State Ex Inf. Attorney-General v. Maitland

*346 GRAVES, J. After the rejection of one opinion this case has fallen to me for disposition. Quo Warranto ex informations the Attorney General, at the relation of one Callaghan. The respondents, Maitland, Edwards, Rotchschild and Bryant, claim to be what is known as the Water Commissioners of Kansas City. By this action it is charged that these parties as the so-called Water Commission of Kansas City, or Water Commissioners of Kansas City, have usurped and exercised powers not granted to them by authority of law, and ouster is prayed. In 1921 two amendments to the Kansas City Charter were proposed, and by ordinance submitted to the *347 voters of the city. The real purpose of the present action is to test the validity of one of these amendments here challenged. Its validity is not only challenged upon the ground that it was not legally submitted and adopted,, but that the very essence and substance of the so:ealled amendment, did violence to well fixed constitutional and legal provisions. By this Amendment No. 1. (which was,one of the two submitted) Article XI of the existing charter was repealed, and instead two new Articles were proposed (Article XI and Article XI-A), and by said proposed Article XI a department of city government known as the Water Commission was created, defendants by name were designated as the members of such commission, their salaries and their terms of office fixed, as well as provision made for succession in office. It granted to them the unusual power of eminent domain, the power to fix water rates, the control over the receipts and disbursements of the department. In fact, it placed the waterworks of the City beyond the control, of the legislative or executive departments of the city. We hope not to make our language too strong, but a reading of the particular alleged charter provision is sufficient to cause one who has deep faith in constitutional and fundamental law “to stop, look, and listen,” if we may be permitted to borrow the language of the law of negligence in a case like the one now under consideration. We shall not undertake to here detail all the provisions of the proposed Article XI. Article XI-A created a fire department, under the executive branch of the city government. Both of these matters were submitted to the voters in a single ballot in this form: “Charter Amendment Ballot. “Charter Amendment No. 1. “The proposed Amendment to the Charter oí Kansas City, Missouri, by repealing Article XI of said charter and adopting two new articles, in lieu of said Article XI, to be known as Article XI, with Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20, and Article XI-A with Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11, relating to the establishment of a Water Commission, prescribing the powers and duties thereof, and providing *348 for a water worlcs system, and to tlie establishment of a Board of Fire Commissioners, prescribing the powers and duties thereof, and providing for a fire department system. , “Yes No.” In addition to the creation of two distinct departments of the city by the use of a single ballot, the same ballot was made to elect the four respondents by name, as the Water Commission, or Water Commissioners, if such ballot was affirmatively voted. The urged defects both in adoption and substance can best be stated in the opinion in the disposition of the point's made. After the pleadings upon both sides were in, the issues were made by motion for judgment upon the pleadings. In the situation we have issues of law only. I. There are some things, apparent upon the face of this alleged charter Amendment No. 1 (we are not concerned with Amendment 2), which may not be specifically raised in the briefs, but may be covered by the broad issues of the pleadings. Some of those things are' so far reaching as to deserve note in any opinion written in the case. This amendment at least creates a separate department of the city government. In Section 8 it is said, upon the matter of acquiring property by condemnation, as follows: “The commission shall have full charge . . . of the acquisition and establishment by . . . condemnation ... of all property for the waterworks system or any part thereof or appurtenances thereto, except as provided in Section 2, Art. XI-A, of the charter as here amended.” It is true that Section 15 says that the commission shall proceed in the name of the city, but this does not answer the real trouble with these provisions as to condemnation. The State, by Constitution or laws,' can commit the delicate matter of condemnation to the city, but in such instance the city through its legislative power’ selects and designates the property to be condemned. Not so under this charter. The commission selects and designates the property to be condemned, and proceeds *349 in the name of the city to do so. The State grants this right and power of selection to the .city, and not to any particular department of the city. Theretofore it has been (and we think rightfully) exercised through the legislative department (Sec. 1, Art. VI, K. C. Charter of 1908), hut under this charter amendment the right delegated by the State to the city has been re-delegated to the commission. The grant of power to condemn comes from the State to the city by and through the constitutional provisions authorizing the framing of a charter, hut we emphasize that it is a grant or delegation of power to the city, and not to any board or commission of the city. The right to condemn has been properly classed as a legislative function. The grant may he in general terms, as when the Legislature gives power to corporations to condemn private property for a public use, or it may be in specific terms, as where by ordinance a city directs the