*1 Finally, complains defendant argu used in closing the state’s
ment prejudicial. unduly abusive and
He objection concedes that no kind
was made argument, suggests plain
that it constituted error. doWe
agree.
Judgment affirmed. ]., P. HENLEY,
MORGAN, J., con-
cur.
DONNELLY, J., sitting. of Missouri ex rel.
STATE ST. LOUIS FIRE FIGHTERS ASSOCIATION LOCAL NO. 73, AFL-CIO, Unincorporated Associa
tion, al., Respondents, et
.v
George (Respondents et al. STEMMLER Appellants, Mandamus), (Respondent
R. Elliott Scearce Mandamus), (Defendant), of St. Louis Appellant.
No. 57072.
Supreme Court of En Banc.
April 10, 1972. Rehearing
Motions for and Clarifica t ion May 8, Denied
FINCH, Chief Justice. reassign- case, on recent This written a ment, question of whether involves the providing home rule charter amendment firemen shall that salaries for St. corresponding ranks than those of less pay is (whose of St. Louis officers Assembly) the Missouri General hold that it is. constitutional. We Louis is a constitutional St. VI, pursuant operating to Art. §§ 32(a) 32(b), of Constitution Missouri.1 authorize the Those charter, subject to amend or revise its only requirement that such charter harmony subject be in with and its Constitution Missouri and laws interest matters and statewide limitations, the such Subject concern. organic law city’s home rule is the City of St. —its Sanders v. constitution. Louis, Mo., 303 I, Louis Charter 1(20), Art. § “To and main- authorizes XVIII, department,” tain fire § Art. of al- provides that the board thereof 4(a) adopt plan dermen shall employees in the fixing rates of for (including firemen) classified service com- civil service recommendation of the mission. September
At election held on approved an the voters added amendment Art. XVIII which pro- That new section new thereto. that, pro- notwithstanding any other vided ordinances, Bollato, visions of the charter or Goffstein, Marshall & Bartley, Goffstein, positions designated ranks and Bartley, H. H. William John Department Fire employees of respondents. Clayton, for date the effective after from and “shall Walther, & Shewmaker Thompson, less than not be thereafter this section and Shewmaker, Gaebe, Richard D. the said provided by law the salaries Stemmier, Cummings and appellants ranks and corresponding equivalent City Louis. of St. Gould police force positions of officials The amendment Counselor, Louis.” City Wilson, City Sal- Aaron A. cor- were Counselor, specifying what table set forth a Mumma, Associate mon B. departments. two responding ranks amicus curiae. Missouri, 1945,V.A.M.S. Constitution references are 1. All constitutional legislative body may char- tion that a not abdi- the above approval After voter delegate legislative power. cate or its amendment, commis- the civil service ter However, pertinent is not proposed rule because meeting concerning a sion held reviewing válidity In we are firemen. compensation ordinance legislative body. Instead, we action of a adopted 31 of newly spite of the *3 dealing constitutionality are with the an XVIII, an of recommended the commission city amendment to the charter and must for fire- containing levels ordinance question the people decide of whether the were lower men some instances which right adopt of St. Louis the that cor- had than those for (and higher) in others thereby provide the amendment and in their police positions as listed responding that cer- (their law) charter fundamental of alder-' The board charter amendment. ordinance, tain thereaf- mínimums should be observed adopted men this recommended in,the ter of of their 1, effective November city firemen. sought herein relators Thereupon the declaratory judg- I) and (Count mandamus ne question A consideration of this proceeding. in this II) (Count ment relief recognition cessitates a of the basic fact rep- individually and as sought act They people that the themselves are the source S2.08, under Rule class resentatives of a , Their, governmental of is power. all will granted court trial summa- V.A.M.R. supreme. spell They in their out constitu relators, holding of ry in favor judgment government tion what form their shall take di- valid and the charter amendment to be Hence, and what it shall have.3 that the civil recting mandamus by writ of people when the the of Missouri of State ordi- recommend service commission constitution, may they write or amend their not receive whereby firemen would nance desire, any provision they insert therein corresponding less than the subject only limitation that it must city Both the police ranks force. of h restrictions violate whic service com- and the of the civil members