Summary
noting that “it has been universally held that the legislature, in proposing an amendment [to the constitution], is not exercising its ordinary legislative power but is acting as a special organ of government for the purpose of constitutional amendment” and collecting cases
Summary of this case from Limmer v. RitchieOpinion
July 25, 1942.
1. STATUTES: Municipal Corporations: Title Requirements of Ordinances Do Not Apply To Charter Amendments. The requirements as to the title of ordinances have no effect or bearing upon legislative proposals for the amendment of the Charter of St. Louis.
2. CONSTITUTIONAL LAW: Municipal Corporations: Exemption of Certain Classes of Employees From Merit System Does Not Deny Equal Protection. Equal protection is not denied by the exemption of employees of certain commissions and employees of the Board of Aldermen from the operation of the civil service amendment of the Charter of St. Louis. The classifications were reasonable.
3. CONSTITUTIONAL LAW: Municipal Corporations: Exemption of Present Employees Does Not Deny Equal Protection. The exemption of present employees from examination under the new merit system does not deny equal protection.
4. CONSTITUTIONAL LAW: Municipal Corporations: Officers: Due Process Not Violated. Exemptions in the civil service amendment of the Charter of St. Louis cannot violate due process, as a public office is not property in the constitutional sense and the right to be appointed to a public office is not a natural right or property right within the protection of the due process clause.
5. CONSTITUTIONAL LAW: Municipal Corporations: Limitation of Political Activity of Classified Municipal Employees Not Unconstitutional. Limitations on political activities of classified municipal employees are not in violation of due process nor do they deny equal protection. There is a reasonable classification of ministerial employees and policy-forming public officers.
And the constitutional guaranties of freedom of speech are not infringed.
6. CONSTITUTIONAL LAW: Municipal Corporations: Separation of Powers Not Applicable to Municipal Corporations. An attempt to hold that the doctrine of separation of powers must be rigorously applied to counties and cities would be contrary to long established custom and usage.
7. CONSTITUTIONAL LAW: Municipal Corporations: Doctrine of Separation of Powers Not Violated. Even if the doctrine of separation of powers applies to city governments, the civil service amendment of the Charter of St. Louis does not violate it.
8. CONSTITUTIONAL LAW: Municipal Corporations: Power of Comptroller to Refuse Payment of Salaries Not Arbitrary. The provision of the civil service amendment which confers upon the comptroller of the City of St. Louis the power to refuse the payment of salaries does not grant arbitrary power and is not violative of due process.
9. CONSTITUTIONAL LAW: Municipal Corporations: Examination Fee Requirement Does Not Violate Due Process. The provision requiring an examination fee for applicants for civil service employment does not violate due process.
10. CONSTITUTIONAL LAW: Municipal Corporations: Officers: Term of Office of Civil Service Commissioners Not in Violation of Missouri Constitution. The provisions of the Charter Amendment providing for a term of office of six years for civil service commissioners is not in violation of Sec. 14, Art. IX, Missouri Constitution.
11. MUNICIPAL CORPORATIONS: Civil Service Appropriation Not Unreasonable. There is no evidence in the record that the civil service amendment makes an unreasonably large appropriation for the maintenance of the civil service system.
12. CONSTITUTIONAL LAW: Municipal Corporations: Due Process Not Violated By Provisions For Suits Against Officers Making Illegal Appointments. The provisions of the civil service amendment giving the city the right to sue officers who have made illegal appointments of subordinates for money paid out in wages to such subordinates must be strictly construed to cover only intentional or negligent acts of such officers, and do not violate due process.
13. CONSTITUTIONAL LAW: Municipal Corporations: Authority for Personnel Department to Conduct License Examinations Not Arbitrary. The authorization for delegation to the personnel department of the function of giving examinations to license applicants is given a reasonable construction and is not arbitrary.
14. ELECTIONS: Municipal Corporations: Time for Employees to Vote: Political Activity. The provisions of the civil service amendment as to time off for employees to vote is not in conflict with Sec. 11785, R.S. 1939, as said section applies only to private employers and not to municipalities.
And for the same reason the prohibitions against political activity are not in conflict with Sec. 11782, R.S. 1939.
WRIT DENIED.
Louis E. Miller for relator.
(1) This court takes judicial notice of the provisions of the Charter of the City of St. Louis. Mo. Const., Art. IX, Sec. 21; Wiget v. St. Louis, 337 Mo. 799. (2) Since the Constitution and laws of the United States are "the supreme law of the land," a charter provision which is in conflict with them or denies persons rights under them, is void. U.S. Const., Art. VI. (3) (a) The powers of the City of St. Louis are derived from and subordinate to the State Government, and although the State has delegated to the City the power to frame its own Charter, that power does not make the City an independent sovereign, or authorize it to assume, or exercise within its limits, all the powers of the State, or "to incorporate into its government all the power the State has for the protection of the rights and the regulation of the duties of the inhabitants of such City as between themselves." State ex rel. United Rys. Co. v. Public Serv. Comm., 270 Mo. 429; St. Louis v. Meyer, 185 Mo. 583; Kansas City v. Threshing Machine Co., 337 Mo. 913; Kroger Grocery Baking Co. v. St. Louis, 341 Mo. 62. (b) Any reasonable doubt concerning the existence of a power in the City must be resolved against the City, and the power denied. Bull v. McQuie, 342 Mo. 851. (4) The Charter of the City of St. Louis and amendments thereto must "always be in harmony with and subject to the Constitution and laws of Missouri." Mo. Const., Art. IX, Sec. 21. (5) A Charter provision is not in harmony with the Constitution and laws of Missouri when it is in direct violation of them, or when it is not in accord with or is contrary to the public policy of the State as shown by the Constitution and statutes of the State. In either case the charter provision is void. State ex rel. Rothrum v. Darby, 345 Mo. 1002; State ex rel. United Rys. Co. v. Public Serv. Comm., 270 Mo. 429; St. Louis v. Meyer, 185 Mo. 583; Kansas City v. Threshing Machine Co., 337 Mo. 913; Kroger Grocery Baking Co. v. St. Louis, 341 Mo. 62. (6) The public policy of Missouri, and the rights guaranteed by the State and Federal Constitutions, include: (a) Prohibition of restrictions by employers on political activities of employees as declared in R.S. Mo. 1939, sec. 11782. (b) Freedom of speech under U.S. Constitution, 1st and 14th Amendments, and Mo. Constitution, Article II, Sec. 14. Ex parte Harrison, 212 Mo. 88; Marx Haas Jeans Clothing Co. v. Watson, 168 Mo. 133; State v. Pierce, 163 Wis. 615. (c) Life, liberty and property, and due process concerning the same, under U.S. Constitution, 14th Amendment, and Mo. Constitution, Article II, Sections 4 and 30. State ex rel. Rothrum v. Darby, 345 Mo. 1002 (Arbitrary exercise of power); State v. Loomis, 