown, supra, Moore Respondent 165 S.W.2d men- v. relies the matters 659. But Brown, supra, as partic- Brown, tioned in stated in Moore v. Moore v. supra, ularly at 165 S.W.2d S.W.2d cit. loc. rule is that
the court had
under consideration whether
constitutional amendment
may change
proposed by petition
an
several
articles or
sections
Constitution,
a
popular
(under
submission to
if
changes
vote
all
are
germane
power
people)
single
controlling purpose.”
initiative reserved
complied
And
12287 and
see Gabbert
Chicago,
Sections
v.
R. I. & P.
Co.,
126.030,126.050
Ry.
84, 101, 105,
RSMo
RSMo
Sections
Mo.
70 S.W.
1949, V.A.M.S.,
constitutional
891. And
requiring
of course “a clause in
con
shown,
were
changes
prevail
to be
sections
stitutional
such
amendment will
over
require
provision
construed to
the case
constitution or earlier
Roach,
therewith,
ex rel. Halliburton
Mo.
v.
inconsistent
since
court
the Moore case the
with one Ill, (a), Art. which authorizes the issuance therewith, 2(b), Art. nected unless Sec. of bonds provision and makes for their prohibit to and does was intended XII subsequent payment by provisions which 37(a), III. modify some extent other Bartlett, 526, 121 Marsh See the Constitution. 737, 742(8). S.W.2d Lastly, we respondent’s consider con- *10 stated, respondent complains As publication that “the tention of the amend- 37(a), part of Sec. Art. XII giving which ment and the of notice of the election provision adequate for payment makes are of the essence the submission of any bonds and the interest question people”; thereon. and that provisions may to some comply While extent “failure to with requirements other modify certain of the Con- of the constitution and of law invalidated publish contin- legal fied to notices were the amendment at which
the election uously published county in in the each submitted.” December city and in the On St. Louis. Constitu- XII 2(b), Art. Section Secretary certified of State publication tion, reference with proposed publication copy for pos- “If amendments, provides: proposed newspapers throughout amendment to the be shall sible, proposed each designated by the state him under Sec. consecutive for two week published once a 125.010, supra. was ac- The certification politi- newspapers of different in two weeks companied by a on letter behalf publication county, last each cal faith in Secretary State, signed by his Chief than less nor thirty more than to be not Clerk, letter, part, in contained the election. preceding days fifteen next erroneous, incomplete conflicting in- county, newspaper in one If be but there publication, structions as with reference to shall weeks consecutive publication for four required follows: “Two insertions are in be made.” newspapers. counties with at two least necessary Four insertions are in counties pub- provision as to The constitutional only newspaper. one The statutes proposed amendments lication of provide publication shall be last supplemented 125.010 Section further thirty days not more than or less than V.A.M.S., follows: RSMo Thus, days fifteen before the election. secretary designate shall in what of state newspapers insertions, for publishing two county newspapers newspaper or in each printed the first be in an issue as- proposed general amendments during the week of December 19th ** If published. shall be sembly during last later than the week of proposed shall possible, each Naturally, January dates in 9th. for consecutive published a week two once only newspaper counties with one will be politi- newspapers of different in weeks two left the discretion of those editors —as county, publication last faith in each cal precedes long as last election insertion thirty than nor less than be not more day.” If election. days preceding the fifteen next county, newspaper in there is but one will be noted that no instructions as weeks publication four consecutive for publication in weeks was consecutive made, publication the last shall be to be publication given; within less than thirty not more than nor less than fifteen days reference fifteen was authorized days preceding the next election. If there 9th”; January “the week and that county, newspapers in a are or more two incomplete and erroneous directions were political of different faith none of which is only newspaper. given counties with another, proposed each amend- from then published once a week ment shall pub amendment was any two weeks in news- two consecutive conformity lished literal with Sec. county, publication to the last papers XII thirty nor less than fifteen than more be not 1949, V.A.M.S., 125.010 RSMo in all preceding election.” days next state, except counties as follows: twenty-seven specified In counties the last pre- facts on the applicable issue publication days less made than fifteen