condemnation of specific property for a specified public purpose. But in either event it is a right coming through the legislative branch of the government. The city acquired its right to deal with the subject from the State, as above indicated, but we have most serious doubt of the right of the city by either charter or ordinance to re-delegate this power to a commission. We mean the power to determine upon and select the property to be condemned. Again this alleged charter provision authorizes this commission to fix water rates for the public consumers of the city. [Sec. 10 of Amendment.] This is a purely legislative function. [3 Dillon on Municipal Corporations '(5 Ed.) sec. 1303, p. 2133.] It is there said: “A further instance of the exercise of legislative authority in dealing with public service corporations is the exercise by a city of delegated authority to regulate the rates to be charged to the municipality and individual consumers for water or light. Such power is clearly legislative and governmental in its character, being intended for the prevention of abuses; and in the exercise *350 of the power it is impossible to regard the municipality as acting in a private and proprietary capacity.” By this amendment of the charter the legislative function of fixing rates is conferred upon the commission, which is again the re-delegation of legislative powers and functions. Not only so, but if this commission has this right its action is not even reviewable by the Public Service Commission. [Laws 1917, p. 433.] Other suggestions might be made, but these suffice on this point. II. The first question argued fully,in the briefs is as to whether or not the notice of the election was sufficiently published, and correlated matters. New Section 16 of Article IX of the Constitution, adopted November 2nd, 1920, has reference solelv to the framing (by a charter commission of 13) and the adopting of a new charter. It has no reference whatever to amendments to an existing charter. This Section 16 provides for notice as follows: “The notice for any election provided for in this section shall be published for at least three weeks in at least one neiuspaper printed in such city', which newspaper shall have a bona-fide sale or circulation in such city of at least two thousand copies of each issue, in which such notice is published, and which newspaper has been published continuously for fifty-two weeks next before the publication of such notice, such publication of such notice to be made at least once each week and on the same day of the week in each of said three weeks, and the last publication to be within two weeks of the date of such election.” Strictly speaking this provision as to notice has no reference to an election such as was held. It has reference to an election held to adopt or reject a full charter, framed by a charter commission of thirteen citizens. It does not squint at an election held to amend an existing charter. *351 Nor does new Section 17 of the Constitution (Laws 1921, p. 702) apply to this election. The charter being amended was one adopted in 1908. New Sections 16 and 17 were not adopted until November 2,- 1920, and could not become and be a part “of this Constitution” until after that date. We quote the term “of this Constitution” because strictly speaking new Section 17 might be construed to refer to charter adopted after November 2nd, 1920. This because new Section 16, referred to in the first two lines of the new Section 17, was not a part “of this Constitution” until November 2nd, 1920. New Section 17 says, as to amendments: “Amendments of any charter framed and adopted under the authority of Section 16 of Article IX of this Constitution may he submitted to the electors by a charter commission in the manner provided for the submission of a complete charter. Amendments may also be proposed by the legislative authority of the city or by a petition of not less than ten per cent of the qualified voters of the city, filed with the board of election commissioners, or officials having charge of municipal elections in such city, setting forth such proposed amendment. ’ ’ The charter adopted in 1908 was not one adopted “under the authority of Section 16 of Article IX of this Constitution” if the word “this” be construed to mean and refer to the Constitution as it stood after November 2nd, 1920. It is therefore a serious question as to whether or not any previously adopted charter is .covered by this Section 17. The word “this” is used in the Constitution as amended, and not in the original instrument. In fact this Section 17 appears as a new section and has no reference to the subject contained in old Section 17 of the Constitution, which was repealed. The subjects covered by the old and new Section 17 are entirely different. So different that we doubt whether the people of the State would have repealed old Section 17, had they really been advised as to subject-matter *352 covered by it. But be this as it may be, we proceed to get the construction to be given to this new Section 17, when considered along with new Section 16. Section 16, now in the Constitution, is radically different from old Section 16, if this fact be material. The real point is whether or not new Section 17, which is the only one dealing with amendments, has any reference to previously adopted charters. We think not. By its very terms it limits its force and effect to charters adopted under new Section 16, as is clearly shown by the use of the words “this Constitution.” It could have no reference to charters adopted under the Constitution prior to the Amendment of November 2nd, 1920. As to such previous charters, it would seem to leave them to be amended in the manner and form prescribed therein. The manner for amending the charter of 1908 