Stemmler v. Einstein

297 S.W.2d 467

• Court: Supreme Court of Missouri
• Decided: January 22, 1957
• Docket: 45806
• Status: Published

Opinions

HOLLINGSWORTH, Judge.

This is an original proceeding in mandamus. Relators, being twelve of the members of a Board of (thirteen) Freeholders of the City of St. Louis elected to prepare and' submit a new or revised charter to the qualified voters of said city, seek our peremptory writ commanding respondent Einstein, the remaining member of said Board and chairman of one of its committees, to approve and certify a voucher for the sum of $500 in payment of an allegedly valid indebtedness of the Board to Governmental Research Institute for services rendered by the latter. Respondent challenges the authority of the Board to enter into a contract for such services and asserts that he might be exposed to criminal prosecution and civil liability if he should approve a voucher issued in payment of the questioned indebtedness.¹

The issue presented by the pleadings requires us to determine a question that has become a matter of urgent public interest, to wit: whether, under the provisions of Sections 31-33, Article VI, of the Constitution of Missouri, V.A.M.S., the City of St. Louis is authorized or required to include, in a proposed new or revised charter, provisions for the exercise of county government, as set forth in Sections 18(a) to 18 (l), Article VI, which authorize counties having more than 85,000 inhabitants to frame and adopt charters for their own government.

The cause was briefed, orally argued and submitted upon an agreed statement.

According to the last decennial census of the United States, the City of St. Louis has a population of 856,800. On January 23, 1956, its duly enacted Ordinance No. 47,-690 was approved and became effective. Pursuant to the provisions of that ordinance, the aforesaid Board of Freeholders, on May 8, 1956, was elected by the qualified voters of the City “to prepare a new or revised Charter of said city, * * * all as provided for by Section 32, Article VI of the Constitution of the State of Missouri”. The ordinance also provided that the new or revised charter should be completed within one year of the date of election of the Board.

Following its election, the Board organized, elected relator Stemmier as chairman of the Board and respondent was appointed chairman of the Committee on Employees, Supplies and Budget. Rules were adopted governing the meetings and operations of the Board and the City appropriated the sum of $50,000 for salaries, counsel, personnel, materials and expenses of the Board in the. performance of its duties. Relator Stemmier, as chairman of the Board, and respondent Einstein, 'as chairman of the Committee on Employees, Supplies and Budget, were authorized to approve and certify by their joint signatures all expenditures of the Board.

On July 6, 1956, the Board, by resolution duly adopted, directed its chairman to instruct Governmental Research Institute to prepare and present to the Board “for its consideration proposed charter provisions relating to the number, kinds, manner of selection, terms of office and salaries of all county officers, other than judicial officers, including the following: Circuit Attorney, Clerk of the Circuit Court, Clerk of the Circuit Court for Criminal Causes, Clerk of the Court of Criminal Correction, Clerk of the Magistrates Court, Collector of Revenue, Constables, Coroner, License Collector, Prosecuting Attorney, Public Administrator, Recorder of Deeds, Sheriff and Treasurer, and relating to the powers and duties of the same”; and directed that the sum of $500 be paid to the Institute as a fee for such services. Upon the adoption of the resolution, respondent, who had abstained from voting thereon, advised the Board that there might be a legal question as to its power and authority to enact charter provisions dealing with the so-called “county offices” and that he was in doubt as to whether he could legally approve the expenditure and requested that he be furnished an opinion by the Board’s counsel as to his rights, duties and personal risks, if any, in this connection. The chairman directed the Board’s counsel to'furnish respondent with such an opinion. On July 10, 1956, Governmental Research Institute presented its bill for services in the amount of $500. On the same date, a City of St. Louis departmental disbursement voucher, covering the payment of said bill, was presented to the chairman of the Board. The voucher was in standard form, was prepared for the signatures of Stemmier as chairman of the Board and respondent as chairman of the Committee on Employees, Supplies and Budget, and embodied a certificate that the account amounting to $500 was correct and the expenditure authorized and necessary. Stemmier signed the voucher and at the regular meeting of the Board of Freeholders on July 13, 1956, called upon respondent to approve, certify and sign the voucher. Respondent, however, refused to do so and still so refuses, basing his refusal upon the written opinion of the Board’s regular counsel dated July 10, 1956, which advised respondent that by such action he might expose himself to personal liability of both a criminal and civil nature.