agreed stipulated in an statement sented preceding twenty-six election. In next On November follows: publication was proclamation calling counties con his issued Governor both newspapers. weeks one or secutive vote on election a-special and St. Louis In counties During Laclede there was January newspaper, publication although these dates more between one or period newspapers published two quali- least circulation and newspapers of *11 of newspapers by county counties counties. Some was not limited (cid:127)each once, publica- lines. because are listed more than ground, was more than one tion defective on There is suggestion no that Section was publication it is but contended 1949, V.A.M.S., 125.020 RSMo with ref- In forty-seven in counties. defective erence to the posting of notices and as to n cityof county, Sec. (which is St. Louis copies places voting amendment at St. Constitution) Art. VI of the in the state was complied with. It Tribune, Labor Louis American and the admitted that on November by the weekly newspapers, designated ballot title of the was certified was Secretary publication of State county respective clerks of therein, paper neither was although made proper counties or to the election officials (see paper city in the circulation provided by as Section 125.040 RSMo V.A.M.S.), Section 493.070 RSMo V.A.M.S., and there is no contention that n norhad under paper either been certified special the ballot title and notice V.A.M.S., .Section 493.080 RSMo published provided by election was not qualified publish judges of notices Section 120.580 RSMo V.A.M.S. See city of And court of St. Louis. (cid:127)circuit Highway Commission v. see RSMo V.A.M.S. Section 493.090 Thompson, S.W.2d 642, circulation of admitted that 646(6). The vote was favorable to the chiefly among the Louis St. American was in 94 counties of the state and
n colored
population
and that of the Labor
city
of St. Louis. The total vote in
was among
Tribune
the members of labor
114,570
the amendment
for
unions affiliated with
American Fed
46,609 against.
course,
Of
eration
Labor.
Section
V.A.M.S.,
providing
125.010 RSMo
parties
stipulated-:
have further
“A
publication,
for
under
certain circum
comparison was made of the vote in those
(cid:127)stances,
newspapers
“in
two
counties in which the Amendment was
county,”
facts,
applicable
if
under
published
compliance
in literal
with con-
control over Sections 493.070
statutory provisions
stitutional and
and with
1949, V.A.M.S.,
493.090 RSMo
since
the vote
those
counties
which the
specifically
publica
125.010
related to the
published.
Amendment
not so
-tion
amendments
the Con
results
as follows:
Realty
Fleming
stitution.
v. Moore Bros.
population
“Percentage of
Co.,
voting
l)y heading stating the date and compliance was in strict with n ofthe special and showing election the title statutory and constitutional (cid:127)of amendment as submitted visions . 5.53 Attorney General. population “Percentage voting on publica- the Amendment where It is admitted that the substance of the tion was otherwise. (cid:127)amendment date 3.53 places “Percentage vote on holding Amendment widely election thereon were of vote Governor publicized in counties throughout the state in news- publication paper articles, where was in strict advertisements other compliance statutory directly media of information. While not provisions. admitted, clearly appears that there was 11.49 newspaper “Percentage of publication of vote Amendment the amendment every county city of the state and in of vote Governor in counties n course, and, publication Louis was otherwise St. circulation 7.52.”
494- spondent Cooley’s “That Constitutional argues, follows: cites:
Respondent mandatory 158; Limitations, I, 11 Ed., are 8th provisions Vol. all constitutional 32; A McCreary Speer, law. Sec. v. principle of constitutional a basic Am.Jur. and Ky. 783, 99; document Sulli fundamental Arnett v. constitution is a van, 76; disregarded. Ky. 720, be not provisions its are S.W.2d Tooker, could Missouri rel. 37 P. of Woods v. 15 Mont. The Constitution Cline, 560; in which manner Hall v. L.R.A. State ex rel. left the mode concerning 6; information public given be Neb. 224 N.W. Commonwealth is to Beamish, constitutional ex rel. 309 Pa. pendency Schnader of v. amend- P. of 164 A. & Chicago, R. I. contents Gabbert v. members Ry. Co., City supra; Berk Legislature of State ex ment to convention, that eley Homes, but S.W.2d of a constitutional chose, do. It not choose that 650. The case states Constitution did Gabbert informa- expressly what rather, prescribe mode established for its Constitution when it how and given and tion should be be amendment must followed and holds Con- By approval of the given. requirement be that “The would amendments requirements, the containing these