State Ex Rel. Harry L. Hussman Refrigerator & Supply Co. v. City of St. Louis

I concur in all points discussed in the majority opinion, but on account of conflicting views as to the city's constitutional power to amend its charter it may not be inappropriate to consider a little more fully some points discussed.

I. It is said that the amendments to the Charter of the City of St. Louis, under consideration, are null and void because of the inability of St. Louis to amend the Charter of 1914. This contention is based upon the wording of Section 22,Amendment relating to the original charter adopted by the city,of Charter where it provides that "the charter so ratified" mayof 1914. be amended. The argument is that the expression "so ratified" limits the amendments to the particular charter, originally adopted under Section 20, Article IX, of the Constitution; that the power to amend cannot apply to any subsequent charter, such as the charter of 1914.

Section 22, Article IX, of the Constitution, relating to St. Louis, was repealed, and a new section adopted in 1902. Before that amendment how did the Constitution stand with relation to the first charter as adopted?

Section 22, and the first clause of Section 23, applicable at that time, are as follows:

"Section 22. The charter so ratified may be amended at intervals of not less than two years, by proposals therefor, submitted by the law-making authorities of the city to the qualified voters thereof at a general or special election, held at least sixty days after the publication of such proposals, and accepted by at least three-fifths of the qualified voters voting thereat.

"Section 23. Such charter and amendments shall always be in harmony with, and subject to the Constitution and laws of Missouri, except only, that provision may be made for the graduation of the rate of taxation for city purposes in portions of the city which are added thereto by the proposed enlargement of its boundaries," etc.

Section 22 provided: "The charter so ratified may be amended at intervals of not less than two years."

Here is direct grant of power to amend the charter, not once but as many times as desired, providing that it shall not occur oftener than once in two years.

Then Section 23 provides that such ". . . charter andamendments shall always be in harmony with and subject to the Constitution."

There again it is contemplated that amendments may be more than one, and the continuing power implied in the original grant is reinforced by the use of the word "always." Not once, but every time. There can be no question and it is not suggested, that as the Constitution then stood the people of the city of St. Louis had authority to amend their charter as often as desired, with the limitation mentioned. The method of amendment is provided; it is initiated by the legislative authorities.

Section 22 was amended in 1902, to read, the first part, as follows:

"The charter so ratified may be amended by the proposals therefor submitted by the law-making authorities of the city to the qualified voters thereof, at a general or special election," etc.

Now the argument is that the expression "so ratified" limited the amendment to the original charter adopted by the city. It must be conceded that it had no such effect before the amendment. Then how was it possible for the amendment of 1902 to change the meaning of those words? If, as the Constitution now stands, the charter "so ratified" means only the original charter, it must have meant that when it was adopted. That expression was not given a different meaning by anything in the amendment to Section 22.

The amendment omits the expression "at intervals of not less than two years." How can it be said that that affects the result claimed? Those words contain no grant of power. They were a limitation upon the power granted. "The charter so ratified may be amended," was in the original Section 22, and it is in the amended Section 22. That was the grant of power. The limitation was in the original. Removing the limitation would not weaken the force of the grant, since it appears in the same words in the amendment.

The only difference between the original and the amended Section 22, so far as the power to amend is concerned, is that the limit to once in two years is removed, and the people may amend as often as they please.

In Morrow v. Kansas City, 186 Mo. 675, it was held (l.c. 686), quoting from another case: "The power to frame a charter for themselves is a continuing right vested in the voters of the city, and it does not become exhausted because once exercised."

For the same reason the power to amend a charter, once granted, is a continuing one and is not exhausted by one amendment. In fact, Section 22 provides for "proposals" in the plural.

II. But it is argued that the second clause of the first sentence of Section 22 as amended takes away thatGrant of power to amend because it provides that theAdditional law-making authorities may order an election ofPower. thirteen freeholders to frame a new charter which shall be submitted to the voters.

As Section 22 stood before the amendment of 1902, there was no provision for adopting a new charter. There was only the provision for amendments as quoted above.

