No election may be held in the City of Hannibal to name city officials on a partisan basis pursuant to the charter amendment of August 22, 1961, prior to the second Tuesday in April, 1963, the next regular election date.

ELECTIONS: CITIE3, TO\'INS AND VILLAGES : r~NICIPAL CORPORATIONS: No election may be held in t r.e City of Hannibal t o name city officials on a partisan basis pursuant t o the charter amendment of August 22, 1961, prior t o t he second Tuesday in April, 1963, t he next regular election date . CONSTITUTIONAL LAW: OPINION NO . 356 (1961 ) 18 (1962 ) Mar\.!11 22, 1962 Honorable Harold L. Vollaner Prosecuting A~torney Marion County Hannibal, 1Usoour1 Dear Sir: We are in receipt of 70ur request tor an opinion of this office- which request reads as follows: "On April 30, 19571 the qual~tied elec- tors or the City ot Hannibal, ~ a major!~ vote, voted to form a government tor the CitT of Hann1.bal, JUesouri, and adopted the Charter for the CitJ' ot Hannibal, a copy of which 1e herewith enclosed. Thereafter on uguat 22, 1961, the qU4l1.tied electors ot the Ci t7 ot Hannibal adopted certain amendments to eaid City Charter, copies ot which are herew1th enclosed. !'he gist of the amend- ments to the Charter were that the elec- tion of the elected cit,v officials was made oa a partisan, poli tioal basis rather than on a non-partisan, nonpolitical basis, as under the Charter tom. It also has done awq with the ot'fice ot administra- tive assistant, an appointive ottice, and the amendments alao made the offices ot city attorney, municipal Judge, and chief ot police elective rather than appointive. 11'l'he amendments did not provide for ~ special election in the event that t hey were enacted. The only provisions call~ ~or an election are 1n Section 18.~1 (1), Honor able Harold L. Volkmer which provides that primacy elections shall be held upon the second Tueadq ot April• 1961, and on ea~ o<ld- numberecS year thereafter and 18.01 ( 9), which provides that 1;here shall be a general municipal election on the t!r-et ·Tueadq 1n ~ ~ 1961, 8!'d ever:r two years there- after. •tfbus, I would like your official op.1mon as to whether or not under the amendments to the C1ty Charter there muat be a spec- ial eleoUon tor i;he o1ty oft1e1als pxr1or to April l~ 1963, 071 'Whether tilt election shall be held on Apl'll 1., 1963. Upon ~r 1nqu1ry we I'Elceived the following timetable ot the events in ques~1on1 April 4, 1961 .. General nrun1e1pal el.ect1on held toP the purpose of electing a May-or, Councilmen at large~ and WaH Councilmen <>n a. nonp~ti&an baais pursuant to Sec. 18 .ol ot the 1957 ¢barter. Apr!.l 19, 1961 ... Pe'tit-i.on submitted to C~t,y Couneil calling tor amendment of 1957 Charter to proVide to~ election or City ott1c1als on a partisan basts. June 20 ~ 1961 • Ord.1nance enacte4 pro- Viding for subm1ss!on ·or proposed amend- ment to the eleotorate. August 22, 1961 • Spee1al Election held at which propoeed amendment was adopted. Ae J'OU note in your letter, Sec~1on 18.01(1) et the eruu-ter ot the C1tq ot Hannibal:a a& amended on August 22., l96l, provides tor the nomination of certain eitu ott1c1als at a pr~ eleet1on to be held on the seeond ~sday 1n April, 19614 and on the eame dey ot each odd•numbered year thereafter. 'J.'hat sec·t1on 1s as f'oll.ows: "Section 18.01 (l) There shall be a prinlary mun1.eipal el.eetion tor the pur- pose of nominating a mtqOr, municipal - 2- Honorable Harold L • Vol lanett Judge, c~ef ot police, city attorney, councilmen and members ot the City Central Committees, and tor the purpose ot deciding any question tnat may law• tully be submitted to the electors, held upon the 2nd Tuesdq 1n Apr1l, 1961, and on each odd numLared year thereatter. 