is prescribed in Section 34 of Article 18 thereof. It is not an unreasonable construction of new Sections 16 and 17, adopted as one amendment to the Constitution, to say that the people intended (1) that new charters should be thereafter adopted as in new Section 16 prescribed, and (2) that new charters so adopted should be thereafter amended as in said new Section 17 provided. In fact, the language used forces us to the construction that the amendments referred to in new Section 17 have reference solely to amendments to charters 'which were adopted under new Section 16, and not to previously adopted charters. As to previously adopted charters it could well be said, and we believe that it should be said, that these new constitutional provisions left them to be amended in manner and form as in such old charters provided. Otherwise we would give no heed to the peculiar words used in the first few lines of new Section 17, set out hereinabove. If this be the true construction, then the whole proceeding involved in this case is void. It would have been much easier for the Constitution-makers to have used language to cover all charters, rather than to have made the designa *353 tion which they did, i. e. “Amendments of any charter passed and adopted under the authority of Section 16 of Article IX of this. Constitution, ’ ’ etc. This construction would render the notice in this case void, because under such construction the notice should measure up to the terms of Section 34 of Article 18 of the Charter of 1908. III. The foregoing is sufficient to determine the question of notice, but we go a step further in the matter. New Section 17 prescribed no'requirements for notice except by reference of new Section 16. That portion of new Section 16 with reference to notice we have set out supra. By Section 34, Article 18, of the charter of 1908 it is provided: “This charter may be amended at any time by a proposal therefor made by the law-making authorities of the city, published for at least thirty days in three newspapers of the largest circulation in the city, one of which shall be a newspaper printed in the German language, and accepted- by three-fifths of the qualified voters of the city voting at a general or special election. The city may, by ordinance, subject to all laws, provide as to the form of submitting to such voters at any election any proposed amendment, and for ascertaining the results of the election on such proposed amendment, and making proper record of the fact.” If this charter provision in so far as it goes to the notice to be given is not repealed by reason of the adoption of new Sections 16 and 17 of Article IX of the Constitution on November 2nd, 1920, then it was in force and effect at the date of this election, and its terms should have been followed, and there is no substantial claim that they were followed. There is no express repeal, and if this section of the old charter has been nullified by the amendment to the Constitution on November 2nd, 1920, it is because there is conflict between the two pro *354 visions. Let ns see if there is conflict. Under the new Section 16 of the Constitution, the notice must he published “at least three weeks in at least one paper, . . . the last publication to be within two weeks of the date of the election.” As to length of time and the number of papers this provision only fixes a minimum. If the notice required by Section 34 of Article 18 provided for a notice below this minimum, then there would be conflict, and the charter provision would have to yield to the constitutional provisions. The fixing of these minimums, however, did not prevent the city from giving longer and fuller notice of such an election. The language used in fixing these minimums impliedly permits longer publication, and more voluminous publication. ' [Pitman v. Drabelle, 267 Mo. l. c. 87.] The term “within two weeks'’ fixes a maximum time from the last publication to the day of the election. Does the charter provision, Section 34 of Article 18, conflict? As to time of publication the charter says thirty days, which is longer, and not less than three weeks. As to number of papers, the charter provides for three or a greater publication, which is more publication than the minimum required. As to frequency of the publication the charter provides that it shall be “published for at least thirty days” which is simply more than the minimum fixed in new Section 16 of the Constitution which is “at least once each week.” We are cited to the case of Southworth v. Mayor of Glasgow, 232 Mo. 108, which opinion was a product of the writer. The language used in this charter is very different from the language used in the Glasgow Case. This charter says that the notice must be published “for at least thirty days,” whilst the statute we construed in the Glasgow Case said “not less ‘than fifteen days’ previous notice shall be given by publication in some' newspaper.” There is a vast difference between a law which says that a notice shall be published “for thirty days” and the language of the statute in the Glasgow *355 Case. The latter is satisfied by one publication, the former is not. Had this charter required “thirty days’ notice” as did the statute in the Glasgow Case, the cases would be parallel. The charter not only dealt with the length of the notice, but the frequency of its publication. The statute did not deal with the frequency of publication. In this case the Constitution deals with mínimums in the matters above discussed, and a conflict does not follow merely because the charter exceeds these minimums. This is clearly the rule in Pitman v. Drabelle, 267 Mo. l. c. 87. So that upon the matter of notice there is no conflict between the charter provision and new Section 16 of the Constitution. The