Due to the urgency of an early determination of the issue, we waived the provisions of our Rule 1.23, 42 V.A.M.S. See State ex rel. Cole v. Matthews, Mo., 274 S.W.2d 286. And we have concluded that the facts above recited justify the exercise of our jurisdiction to determine the .case on the merits. Section 4, Article V, of the Constitution; State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75.

Since the adoption of the Constitution of 1875, the City of St. Louis, by virtue of the provisions of Sections 20-26, Article IX, thereof, has been invested with and has exercised the powers of both a city and county, with the same power reserved over it by the General Assembly, however, under Section 23 of said Article, that it had over other cities and counties of the State. And such of its officers as have performed the functions and duties generally exercised ■by county officers have been held to be county officers and subject to the general laws of the State relating to the selection and duties of county officers, as distinguished from municipal officers. State ex rel. Walker v. Bus, 135 Mo. 325, 36 S.W. 636, 639, 33 L.R.A. 616; State on inf. of McKittrick v. Dwyer, 343 Mo. 973, 124 S.W.2d 1173, 1174-1176. It is also provided ■in Section 1.080 RSMo 1949, V.A.M.S.², that whenever the word “county” is used in any law general in character to the whole State, it shall be construed as applicable to the City of St. Louis unless such a construction be inconsistent with its evident intent or some law specially applicable to the city. But, although it constitutes a legal subdivision of the State and exercises such governmental functions as are generally exercised by the one hundred fourteen counties of this State, the City of St. Louis is not legislatively classified as a county, hut as a city. Section 46.040. And the framers of the 1945 Constitution declared in Section 1 of Article VI that the “existing counties” were “recognized as legal subdivisions of the state”.

Article VI of the Constitution of 1945 sets forth three instances in which local government may be enjoyed by cities and counties in this State. One of them is of general application to counties of more than 85,000 inhabitants, one is of general application to cities of more than 10,000 inhabitants, and one applies exclusively to the City of St. Louis. They are:

(1)Sections 18(a) to 18(1) are entirely new and novel in that they, for the first time in this State, authorize “any county having more than 85,000 inhabitants” to frame and adopt and amend a charter for its own government and provide that upon adoption of such a charter such county shall be a body corporate and politic. Section 18(b), which relators contend empowers the Board to adopt provisions for the exercise of county government by the city and to contract the $500 item of alleged indebtedness here in question, provides: “The charter shall provide for its amendment, for the form of the county government, the number, kinds, manner of selection, terms of office and salaries of the county officers, and for the exercise of all powers and duties of counties and county officers prescribed by the constitution and laws of the state.” However, the number and qualification of the members of the Board of Freeholders provided for in Sections 18(f) and 18(g) and the method of their selection differ materially from those provided in Section 32(b), under which the city proceeded.³

(2) Section 19, not new in substance, except that the figure of “10,000” has been substituted for “100,000”, authorizes any city having more than 10,000 inhabitants to frame and adopt a charter consistent with and subject to the constitution and laws of the State, and provides a procedure that is different in its details from that followed by the city in the instant matter.

(3) Sections 31-33 deal exclusively with the power of the City of St. Louis to establish local self-government:

Section 31 provides: “The City of St. Louis, as now existing, is recognized both as a city and as a county unless otherwise changed in accordance with the provisions of this constitution. As a city it shall continue for city purposes with its present charter, subject to changes and amendments provided by the constitution or by law, and with the powers, organization, rights and privileges permitted by this constitution or by law.”

Section 32(b), under which Ordinance No. 47,690 was enacted, provides: “The-lawmaking body of the city may order an election by the qualified voters of the city of a board of thirteen freeholders of such city to prepare a new or revised charter of the city, which shall be in harmony with the-constitution and laws of the state, and shall provide, among other things for a chief executive and a house or houses of legislation, to be elected by general ticket or by wards.. Such new or revised charter shall be submitted to the qualified voters of. the city at. an election to be held not less than twenty nor more than thirty days after the order therefor, and if a majority of the qualified voters voting at the election ratify the new or revised charter, then said charter shall become the organic law of the city and shall take effect, except as otherwise therein provided, sixty days thereafter, and supersede the old charter of the city and amendments thereto.”

Relators assert that although the Board of Freeholders was selected pursuant to the provisions of Section 32(b), and contrary to the provisions of Sections 18(f) and 18 (g), it nevertheless has authority and it is its duty ⁴ to include in its proposed charter provisions fixing the number, kinds, manner of selection, terms of office and salaries of county officers pursuant to the requirements -of Section 18(b).