imposed have themselves and on the. on. appealed. have mission by states which have writ ten into the federal constitution.4 appellants is The first contention police since of officers salaries question of When we turn to the general as by the are fixed of St. Louis St; may provided in what Missouri,2 the amend sembly of charter charter, home rule we find that assembly, general rath results in the ment the, Missouri, by provisions of written into aldermen, fixing er than the board of VI, '31, 32(a) (Art. state constitution §§ This, city’s compensation of the firemen. have said that the 32(b)), at an unconstitutional they say, constitutes their own charter for St. Louis write legis tempted delegation of its city government. only restric compensa responsibility lative to fix the grant tions stated tion of its firemen. power subject to charter is such Missouri and to laws constitution state brief cite numerous Appellants in their general concern. interest statewide general proposi- cases which announce Oity political provides as follows: “That officers 2. The salaries power and derived from vested in the State determined .the Louis are is. orig- right government people; that all as- of Missouri sembly. Chap. 84, upon people, Y.A.M.S., particular- is founded nates solely only, 84.160; and is instituted ly Ma- their will Hawes v. ex rel. State § good 524; of the whole.” son, ex 54 S.W. Gunn, Mo., S.W.2d 314. rel. Priest v. I, of Missouri.' Constitution 4.Art. I, recognized in Art. 3. This fact Missouri, Constitution followed, this litigation which In the course, although expressed Of constitution, court held that implicit Missouri mandatory, constitution, charter, may amendment like the state accept or either board of aldermen could by the fed- imposed not violate restrictions the commis reject recommendation of Subject only the fore- eral constitution. sion, change it. In so hold could not limitations, going said, 392: l.c. the court VI, 32(b), ing, 32(a) §§ of a fundamental “Granting that pow- granted for various and rates of wage policy amend er and to their own to write legislative func positions ordinarily a therein kind of tion, through still government want. charter, may properly an amendment pro- We know of no state constitutional *4 power impose legislative limitation on the a any vision state law interest or of permit fixing only the rates on to such of says a or which statewide concern the commission.” the recommendation of rule charter Missouri constitutional home Subsequently, the (Emphasis supplied.) compensation city the must leave matter of opinion recognized specifically that the entirely its employees or to city officials legislative power board of aldermen the legislative body or (board aldermen imposed in the subject to limitations a council), city that such cannot have or charter effect of the civil the provision expressly charter either commission amendment was that service or, pay persons the in amount of of such the could not salaries without aldermen fix alternative, the imposing in the limitations civil service the recommendation of the legislative guidelines form of which the change and they commission could not body in fixing pay. must follow As a such This, the recommendations. court those fact, Kirby matter of this in court et al. said, 393, 173 l.c. “does not violate S.W. 525, Nolte, 391, Mo. 351 173 ex- Constitution, di Article III of the which pressly recognized that St. Louis the government into vides city write into charter provisions its departments.” legislative, judicial executive and limited its board of aldermen in func- their 5 compensation tion em- city for ployees. recognition power The had same St. Louis This adopted an amendment their themselves to constitution- city to write establishing respect compensating a civil to service commission al appears prepare employees which was in to a classification and and the basis thereof compensation plan in oth- providing rates of court two used this city employees classified Rothrum v. Dar- er cases. In State ex rel. 1002, service. That charter rela- provided by, 345 Mo. 137 S.W.2d city plan compel a sought by when such drafted mandamus to was tor salary due for pay money commission submitted to the to claimed board to aldermen, plan department. was Un- adopted by to of the fire as a member city City ordinance. coun- provi- Pursuant to that charter der the Kansas charter the sion, prepared the commission and the relator and submit- cil fix salaries was to ted plan, pass- board his sought of aldermen to recover ed city on the ordinance salaries defended established council. agreement specified which differed from between the those basis of an proposed plan. em- manager department civil service fire nicipal governments.” Subsequently, inf. In State ex McKittrick ex rel. Ham Kirby, applicable, held that even if 163 S.W.2d court 990, 996, the court is to be service commission amendment “It civil said: however, doubted, Louis charter did violate whether the restrictions the St. any application of Article 3 have to mu- doctrine. states, many