'l!lere mq be special elections called by the city councU a.a provided in the Charter. " Section 18.01(9) ot the ~r aa amended provides tor a general municJ.pal election tor the purpose or elect~ the above- named otf1o1ala on the t1rat Tuesdq or Mq, 1961, and eveey two years thereafter. The que_stion thus presented 1s 1thether the decision ot the people or Hannibal to cluulge the manner in which their city ott1o1ala are named ia to be given ettect as or the etteot1ve date ot the amendment, or whether it is to be post- poned until 1963. \ OeMrally, the amendl:lent of August 22, 1961, does not purport to vacate city offices, with certain exceptions here- inatter noted, prior to the first r&{Sular election under the amendment, nor docs 1t epee1t'1cally provide for a speci.al elect ion to elect these vff1o1als on a partisan basia. !he only dates set out 1n the amandment regard1.ng the holding or the elect~ons there provided tor are the second TuesdaJ ot April and the t1rst Tues~ of Ma¥ ~ 1961., and the correspond- ing dqa ot subsequent odd•numbered yeus . It obviously baa been 1mpoaa1ble to observe the terms of the az:1endment with respect to the 1961 electionG ~ and the~tore ~ eleet1on held pursuant to the amendment prior to the second Tuesda¥ or April. 1963.- must be a opecial elect-ion. In Dysart v . City ot St. Louis, 321 Mo . 514, 11 SW2d lo45, the Supreme Court, en Bane, stated (l .o . 1053): "!he rulings 1n other states are con- flicting upon this subject, but the weight of the authority tavol"s the aet~t1on that a special election meams one tak1ns place at a time dif• terent tram ~1at at which an election fixed by law is held. " -3- Honorable Harold L. Vol•r The rule wi~ regard to the holding ot a special election is aet out in State ex 1nt. Mooney ex rel. Stewart v. Con- solidated School Diet. Ho . 3. Mo. App., 281 SW24 511. 513. aa follows: " • • • But it is tundamental that no valid election can be called and held except b7 authority of the law, and that where the law places the du~ ot calling or ordering a special election in the banda ot some author1t7 or a&eney an election held without such call ia a nullity ••• •" See also State ex 1nt. R1oe ex rel . Allman v . Hawk, 360 Mo. 490, 228 SW24 7851 an4 State ex rel. Edward& v. BllJ.aon. 271 Mo. 123, 196 sw 751. In State ex rel. McHen17 v . Jenkins, 43 Mo. 261, the Con- stitution ot 1865 provided tor an election to till the ottioe ot county clerk 1n 1866 and eveey tour "are thereaf"ter. No sueh election was held 1n 1866, but in 1868 the relator was elected co11Jlty clerk. His tJ.tle to the ot.r1ce waa challenged and the Court held the 1868 election invalid, aq1ng (l .c . 265): •In relation to relator ' s second claim, that the omission to hold an election 1n 1866 can be supplied by one in 1868, we can o~ sq that it is a valid one 1t the law provides tor anJ such elec- tion. But he haa tailed to show us any •uch provision, and i~ would be dUticult to g1w legal validity to a volunteer election. No election can be had unless provided tor by law. As the law makes no provision tor the election ot clerks 1n 1868, eueh election 1B wholq void and ot no etf'ect. 'fhi.a position has never bean questioned. In '-be State v . RobinSon, 1 Kanaaa. 17, a question was rnaed aa to tbe va1J.d1 ty ot en election tor governor. and it waa held that the election under consideration was not p~­ vided tor by- law, that the person elected could not take the chair, and that the -4- Honorable Harold L. Volkmer previous governor should hold over until the next general election. No eaee has been known where a volunteer election baa been held valid• even tho~h the tem ot the incumbent had expired. " App171ng the principles enunciated in the toregoing cases to the situation with which the C1$y ot Hannibal is presently faced, 1 t can be seen that no election Jna7 be held to nominate candidates tor ~or , councilman, etc., under ~ amendment, prior to April, 1963, unless the Conatitution or statutes of M1aaour,1, or the city charter, authorizes such election. Seot1ona 19 and 20 ot ~!.ole VI ot the ConstJ.tut1on ot Missouri, 4ea11rlg with the adop,1on and. amendment ot home rule charters, oontain no provisions authorizing the holding ot auoh election, nor do we tind suoh author1tJ" 1n the Miasourt statutes p&rtain• 1ng to conat1tut1onal charter o1t1es ha~ a population ot less than 300;000. Sections 82 .010 t~ 82 .290, BSMo 1959. TUrning then to the charter itself, Section 18. 