115 Mo. 307 (Arbitrary, unequal and partial legislation); State ex rel. Columbia Tel. Co. v. Atkinson, 271 Mo. 28 ("Conclusive" evidence). (d) The privileges and immunities of citizens and the equal protection of the laws under U.S. Constitution, Article IV, Sec. 2, and the 14th Amendment. (e) Free and open elections and free exercise of the right of suffrage under Mo. Constitution, Article II, Sec. 9. State ex rel. Neu v. Waechter, 332 Mo. 574; State ex rel. Preisler v. Woodward, 340 Mo. 906. (f) Right of assembly and petition under U.S. Constitution, 1st and 14th Amendments, and Mo. Constitution, Article II, Section 29. (g) Separation of the powers of government as provided in Mo. Const., Art. III. State ex rel. Rothrum v. Darby, 345 Mo. 1002; State ex rel. Haughey v. Ryan, 182 Mo. 349. (7) The term "political" used throughout the Charter Amendment is not defined therein and is evidently intended to have the usual broad meaning commonly given it, namely, relating to government, or any of the powers or functions of government, or government officials. It is not limited to matters of individual candidacy for office, but includes as well all matters that could be the subject of an election or of a Constitution, statute, charter, ordinance, or governmental regulation. State ex rel. Green v. City of Cleveland, 33 N.E.2d 35. (8) The employees of the City of St. Louis, about 7,400 in number, nearly all of whom are engaged in employments and services the same as those which any large private employer has, are entitled to the rights, privileges and immunities provided by the Constitution of the United States and the Constitution, laws and public policy of Missouri, the same as employees of other employers, and cannot be denied those rights, privileges and immunities merely because of their employment by the City. Opinion of Justices, 22 N.E.2d 49. (9) The Charter of the City of St. Louis can be amended only by vote at an election held pursuant to the provisions of an ordinance submitting such proposed amendment, and providing for the election thereon, after publication of the proposal. Mo. Const., Art. IX, Sec. 22. (10) (a) The title of Ordinance No. 42021 (submitting the Charter amendment and providing for the election thereon) does not designate the subject matter of the Charter Amendment, or even the Article or Section to be amended, and is in violation of Art. IV, Sec. 13 of the Charter, requiring the subject to "be clearly expressed in its title," and the ordinance, election thereunder, and purported amendment are void and of no effect. Charter of St. Louis, Art. IV, Sec. 13, which is the same as Mo. Const., Art. IV, Sec. 28; Young v. County of Greene, 342 Mo. 1105; State ex rel. Inter-Insurance Auxiliary v. Revelle, 257 Mo. 529; Vice v. Kirksville, 280 Mo. 348. (b) The title deceptively conceals the many provisions of the Amendment which are not germane to the subject of the amended provisions. (11) Section 1 (m), which exempts from the provisions of the Charter Amendment all board members, commissioners, committees and other persons who serve without compensation, and all officers and employees of the Board of Alder men, is arbitrary, unreasonable, capricious, highly discriminatory, without basis in fact or reason, and void. It violates the due process clauses of the Constitutions specified in Point 6 c, supra. (12) Section 3 (o), which requires the Civil Service Commission to make and enforce rules providing for fines, suspensions without pay, and "other disciplinary measures deemed desirable," to punish for violation of the rules, regulations, Charter, or ordinances, is not in harmony with the Constitution and Laws of Missouri, and is void. It violates the constitutional requirement of separate exercise of the powers of government as specified in Point 6 g, supra. (13) Section 3 (t), which gives the City Comptroller power to refuse payment for services unless the evidence thereof is "satisfactory to him," vests unlimited authority, and is not in harmony with the Constitution and Laws of Missouri, and is void. It violates the due process clauses of the Constitutions specified in Point 6 c, supra. (14) Section 3 (v), which authorizes the Civil Service Commission to exact a fee from applicants for examination as a prerequisite to acceptance of their applications for employment and advancement in the City Service, is not in harmony with the Constitution and Laws of Missouri, and is void. It violates the due process clauses of the Constitutions specified in Point 6 c, supra. (15) Section 4 (d) appropriates by its own terms one-half of one per cent of all expenditures for personal services in the City Service during the preceding fiscal year as a minimum appropriation to pay the salaries of the director, commissioners and employees of said Department of Personnel, and the expenses of administering the plan, and would amount to the annual sum of about $75,000, since each such annual expenditure amounts to $15,000,000. Said appropriation is excessive, arbitrary, unreasonable, without regard to the needs of said Department, and void, being contrary to the public policy of the State as shown by Mo. Const., Art. X, Sec. 19. (16) Section 6 provides as a qualification for the three commissioners that they "shall be persons whose past records indicate that they favor the merit system of personnel administration," thereby attempting to penalize any person who exercised his legal and political right to oppose the adoption of the Amendment, or who failed actively to make a "record" of favoring the plan, and said section is arbitrary, unreasonable and unjust, and not in harmony with the Constitution and Laws of Missouri. It violates the due process clauses of the Constitutions specified in Point 6 c, supra. (17) Section 6 provides that no person shall be eligible for appointment as a member of the Commission who holds any other salaried public office, or who has held any elective public office, or any elective position in any political party, or any paid position in any political party within four years before the appointment, thereby arbitrarily disqualifying competent persons on the unreasonable ground that they exercised their right and privilege to hold public office, and to have affiliation with reputable political parties recognized by law. It violates the "due process" and "privileges and immunities" clauses of the Constitutions as specified in Points 6 c and d, supra. Mansur v. City of Sacramento, 103 P.2d 221; Bareham v. City of Rochester, 220 N.Y.S. 66, 222 N.Y.S. 141; Beasly v. Cunningham, 103 S.W.2d 18; Opinion of Justices, 22 N.E.2d 49. (18) Section 6 provides that members of the Commission shall be appointed by the Mayor "without regard to any political consideration," which is contradictory of the requirement in the same section that the persons appointed must have a record of favoring the plan, and must have had no connection with any political organizations or have held any public office within four years, and said section is so vague and indefinite as to be unenforceable, and is void. It is a denial of "due process" under the Constitutional provisions specified in Point 6 c, supra. Lanzetta v. New Jersey, 306 U.S. 451. (19) (a) Section 6 fixes the terms of office of the members of the Civil Service Commission at six years, in violation of the Missouri Constitution, and is void. Mo. Const, Art. IX, Sec. 14; State ex rel. Kane v. Johnson, 123 Mo. 43. (b) The two members appointed for two and four years could not constitute the Commission, even