explaining, “the word ‘shall’ in its legal connotation is accepted as a mandate calling for compliance”
How later courts described this case
- explaining, “the word ‘shall’ in its legal connotation is accepted as a mandate calling for compliance”
- no substantial compliance with the requirement that an initiative petition contain an enacting clause when the petition contained no enacting clause
Written by the judges who cited it.
The opinion
SEILER, Judge
(dissenting).
I respectfully dissent. In my opinion, the majority opinion exalts mere form over substance, leaves the merits of this case unresolved, and is contra to the basic rule that “ . . . In the matter of initiative and referendum, the people are exercising power reserved to them and the provisions under which they proceed should be construed liberally to the end that their right to determine all proper questions by free and open elections shall be secure . . . ”, as declared by the court in State ex rel. Voss v. Davis, (Mo.Sup.) 418 S.W.2d 163, 167 .
Art. I, Sec. I, 1945 Constitution of Missouri, provides “That all political power is vested in and derived from the people ... ”, and Art. Ill, Sec. 49 provides “The people reserve power to propose and enact or reject laws and amendments to the constitution by the initiative, independent of the general assembly . . . ” Just a few months ago we emphasized “ . . . a recognition of the basic fact that the people themselves are the source of all governmental power. Their will is supreme. They spell out in their constitution what form their government shall take and what powers it shall have . . . ”, State ex rel. St. Louis F. F. Ass’n Loc. No. 73 v. Stemmler, (Mo.Sup. banc) 479 S.W.2d 456, 458 . Yet the majority opinion, by investing the words “Be it resolved by the people of the state of Missouri that the Constitution be amended” with some magic power, holds the mere absence of these words bars the people of Missouri from exercising their reserved political power with respect to the measure under consideration.
The majority opinion does not contend that the “Be it resolved”, etc. language furnishes any helpful information as to what the proposed measure is about, but instead finds in the words a purpose of solemnly warning the potential signer of the grave action he is about to take— he is about to participate in an effort *166 to change the fundamental law. This is ingenious, but, it seems to me, has only a surface plausibility.
In the first place, signing an initiative petition does not accomplish any change in the fundamental law. All it does is to assist in getting the matter presented to the voters, who are the ones who make the change, if any is made. In the second place, the people of Missouri have the right to change their constitution, and this right is not circumscribed by any requirement that they must be solemnly warned about it before they have a right to do so. In the third place, the thought that there is a need for a solemn warning rests on the unjustified assumption that the people of Missouri are not very knowledgeable.
If there is merit to the point of view of the majority that the people must be solemnly warned before they propose an initiative, why, then is there an absence of any such requirement when the matter is actually put to a vote by the entire electorate? Why warn only the 8% who sign the petitions and do nothing about requiring an equally solemn warning to the 100% of the electorate eligible to vote on the proposed measure? It is at the election that the constitution will be changed, if it is to be changed, yet all the constitution requires for the election is that “ . . . any measure proposed shall take effect when approved by a majority of the votes cast thereon . ” There is no requirement that the voters shall be solemnly admonished they are voting to amend the constitution. All the voters need be concerned about is the “measure proposed”, and in the case before us, there is no dispute but that the full text of the measure has been set forth in the petition. With all deference to the undoubted clarity and force of expression of the majority opinion, it seems to me that the view espoused is, in the final analysis, strained and artificial.
Art. Ill, Sec. 53 of the constitution provides that in submitting an initiative measure to the people, the officials shall be governed by general laws. The general law, Chap. 126, V.A.M.S., requires the attorney general to prepare a ballot title for the measure which shall express “the purpose of the measure.” This is what goes on the ballot, together with the heading, “Proposed by initiative petition.” One searches in vain for anything requiring admonishing the people to beware— they are amending the constitution. The reason is, of course, that it is needless. It is plain they are voting on a proposition to amend the constitution, just as it is equally plain to the signer of the initiative petition before us, that he is proposing an amendment to the constitution, whether the “Be it resolved”, etc. language is used or not.
When the electorate of the state votes on the proposed amendment all they have before them is the fact they are voting on the measure and a brief statement of its content. If this is all that is required when the voters are actually voting on adoption or rejection, certainly no more is needed when all that is being done is to sign a petition to get the matter before the voters. The fact is that the more than 160,000 Missouri citizens mentioned by the majority opinion as having signed the petition in question are not changing or tampering with the constitution at all, nor could they. All they are doing is trying to present the matter to the people for adoption or rejection, but we are denying the people a chance to vote because they failed to include certain magic words, which add nothing to the proposed measure, and which the majority opinion itself characterize as nothing more than “procedural.”
In response to the above it may be said, “Yes, what you say may all be true, but we are confronted with Art. Ill, Sec. 50, which says that every initiative petition shall contain an enacting clause and then spells it out word by word.” This is answered by the City of Cape Girar-deau v. Riley decision, 52 Mo. 424 . The 1865 Missouri constitution, by Art. IV, Sec. XXVI, provided “The style of the *167 laws of this state shall be — ‘Be it enacted by the general assembly of the State of Missouri, as follows.’ ” In the Cape Girardeau case the court had before it the validity of an act of the legislature which had been passed without any enacting clause whatever, despite the above constitutional requirement. The court sensibly discussed the matter as one of legislative style, and held that despite the mandatory word shall the provision as to style was directory only, not mandatory. The court reasoned at 52 Mo. 1 . c. 428: “The enacting clause is certainly not of the essence of the law. It furnishes no aid in its construction, and its provisions are as clear and intelligible without it as they are with it ...” This reasoning applies with equal force to the present case, and although the principal opinion undertakes to distinguish the City of Cape Girardeau case, it does not, in my judgment, succeed in diminishing the force of the court’s reasoning or its applicability to the case before us. We should follow it.
Inasmuch as the majority opinion decides this case on the basis of the failure to include the magic words, I do not attempt to reach the additional questions raised by the intervenor.