ployees pay. deductions from their various cases other permitted legislative rather The fireman recover be- which relate change, charter his than and hence do cause However, legislative govern cited was a matter. even not this One case situation. though the case did not involve a charter which does involve amendment of provision power ex Everett limiting legislative rel. pay, Hyde, discussing Fighters fix rates of Fire Local Judge Johnson, No. 350 v. said,' matters, 662. It involved who should determine such Wash.2d 278 P.2d whereby pro- charter amendment it was 137 S.W.2d 536: offices and l.c. “Public positions vided if of Everett and its belong and not to wages, upon agree firemen appointive were officers whom confer unable conditions, pensions power. working 377-379, those R.C.L. 9-11. secs. qualifications, tenure, questions compulso- compensa- submitted to ry guidelines tion thereof be determined arbitration. No standards must were The Su- will lose control of kind established. preme pro- government. Washington be done Court held This must representatives vision unconstitutional. The re- people have autho- court them, legislature plac- act ferred rized to statute of unless ing legislative powers themselves cities these matters certain determined *5 ap- mayor and and by into the council held writing them Constitution. If plicable City though to the people thus of Everett even have not themselves deter- them, that city was under char- operating then under Constitution its own mined our ter. fixing The court held that of theory government, legis- and these of wages legis- powers. municipal employees of was a Exchange lative of Merchants’ function, Knott, lative statute St. Louis v. and view of the S.W. 565; Throop’s Officers, people neither the council nor the had the Public secs. right right and confer the else. 443-444.” on someone (Emphasis supplied.) distinguishes That the Everett case Clouse, Springfield of 356 Mo. appli- situation here where we no find 1239, 1251, 539, 545, appears 206 S.W.2d general cable state statute of or interest language: this “This true because the statewide concern. qualifications, whole matter of ten- Applying principle ure, compensation working and conditions may compensation themselves determine of public any service, involves the exer- serving government by those them in con- powers. Except cise legislative to the provision, seems stitutional clear that the extent that all the have themselves people of Missouri amend our state could any by settled these matters writing provide salary constitution to that the them into the Constitution, must be governor say shall be a fixed sum of determined representatives their chosen $50,000 per year. Determination of the legislative body. who constitute the is a It governor’s salary then would cease be principle familiar of constitutional law that legislative question. It also is clear legislature legisla- cannot delegate its could write into our constitution any tive attempted delegation and (cid:127) governor that the shall same receive the (Emphasis thereof is supplied.) void.” salary as the United- President States, perhaps salary, find no con- or We Missouri case which we half or philosophy percentage sider to be in such conflict with the other thereof as the might that the into elect to themselves write write into the constitution. token, By the their basic law such or restric- same respect fixing compen- may- tions with to the could write into their charter that the or sation of employees specified officials as St. Louis shall receive a charter,' adopt. Appellants salary rely desire named in cite and or that he said, gover validly shall Nor contended receive as can as same by respondents, provision nor of state. There be various that the charter reasons, as pride specifying such to make rates as minimum or desire delegated particularly attractive, office firemen means that the has (cid:127) general assembly would dictate None of to the job such decisions. these hypothetical provisions, firemen, Art. when written violation of peo VI, into the constitution action of the of the Missouri. Constitution of ple, section, delegation says would be a That or abdication of that “No law legislative authority. part