separately mandatory.” stitution shall be submitted is only the have bound not people of the State 70 S.W. [171 897] officers, the executive City Berkeley The case of State ex rel. of to a certain themselves bound but have here, applicable v. Holmes is not the facts Constitution in which the specified manner applied That case com- the rule that strict that such To amended. is to be hold pliance statutory provisions time directory only or to hold that visions validity notice is of a essential to the au- would be to they disregarded be can special election authorizing increase amending Con- a manner thorize city the indebtedness of the and held that lawful not be which stitution specified the time notice in the statute revolutionary.” Moore but would be mandatory requirement,' was a which must Brown, supra. complied bé with to have a valid election. percent Space permit does not Respondent argues that 72 review of other by respondent state lived in cáses cited population of curiae. entire or amicus portion im- The the Amendment was Art. XII relied counties city by respondent published; require does properly County daily giving notice of and in election. St. Louis Jackson circulation, provision, respondent subsequently such as papers large con- cedes, Dispatch Democrat, only prescribes and the the Post “what information Globe City ignored; given and Times were should be and how when would Star Kansas compli- given.” Respondent no substantial there was and that also admits that provisions or says constitutional “the Missouri with the nothing ance special election,” information to giving of about notice of as to the statutes but he Respondent further contends that General Assembly voters. insists that “the failed step regulate of amendment can no method be tolerated matter.” provide publication required ad- does not the electorate Constitution, opportunity apparently, equate fully to be advised of is to furnish in- proposed changes; that it vital that formation of terms and complete given upon. people information to be voted required by the Constitution the manner admitted It is that “this court has held Laws of the state. inconsequential departure trivial requirements of his constitutional support contention that from the as to Iri comply will not invalidate with the an elec- its failure election, tion, particularly departure where the requirements invalidated the re affect-
495 possible” eligible changes. and made We very number other ed a trivial Fahey v. must Respondent significance. determine their refers to Section voters.” 752, 125.010,' words, “if Hackmann, 351, supra,- S.W. also uses the 237 county) possible.” publication interesting in one is (improper 760 to note Commission record Building Convention 'and ex State the Constitutional rel. 27, 29(6) Smith, 840, .2d debates asked 335 74 S.W member indicates that when a v. In county). application about form to (improper publication one of a failure “The said: county newspapers case court a where were of the latter faith, liter- newspaper to reason publisher of said was said was the of the it that this provision the Con- comply possible” ally for the “if with this words reg- offi- election “the did invalidate the words mean that were intended to stitution state. try publication counties ularly charged held in the other cial with under so, newspaper publisher, he carry the best did out If the Constitution notice, pass in- could publish who would could.” When it was asked contract any “I reply was tentionally possible, defeat negligently on whether it Transcript And Secretary Constitution.” posed .guess State.” amendment to O’Brien, 134 Morgan Debates, 1943-1944, v. ex rel. Const.Convention see State 727; v. 722, Whiteside 1, Missouri, pp. 60 S.E.2d 447-448. W.Va. 844, Tex.Civ.App., 214 S.W.2d Brown, question We think the first for considera- 848(5). whether, tion in view of the of the use are by relator cited authorities possible,” Other words “if under class, as respondent in same placed by directory mandatory are consideration compliance con- approving they substantial validity so far affect the Tausig v. as follows: provisions, question. stitutional election in We here consider 235; 408, Ham 197 Lawrence, A. 328 Pa. provisions solely with reference mentioned 479, 313, S.E. 71 Clark, 136 Ga. v. mond amend- determination of whether the Adams, 182 77; Mayer L.R.A.,N.S., v. validly 38 adopted. ment was Hay 420; v. 524, 186 S.E. Ga. 210; State 387, 142 P. Alderson, general 49 Mont. rule is pro 379, Winnett, Neb. Thompson 78 v. visions of a constitution ex rel. regulating its own 149; L.R.A.,N.S., Herold 1113, mandatory 10 N.W. 110 direc 74, 319, 169 S.E. Townsend, tory. 113 W.Va. has Such been the rule in v. this 87, State, 98 Tex.Cr.R. compliance 75; Manos v. but substantial is sufficient. The