if their own terms were not unconstitutional. Seaman v. Levee District, 219 Mo. 1; Kings Lake Drainage Levee Dist. v. Jamison, 176 Mo. 557. (20) Section 7 (a) grants the Commission power to make and enforce rules and to provide for imposing fines and punishments, as provided in Section 3 (o), which rules are given the force and effect of law by the Charter Amendment. Paragraph (d) of Section 7 grants the Commission judicial power to determine and adjudicate the construction of said rules and other laws, and the violation thereof with final effect, thereby investing the Commission with both legislative and judicial powers as well as executive powers, in violation of Article III of the Missouri Constitution. (21) Section 13 provides that when the Comptroller disapproves payment to any person for City service on account of his employment or appointment being made contrary to the Charter Amendment, or ordinances, or rules, such person shall not be paid anything by the City, but that the officers appointing such person or attempting to do so and the sureties on their bonds, shall be jointly and severally liable to such person for his compensation, and the City shall not reimburse them or their sureties, and if such employee has already been paid by the City, then the City Comptroller or Special Counsel shall sue the appointing officers and recover the amount paid, and that in addition to the officers making the appointment, any other officer signing or countersigning, or authorizing the signing or countersigning of any order or warrant for the payment of such employee, and also the sureties on his bond, shall be liable to the City for the amount of such payment to be sued for by the City Counselor or Special Counsel, which provisions impose liability without regard to intent or fault, and are arbitrary, unreasonable, discriminatory, not in harmony with the Constitution and laws of Missouri, and void. They violate the due process and equal protection clauses of the Constitution specified in Points 6 (c) and d, supra. (22) Section 14 authorizes the Department of Personnel, by agreement with the other City departments or agencies, to conduct examinations to determine the qualifications of applicants for licenses required by law to be obtained from any City officials or departments, which is arbitrary and unreasonable, and not in harmony with the Constitution and laws of Missouri. (23) Section 16 provides that in making appointments, demotions or refusals of employment, no consideration or effect shall be given to political affiliations or services, thereby disabling the City from excluding subversive and alien organizations and individuals from the City Service, which is not in harmony with the Constitution and laws of Missouri, and is void. (24) Section 17 prohibits any person in the classified service from making a contribution to any fund, or from rendering any political service of any kind, or in any cause, thereby depriving such person of substantial rights as citizens, and incapacitating them from the performance of necessary and proper duties as citizens, and is not in harmony with the Constitution and laws of Missouri, and is void, on grounds stated under Points 26-27, below. (25) Section 17 prohibits any person from sending or causing to be sent any letter or notice to any person in the classified service of the City with regard to any political assessment, subscription, or contribution, which provision is arbitrary, unreasonable and not in harmony with the Constitution and laws of Missouri, deprives such persons of their civil and political rights, disables them from performing their civil and political duties under the Constitution of Missouri, is beyond the power of the City, and void, on grounds stated under Point 26-27, below. (26-27) Section 19 prohibits any person in the classified service of the City from taking any active part in a political campaign, or from seeking or accepting nomination, election or appointment as an officer of any political organization, or from serving as a member of a committee of any such group or organization, or from circulating or seeking signatures to any petition provided for by any primary law or election law, and expressly limits the civil and political rights of such persons to the mere expression of their opinions "privately" on any political questions, and to membership in and attending meetings of political organizations, and provides that such persons may seek and accept election or appointment to a public office, but must resign from their positions before making any active campaign for election, all of which provisions are contrary to and not in harmony with the Constitution and laws of Missouri, and of the United States. They violate the constitutional guaranties of freedom of speech, due process, equal protection and privileges and immunities, free and open elections, the rights of suffrage, and to assemble and petition, specified under Points 6 a, b, c, d, e and f, supra. (28) Section 20 provides that City employees who are entitled to vote shall be "granted leave" to vote at an election, but that the time of such "leave" shall not exceed four hours, thereby attempting to authorize the Commission and Director by rules and regulations to restrict the time allowed employees for voting to less than four hours, contrary to R.S. of Mo. 1939, section 11785, and is void. (29) Section 22 provides that any person violating any provision of the Amendment or any ordinance pursuant thereto, for which no other punishment is provided, shall be guilty of a misdemeanor irrespective of whether such violation was willful or was through culpable negligence, and provides fine or imprisonment, or both, and that upon conviction of any employee, his employment shall automatically terminate and he shall not re-enter the service of the City for a period of five years, and that the Comptroller and other fiscal officers are given and charged with notice of such conviction by the terms of the Charter Amendment itself ("hereby"), thereby making the Comptroller and fiscal officers and the sureties on their bonds absolutely liable for payment made to any such person employed within five years after conviction, even though the Comptroller or fiscal officers do not have, or are unable to obtain, actual knowledge of said fact, which provisions are arbitrary, unreasonable, not in harmony with the Constitution and laws of Missouri, beyond the power of the City, in violation of the Constitution of the United States, and void. They violate the due process and equal protection clauses of the Constitutions, specified in Points 6c and d, supra. (30) Section 25 provides that the Director or any person authorized by him shall, in holding hearings and making investigations and tests, have power to administer oaths, to subpoena and require the attendance of witnesses, to compel the production by them of books and papers, to examine such witnesses under oath, and to invoke the power of any court of record in the City, or judge thereof, to compel the attendance and testifying of witnesses and the production of books and papers, which provisions are not in harmony with the Constitution and laws of Missouri, exceed the powers of the City, unlawfully attempt to change the powers and duties of Courts of Record, and are void. State ex rel. Haughey v. Ryan, 182 Mo. 349. (31) The elimination of the void features of the Charter Amendment does not leave sufficient provisions to constitute a complete, workable law, and therefore the entire Amendment is void. State ex rel. Field v. Smith, 329 Mo. 1019.