It is said that when the first charter was adopted under old Section 22, it was done under conditions in connection with the county which could never occur again, and therefore the power toframe a charter in the first place was not a continuing one, because a different method must thereafter be employed. I do not think that conclusion is sound, but let it be conceded.

The amendment did provide a method for framing a new charter. Already the power to amend was there, and the power to frame a new charter was added. The framers of the amendment doubtless understood the power to amend did not include the power to frame a new charter. Then, how can it be said that a grant of that additional power took away the authority already possessed, when the two are different and do not conflict? It is argued that, because the power to frame a new charter comesPosition after in the power to amend, in the sameConstitutional sentence, the power to amend cannot apply to aAmendment. new charter framed under the latter clause and can apply only to the charter already in existence. Why? An amendment to a statute or constitutional provision usually is placed after the part to which it is added. Here is authority to do two things, and different methods provided for doing them; a new charter framed by thirteen elected freeholders; amendments by proposals submitted by the legislative branch. They exist side by side, each a grant of power which, under the authority of the Morrow case, is continuing. The power to amend applies to any charter in force at the time the amendment is offered.

III. It is further argued that in adopting the charter the people of St. Louis could have provided in theExclusive charter itself the power to amend, but that they didMethod: not do so except by the initiative. Section 1,Initiative. Article V, of the Charter is pointed to. It is as follows:

"Section 1. The people shall have power at their option to propose ordinances, including ordinances proposing amendments to this charter, and to adopt the same at the polls, with the sameeffect as if adopted by the Board of Aldermen and approved by theMayor."

If the people may by the initiative propose amendments to the charter and adopt the same with the same effect as if adopted by the Board of Aldermen, then this is not a distinctive and exclusive method of proposing amendments to the charter. The argument implies that the people may propose amendments and adopt them with greater effect than if proposed by the Board of Aldermen. The people, by initiative, have exactly the same power to propose and adopt ordinances and amendments to the charter that the Board of Aldermen and the Mayor have; and no more.

That expression "the same effect" evidently refers to a power which the freeholders thought the city had, which they had reason to believe they had provided for. Section 1, Article 1, of the Charter, in the enumeration of the city's corporate powers, in item 35, says:

"To exercise all powers granted or not prohibited to it by law, or which it would be competent for this charter to enumerate."

Here the city is granted all the powers not prohibited to it by law. That would include power to amend its charter. It is granted all powers "which it would be competent for this charter to enumerate." It is expressly conceded that in adopting their charter the people had authority to provide for amendments. If it was competent to enumerate such authority in the charter, then the city had such authority as if it were enumerated. It cannot be said that this power expressed in specification number 35, is limited by the initiative provision quoted, because in that provision the power of initiative is put in exactly the same rank as the power exercised by the city authorities. So, it is entirely competent for the city authorities in the usual manner of elections to provide for amendments to the charter as authorized by the charter itself. The freeholders plainly did not intend to surrender a power which it is conceded the city had, to amend, and thus render it helpless to keep abreast of changing conditions. In adopting a charter they did not intend to give the city less power than possessed by other and less pretentious cities. Therefore, the charter-makers of 1914 asserted and retained the right to "exercise all powers . . . not prohibitedto it by law" . . . and, "which it would be competent for thecharter to enumerate."

With that general statement of its powers, unlimited, unless by express provision of the Constitution or some statute as to the character of the amendment, can it be said that the people of the city of St. Louis or the framers of its charter intended to tie up the city to an organic law which might soon become ill adapted to the changing conditions of a progressive community?

IV. The objection to the referendum provisions of the Charter of St. Louis, if sound, would make Section 57, Article IV, of the Constitution apply, not merely in its generalEmergency: spirit and purpose, but in every detail, to theStatutes and passage of every ordinance in every city, town andOrdinances. village in the State. Ah, they say, the attack is upon Section 20, Article IV, of the Charter. But the sole objection to that section of the Charter is that it provides a method of referring ordinances, differing in some details from the method of referring statutes, provided in Section 57, Article IV, of the Constitution. The argument against the charter section ignores the subject with which it deals, the passage of ordinances, the reserved right of the people to vote on ordinances and nothing else; not statutes, nor charteramendments. A solution of the question presented is impossible without keeping that matter in mind. The authorities cited all relate to statutes, and none of them to ordinances.