Baker, 126 Colo. 310; v. Yenter applies same rule 263 other con Brown, 311; Whiteside provisions, P.2d 232, by express 248 stitutional unless pro 849; 844, Swanson necessary implication, 214 S.W.2d supra, vision or a different 264. N.W. C.J.S., State, 132 Neb. intention is manifest. Constitu Law, p. tional Gaines v. O’Con § XV of the Constitution of Section nell, Ky. S.W.2d V.A.M.S., expressly provided that pub- meaning pos- amendment shall be As to “Each of the words “if sible”, Ed., Dictionary, a week four consecutive Stroud’s 3rd once lished Judicial election, 2250, says preceding duty next at Vol. that “a to do weeks means, county possible’ newspaper thing generally, each ‘if if rea- least newspaper sonably published.” possible sense,” citing As a business indicated, considering In English court has held that substantial cases. this a statute making duty compliance with this mandate it the officer of sufficient, provision banking has examine but that institution to affairs now its “and, condition,” changed. 2(b) possible, XII its Section if know been Mohr, present constitution has the words “if' court in added Forbes v. Kan. if phrase, publications should be made qualifying that certain P. said: discovery practicable or reasonable. The use possible,’ .application ‘if has term, destroy possible”, exami- “if tended to reasonable wrong conditions *14 * * definite, short, requirement mandatory absolute and character the In
nation 2, provision must of Art. the as it in Sec. existed the examination of the statute that character XV 1875. intro- made, of the Constitution of be of such be and must reasonableness, condi- practicability, judg- the duced knowledge of as in a would result knowledge could ment and of com- discretion the matter if such of the bank tion pliance. Any attempt compliance reasonable range with of possibly, within the provisions require be obtained.” exercise frequency thoroughness, Further, we judgment be of case, was to and discretion. where timber In a contract possible”, winter, think the addition “if possible”, the of the words “if removed the first words, recognition in the was to some as used extent a court held that interpre- possibility, probability, even reasonable of human fail- have a contract should ure, cutting and and of the tation, negligence, fact incom- having reference to the petency, accident, mistake, under- business timber as a inadvertence removal of the if possibility excused even wilful party was misconduct was a taking; and that reasonably Secretary thing it was office of the of State and “in the nature of the Bishop, among employees the officers or of incapable Brown v. of some being of done.” 724, newspapers In might the 200 A. 729. of the state that 74 105 Me. by Bay designated Secretary be Dry of State & Dock Co. v. East Engineering publish Perhaps Co., Cal.App. 14 words 126 P.2d amendment. U. Mun. possible” “if com- meaning be were added because strict said: “The court pliance possible,’ provisions ‘as ‘if with set might such words as forth attached to majority will possible,’ expressed defeat the possible,’ ‘as far as ‘so soon in such very frequently, as it is an election and possible,’ is even all defeat far as regard far as efforts at opinion with to ‘so amendment. See State ex in our here Alderson, Hay rel. Mont. 142 P. and restricted possible,’ controlled event, provisions In subject-matter, the mani- of context, the section of the Constitution and the sec- sought result to be attained under fest question tion of the statute in are modified projected. restricted entire scheme Such possible.” “if the words These words signification will be and attached context, meaning and a neces- is manifest from the sarily modify provisions result that would subject-matter, the obvious attained, mandatory of otherwise be absolute and sought considerations far character. As as the involving propriety reasonableness directions for publication may validity affect the of range judgment discretion, some in- adoption question, of the amendment in Phrases, see Vol. 20 Words we here.” And hold 41; ques- and do that the must Possible, p. Dictionary, Black’s If Law directory. See Taylor, tion are Hildreth p. p. (definition 3d Ed. C.J.S. 40, 41; Ark. “if”); (definition C.J.S. O’Brien, supra. Morgan v. “possible”). question use of There remains the think the the words “if We compliance XII there was substantial possible” in Section of the whether directory provisions. in Sec. 125.010RSMo While the Constitution conflicting, misleading V.A.M.S., recognition possible and er issuance Secretary satisfactorily directions obtaining com roneous impossibility newspapers, the several given directions office to detailed State’s pliance with the carry publication designated used The words indicated publication.