Joseph F. Holland, City Counselor, George L. Stemmler, Oliver Senti, and Albert Miller, Associate City Counselors of St. Louis and Charles P. Williams for respondents.
(1) General considerations. Rogers v. Common Council of Buffalo, 123 N.Y. 173, 25 N.E. 274, 9 L.R.A. 579; People ex rel. Akin v. Kipley, 171 Ill. 44, 49 N.E. 229, 41 L.R.A. 775; State ex rel. Buell v. Frear, 146 Wisc. 291, 131 N.W. 832, 34 L.R.A. (N.S.) 480; City of Knoxville v. Smith (Tenn.), 138 S.W.2d 422, l.c. 424; State ex rel. Rundberg v. Kansas City, 206 Mo. App. 17, 226 S.W. 986, l.c. 989; State ex rel. Rawlings v. Kansas City, 213 Mo. App. 349, 250 S.W. 927, l.c. 930; Mosher Kingsley: Public Personnel Administration (1941), pages 28, 30; Gregory v. Kansas City, 244 Mo. 523, 149 S.W. 466; R.S. 1939, secs. 6678-6688, 7069 et seq. (2) The title to the ordinance of submission. The Charter requirement is identical with the constitutional provision respecting title. Charter of St. Louis, Art. IV, Sec. 13. The constitutional provision for Amendment of the Charter. Constitution of Missouri, Art. IX, Sec. 22. It may be gravely doubted whether an ordinance was required. R.S. 1899, sec. 6276; State v. Allen, 178 Mo. 555; State v. Hackman, 273 Mo. 670; Edwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130; State v. Armstrong, 140 Mo. App. 719, 127 S.W. 93; O'Laughlin v. Kirkwood, 81 S.W. 512; State v. Weeks, 38 Mo. App. 566; Collier v. Gray, 157 So. 40. That a title is unnecessary to a legislative proposal to amend the Constitution, see: Ramsey v. Persinger, 141 P. 13; Cooney v. Foote, 83 S.E. 537; In re Senate File 31, 41 N.W. 981; 12 C.J., p. 693. The City can add nothing, in any event, to the constitutional provision for amendment of its Charter. State ex rel. v. Kansas City, 233 Mo. 162, 134 S.W. 1007; Switzer v. State, 103 Ohio St. 306, 133 N.E. 552. In any event, the provision as to title is liberally construed. City of Hannibal v. County of Marion, 69 Mo. 571; Lynch v. Murphy, 119 Mo. 163, 24 S.W. 774; O'Connor v. Transit Co., 198 Mo. 622, 97 S.W. 150; State v. County Court, 128 Mo. 427, 30 S.W. 103; Senn v. Southern Ry. Co., 124 Mo. 621, 28 S.W. 66; Reinert Bros. Const. Co. v. Tootle, 200 Mo. App. 284, 206 S.W. 422. The great weight of authority supports such a title as we have here. State v. Town of Union, 33 N.J.L. 350; City of Jackson v. Weinhold, 75 N.W. 617; School District No. 1 v. School District, 78 P. 690; Wagoner v. La Grande, 173 P. 305; Tison v. City of Doerun, 116 S.E. 615; Winona v. School District, 3 L.R.A. 46; State v. Anderson, 65 N.W. 265; Willis v. City of Rochester, 219 N.Y. 427, 114 N.E. 851; Board of Trustees of Augusta v. Maysville Rd. Co., 30 S.W. 1. Such has been the recognized practice, with respect to title of proposals to amend the Charter. State ex rel. Hussman Refrigerator Co. v. St. Louis, 319 Mo. 497. (3) The alleged discriminatory classification. (a) The power to create offices is vested, generally speaking, in the Legislature; 46 C.J., p. 933; and a charter power of the City is on the same basis as an Act of the Legislature. City v. Nash, 260 S.W. 985; Ex parte Smith, 231 Mo. 111, 132 S.W. 607; Kansas City ex rel. Barlow v. Robinson, 322 Mo. 1050, 17 S.W.2d 977. The power creating an office may define the terms upon which its duties shall be performed. Advisory Board v. State, 85 N.E. 18; 12 C.J., p. 1112. (b) Exemption of certain positions the rule in Civil Service laws. McQuillin on Municipal Corps. (2 Ed.), sec. 478; Field on Civil Service Law, pp. 67, 60-74. (c) An office is not property in the constitutional sense. State ex rel. Attorney-General v. Davis, 44 Mo. 129; State ex inf. Crow v. Evans, 166 Mo. 347, 66 S.W. 355; Gregory v. Kansas City, 244 Mo. 523, 149 S.W. 466; State ex rel. Otto v. Kansas City, 310 Mo. 542, 276 S.W. 389; State ex rel. McKittrick v. Bair, 333 Mo. 1, 63 S.W.2d 64; State ex rel. Kansas City v. Coon, 316 Mo. 524, 296 S.W. 90; Motley v. Callaway County, 149 S.W.2d 875. Furthermore, the right to be appointed to or employed in a public office or employment is not a natural or a property right. People v. Evans, 247 Ill. 547, 93 N.E. 388; Crampton v. O'Mara, 193 Ind. 551, 139 N.E. 360; State v. Goldthwait, 172 Ind. 210, 87 N.E. 133. The power of the State to declare what shall constitute eligibility to office, subject to the Federal Constitution, is unquestioned. State ex rel. v. Woodson, 41 Mo. 227; State ex rel. Henson v. Sheppard, 192 Mo. 497, 91 S.W. 477; State v. McSpaden, 137 Mo. 628, 39 S.W. 81; Gantt v. Brown, 244 Mo. 329, 149 S.W. l.c. 646; State ex rel. v. Frear, 146 Wis. 291, 131 N.W. 832, 34 L.R.A. (N.S.) 480; 46 C.J., 936-7. (d) Neither an applicant for an unclassified place, nor an applicant for a classified place, is discriminated against. All in each class stand on the same basis of equality as to qualification. (e) The complaint of discrimination as respects political activity is not well founded. (f) Neither is the complaint of discrimination, based upon the retention, without examination, of those already in lawful service. People v. Brady, 262 Ill. 578, 105 N.E. 1; State ex rel. v. Buech, 171 Wis. 474, 177 N.W. 781. (g) The relator errs in interpreting the provisions of the Amendment. Graves v. Little Tarkio Drain. Dist., 345 Mo. 557, 134 S.W.2d 70; State ex rel. Peck Co. v. Brown, 340 Mo. 1189, 105 S.W.2d 909; White v. Greenway, 303 Mo. 691, 263 S.W. 104; State ex rel. Heimberger v. Wells, 210 Mo. 601, 109 S.W. 758; 43 C.J., p. 166. (4) The power to enact and enforce rules. Such a power is generally recognized, and its necessity is undoubted. Malcolm v. Boston, 53 N.E. 812; 43 C.J., p. 774; R.S. Mo. 1939, secs. 7695, 10725; Butler v. White, 83 F. 578; Opinion of Justices, 138 Mass. 601; Gregory v. Kansas City, 244 Mo. 523, 149 S.W. 466; Green v. State Civil Service Comm., 90 Ohio St. 252, 107 N.E. 531; People v. Kipley, 171 Ill. 44, 49 N.E. 229, 41 L.R.A. 775; Civil Service Comm. v. McDougal, 198 Ark. 388, 129 S.W.2d 589; State ex rel. v. Frear, 146 Wis. 291, 131 N.W. 832; Dillon on Mun. Corps. (5 Ed.), sec. 397; Heck v. Hall, 190 So. 280; Newcomb v. Indianapolis, 141 Ind. 451, 40 N.E. 919. There is nothing in relator's claim that the Commission is powerless (under the constitutional separation of powers) to administer and enforce the rules it has prescribed. Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; Rhodes v. Bell, 230 Mo. 138, 130 S.W. 465; State ex rel. Otto v. Kansas City, 310 Mo. 542, 276 S.W. 389. Removal from office is not an intrinsically judicial act. Donahue v. County of Will, 100 Ill. 94; State ex rel. Heimburger v. Wells, 210 Mo. 601, 109 S.W. 758; State ex rel. McEntee v. Bright, 224 Mo. 514, 123 S.W. 1057; State ex rel. Davis v. Peters, 94 S.W.2d 930; State ex rel. Attorney General v. Hawkins, 44 Ohio St. 98, 5 N.E. 228. Certainly, if that be so, the imposition of a lesser penalty, for the infraction of a rule, ought not to require a court proceeding. (5) The arbitrary power of the comptroller to demand satisfactory evidence. The provision for "evidence satisfactory to him" was not intended to confer arbitrary power upon the Comptroller. It meant reasonably satisfactory; such evidence as would satisfy a reasonable man in the Comptroller's place. Burns v. Reis, 196 Mo. App. 694, 191 S.W. 1096; Keeler v. Clifford, 165 Ill. 544, 46 N.E. 248; McDonald v. Kavanaugh, 259 Mass. 439, 156 N.E. 740; Folliard v. Wallace, 2 Johns. 