charter covers all the mínimums mentioned in the Constitution, and simply going beyond these minimums does not make such conflict as to destroy the charter as to notice. So that beyond what we have said in paragraph two of this opinion, it should be further ruled that the charter provision (See. 34, Art. 18) as to notice was in force. As to the maximum time between the last publication and the day of election, the charter is silent and there would not necessarily be a conflict, although the election should have been held, and was held within said maximum. These views likewise determine this case. IV. It is suggested in a supplemental brief that even if the charter provision (Sec. 34, Art. 18 ) was not repealed by the provisions of new Sections 16 and 17 of the Constitution, it was repealed by the Act of July 14th, 1921. [Laws 1921 (Extra Sess.) pp. 110 and 111.] The trouble with this contention is that the notice in this case was begun before these laws became effective. They did not become effective until November 2nd, 1921. The notice began September 28th. [Laws 1921 (Extra Sess.) p. 201.] It is true that there was a purported emergency clause to this Act of July 14th, 1921, but whether the acts falls within the “peace, health and safety” clause of *356 the Constitution has been.declared a judicial question in this State. The court, from the context of the act, determines whether or not it falls within the exception of the constitutional provision. [State ex rel. v. Becker, 233 S. W. 641.] This Act of July 14th, 1921, on its face merely repeals five sections of Chapter 72, Art. XVIII, of the Revised Statutes of 1919, and enacted two new sections in lieu of two óf the five sections. The first new section (Sec. 8854) authorized cities of 100,000, or more, to adopt a new charter under new Sections 16 and 17 of the Constitution as amended November 2nd, 1920. Such a law does not cover such an emergency as is contemplated by the exception as to the “peace, health and safety” as found in Section 57 of Article IV of the Constitution. The other new section (Sec. 8855) merely provides for the required notice in such elections and comes no nearer falling within the constitutional exception than does said Section 8854, supra. The emergency clause to this act does violence to the constitutional provision, and is void. [See Becker’s Case, supra.] With the emergency clause void, the act could not become effective before the 2d day of November, 1921, which was after the notice in this case was first published. This law has no application to the notice in the instant case. All of the foregoing discussions come within the motion for judgment in this case, which motion is based upon the admitted facts of the respondent’s return or answer. V. Relator urges doubleness of propositions in said Amendment No. 1. But before taking up that matter there is another of importance. The ballot used we have set forth in full in a prior portion of this opinion. This ballot on its face does not submit the names of the respondents as proposed members of the Water Commission. It speaks of repealing Article XI of the old *357 charter, and enacting two articles in lien thereof, giving the number of sections in each, and then thus proceeds: “relating to the establishment of a Water Commission, prescribing the powers and duties thereof, and providing for a. Water Works system, and to the establishment of a Board of Fire Commissioners, prescribing the powers and duties thereof, and for a fire department system.” The quoted clause from the ballots purports to be. a summary of the contents of the said Amendment No. 1, yet not a word is there in this ballot to inform the voter that he was electing these men to office for more than statutory periods. It would only be by reference back to the amendment itself that the voter could find out that he was voting for men to fill office. Whilst notices of elections are published, yet many voters go to such special elections without further notice than that he has heard his neighbor say that there was an election. When such a voter so goes he looks at his ballot and determines whether he shall vote “yes” or “no” from the face of the ballot. In this particular ease the voter would naturally rely upon the resume of the amendment, which we have quoted, supra, If he did, and no doubt hundreds of them did, they had no idea that they were voting respondents into high salaried offices. The ballot, in so far as the designation of respondents as officers is concerned, is so misleading as to amount to a legal fraud. It singularly enlightened the voter by summarizing the purported contents of the two new charter articles, in this language: “relating to the establishment of a Water Commission, prescribing the powers and duties thereof, and providing for a water works system, and to the establishment of a Board of Fire Commissioners, prescribing the powers and duties thereof, and providing fox a fire department system.” It more singularly failed to enlighten the voter, by omitting the fact that the established water commission was to be made up of the four respondents, and that the voters were not only creating four offices, but were actually filling the offices for un *358 precedented terms, and providing for these officers to name their own successors for a long period of time. It is not so much what-the ballot failed to say which indicates the legal frand couched within its terms, but more what it did say, 'when we consider therewith the omission which we have noted above. If the ballot undertook to give the substance and contents of the amendment it should have fairly given it in full, and should not have omitted-the fact that the offices being created by the vote were likewise being filled by the same vote. Such ballot by reason