In support of that contention, relators point out that if, under the Constitution of 1945, it is necessary for a board of freeholders to be organized under Sections 18 (a) to 1S(Z) in order to frame a charter dealing with the county powers of the city, then it would be equally true that it would be necessary to organize another board of freeholders pursuant to Section 19 (authorizing all cities of over 10,000 to adopt charters) to frame a charter for administration •of its municipal powers; and that the conflicting powers and limitations of such boards would produce an unworkable result, not intended by the framers of the Constitution. In this connection, our attention is called to Sec. 50.010 of the statutes as evidence that the Legislature interprets Sections 31-33 to give to the Board of Freeholders therein designated authority to draft a charter for the exercise of its county functions as is prescribed in Section 18(b) of the Constitution. Section 50.010, supra, provides: “Unless otherwise provided in a charter adopted by a county under the provisions of sections 18 or 31, 32 and 33 of article VI, of the constitution of this state, the fiscal year of the several counties of the state shall commence on January first ⅜ ⅝ ⅜»

Section 50.010 is not to be ignored in consideration of the issues here involved, and yet it is evident that the primary purpose of the opening clause of that section was to avoid any possibility of attempting to fix the fiscal year of any subdivision of the State over which the General Assembly might not have jurisdiction and that the clause stressed by relators was precautionary, rather than a legislative declaration of the scope of Sections 31 to 33.

Relators also stress Section 1.080 of the statutes (declaring that when the word “county” is used in any general law applicable to the whole State it shall be construed as applicable to the City of St. Louis unless inconsistent with its evident intent or some law specially applicable to the city) as a basis for its assertion that Sections 31-33 of the Constitution are to be construed to include the powers (and duties) with which counties of more than 85,000 inhabitants are invested by Section 18(b). We may and do assume for the purpose of this opinion that the phrase “any law, general in its character to the whole state”, as used in Section 1.080, may be construed to include within its meaning and purpose the sections of the Constitution under consideration in determining the true intent and meaning of the latter.

Relators assure us that if Sections 31-33 of the Constitution permit its Board of Freeholders elected under Ordinance 47,690 to include county functions in a proposed charter, it does not mean that such a charter can preempt generally the legislative field from the General Assembly, citing State ex rel. United Railways Co. v. Public Service Commission, 270 Mo. 429, 192 S.W. 958, 198 S.W. 872. It is not clear why relators inject this theme into their case on the merits. But, whatever their purpose may be, there can be no gainsaying that if the city is empowered to and does adopt a charter for the exercise of county government as provided in Section 18(b), the express terms thereof forbid its assuming only a portion of the powers therein enumerated. That section declares that any charter adopted under authority of Section 18(a) “shall provide * * * for the exercise of all powers and duties of counties and county officers * * * ”, and Section 18(e) further limits legislative jurisdiction over a county exercising charter powers.⁵ These sections make sweeping limitations upon the power of the General Assembly to enact laws relating to the government of a county so chartered. Such limitations can, of course, be made but the intent to do so must either expressly appear or its implication be clear, strong and convincing, if not, as has been said, absolutely necessary. McGrew v. Missouri Pac. Ry. Co., 230 Mo. 496, 132 S.W. 1076, 1083-1084. See also State v. Shelby, 333 Mo. 1036, 64 S.W.2d 269, 271 [1-4]; State ex rel. Hughes v. Southwestern Bell Telephone Co., 352 Mo. 715, 179 S.W.2d 77, 80 [3-5], In determining the intent and applicability of Sections 18(a) to 18(Z) and whether the framers of the Constitution intended that their provisions be read into and made a part of Sections 31-33, we must read and consider them in context with all other pertinent provisions of the Constitution and the public policy of the State as presently declared by the Legislature. State ex rel. Carroll v. Becker, 329 Mo. 501, 45 S.W.2d 533, affirmed 285 U.S. 380, 52 S.Ct. 402, 76 L.Ed. 807.

Prior to the adoption of the 1945 Constitution, the people of Missouri, acting through the General Assembly, for many years zealously reserved unto themselves and exercised complete jurisdiction and control over the police departments of both their two large cities, to. wit: The City of St. Louis and Kansas City. This was done upon the theory that the maintenance of peace and order in these large and congested areas was a matter of statewide concern. State ex rel. Hawes (of the Board of Police Commissioners of the City of St. Louis) v. Mason, 153 Mo. 23, 54 S.W. 524; State ex rel. Goodnow v. Police Commissioners of Kansas City, 184 Mo. 109, 71 S.W. 215, 88 S.W. 27. That continues to be the policy of this State unless it was changed by Sections 18(a) to 18(7) of the 1945 Constitution. Sections 84.010 to 84.-860.