A subject of this character may be considered in two ways — a small way and a large way; in detail and in its general proportions and relations to other subjects. Both methods are useful here in comparing initiative-referendum provisions of the Charter to similar provisions in the Constitution, to see whether there is a conflict. It must be kept in mind that one deals with statutes and the other deals with ordinances.

In the terms used there is no conflict. "Statute" does not mean "ordinance." "The legislative assembly" does not mean a "city council." No general words are used in Section 57, Article IV, which could make the terms used apply to anything else than statutes, although general terms might have been used. There is no language in Section 57 which shows an intention to make the limitations and reservations therein apply to any enactment whatever except acts of the State Legislature. Thus there is no conflict in the details. Section 57, Article IV, is self-operative. It acts directly upon the original source of legislative power. No city ordinance can be put in force except through some legislative authority. A statute owes its validity to original constitutional sanction; an ordinance depends upon delegated authority for its validity. This distinction is important here, for Section 57 does not authorize any legislation to put the referendum into effect in cities or elsewhere. Authority for such legislation must be found in other sections of the Constitution, as I will presently show. The details in applying Section 57 to the enactment of a statute are wholly inapplicable to an ordinance. In order to make it apply to an ordinance it would have been necessary by some affirmative command to provide a method for it.

Now consider Section 57, Article IV, in its relation to other provisions of the Constitution. A great deal is said about the power inherent in the people which they reserved to themselves through the referendum. The principal concern here is with the power which the people of the State have granted to St. Louis. That city seems to have been a special favorite of the Constitution-makers, for no less than six sections are devoted to the charter which St. Louis might frame and adopt for its government. Those sections provide for certain features in the form of government for the city, but there is no provision requiring the city to include a referendum among its charter features. In framing a charter it could have omitted the referendum altogether. It was required to provide for certain things, but not that. It could put whatever it pleased in the charter, subject only to general laws and constitutional provision relating to the whole State. In the management of purely corporate functions, not governmental in character, it has a free hand.

The power to frame a new charter was granted by the amendment of 1902, and in 1908 the initiative-referendum Section 57 was adopted. If it had been the intention to limit the city as to any features of a charter it should frame, it would have been easy to say so then. No restriction there or elsewhere, then or at any other time, was pronounced, limiting the authority of St. Louis in framing the "fundamental law" for its government, or directing what such charter should or should not contain other than set forth in Sections 20-25, Article IX, of the Constitution. Therefore St. Louis had authority to frame a charter without a limiting referendum. Then, it follows that if the city could leave out the referendum feature altogether, it could adopt a referendum provision and make it apply to such ordinances as it pleased. It could exclude its operation from all matters of strictly municipal concern and make it apply only to police power and matters of State concern, and it was nobody's business outside of St. Louis.

V. Section 7, Article IX, of the Constitution provided that the General Assembly shall provide by general law for theEmergency: organization and classification of cities.Power ofCities.

"And the power of each class shall be defined by generallaws."

The "power" thus to be defined by the Legislature is not limited as to subjects; as to the operation of municipal affairs; as to how ordinances may be put into effect; as to any reservations in the people of the city such as might be provided by the initiative and referendum. Can it be said that the Legislature was vested with more authority in that matter than that possessed by cities organized under special charters? More than was granted to St. Louis directly by the Constitution? On the contrary, all rulings of this court upon the subject declare that the authority to adopt a special charter and the authority of the Legislature to provide for city governments by general law, are equal; one is as broad as the other. What the General Assembly might do for cities organized under the general law, a city organized under a special charter might do for itself under its constitutional sanction.