395; City of Brooklyn v. Brooklyn Rd. Co., 47 N.Y. 475; Brauenstein v. Accidental Death Ins. Co., 31 L.J.Q.B. (N.S.) 17; Ellis v. Interstate Business Men's Accident Assn., 168 N.W. 212, L.R.A. 1918F, 414; Jackson Lbr. Co. v. Deaton, 272 S.W. 717; Aetna Life Ins. Co. v. Moyer, 113 F.2d 974; Jeckler v. Penney, 266 N.Y.S. 327; Webber v. Cambridgeport Bank, 186 Mass. 314, 71 N.E. 567. As applied to official action, the rule is the same. Moy Guey Lum v. United States, 211 F. 91; Louie Dai v. United States, 238 F. 68. (6) The provision for an examination fee, limited as it is, is valid. Vol. 9, Consolidated Laws of N.Y., Annotated (1940), Civil Service Law, Section 14; People v. Harper, 91 Ill. 357; State ex rel. City of Sedalia v. Public Serv. Comm., 275 Mo. 201, 204 S.W. 497; Aetna Ins. Co. v. Hyde, 34 F.2d 185. (7) The appropriation required. It seems impossible that this court, in the face of the presumption of validity and due consideration that attend legislative action, can hold this void, on its face. The constitutional provision cited by relator does not apply. State ex rel. Zoological Board v. St. Louis, 318 Mo. 910, 1 S.W.2d 1021. (8) The qualifications for commissioners. The fundamental purpose was to put the experiment into friendly, and not hostile, hands. Eligibility to office is a matter for the Legislature, and not for the courts. State ex rel. v. Woodson, 41 Mo. 227; State ex rel. Henson v. Sheppard, 192 Mo. 497, 91 S.W. 477; State v. McSpaden, 137 Mo. 628; Gantt v. Brown, 244 Mo. 271, 149 S.W. 644; People v. Evans, 247 Ill. 547, 93 N.E. 388; Crampton v. O'Mara, 193 Ind. 551, 139 N.E. 360; State v. Goldthwait, 172 Ind. 210, 87 N.E. 133; State ex rel. v. Frear, 131 N.W. 832, 34 L.R.A. (N.S.) 480; 46 C.J., pp. 936-7; State ex rel. Jones v. Sargent, 124 N.W. 339; Shaw v. Marshalltown, 131 Iowa 128, 104 N.W. 1121. The right to hold office is not protected by the privileges and immunities clause of the Constitution. People ex rel. v. Loeffler, 175 Ill. 585, 51 N.E. l.c. 793; In re Mulford, 217 Ill. 242, 75 N.E. 345. We have heretofore pointed out that a public office is not property in the constitutional sense. State ex rel. Conran v. Duncan, 333 Mo. 673, 63 S.W.2d 135; Taylor v. Beckham, 178 U.S. 548; Field v. Geigengack, 73 F.2d 945; Ashley v. Wait, 228 Mass. 63, 116 N.E. 961; 16 C.J.S., p. 1200. (9) The six-year term for the commissioners. Whether or not Sec. 14 of Article IX of the State Constitution is applicable may be made a matter of question. Without entering upon that question, the effect in any event would be to superimpose the Constitution over the charter provision and thereby curtail the term. Farmer v. Wiseman, 151 S.W.2d 1085; Commissioners of Sinking Fund v. George, 47 S.W. 779; State ex rel. Bray v. Long, 21 Mont. 26; Becker v. Boyle, 167 N.Y.S. 335; State v. Window (concurring opinion), 131 Minn. l.c. 421; 46 C.J., p. 965. The Indiana case is plainly distinguishable. Indianapolis Brewing Co. v. Claypool, 149 Ind. 163, 48 N.E. 228. Other cases treat the excess of term as creating a tenure at will. Lewis v. Lewelling, 53 Kan. 201, 23 L.R.A. 575; State v. Bismarck Drain. District, 104 Kan. 575; Clark v. State, 177 Ala. 188. (10) The commingling of power. In so far as this repetitious attack is leveled against the power given to the Commissioners to prescribe and enforce rules, reference may be made to the considerations urged under Section IV, above. (11) Recovery of compensation unlawfully paid. The provisions of Section 13 of the Amendment are carefully limited. In any event, it ought not to be interpreted as imposing a penalty, regardless of fault, if such interpretation may be reasonably avoided. 16 C.J., p. 76; 25 C.J., p. 1205. "In contravention of" means "in violation of." Oxford Dictionary; New Standard Dictionary, Sub verbo; State v. St. Louis S.F. Ry. Co., 238 Mo. 605, 142 S.W. 279; In re North: Ex parte Hasluck, 64 L.J.Q.B. l.c. 697. (12) Validity of the provision for examinations in aid. This provision seems to us in the language of relator, to be "harmless and reasonable, as designed to do no more than substitute the services of the Department of Personnel for the purpose of making such examination as would be made by the other department." (13) The disregard of political or religious affiliations. The taking into consideration of political or religious affiliations or service, in the making of appointments, or the removal, promotion or demotion of employees, seems necessarily forbidden, and is forbidden, in every Civil Service System. (14) Prohibiting the solicitation of contributions. Voluntary contributions are nowhere prohibited; and if service is to be the test of retention in service, enforced contributions should be prohibited. People v. Murray, 307 Ill. 349, 138 N.E. 649; United States v. Newton, 9 Mackey, 226; Ex parte Curtis, 106 U.S. 371; McAuliffe v. Mayor, 155 Mass. 216, 29 N.E. 517; United States v. Wurzbach, 280 U.S. 396; Sarlls v. State, 201 Ind. 88, 166 N.E. l.c. 276. (15) Prohibition of certain political activities. The prohibitions laid down are intended to keep municipal employees in the classified service out of the maelstrom of active politics. We believe them to be valid. McAuliffe v. Mayor, 155 Mass. 216, 29 N.E. 517; Sarlls v. State, 201 Ind. 88, 166 N.E. 270; Commonwealth v. Hasskarl, 21 Pa. Dist. R. 119; Duffy v. Cook, 239 Pa. 427, 86 A. 1076; People ex rel. v. Scannell, 77 N.Y.S. 704; United States v. Newton, 9 Mackey, 226. (16) The statutory time to vote. If we should grant, for the purposes of the argument, that Section 11785, R.S. 1939, was intended to apply also to municipal corporations, there is no necessary or fatal conflict with the provisions of Section 20 of the Amendment. (17) The punishment of the innocent. Section 22, imposing a penalty, ought be given a more benevolent interpretation than that insisted upon by the relator. Reference in this connection is made to Paragraph XI, supra. (18) The power to subpoena witnesses. The provision here made is perfectly valid. Interstate Commerce Comm. v. Brimson, 154 U.S. 447; In re Gross, 78 F. 107; Railroad Labor Board v. Robertson, 3 F.2d 488; People v. Kipley, 171 Ill. 68, 49 N.E. 237; State ex rel. v. Howat, 107 Kan. 423; Dunham v. Offinger, 243 N.Y. 423, 154 N.E. 298; State ex rel. Otto v. Kansas City, 310 Mo. 542, 276 S.W. 389.
Norman Bierman and George S. Roudebush amicus curiae.
(1) Section 6 of the Charter Amendment providing that terms of members of the Civil Service Commission shall be six years does not violate Section 14 of Article IX of the Constitution of Missouri. State ex inf. Barrett, Atty. Gen., v. Maitland, 296 Mo. 338, 246 S.W. 267; State ex rel. Buchanan County v. Imel, 242 Mo. 293, 146 S.W. 783; State ex inf. Hadley v. Herring, 208 Mo. 708, 106 S.W. 984; State ex inf. Crain v. Moore, 339 Mo. 492, 99 S.W.2d 17. The case of State ex rel. Kane v. Johnson, 123 Mo. 43, 27 S.W. 399 (1894), cited by the relator, is distinguishable. (2) Sections 17, 18, 19 of the Charter Amendment prohibiting compulsory political assessments and contributions (Sec. 17), promises of official influence to affect political action (Sec. 18), and political activities of a certain described nature (Sec. 19), on the part of city employees, have been held to be, and are, valid and constitutional. Stowe v. Ryan, 135 Or. 371, 296 P. 857; People v. McCullough, 254 Ill. 9, 98 N.E. 156; 13 American Political Science Review 593 (Constitutionality of Merit System Legislation by Ben A. Arneson); 5 R.C.L., pp. 608-619; Atkin v. Kansas, 191 U.S. 207, 24 Sup. Ct. 124, 48 L.Ed. 148; Ex Parte Curtis, 106 U.S. 371, 1 Sup. Ct. 381, 27 L.Ed. 232.