They creating shall be enacted or of the city’s powers, any state’s or basic law written duties or mu- nicipal into their employment, any city constitution or or office Supreme the people framing adopting themselves. As charter under or its own constitution, Court Nebraska any previous said ex rel. or Weston; 216, 219, Roberts v. 4 Neb. in a employments such offices or heretofore involving payment attorney created shall cease at end of the terms general incumbents,” provision of any present is a limitation provided on general which established his office affirmative action as- instance, his salary, “But, sembly. the amount of the first In this as- day sembly of November it became constitution has not undertaken do office, incumbent, al things. require the tenure of the these It sought has not his made in compensation, hired, well as were firemen of, dependent beyond placed the reach duties, compensation. fix their legislature, on the and now rest sol nothing to general assembly done vio- has fundation, protection,, id Instead, and are-under the VI, people of late paramount amendment, law.” de- *6 firemen as they that their termined want necessarily It follows that the paid policemen city. well in the as validly they St. could do did Louis what that, under our rather unusual The fact . they when amended their with re- setup pay here in spect compensation to the for general as- policemen Louis is their city Kirby The case settles firemen. sembly instead civil question. Under the charter as amend- aldermen, and board of service commission 1970, 15, service September ed civil people of does that when the not mean the same exactly follow commission will pay provide equal want that procedure and this court considered general employees, the .these two classes of approved Kirby, except that the its will assembly imposing is 15, 1970, September amendment by the respect pay The firemen. minimum below which established voluntarily have of St. Louis may paid. Subject to the firemen not be this amended their charter and established limitation, commission that the civil service standard, it determination is the rates conclude may propose whatever Louis, not the assem- of St. appropriate recommendation and the bly, paid being in firemen not that results goes, Kirby, then to the aldermen for as policemen. less than the salaries rej ection. enactment course, change any amend this at time amend- hold that the charter further We September sage- 1970,is not in ment their charter. As this Court adopted ment delegation legisla ly Kirby, l.c. valid 173 S.W.2d 393: improper as an observed change may their responsibility, long tive and that does not vio “So as will, requirement government by their own any late constitutional relative charter of separation subject powers. only self-imposed restrictions 462 constitution, definitely. something appear Already, year does not over a ap- political liberty that and a half passed
us
merits the
has
and there still is no
prehension expressed.”
implementing
ordinance
the charter amend-
ment.
is
judgment,
our
not what
provision
that
does
We rule
this charter
says
amendment
or means
what
VI,
not
Article
violate
of the Mis-
people contemplated.
souri Constitution.
It
is
true that
appellants’
We next
reach
contention
indicates
amendment
that
the commission
amendment,
valid,
if
may
recommend and the aldermen
self-enforcing
firemen could
police-
salaries which exceed those of
not be entitled to increased
thereunder
men,
contemplates
and hence it
that ordi-
until
so
such time as the board
aldermen
nances may and no
be adopted.
doubt will
provided pursuant
ordinance
recom-
However,
prescribed
as to the
minimum
mendation by the civil service commission.
compensation, neither the
nor
commission
permitted
the aldermen are
discretion.
is
It well established that consti
mandatory
mínimums are
immedi-
provisions may
self-executing.
tutional
ate,
consequently
hold that
we
City,
State ex
335
rel. Emerson v. Mound
portion of
self-
the charter
1017;
v.
73 S.W.2d
Kitchin
enforcing.
Wood, 154 N.C.
not be
parties
those
nothing
the rule is to be construed
suit.
so as to
and
rights
affect
liabilities of
II
insist
Count
R’elato.rs
give
union to sue or
sued
relators
action, citing particu-
class
maintained as a
herein
right
maintain this suit as
Thatch,
larly
ex rel. Allai
361 Mo.
class action.
the section of the
Thatch
plus the sentence Rule-
234 S.W.2d
which,
predecessor Rule
statute
was the
says, “Nothing in
(3)
52.08(a)
meaning
simply
52.08 was construed as
rights
shall be
Rule
construed to‘affect
adoption
did
the statute
or liabilities "of labor
sue or be
unions to
change
rights
unions so far
sued.”