We have just been over the subject at this term in the Library case, 318 Mo. 870, and the "Zoo" case, 318 Mo. 910. In those cases St. Louis claimed greater authority than other cities possess, and we were obliged to hold it down to equality with them.

The Legislature, in dealing with the subject providing for "powers" invested in each class of cities, has provided initiative-referendum features for some cities and not forothers. For instance, Section 7951, Revised Statutes 1919, provides for the referendum on all ordinances except emergency ordinances, those for the preservation of public peace, health, safety, etc., in cities of the first class. And Section 7990, Revised Statutes 1919, makes a similar provision for cities of the second class.

The real significance of those statutory provisions appears when we find that cities of the third class are of two kinds: those of the third class generally, and those organized under what is termed the alternative form of government. The cities of the general third class are not provided with the referendumprovision anywhere. While cities of the third class which adopt the alternative provision have Section 8393 providing for the referendum. Thus some cities of the same class, according to the particular statute under which they are organized, have referendum provisions and others have not. Cities of the fourth class have no initiative-referendum provisions.

Now the validity of that distinction, the authority of the Legislature to make it, has never been questioned. It could not successfully be questioned, because the Legislature had authority to define the power of each class. "Power" means authority to enact ordinances and put them in operation with or without a referendum.

The necessary inference is that a city organized under a special charter, under its constitutional grants, may provide for a referendum in such terms as the people see fit to adopt.

We are not without authority in support of that proposition. The Charter of Kansas City has a referendum section very similar to the one under consideration here. It provides that an emergency measure, not subject to the referendum, shall be such as is "for the immediate preservation of the public peace, property, health, safety or morals, and "any ordinance fixingany tax rate or assessment: any ordinance relating to any public improvement to be paid for by special assessment." The construction of that provision of the Kansas City Charter came before this court, en banc, in case of State ex rel. Asotsky v. Regan, and the decision is reported in317 Mo. 1216, 298 S.W. 747. The phrase "any ordinance fixing any rate or assessment" was construed. That expression is not found in Section 57, Article IV, of the Constitution. We held that an ordinance passed in pursuance of that provision of the charter was not referable; that it was an emergency measure. Every member of Court en Banc concurred in that opinion and in that construction, except BLAIR, J., not sitting. That case was fully considered and argued at length. There was no fear then that we had departed from previous constructions of Section 57, Article IV, of the Constitution; no suggestion that the Kansas City Charter encroached upon the reserved rights of the people. If that section of the Kansas City Charter is constitutional, the section of the St. Louis Charter under consideration here is constitutional. That ruling was based upon the same decisions of this court which are cited in support of the opposing position here.

As noted above, much has been said regarding the sovereign power residing in the people not granted to the legislative body. The people have the power to amend or abolish their fundamental law, to limit in any manner they please, by a constitutional provision, the authority of the Legislative Assembly. In the initiative-referendum Section 57, the people saw fit to preserve to themselves the right to vote, if they desired, on statutes passed by the General Assembly. That is all the referendum means.

The plenary power possessed by the Legislative Assembly enables it to enact statutes which affect personal and property rights, personal liberty, the functions of the courts, elections of executive, legislative and judicial officers. City ordinances are not in the same class, or of the same rank as statutes. They deal with matters of purely municipal corporate concern, in which the State has no interest, and only incidentally can they affect those important rights dealt with by statutes.

A statute is put in force by original constitutional authority; an ordinance by derivative authority. It has not the force behind it that braces a statute.

Thus, there is sufficient reason for reserving to the people of the State the right to vote on statutes which may concern their fundamental rights. There is no such reason why a city should reserve to its people the right to vote on an ordinance which affects a street cleaning contract, or the uniform of policemen, or the laying of a sidewalk along a block on the south side, or opening a street through a block in the west end; these last two being paid for by local assessment and not by general tax. True, some such ordinances might incidentally touch property rights, but such rights are entirely controlled by statutes and common-law principles, all of which are cognizable by State courts.

The construction contended for here would make Section 57, Article IV, apply to all ordinances. There is no reason, nor authority for such a construction.