Information in the nature of quo warranto filed by the Attorney General against the members of the Civil Service Commission of the City of St. Louis. Respondents have answered and relator has demurred to their answer. The proceeding challenges the validity of Amended Article 18 of the Charter of the City of St. Louis, under which amendment a system for the appointment of civil servants of said city is provided. The amendment in question is very long and contains many detailed provisions. It will be unnecessary to set out all of them, but those against which relator's attack is leveled will be referred to in the course of the opinion.
Sec. 22, Art. IX of the Constitution of Missouri, covering the power of amending the St. Louis Charter, provides:
"The charter so ratified may be amended by proposals therefor submitted by the lawmaking 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 three-fifths of the qualified voters voting for or against each of said amendments so submitted."
Sec. 13, Art. IV of the Charter of the City of St. Louis provides:
"No bill, except a general appropriation bill, which shall only embrace matters on account of which moneys are appropriated, shall contain more than one subject, which shall be clearly expressed in its title."
The present amendment was proposed by the Board of Aldermen through an ordinance entitled: "An Ordinance submitting a proposed amendment to the Charter of the City of St. Louis to the qualified voters of the city, and providing for an election to be held therefor, and for the manner of voting thereat, and for the publication of this ordinance." Relator contends that this ordinance of submission was invalid because the title did not specify the contents of the proposed amendment. It is not contended that the proposal for amendment as published and as it appeared upon the ballot had an incomplete or misleading title nor that the ordinance itself did not set out the exact amendment proposed. It is said only that the title to the ordinance was improper. We are therefore confronted with the question as to whether the requirements of the charter applying to the titles of ordinary ordinances have any application to the titles of ordinances, resolutions or other legislative actions submitting to the voters a proposed charter amendment.
The procedure under which the Charter of the City of St. Louis is to be amended is in many respects similar to that followed with respect to amendments to the Constitution of this State. The amendment in each case is to be initiated by the ordinary legislative body. In case of the city by the Board of Aldermen, in case of the State by the General Assembly. When so submitted in either case it is to be ratified by the qualified voters. Similar procedure for amendment is found in the constitutions of a large majority of our states. In construing such provisions it has been universally held that the legislature, in proposing an amendment, is not exercising its ordinary legislative power but is acting as a special organ of government for the purpose of constitutional amendment. [State ex rel. v. Hackman, 273 Mo. 670, 202 S.W. 7; Edwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; People ex rel. v. Ramer (Colo.), 160 P. 1032; State v. American Sugar Refining Co. (La.), 68 So. 742; Re Opinion of the Justices (Me.), 107 A. 673, 5 A.L.R. 1412.] In the Lesueur case we held that the constitutional requirement applying to ordinary bills that they be read three times before final passage did not apply to a joint and concurrent resolution submitting a constitutional amendment. In Cooney v. Foote (Ga.), 83 S.E. 537, Ann. Cas. 1916B, 1001, it was directly [994] held that the constitutional requirement in regard to the title of legislative bills had no application to joint and concurrent resolutions submitting constitutional amendments.
In the case of State ex rel. v. Allen, 178 Mo. 555, 77 S.W. 868, we discussed the applicability of certain charter provisions of the Town of Canton applying to ordinary legislation to a proposal submitted by the Board of Town Trustees for a bond issue and we held that since the charter merely provided for the trustees to submit such an issue to the voters they did not have to make the submission by an ordinary ordinance. Similar holdings are to be found in State v. Armstrong, 140 Mo. App. 719, 127 S.W. 93, and Merchant's Union Barb Wire Co. v. C., B. Q.R., 70 Iowa 105. It therefore seems clear that the requirements as to the title of ordinances have no effect or bearing upon legislative proposals for the amendment of the Charter of St. Louis. Cases like Young v. Greene County, 342 Mo. 1105, 119 S.W.2d 369; State ex rel. Inter-Insurance Auxiliary v. Revelle, 257 Mo. 529, 165 S.W. 1084, and Vice v. Kirksville, 280 Mo. 348, 217 S.W. 77, are not in point since they deal with ordinary legislation and not with constitutional or charter amendments.
The civil service amendment exempts by its terms from its operation certain classes of municipal employees, to-wit: employees of certain commissions and employees of the Board of Aldermen. It is contended by the relator that this discrimination is violative of the equal protection clause of the 14th Amendment to the Constitution of the United States and of certain similar provisions of our State Constitution. From an early date it has been held that the equal protection clause does not require an exactly equal treatment of all citizens, but that the Legislature may create certain classes and may make laws applicable to some but not all of such classes provided that the principle of classification rests upon some real difference "which bears a reasonable and just relation to the act in respect to which the classification is proposed." [Gulf, Colo. S.F.R. Co. v. Ellis, 165 U.S. 150, 17 Sup. Ct. 255, 41 L.Ed. 666.] This court, in a decision which has been cited with approval by the Supreme Court of the United States, laid down the rule of just and reasonable relationship in State v. Loomis, 115 Mo. 307, 22 S.W. 350, 21 L.R.A. 789. In Missouri v. Lewis, 101 U.S. 22, 25 L.Ed. 989, the Federal Supreme Court had before it the then existing constitutional provisions of this State providing for an appeal of certain cases arising in the eastern portion of the State to the St. Louis Court of Appeals but permitting a direct appeal to this court in similar cases arising in other counties, and it was held that such provisions did not violate the constitutional guaranty of equal protection. Other cases laying down the same rule are: Atchison, Topeka and S.F.R. v. Matthews, 174 U.S. 96, 19 Sup. Ct. 609, 43 L.Ed. 909; and Finley v. People of California, 222 U.S. 28, 32 Sup. Ct. 13, 56 L.Ed. 75. We are confronted, therefore, with the question of whether or not there was a reasonable and just relationship between the principle of classification here adopted and the ends sought to be accomplished in this legislation.
While it is unquestionably desirable to adopt a uniform merit system for the employment of municipal civil servants it can easily be seen that the employment of agents of certain special commissions can best be left to the members of those commissions who are presumably experts in performing the work entrusted to them. It is also a universal custom, supported by some reason, to permit legislative bodies to control the appointment of their own employees. This court cannot therefore say that the classification here made was inherently unreasonable.
A similar attack is made upon the provisions of the said 18th Amendment exempting present employees from examination under the new merit system. Such exemptions have been included in most civil service statutes. The theory upon which they are based is that the present employees have already proven their fitness by past service. The exemption is quite similar to that which has usually been placed in medical practice acts. Such acts require the examination and license of persons desiring to practice medicine but very generally have exempted from the examination requirement doctors who for a given period prior to the enactment of the law, have been actually engaged in the practice of their profession. It has been directly held that such an exemption does not violate the constitutional guaranty of equal protection. [Dent v. State of West Virginia, 129 U.S. 114, 9 Sup. Ct. 231, 32 L.Ed. 623; Hawker v. [995] People of New York, 170 U.S. 189, 18 Sup. Ct. 573, 42 L.Ed. 1002.] These rulings, we think, are by analogy controlling in the present case.
