The opinion
GRAVES, C. J.
(dissenting). — I dissented to the opinion of my learned brother writing’ for the majority. I emphasize majority, because this is a four to three opinion — three for the opinion, one for the result of the opinion, and three dissenting. This dissent should have appeared sooner, but for two sufficient reasons, (1) the majority opinion was presented but a few days before the vote was taken, and there was no real time for mature consideration, and (2.) because since the adoption of the opinion leave was given to file additional briefs to the parties, and to
amici curiae,
and the time given has just expired. My dissent was based upon what examina
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tion I was able to give tbe case after tbe opinion (for tbe majority) was written, and before its adoption. The time was short for a case of this character, and not snch as to give even one upon the ground, time for deliberate consideration. However, subsequent thorough investigations have convinced me that my first impressions were right. In a case of this importance the reasons for a dissent should appear. To fulfill this obligation of myself to the public, this dissent is penned.
I. At the threshold of this case is thrust upon us a vital question which goes to this charter as a whole. Was it framed and presented by such a body as the Constitution of this State provides? New Section 16, Article IX, of the Constitution, adopted in November, 1920 1921, p. 701-2), provides for a charter commission of thirteen members to frame a new charter for a city of the class to which Kansas City belongs. Such a commission is not only to frame the charter, but is empowered to fix the date therein, when such charter (not fractions thereof) shall be voted upon and. adopted or rejected. Concerning the charter proposed by such commission the Constitution (Sec. 16, supra) further provides: “If any such proposed charter be approved by a majority of the electors voting on the proposition of whether or not such charter shall be adopted, it shall become the charter of such city at the time [not times] fixed therein and shall supersede any existing charter and amendments thereof.” The charter finally submitted was signed by but ten members of the elected charter commission. The charter commission elected by the people did not submit it, or present it. One had died, one had resigned, and a third had not signed.' The instrument presented as a charter was not therefore one coming from the elected charter commission. This is a constitutional commission selected by the voters to outline a charter for the people to adopt or reject. When the Constitution speaks of the com
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mission, it speaks of thirteen members and not of ten members. It is in no sense a legislative body to be governed by rules of Parliament or of Congress. The lawmaking power is vested in the people. These thirteen are selected by the actual law-makers to propose a charter for their adoption, not to perform the legislative act of adoption. The material point is that it is not a legislative body, and the instrument creating it does not place it under rules applicable to such bodies. The commission is elected to thresh out and agree upon a proposed charter, and not to make one. The voters make it. The people are entitled to an instrument threshed out and agreed upon by their commission, and not by a fraction thereof. If ten of the thirteen could submit a proposed charter, simply because such number constitutes a majority of those then acting upon the commission, then the people lose the concerted action of their elected commission. If ten was authorized to submit the charter, then a much less number could have done so, under the idea of a majority rule. Say that all had resigned or died, except three, then under the majority rule, two of these three could present a charter, when under the Constitution the people were entitled to the judgment of their thirteen elected men. Going further, if all resigned except one, and that one framed a charter, then under the claim of respondents such single man would be the charter commission, with all the duties and powers of thirteen men. No reasonable construction of the Constitution will go that far. The only theory offered to support the rule of the maj'ority is based upon rules applicable to legislative bodies, and the charter commission is not a legislative body and cannot be such under the constitutional provision giving it life and existence. The duly elected charter commission never presented a proposed charter, and hence there was no such instrument upon which the people (the only law-makers) could vote. For this reason alone there was no new charter presented, and per force of that fact, none adopted. It had to
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be presented by a constitutional body, before it could bo adopted. That constitutional body was thirteen men, and not a mere majority thereof. Had the Constitution-makers desired that a majority of thirteen should present and propose a charter, they would have said so in the instrument. There are those who would cut from our form of government all objectionable (to their way of thinking) features of the organic law, but I am not of that school. With me the orgánic law comes first. Its strict letter must prevail, if a republican form of government is to prevail for any substantial length of time. A charter commission of ten is not the constitutional charter commission of thirteen. But it may be urged that thirteen commissioners cannot all agree. Grant it to be so, but that does not change the organic law. There was a purpose in the restriction, and that purpose was to have the concurrence of thirteen men as to what would be proper for the fundamental law of the city. Under the contention of respondents, if all resigned but one, there would yet be a charter commission (of only one), when the organic law contemplated that the people, before voting, should have the concerted judgment of thirteen of their best citizens. We are of the opinion that no new charter was ever legally presented to the people of Kansas City. It required the full commission to present such a charter, and such was not done. Not only so, but new Section 16 of Article IX of the Constitution required the charter commission to fix a date for the election. The elected charter commission did not do this act. Only a part of such commission acted.
II. Passing for the moment the question as to whether or not there is a new charter at all, we go to the ruling of my learned brother, who writes' for the majority. It is not exactly clear as to what the ruling is, but as best I gather it, the opinion holds that there are now districts in Kansas City from which members of the council can be nominated and elected. These supposed districts
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are created, if at all, by Section 7 of the proposed new charter. The location and boundaries are fixed by. said Section 7. Section 486 of the said proposed charter provides: “Except Sections 98, 108, 125, 417 to 425 inclusive, 457, 458, 486 and 488, all of which shall take effect immediately upon adoption, this charter shall take effect at 10:00 a. m. April 10th, 1926.”