-497 background of Sec. the historical amendment, carelessness evidences III, 1945 impor- Art. shows vital matter of inattention to a resolution of the herein suggestion ‘General is no tance there proper is- involved was directions were the record that the amendment. in absolute made publications sued and all
good faith. If the bond had been sub- issue involved significance We whatsoever attach no mitted as a (3) subdivision measure under respondent relies tabulations Ill, we 1945 Constitution publica- in an defective *15 effort to show that question. have a different How- percentage tions had ever, some effect that method is not made exclusive and amendment. against of votes for cast precedent there is well established for sub- account Many may entered to factors mitting authority for a bond issue a con- figures for results indicated stitutional which adds a new amendment satisfactory stipulated. evi- is no There exception to legislative limitation on publication was dence defective power liability to contract of the state and amend- vote on the cause decreased 37, III, issue bonds Art. therefor. Sec. ment. Const.; 44, IV, 1945 Sec. Art. 1875 Const. This was done times under several stated, stipulation As as to facts shows nothing 1875 Constitution and there is in publication that of the amendment had was 37, Sec. Art. of the 1945 Constitution III newspapers in county in every more prevent it. publications in this city state. presumably of St. Louis conform to the 44, IV, Sec. 1875 Constitution special provision statute. (other authorized renewal bonds than Only in County and in St. Louis Laclede existing occurring of bonds) “on the an County publication paper was deficiency unforeseen emergency, or casual when two All were available. other defects burning of the State revenue”. publication publication the last Capitol held to Building in 1911 was was publica- too in time or that certain late authorizing emergency such an unforeseen tions made in were not consecutive weeks. approval issuance of after bonds We think record shows a sufficient and of an Act of the people compliance directory substantial with these Hadley, 240 purpose. for that Church provisions of the Constitution. L.R.A.,N.S., 680, 8, 145 248. Mo. However, 50th General As- thereafter After careful consideration all the sembly amend- two constitutional submitted presented have reached issues we the con- 44, Art. adding exceptions to Sec. ments election was not invalid for clusion that the Constitution, IV, namely: an amend- urged and of the reasons adding a Sec. 44 subdivision ment fourth adopted. validly amendment dollars authorizing million for bonds of one fund, 1919, p. Laws settlement soldiers’ made Our alternative writ 760, adopted at the elec- which was ordered. peremptory. is so 1921, tion, p. amend- Laws adding 44a to the ment Sec. concur; separate all concur All sixty authorizing million dol- HYDE, opinion of concurring J. system roads, building lars p. adopted was also Laws 1921, p. Laws the 1920 election. 707. HYDE, Judge. amendment, 44a latter This seventy- an additional to authorize amended opinion in all that is said I concur for state high- in bonds Furthermore, million dollars DALTON, five I think C. J. petition and ways, by initiative submitted STAPLES, Sidney Staples Merle Lorraine Laws adopted at the election. Staples, Dependents and Kenneth Highway ex rel. State 453. In State Appellants, (Claimants), 742, 19 Thompson, Commission v. 44a “Section held that S.W.2d we COMPANY, A. P. GREEN FIRE adopted in was an BRICK ; Corporation, Employer 4 of the Constitution” section of article (Defendant), Respondent. and further held al- No. 29604. adopted in 1928 valid Section 44a here that contended as though 'it was Appeals. St. Louis Court of Constitution, 15, 1875 violated Sec. Missouri. proposed providing that “no * * * Dec. 1956. than one sub- more shall contain properly connected there- ject and matters Rehearing Motion for or Transfer with”. Supreme Court Denied Jan. *16 similar amend other There were also exceptions to Sec. adding
ments further IV, and author purposes. Sec.
izing issues for other bond fifteen authorizing bonds for
44b was added I service
million dollars for World War adopt
bonus, 1921, p. Laws which was special August election held
ed at Session, p. Extra 197.
1921. Laws upheld Fahey Hack validity
Its
mann, 752. Sec. 237 S.W. authorizing additional war service
44c by the Cons was submitted
bonus bonds and was 1922-23
titutional Convention February special election
adopted at a held 1925, p. 44d 1924. Laws bonds for mil added to authorize ten repairing,
lion dollars “for rebuilding, repairing,
remodeling or or of
remodeling rebuilding buildings State properties at all or of the elee State,
mosynary penal institutions of this building additions thereto addi necessary.” buildings
tional Laws Session, p.
1933-34 Extra 174. This adopted special elec May upheld
tion held and we its
validity in ex rel. Building Smith,
Commission S.W. ample precedent 27. Thus there
2d exceptions authority adding to the limi
n tations of legislative power to contract lia
bility the State and issue bonds therefor to the Constitution
as the one herein involved.