Relator also contends that the above cited provisions of the amendment are violative of the due process of law clause of the 14th Amendment to the Constitution of the United States. It has been uniformly held that a public office is not property in the constitutional sense and that the right to be appointed to a public office is not a natural or property right within the protection of the due process clause. [State ex rel. v. Davis, 44 Mo. 129; State ex inf. Crow v. Evans, 166 Mo. 347, 66 S.W. 355; State ex rel. v. Kansas City, 310 Mo. 542, 276 S.W. 389; Motley v. Callaway County, 347 Mo. 1018, 149 S.W.2d 875; People v. Evans (Ill.), 93 N.E. 388; Crampton v. O'Mara (Ind.), 139 N.E. 360.]
Relator attacks Secs. 17 and 19 of the Charter Amendment. Sec. 17 provides that no classified civil servant shall be under any obligation to contribute to a political fund or to render political service; that no city authority shall discharge or promote any such person or promise or threaten to do so because of his refusal to contribute money or service for political purposes; that the solicitation of political funds from employees in the city building is prohibited and that the classified employees themselves shall not take part in soliciting such contributions. Sec. 19 prohibits any person in the classified service from using official authority or influence to coerce political action, or to interfere with an election, or from taking an active part in its political campaign, or from serving as an officer of a political club or organization, or from circulating political petitions, working at the polls, distributing badges, favoring or opposing political candidates. This section, however, carefully safeguards the rights of city employees to belong to political organizations, to cast their votes as they please and to express privately their opinions upon political questions. City employees may become candidates for public office but only after resigning their employment.
Relator states that these restrictions upon political activity deprive the members of the classified service of their property and liberty without due process of law. It is to be noted that there is no inherent right to hold public office. Such a right is not comprehended within the words "liberty" and "property" as the same are employed in the 14th Amendment to the Constitution of the United States. [State ex rel. v. Davis, 44 Mo. 129; State ex inf. v. Evans, 166 Mo. 347, 66 S.W. 355; Gregory v. Kansas City, 244 Mo. 523, 149 S.W. 466; State ex rel. v. Kansas City, 310 Mo. 542, 276 S.W. 389; State ex rel. v. Bair, 333 Mo. 1, 63 S.W.2d 64; State ex rel. v. Coon, 316 Mo. 524, 296 S.W. 90; Motley v. Callaway County, 347 Mo. 1018, 149 S.W.2d 875.] Even the right to vote is not included within the words "privileges or immunities" which the states are forbidden to abridge under the above mentioned 14th Amendment. [Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627.] But it is alleged that the curtailment of certain political activities on the part of members of the classified service, without a similar curtailment of the activities of other city officials and employees, constitutes a discrimination which violates the equal protection clause of the last above mentioned amendment. We have heretofore discussed the right of the states and their subordinate municipalities to classify persons or activities, making certain statutory restrictions applicable to some classes but not to all and, as we have seen, the sole question in such cases is whether or not the principle of classification be a just and reasonable one. For many years it was contended that whenever a change in administration took place the public employees appointed by the former administration should be immediately discharged and their places filled with supporters of the victorious candidates. "To the victor belong the spoils" ran the ancient political maxim. We have wisely seen in recent years the folly of this policy. Such employees fall into two classes. In the first of these classes we may place members of legislative bodies and the principal executive officers of city, state or nation. Such officers have in their hands the formation and carrying out of public policy. Under a democratic system of government they must be either elected directly by the people or appointed by elective officials from the group of their political supporters. It is only in this manner that we can be assured that the policies of government will be framed in accordance with the popular will. But there are many other governmental employees who have nothing to do with forming public policy. Their sole function is to perform ministerial duties in the manner in which they have been directed to act [996] by law or by orders of their superiors. There is no necessity whatever of maintaining popular control over the choice of such officers. The only criterion to be applied to their selection is that of efficiency. It is well known that the efficiency of such ministerial officers is greatly decreased when we frequently change our employment personnel. Real efficiency is gained through long experience and the public can be assured of the service of the highest type of individuals only when some sort of permanent tenure is guaranteed. To separate this group of ministerial employees from the uncertainties of political influence requires that they be forbidden to take a public and prominent part in the activities of political parties and in election campaigns. The provisions of the amendment forbidding the solicitation of political contributions serve as a necessary safeguard to the office holders themselves; while the entire body of the provisions in regard to political activity helped to free elections from the dominating influence of a bureaucracy intent on maintaining itself in power. In general, the line between the classified and unclassified civil service coincides with the classification of ministerial and policy-forming public officers. There are, of course, exceptions to this statement but the Legislature cannot be held to draw distinctions with hair-line accuracy.
Relator further attacks these provisions on the ground that they constitute an interference with freedom of speech as guaranteed to the citizens of this State by Sec. 14 of Art. II of the Missouri Constitution and the due process clause of the 14th Amendment to the Constitution of the United States. A sufficient answer to this contention, as well as to all of relator's contentions in regard to these political restrictions, is found in the language of the late lamented Justice HOLMES in McAuliffe v. Mayor of New Bedford (Mass.), 29 N.E. 517:
"The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle the city may impose any reasonable condition upon holding offices within its control."
Relator contends that the said Charter Amendment unconstitutionally vests in the Civil Service Commission and its director the power to make rules and also the power to hold hearings on complaints and in the course thereof to subpoena, swear and examine witnesses. It is said that the powers thus entrusted to these officers are a commingling of executive, legislative and judicial powers. Because of this it is contended that the said amendment violates Art. 3 of the Missouri Constitution. Under Article 3 the powers of government set forth in the Constitution must be divided into three separate departments: legislative, executive and judicial, each confined to a separate magistracy. It is to be doubted, however, whether the restrictions of Article 3 have any application to municipal governments. It is to be remembered that for many years the function of presiding over municipal courts in certain small towns has been entrusted to the mayor of such communities. Even in the case of some larger cities, as for example in that of the City of Hannibal, the charter provides for the mayor to preside in the recorder's court when the recorder shall be disqualified. City councils and town boards, while primarily exercising legislative functions, also perform many executive and administrative acts. The county court of each county in Missouri is a court of record but actually performs very few judicial functions. It is primarily both a legislative and an administrative body. While it is true that we are not bound in constitutional cases to construe the fundamental law in accordance with custom and usage, still a usage long established and constantly followed by the legislative and executive branches of the government carries with it much persuasive authority. To hold that the doctrine of separation of powers must be rigorously applied to counties and cities would upset many institutions of long standing and great usefulness. We are not persuaded that such is the law.