It should be noted that Section 7, which creates and defines the districts, is not one of the divers sections which are declared to be in immediate effect upon the adoption of the proposed charter. If Section 7 ever becomes effective, the date by the charter-makers fixed is April 10,1926, at ten 9 ’clock a. m. of that day. This is the date fixed by that portion of the charter commission which reported the charter, and this is the date fixed by the electors (about twenty per cent of the whole electorate) who adopted the alleged charter. There is no ambiguity or uncertainty about the language used in Section 486', a part of-which is quoted, supra. It is in plain and simple language* clear of meaning, and must be construed as it reads. Courts cannot legislate, nor is there room for construction, when the language of the law is plain and unambiguous. Had either the framers of the instrument, or the people who voted for it, had a desire to put Section 7 in force at once, it would have been written therein, as were the other excepted sections, supra. Is it necessary for us to cite to the trained legal mind authorities on the proposition, that plain and unambiguous language in a law must be given a meaning in accord with the well understood ordinary meaning of the words used? That where there is nothing to interpret, the court must follow the language of the law? We think not. But for the unschooled — not for the lawyer- — -we cite the following: Clark v. Railroad, 219 Mo. l. c. 534; State ex rel. v. Board of Curators, 188 S. W. l. c. 130 et seq; Donaldson v. Donaldson, 249 Mo. l. c. 243; State ex rel. v. Wilder, 206 Mo. l. c. 549.
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In the 'Clark case, Lamm, J., said: " Courts have no right, by construction, to substitute their ideas of legislative intent for that unmistakably held by the Legislature and unmistakably expressed in legislative words.
Expressum facit cesare taciturn.
We must not interpret where there is no need of it. [McCluskey v. Cromwell, 11 N. Y. l. c. 601-2.] ”
In Donaldson’s case it is tersely said: Where the meaning of the lawmaker, as evidence by his words, is plain, there is no room for judicial construction.”
So also in the Wilder case we said: “It is fundamental and one of the cardinal rules in the construction of statutes that the true intent and meaning of the lawmaking authority, as expressed in the language employed, should, if possible, be ascertained and declared. On the other hand, it is equally well settled that words and phrases shall be taken in their plain or ordinary and usual sense, and that it is incumbent upon the courts to construe a statute as written, without regard to the results of the construction, or the wisdom of the law as thus constructed.”
The opinion quotes from 25 Ruling Case Law, page 978, paragraph 228, but omits vital language in that paragraph, as follows:
“But there is no room for an implication when the plain, mandatory provisions of the statute are to the contrary.”
The opinion does not (and could not well rule) that persons could be elected to an office in a district, or a county not yet in existence, but simply rules that by implication Section 7 can be construed to be in effect. The ruling is contrary to every ruling in this State dealing with plain and unambiguous language, and contrary to every text-writer upon the subject.
If it be conceded, which, for the purpose of this point only, we will concede, that a charter provision has the status of an act of the Legislature of the State, yet there are only fractions of the alleged new charter in effect, if any portion thereof can ever be effective. There is
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no room for implications as to when a law or a statute becomes effective. To say the least it must become effective either per the force of some general provisions of law which puts all legislative acts into effect, or by some special provision of the act itself, which postpones the date at which it goes into effect. In the case before us, the instrument itself fixes the date when Section 7 and most of the other sections shall become effective; in other words, when they shall go into effect. It is not for a court to legislate, and by implication merely, re-write plainly written terms. We do not agree that any law can have a potential existence prior to the time fixed for it to become effective, as is written in the majority opinion. A law, which by its terms is to take effect in the future, only speaks of the date fixed for it to become effective, and not from a prior date. [State ex rel. Brunjes v. Boekelman, 240 S. W. l. c. 212,] There is nothing in either State ex rel. v. Dirckx, 211 Mo. 568 , l. c. 578, and Poindexter v. Pettis County, 246 S. W. l. c. 40, which contravenes what is said in the Brunjes case, as to when the law goes into effect. Of course in a sense, it has a potential existence for some purposes, but not an effective existence, so far as the terms of the act are concerned. If the meaning of the act is to be determined, such law (one to become effective in the future, as fixed by its terms) might have a potential existence sufficient for a court to look at its terms for the purpose of giving a construction. of it, with reference to some other act, or to determine when the act itself became effective, but this mere potential existence does not give vitality to the act prior to the date fixed for it to become effective. Such was the plain ruling of the Brunjes case, supra.
Another familiar rule of construction, is that the last legislative declaration takes precedence over previous declarations, even in the same act. To the legal mind need we cite cases upon this fundamental rule? In Section 486, which is the last expression as to when the several parts of the proposed instrument shall become effec
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live, Section 7 is not made effective until April 10, 1926. The language of this Section 486 is plain and unequivocal, and there is no room for construction. It says that Section 7 with other sections shall go into effect on April 10, 1926. This court has not heretofore re-written a charter or a law, hut has given to plain words their ordinary meaning. This Section 7 is the only one which creates and defines the districts. It cannot speak except at the date upon which it becomes effective. There are, therefore, no districts in .existence from which to elect members of the council, either from the individual districts, or at large, for those to he elected at large cannot exceed one to a particular district. In other words one councilman-at-large must come from each Of the four districts. There can be no districts until April 10, 1926-, yet if the public press properly reports the facts, the city is now in the process of electing councilmen, to represent districts not now in existence.
There are other matters which to my mind are just as fatal to this charter, but if these suggestions are ineffective, it would be like casting seed upon stony ground to go further. Without more at this time (and I think that I have written sufficiently to justify my position) I again, under my own pen, most respectfully dissent. I did not feel that a mere silent dissent met my obligations to the office' I hold, upon a ease of this moment.
Walker
and
Woodson, JJ.,
concur in these views;
Walker, J.,
reserves the right to express additional views.