of this omission was not only deceptive, but worked a fraud upon the voters. This alone should suffice to invalidate the election of respondents. VI. Close akin to fraud, at least legal fraud, is the question of doubleness of propositions to be voted upon by the electorate. This because the voter, in order to get what he earnestly wants, is compelled to vote for things which he does not want. It is a species of legal fraud to thus compel votes. It is a practice universally condemned. This question we discussed in our dissent in State ex rel. v. Gordon, 223 Mo. l. c. 27 et seq., and this discussion was approved in State ex rel. v. Gordon, 268 Mo. l. c. 338. This last case points clearly to the fraudulent character of such ballots, and reasons the question upon principles. It has been suggested and urged in the briefs that the matter of doubleness only arises in cases where the incurring of debts, or matters of taxation, are concerned. It is true that the matter has usually arisen in such cases, and especially is this true in Missouri. But it does not follow that the question of doubleness of a proposition may not arise in other matters. On the contrary it has so arisen, and the doctrine is as firmly fixed in one class of cases as in the other. In 9 Ruling Case Law sec. 76, p. 1059, it is well said: “Where questions are referred to the electors, whether *359 they are amendments to the constitution or questions of any other nature, they must he submitted separately, so that each may stand or fall upon its own merits.. But two questions cannot be treated together, to stand or fall upon a single vote. It needs no argument to show the injustice of such a submission. By it several interests may be combined; an unpopular measure may be tacked on to one that is popular and carried on the strength of the latter. A necessary matter may be made to carry with it some private speculation for the benefit of a few. Things odious and wrong in themselves may receive the popular approval because linked with propositions whose immediate consummation is deemed essential. It is against the very spirit of popular elections.” See also 20 Corpus Juris, p. 149, and 21 Am. & Eng. Ency. Law (2 Ed.) 47. The latter was cited from with approval in State ex rel. v. Allen, 186 Mo. 673. Further see Judiciary Amendments, or State ex rel. v. Powell, 77 Miss. 543, l. c. 571 et seq. This was a case involving an amendment to a state constitution, and it was held that there were many questions involved in the single amendment, upon which the people had a right to vote separately. There can be no question about the application of tbe rule to cases in general, and especially in cases involving amendments to an organic law. If the rule were otherwise two propositions might be submitted in a single amendment to an organic law, and the popularity of the one might force the adoption of the two by the vote. In the single amendment before us in this case we have (1) the creation of a water commission, (2) the creation of a fire department, and (3) the naming of these respondents, to fill the offices of the wáter commission so created. The voter was compelled to vote-for all three of these things or none. And this, too, in the face of the fact that under Section 35 of Article 3 of the existing charter (Charter of 1908, p. 169) the right to create offices, fix salaries and terms was given to the Common Council. This proposed charter amendment, in so far as *360 it selected officers of the city, by implication amended or repealed partially the foregoing section of the old charter, although the section or article is not named. But it suffices to say that the creation of an office, and the filling of an office, are two separate propositions, and if so this Amendment No. 1 was void for doubleness. As said by Gantt, J., in State ex rel. v. St. Louis, 216 Mo. l. c. 96; “But it is one thing to define an office and the duties appertaining thereto and provide for the filling of the same, and quite another thing under our Constitution for the Legislature to undertake itself to appoint officers.” The creation of the office with its imposed duties and responsibilities is one thing, but the filling of the office with eligible and efficient officers is quite a distinct and separate matter. The amendment is double, if not more than double. Three vital propositions had to be determined by a single vote. It may be that the men named were of such prominence and outstanding character that the mere mention of their names in the amendment helped to carry it. If so, the weaker propositions were aided by the stronger one. This the law condemns in all cases upon doubleness of proposition. These men were neither elected nor appointed to office. There was no office until the amendment was successfully carried, therefore there was no office to be filled at this election. None of the formalities of an election to office were followed. No appointment of them was made for a like reason, and for the further reason that appointing to office is usually an executive function. But this latter is beside the ease if there was doubleness of the proposition, and of this we feel certain. Divers other questions are suggested in the briefs and on the record, but we shall not go further. The length of the term of office is charged to be in violation of the Constitution, and other matters are urged. We have gone even further than was necessary. No parallel case can be found in the books, but the reason of the law is against Amendment No. 1. No Missouri city ever undertook to do what was done here prior to this time. *361 Respondents should be ousted, and it is so ordered. Woodson, G. J., Walker, Elder and James T. Blair, JJ., concur; Higbee and David E. Blair, JJ., dissent, in an opinion by David E. Blair, J.