01 ot the original charter prior ~ amendment prortded that, "'l'bere JDley' be special elections called b7 the Cit¥ Council. " However this section baa been re~aled by the amen4ment and the com- parable amended section, §18. 01(1), has been altered to read that, "there may be special electio~ called by the City Counoil aa ~vided 1n the charter. (Bmphaaia ours.) i'tlua. aJ\Y authori for a speC!il e1ection ot this nature must be tound in some other charter section. Section 18.12 ot the Charter provides aa follows' nSection 18.12. PAILURB '1'0 HOLD RLBC'l'IOB NO'! '1'0 BB J>BBMBD A LAPSB. It, tor ~ reason, an election shall not be held on the date specified 1n this charter or in ~ order ot the Co~il calling tor a special election, the election shall not be deemed thereby to have lapsed, but the same shall be held a' the earlieat possible date to be designated b7 the Mqor atter due no'1oe has been publl.shed as 1118.¥ ~ required by the ordinances of this oi ty." It might be contended that the amendment ot August 22 • 1961, apeoU'ically directs that a pri.JJlary election be held on the second 'l'ueadq ot April, 1961, and that becauae that elec- tion waa not then held the M~Q-or should direct that :l.t ba held -5- Honorable Harold L. Volkmer "at the earliest possible date, " pa,rticularly since the above section refers to a failure to hold an electi on on the date specified "for .!!lZ reason. u In order to test- the val1d1 t¥ of such a contention it !s first necessary to determine the ef- tecti ve date of the amendment. Section 21.01 of the charter states that EU\Y amendment to the charter shall become a part or the charter, "at the time and under the conditions fixed in the amendment. " Seo- t1on 20 at Article VI ot the Missouri Const itution contains an 1dent1ca.l provia1on. However 1 the amendment ot August 22 is silent as to the effective da~ . 'l'heretore, we muet apply the established rules ot constrtlot ion regarding the operation ot amendments. In C1ty of Kansas City v. Stegm.iller, 151 Mo . 189, 52 SW 723:. t he contention was made that an amendment to the Xanaas C1~ cha.rter was not ettect1ve until thirty c~a¥s atter 1ts approval. by the electorate . 1'he amen&nent 1tselt made no menti.on of the effect1 ve date. '!he Supreme Court said (l.c . 727): "Another objection to the extension is that" 1n violation ot section 1885, Rev. S1r. 1889, territory was annexed to the c1 ty t11 thin four month£ next preceding the general c:1 ty election held 1n Itansaa Ci tJ' April 5., 1898. !be tacts are, aa alrea.d.T stated., that tbe election at which the proposed amenc2ment was voted on was held Decetnber 2, 1897. The next ei ty elecUon was held April 5, 1898. J'our monthS had clearly intervened, un- less detendants ' turther contention that the amendment did not talce eff'ect tor 30 days a.tter 1 ~s adoption be true . But there is no such provision ot the con- stitution.. Unless otherwise provided. either by the consti tut.ion or laws~ all laws and amencSme-nts take etf'ect from the date of their approval . End. Inte:rp. St. §§ 498. 539." Prom the foregoing it can be seen that the ar.·endment ot August 22 became effect! ve upon the approval or the voters. Honorable Harold L. Volkmer Therefore any construction of' Section 18.12 ot the charter which would permit a special election prior to Arr11, 1963. must involve the ret_roaotive operation of the amendment, s1noe on the primar¥ election date tiXad 1n the amendment there was no legal authorit.J tor that election, and such date could onl.y be arr1 vad at a.tter approval ot the amendment. With regard to the retroactive operation ot constitu- tional prov~sione! the Supreme Court said in State ex rel . Scott v . Dircks, 211 Mo. 568, lll SW 1 1 3t " • • • !he settled rule of cona1;ruetion 1n-th1a state, appl~oable alike to \ne Constitutional and atatutoiT prov1s1ona, 1a that • unless a di~f'erent intent ia evident beyond reasonable question, they are to be construed as having a prospec- tive operation only. " (Citing authorities.) Nothing 1n the amendment ot Auguat 22 evidences an intent that the amendment shall operate other than proapeo- ti vely. '!beret ore, following the principle above quoted, the amendment ~ not be construed to operate retroactively so as to perm1 t the a_pplicat_ion of Sect:ion 18 .12 author1z1ns an eleot1on prior to April. 