suing
being
sued as
existed before
holding,
-the
In so
statute was enacted.
mining company
In Thatch a
constructed
said,
court
8:
Thatch concerted action involved 634, L.Ed. 555.” prevent S.Ct. its -members the union and SEILER, separate brought II dissents in J., Relators Count for declarato- dissent- capacities ing opinion ry judgment in individual filed. attempted Indi-
as well class action. vidually, they a construction of seek BARDGETT, dis- JJ., and HOLMAN pass- the ordinance charter and separate dissenting sent and concur in thereunder, ed do claim and state a SEILER, opinion of J. It, relief. declaratory for Rule 87 therefore, proper SEILER, court was trial (dissenting). Justice amendment and construe dissent, I respectfully because do not I valid, not though hold the suit was even believe the can consti- a class action. In their maintainable as tutionally foreign turn to a body over facts, agreed ex- parties all statement of fixing of minimum salaries for its fire- case, pressed deciding in hope that men.1 constitutionality validity The majority opinion principally relies That charter amendment would settled. Nolte, banc, Kirby accomplished. has been 391, saying question. it settles the This marked overlooks the differences be- conclusion, In we hold the charter Kirby tween in the situation IS, 1970, is September amendment of con- present Kirby, the im- case. In limitation portion and that the stitutional valid posed on the board of aldermen as to sala- from providing thereof and after that ries for employees the form of paid po- date firemen shall be not less than a recommendation from a local civil serv- corresponding licemen ranks self-exe- commission, ice not an mini- unalterable cuting. conclusion, view of this writ In body mum set by an outside over which the directing mandamus service civil citizens of Louis had no control. In to recommend an ordinance commission my opinion, Kirby specifying minimum in ac- quoted opinion page majority 459 of the cordance with charter amendment cannot properly be read to authorize However, recognize necessary. we radically charter amendment which is as may the commission recommend different as this is what was before compensa- aldermen Kirby the court in the case. It is true that higher tion in which is than some instances the effect of Kirby case the civil corresponding ranks service commission amendment was that situation, no In of that view force. to acting aldermen were limited on the or- doubt and will recommend an can recommendation of the But commission. conformity which will be dinance compared the court it to other limitations require. what the charter we held in the St. Louis where the board only upon aldermen act recommenda- judgment reversed remanded public tions of the Louis board of serv- with directions to the trial court to enter instances, ice in or the some judgment in accordance with the views board apportionment estimate and expressed. herein others. in- The court found twelve such charter, involving stances in local DONNELLY, boards or and said these did HEN- commissions MORGAN and LEY, powers. separation violate the JJ., concur. *9 way many police approximately them. 1. cities have other There are 2225 of paid police is What are St. Louis Louis and about mem the ficers St. 1100 department. and what the the state bers of the fire determined city. least, Perhaps understanding paid At the firemen are would aid to point historically the until the ease has has been out that St. Louis consideration. now under not had and firemen in the same
465 instance, the to a every city of the second class and other these boards or commis- mayor city. appointed home rule sions were either the The or made elected up of officials. prob- pointed been out that “The It has therefore, people, could make themselves re- delegation powers the of is a lem of through heard and felt their elected offi- the finement of the doctrine of broader cers, and, importantly, board of most the department of separation powers. of If a required accept aldermen the was not to powers beyond government cannot assume recommendation of the It commission. sphere,’ department 'proper then a of the reject any Thus in recommendation. or government cannot divest itself another practice the people of the St. Louis or department power delegat- its proper of deprived board of had aldermen not been power a third ing transferring or the to power of to exercise effective control over Sutherland, Statutory department ...” municipal salaries. Construction, at p. In the case Ch. powers Louis, under one of the bar of St. us, But in the charter amendment before I, pro- “To charter, 1(20), is its Sec. body, an outside over which the its or department.” fire and maintain control, vide people have designat- no has been setting the sala- requires Necessarily firemen, ed set the salary to floor for the raising the