In the Mason case, supra, 153 Mo. loc. cit. 43, 54 S.W. loc. cit. 529, it was said: “Laws like these, and those of other states providing a metropolitan police system for large cities, are based upon the elementary proposition that the protection of life, liberty, and property, and the preservation of the public peace and order, in every part, division, and subdivision of the state, is a governmental duty which devolves upon the state, and not upon its municipalities, any farther than the state, in its sovereignty, may see fit to impose upon or delegate it to the municipalities.” Now, if Sections 18(a) to 18 (Z) are construed to be read into Sections 31-33, applicable exclusively to the City of St. Louis, then the City of St. Louis, the larger of the two principal cities of this State, if it elects to adopt a charter of county government, is undeniably invested with the power, and, we have said, the duty, to take over such functions of its police department as are necessary to the preservation of the peace, safety and property rights of its citizens and the effective enforcement of such other powers as was priorly exercised by counties as an agency of State government. In the recent case of State on inf. of Dalton ex rel. Shepley v. Gamble, Mo., 280 S.W.2d 656, 660, we said: “A county under the special charter provisions o-f our constitution is possessed to a limited extent of a dual nature and functions in a dual capacity. It must perform state functions over the entire county and may perform functions of a local or municipal nature at least in the unincorporated parts of the county. These are constitutional grants which are not subject to, but take precedence over, the legislative power.” Exercise of the powers given to counties in these sections by the City of St. Louis would place its police department beyond the control of the Legislature and yet would leave the Kansas City police department under its jurisdiction. Sections 84.350 to 84.860. Surely, the framers of the Constitution did not contemplate the creation of such an anomaly. We must determine whether it actually did.

Relators say that by the adoption of Sections 31-33 the framers of the Constitution took cognizance of the dual character of the City of St. Louis as it had existed ever since adoption of the Constitution of 1875 and gave it “special treatment”, and that Section 31 merely continues that dual character by recognizing it both as a county and as a city. That is self-evident. But the question is: With what dual governmental powers is this dual institution invested? Does it consist of two separate and distinct corporate and political entities, or are its dual functions, not unlike Siamese twins, conjoined in one corporate and political body? Obviously, the latter would have problems peculiar to its dual but conjoined existence. So, admittedly, does the City of St. Louis. The “special treatment” given it by Sections 31-33 is a wise recognition of that fact.

To “recognize” the city’s dual capacity was merely to formally acknowledge with approval its prior status as a legal subdivision of the State as it had theretofore existed. The expression of recognition of its prior status refutes any idea of creating a new county or legal subdivision of the State or to invest it with additional powers. Therefore, the question is whether, as it priorly existed and by the Constitution of 1945 continues to exist, does it now, independently of its existence as a municipality, also constitute a de jure county within the meaning and intent of those Constitutions? An analysis of both Constitutions and of our statutes tends strongly to show it does not. The reason, we think, is apparent.

The City of St. Louis is a great metropolis that has none of the attributes of the usual concept of a county, such as areas in which there is no municipal or local government. But it is more than that: it is also a city which, due to the fact that it is not within the territorial limits of a county, must exercise county functions as an integral part of state government; and it exercises and must continue to exercise those functions in the manner and within the limits fixed by the Legislature, except, to the extent that the Constitution of 1945 has expressly or by clear implication taken those powers from the Legislature and vested them in the electorate of the City. State ex rel. Spink v. Kemp, Mo., 283 S.W. 2d 502, 514-515 [4-6],

Sections 31-33, Article VI, reveal no intent to invest the city with authority to frame and adopt a charter for the exercise of county governmental functions. Admittedly, the city had none prior to the adoption of the 1945 Constitution and it is a striking fact that the powers given it by Sections 32(a) and (b), with the exception of minor changes in phraseology, are identical with those set forth in the Constitution of 1875, Sections 20-25, Article IX. As stated, the first sentence of Section 31 invests the city with no new powers. The second sentence of that section says of the City of St. Louis that “as a city it shall continue for city purposes with its present charter”, and that it may amend that charter. The provisions of 32(b), under which the Board of Freeholders involved in this litigation is proceeding, are of also special significance. They authorize the Board to prepare a new or revised charter "of the city”; that the charter shall provide “for a chief executive cuid a house or houses of legislation”; and that such charter, when enacted, shall become “the organic law of the city”. Section 33 provides for the authentication of the new or revised “charter of the city of St. Louis”. It is hardly conceivable that the framers of the new Constitution, many of whom were fully aware of the distinction between county governmental functions and those of local or municipal government, would have permitted the language of the Constitution of 1875, which all of them knew did not authorize the city to adopt a charter including powers of county government, to remain so obviously restricted to municipal government had they intended that the city should take over the functions of county government.