But even if the doctrine of separation of powers applies to city governments, we are not convinced that the constitutional provisions, rightly understood, are violated by the charter provisions here in question. The doctrine under consideration is said to have originated in the writings of the French publicist Montesquieu and to have arisen out of his misunderstanding of the British Constitution [997] as interpreted by Blackstone. In practice it can mean only that the general functions of government fall into the three great departments mentioned. In a complex modern state there are many border-line cases where a given political function partakes of the nature of legislation, execution and adjudication. Such a function must often be performed by a single magistrate, board or commission. Take for example the power of issuing subpoenas, here severely criticized by relator. From time immemorial such power has been exercised by parliament in connection with its legislative as well as its judicial functions. Since the very foundation of our government it has been exercised by congress and by the legislatures of the several states. Of recent years it is universally exercised by the so-called quasi-judicial boards and commissions. To enumerate only a few administrative officials who possess this power we may mention the Interstate Commerce Commission, the Communications Commission, the Federal Trade Commission, the Secretary of Agriculture, and each of the thousands of local draft boards set up by the Selective Service and Training Act of 1940. In our own state government the power is possessed and used by the Workmen's Compensation Commission, the Public Service Commission, the Social Security Commission and the Supervisor of Liquor Control. Many of the boards and bureaus above enumerated have also been given the power to promulgate rules and regulations which have the force of law. If these rules and regulations merely fill in the details of statutes duly enacted by the Legislature, they are held valid. Thus the political bodies above mentioned, all of which lie upon the uncertain border line between the various departments of government, are constitutionally entrusted with powers which are in their nature a combination of legislative, executive and judicial powers. The present case forms no exception to the rule and we are convinced that the constitutional requirements as to separation of powers, even if they apply to cities at all, are not infringed by these provisions.
It is next stated that paragraph (t) of Section 3 of said 18th Charter Amendment confers upon the comptroller of the city arbitrary power to refuse the payment of salaries except upon evidence satisfactory to him that the person to be paid has been lawfully employed and is entitled to payment for his services. This paragraph, in our opinion, can have no greater force and effect than a provision in a private contract that services rendered must be satisfactory to the employer or that any dispute regarding the same shall be subject to the adjudication of some third person, as for example an engineer or an architect. It has been repeatedly held that such provisions do not relieve a person liable where the action of the other contracting party or the arbitrator is purely arbitrary or capricious, but that in such instances the resort may be had to the courts. [Burns v. Reis,
196 Mo. App. 694, 191 S.W. 1096; Keeler v. Clifford (Ill.), 46 N.E. 248; MacDonald v. Kavanaugh (Mass.), 156 N.E. 740; Ellis v. Interstate Business Men's Accident Assn. (Iowa), 168 N.W. 212, L.R.A. 1918F, 414.] If, then, the comptroller refuses payment in a case where the employment has actually been illegal, the employee is not deprived of any rights; but if the comptroller wrongfully refuses payment, the employee would be entitled to sue the city in the ordinary manner. This is all that said paragraph (t) of Sec. 3 of the Amendment can mean and, as so construed, it is not arbitrary, unreasonable or a spoliation of the rights of the employee and hence does not conflict with the due process clause.
It is next objected that the provision requiring an examination fee for applicants for civil service employment deprives them of their rights without due process. But, as we have seen, there is no natural right to hold public office nor does such office constitute property. The requirement of an examination fee is entirely reasonable. This court itself, in providing for examination of persons desiring to become its officers as attorneys at law, has provided for such a fee.
It is said that the 18th Charter Amendment, in providing for a term of office of six years for civil service commissioners, violates Sec. 14 of Art. IX of the Missouri Constitution. We must attend to the language of such section, which we quote, italicizing certain words:
"Except as otherwise directed by this Constitution, the General Assembly shall provide for the election or appointment of such other county, township and municipal officers as public convenience may require; and their terms of office and duties shall be prescribed by law; but no term of office [998] shall exceed four years."
By the words "except as otherwise directed by this Constitution" reference must be had, among other things, to Sec. 20 of the same Article, which gives to the people of St. Louis the right to frame their own charter. Such section provides that the charter must name certain officers, but it leaves to the people of the city the right to provide themselves with other officers. Returning, then, to Sec. 14 of Art. IX of the Missouri Constitution. The limitation upon terms therein contained applies to the officers whose offices have been created by the legislature in accordance with the power therein granted. It does not and cannot apply to offices otherwise created. The present offices were not created by the Legislature but by the people. Hence the section has no bearing upon this case.
Relator says that the 18th Charter Amendment makes an unreasonably large appropriation for the maintenance of the Civil Service System. Without passing upon our own right to review the reasonableness of such an appropriation, it is sufficient to say that there is no evidence in the record before us that the appropriation is unreasonable.
It is said that the provisions of Sec. 13 of the 18th Charter Amendment, enabling the city to sue an officer who has illegally appointed some subordinate for money paid out in wages to said subordinate, are unreasonable and arbitrary and a deprivation of property rights without due process. If such section be construed to mean that the officer may be sued and must respond in damages regardless of his fault, some question of its constitutionality might be raised. We do not so construe it. The section applies to appointments made "in contravention of the provisions of this article or of the rules and ordinances made in pursuance thereof." Being penal in its nature the section must be strictly construed. [State ex inf. v. St. Louis S.F.R. Co., 328 Mo. 605, 142 S.W. 279.] So construing it, we hold that the words "in contravention of the provisions of this article" refer to an intentional or a negligent act of the appointing officer and that the section does not create liability without fault. Hence it is constitutional.
It is next contended that Sec. 14 of the Charter Amendment, which authorizes the personnel department by agreement with other city departments to conduct examinations of applicants for licenses issued by such other departments is arbitrary and unreasonable. Relator says that regardless of the nature of such license the department by executive rule can require an examination. Under its language it is contended that by agreement between the recorder of deeds and the personnel department a physical examination of applicants for license to marry might be required. We do not so construe the section. We construe it to mean that where by a valid law or ordinance any department of the city is authorized to require an examination as a condition precedent to issuing of a license, it may delegate to the personnel department the function of giving such examination. In any event no arbitrary or unreasonable exercise of powers under this section has been attempted and it does not bear such a necessary relationship to the whole amendment that its unconstitutionality would affect the rest of the enactment.
It is said that Sec. 20 of the Charter Amendment is in conflict with Sec. 11785, R.S. Mo. 1939 [Mo. St. Ann., sec. 10477, p. 3816]. Said Sec. 20 provides that city employees shall be granted a reasonable time to vote not exceeding four hours. The statutory section cited provides that any qualified voter shall be allowed four hours from his employment to vote. Even if this section of the statute applied to public corporations, the charter provision would not be invalidated thereby. The two would have to be read together. The charter provides for a leave of absence of not more than four hours and the statute of a leave of four hours. Hence the words "not more than" in the charter would have no effect, but certainly this would not invalidate the entire Charter Amendment. It is also said that the prohibition against political activity of city employees above referred to contravenes Sec. 11782, R.S. Mo. 1939 [Mo. St. Ann., sec. 10474a, p. 3815]. Reading said section in connection with other sections adopted at the same time makes it clear that it applies only to private employers and not to municipalities. Hence the point must be ruled against the relator.
Relator also contends that this court, in the case of State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532, has ruled that provisions similar to those contained in the present amendment were invalid. The Rothrum case did not involve a civil service system adopted by charter. It simply held invalid an attempt by a city [999] manager to fix a pay scale in violation of the lawfully enacted ordinance. The situation is entirely dissimilar to that now before us and the case is not an authority in the present situation.
None of the constitutional and statutory objections urged against the validity of this amendment are, in our opinion, well taken. We hold that the Eighteenth Charter Amendment is a valid and binding portion of the Charter of the City of St. Louis and that the respondents have, therefore, been properly appointed to office and lawfully hold their offices. Hence our judgment must be against the relator and for the respondents. Accordingly it is ordered that relator's petion for a writ of quo warranto be denied. All concur, except Gantt, J., not sitting.