as well ries of the firemen as accept which the must and somehow setting of the money It is pay. them. Niether the civil commission service people of salary St. floor which nor the board any of aldermen choice have attempting divest foist except are accept Louis minimum rate for legislature. Louis firemen whatever the assembly sets as the rate for the St. frequent makes majority opinion The police. purpose intent and of obvious being people of the to the will reference the charter amendment that the function compares the charter amend- supreme and salary of floor for the St. example hypothetical before us to a ment legisla- performed firemen will be people the state Missouri to reality ture. We would be blind hot to amendment estab- adopting know that have general assembly will salary per- governor at a lishing the do, do, legis- job will the actual salary centage of whatever is of lating, complete hearings, pressures, No such an amendment President. doubt lobbying, on minimum some valid, though in ef- it would would even every passes firemen 1100 time it on sala- Congress turn over fect police. ries for legislature some 2225 governor. might It vio- minimum, will set but Louis will concept, separation powers late the pay. to find money the state people nonetheless the power acting, and is su- The charter amendment us is a since before only if example vesting power preme, classic their action would be invalid without imposing responsibility. also constitution. It violates it violated federal powers do distribution of clause and I But this does not mean Kirby way believe the au- sense, supreme in the same Louis are attempted thorizes what being here. before us the charter amendment opinion adopted dis it was majority While does not valid because somehow matter, upon cuss the a vote of the Louis. it cites relies both banc, Clouse, of Springfield v. the state of Unlike subject ex rel. to Art. of St. Constitution, Darby, II, Rothrum v. 345 Mo. 137 S. what the applied might separation Missouri able to do about W.2d municipalities, governor’s salary to a not mean clause to one does *10 ”. The afore- to so . . salary the council do Louis decide to set could St. XI, of, Washington 10 of the salary is said Art. Sec. mayor at whatever Tulsa, the same constitution contains say, mayor Chicago, or or the being Missouri, “consistent about a home rule more governor of Kansas subject to the Constitution Louis, just with and people of be- than could the St. our own constitutional of the state” as people, validly amend laws cause are the at the provisions did home rule charter one-man dic- their charter to for a involved, Everett case times so the ex- here government. tator All these form point. closely in amples violating be invalid state separation clause of the Louis cannot exist without a fire de- constitution. must, partment. under the practice it amendment, fire- whatever ex majority opinion mentions State through the men’s minimum is established Fighters rel. Everett Fire Local No. 350 po- legislature setting action of the Johnson, P.2d 46 Wash.2d exposes lice salaries. This Louis to a charter which held unconstitutional having cripple ability of risk of agency the giving an outside protect department fire the citizens firemen, right because to set reducing city by crippling its size or responsibility be- was an abdication of having wages above its pay minimum city yond power people of the ability pay, by mini- reason majority city or its council to make. else, mum set someone over which opinion distinguish- says the Everett case control, although being has no veto or re- wages munici- able because the money pay for sponsible raising function pal employees legislative was a it. I do not believe the voters statute which Washington had a adopt charter amend- constitutionally can city mayor and legislative power puts position. in this ment which council, peo- neither the council nor so ple by initiative charter amendment right to fix the
confer on someone else firemen, municipal
salaries in Missouri.
there is no such statute
However, the rationale of the Everett opposite for an that of calls outcome majority opinion, because Art. II of CARPENTER, Leroy Appellant, constitution, establishing Missouri
separation powers, legislative confides be- power department in of Missouri, STATE Respondent. longs a home rule charter (in No. 56782. when means the council or in the Supreme Court of oper- they legislate popular vote) and Division 2.No. prohibit (as effectively ates to as the 8,May Washington statute) council of St. Louis from
turning the legislative function of
minimum for the salaries St. Louis firemen body.
over to an outside third As said
in Everett at P.2d 1. c. 666: “If the legal right (sic)
council had no so abdi- matter, responsibility
cate its in this right, under of Everett had no
XI, require 10 of the state constitution to