But, say relators, despite the fact that Sections 31-33 deal exclusively with the City of St. Louis, nevertheless, it is also a county of more than 85,000 inhabitants and the framers of the Constitution intended that it be so classified within the meaning of Sections 18(a) to 18(Z) insofar as they can be made to apply and, it seems, insofar as the city may elect to exercise them.

We think it clear that each of Sections 18(a) to (Z) is intended as an integral part of a single plan, with which any county authorized and desiring to frame, adopt or amend a charter for its own government must substantially comply; at least, that it must comply with every limitation therein made a prerequisite to the adoption of charter powers. But study of this plan shows Sections 18(f), 18(g), 18(h) and 18 (j) contain provisions with which such a county is required to comply before any charter submitted by it can be lawfully adopted that are in direct conflict with the charter powers given the City of St. Louis in Sections 31-33. Section 18(b) not only gives a county of more than 85,000 inhabitants power, but requires it to provide its own form of government, while Section 32(b), under which the city must operate, restricts the form of government to “a chief executive and a house or houses of legislation to be elected”. Section 18(f) requires that proceedings for a county charter must be initiated by means of a petition signed by twenty percent of the electors, and for subsequent procedures directly in conflict with Sections 31-33. Section 18(g) provides for the appointment of a commission of fourteen freeholders to be appointed by the circuit and probate judges of the county and that membership on the Board of Freeholders thus selected be equally divided between the two major political parties, each of which provisions is repugnant to the method provided for the selection of the Board provided for in Section 32(b). Section 18(h) authorizes a separate vote on any part of the charter submitted; Section 32(b), pursuant to which the Board is functioning, contains no such provision.

The absence of any clause or phrase in Sections 18(a) to 18 (T) evidencing an intent that the procedure therein required for a county of more than 85,000 inhabitants to enact a charter form of government is applicable to the City of St. Louis (when considered in connection with the absence of any suggestion in Sections 31-33 that the city was delegated any such power) is most persuasive that Sections 18(a) to 18 (l) were never intended to apply to the City of .'St. Louis.

We are convinced that the city, purporting to act in accord with Sections 31-33, may not reach into Sections 18(a) to 18(l), extract a portion of 18(b) out of context and use it as constitutional authority for adoption by it of one or more of the functions therein imposed upon all counties •operating under special charters, and at the ■same time ignore all of the requirements of Sections 18(a) to 18(1) as to the procedure required before any county can procure such .a charter and, indeed, then go further and ■obtain such a charter under a procedure that in terms relates solely to a charter for ■city government. See Castilo v. State Highway Commission, 312 Mo. 244, 279 S.W. 673, 677 [5].

The debates of the 1944 Constitutional 'Convention lend much color to our conclusions and it is proper to consult the ■proceedings and debates of the Convention ■even though they are not of binding force -and their value depends upon the circumstances of each case. State on inf. of Dalton ex rel. Shepley v. Gamble, Mo., 280 S.W.2d 656, 661 [9]. These debates, insofar as they relate to what are now Sections 18(a) to 18(Z), are set forth through pages .2094-2101, 2105-2163.

At page 2095, Senator McReynolds said of Sections 18(a) to IS(¿), (then referred to as Section 20):

“In fact, the only counties that come . within the present provision, and this is an elaborately written and carefully prepared plan, are counties the size of Buchanan and above.- That would mean Buchanan County and Jackson County and St. Louis County and Greene.”

At page 2097, Mr. Bradshaw said:

“Here in Missouri the provision of eighty-five thousand would apply to four of our one hundred and fourteen counties excluding for this purpose the county of the City of St. Louis.”

At page 2098, Mr. Bradshaw also said:

“I have advocated in the past years the home rule for counties for St. Louis and Jackson, particularly, and I think it appropriate that it be applied to Greene and Buchanan but I doubt the advisability of applying it to- all the counties in the State.”