1963. Sections 2 .o4 and 3.07 ot the charter provide for a special election to till a V&C&ne7 1n the ortice ot council• man an4 m~qor, respeo~i vel.y. 'the amendment does not, 1n specific terms, vacate an, ot the city ott1cea . However, it does operate to abolish the office of anm1n1strative assistant to the mayor. to comb1ne the ottices ot city counselor and c1 ey attorney • and to create ihree new council seats . Since no vacancy in 1;he ottiee of ~or is created b7 the amendment, Section 3.07 does not provide the necess817 author1.ty w hold a special election tor that otfica on a partisan basia. W1 th regard to Section 2 •04 1 the amendment ot August 22 has 1 1n ett'ect, created three vacancies on the cit¥ council. !'he emendment provides tor the enlargement ot the council trom nine to twelve members • as or the ettecti ve date ot the amendment. Since 1 t does not Qperate to remove the 1.ncumbent council members prior to the fire' regular election under the amendment, nine ot the twelve seate are filled with three -7- Honorable Harold L. Vollaner vacancies remaining. Thus we must determine the possible application of Section 2.04 to authorize a special election for the three vacant positions on the council . Section 2 .01 ot the amendment, changing the council membersMp from nine to twelve, reads as follows: "Section 2.01: NUMBER AND TERM OP COUNCILMEN. The Council shall consist of twelve members to be known· as council· men, two councilmen to be elected by the qualified voters of each of tne six warda for a term ot tour years . Each council• man shall serve until his successor shall be elected and qualified. Of the first councU elected hereunder, the councilman from each ward receiving the highest number of votes shall be elected for a term ot tour years, the councilman receiving the nezt ~est number of votes shall be ~leoted tor a term ot two years. There- after all councilmen shall be elected for e. term ot four years • " B.1 ~his section, a comprehensive scheme ~s set up tor altering the composition of the council, including a system of staggered terms for "the tirst Council elected hereunder. 11 A special election held under Section 2.04 would necessarily cause the junking of thitJ detailed plan. It would be impossible to allo- cate the three seats to be filled at such election in a manner consistent with the amendment creating them. The system of staggered terms obviously contemplates that the entire member- ship of the council will initially be elected at one time. Both Section 2 .04 of the original charter and Section 2 .01 of the charter as amended cannot be given effect in these cireum.Dtances. Therefore, as the Supreme Co~ said in State ex inf. McKittrick v. Bode, 342 Mo. 162" 113 SW2d 8o5, 8o8, ••The amendment must prevail because 1 t is the latest expreasion of the will or the people. " We note alsq that Section 2 .04 is not unqualified 1n prescribing the manner in which council vacancies shall be filled, inaamuch as the application of that section is limited by the phrase, "except as otherwise pro• vided herein." In these circum.atances, Section 2.01 ot the amendment constitutes the "otherw1seu there mentioned. Por -8- Honorable Harold L. Volkmer these reasons, it is our opinion that no special election JnS¥ be held pursuant to Section 2.04 ot the charter to fill the three council seats created by the amendment. We have found no other charter section which might be thought to authorize the special election or which you inquire. CONCLUSION It is therefore the opinion of this otf1ce that there 1s no legal authority tor the holding of a special election in the City ot Hannibal to elect the cit,y orficials in the manner designated by the Charter amendment ot August 22, 1961, prior to the second Tuesd83f' ot April, 1963. 'l'he torego:tng opinion_, which l hereby approve, was pre- pared by my Assistant, James J. Murphy. Yours very truly, !'ROMAS P. EAGIIBTON Attorney General