On page 2112, Senator McReynolds said:

“You must remember, sir, that here is a particular charter which had been worked out by the representatives of four counties to fit their situation. • Now, there is no general principle involved because this is not worked out to take care of anything except their particular problem, and they have a right to work it out that way and ought to have worked out, and it is acceptable to them.”

At page 2147, Mr. Charles H. Mayer said:

“As for the length of this Constitution about which Mr. Kirk spoke, the people in the four counties affected number about a million fifteen thousand. * * * Now, why deny it to us and why have it denied to us by gentlemen who are not affected by it? Mr. Ford speaks of the effect upon St. Louis City. It doesn’t apply to St. Louis City at all. St. Louis City is not concerned with it so far as I know. There may be a delegate or two in St. Louis who thinks that it isn’t a good thing. If they do, they have a perfect right to vote against it, but it doesn’t affect the City of St. Louis at all.”

No delegate, insofar as we have been able to find, ever at any time during the convention disputed or questioned the above assertions of the delegates who were engaged in presentation of the matter.

In their reply brief, relators direct our attention to a statement of Mr. Hullverson at page 2115, as follows:

“In view of the difficulty with this Section, I might mention that St. Louis is vitally interested in this Section. I don’t think it’s a matter pertaining to counties alone. I am certainly interested in this Section, but in view of the difficulties being encountered, I would move and I do move now, that we take it up section by section.”

But that statement was made in connection with a suggestion made by Judge Stevens, who, with Mr. Bradshaw, Mr. Mayer and Mr. Hughes, led the discussion of Sections 18(a) to 18(1). At page 2099, Judge Stevens said:

“Mr. President, I would like to suggest that the whole section be read together. This Section 20 [Sections 18 (a) to 18(1)] is written not by sections but as a document, you might say one section more or less dependent upon another. I think the matter should be considered as a whole. We spent six weeks writing this and I suggest reading the whole and then let anybody offer any perfecting amendments or motions that they want.”

At pages 2121-2122, it seems clear that Mr. Hullverson’s interest in the sections was directed to the effect, if any, that they might have upon any future extension of the boundaries of the City of St. Louis.

For the reasons stated, we have concluded it was not intended that the City of St. Louis be invested with the powers enumerated in Sections 18(a) to 18(1).

The alternative writ should be and is quashed.

All concur except STORCKMAN, J., who dissents.

1 . Section 558.260 RSMo 1949, V.A.M.S., makes it a felony for any member of any board charged with the administration of any fund of a public nature to knowingly vote for disbursement of such fund for any purpose not authorized by law.

2 . All statutory references herein are to RSMo 1949, V.A.M.S.

3 . Section 18(f) provides: “Whenever a petition for a commission, signed by qualified electors of the county numbering ' twenty percent of the total vote for governor in the county at the last preceding general election, is filed with the county court or other governing body, the officer or body canvassing election returns shall forthwith finally determine the sufficiency thereof and certify the result to the governing body, which shall give immediate written notice of the petition to the circuit and probate judges of the county.” Section 18(g) provides: “Within sixty days thereafter said judges shall appoint a commission to frame the charter, consisting of fourteen freeholders who shall serve without pay and be equally divided between the two political parties casting the greater number of votes for governor at the last preceding-general election.”

4 . For some reason unexplained in the record, the Board neither claims any duty, nor does it assert any right, to include within a proposed charter the further mandatory provision of Section 18(b) that such a charter shall provide “for the exercise of all powers and duties of counties and county officers prescribed by the constitution and laws of the state”, which, we have held, requires provision for such peace officers as are necessary to perform the duties enjoined upon county peace officers. State on inf. of Dalton, ex rel. Shepley v. Gamble, Mo., 280 S.W.2d 656, 660-662. In fact, we understand that the present Board of Freeholders proposes to give to the Sheriff of the City of St. Louis only those powers of preserving the peace as are presently enjoyed by him, to wit: the power and duty to act under the control of the State appointed police board, as provided by § 84.200 RSMo 1949, V.A. M.S., and that it also proposes to leave the city’s police department under the jurisdiction of the State, as it is now constituted and functions under §§ 84.010 to 84.340 of the statutes.

5 . Section 18(e) : “Laws shall be enacted providing for free and open elections in such counties, and laws may be enacted providing the number and salaries of the judicial officers therein as provided by this constitution and by law, but no law shall provide for any other office or employee of the county or fix the salary of any of its officers or employees.”