Buchanan v. Kirkpatrick

¶1dissenting.

¶2I respectfully dissent. It is clear, as discussed in the dissenting opinion of Morgan, J., that Proposition # 5 (the so-called Hancock Amendment) contemplates the refund of taxes only to a privileged class of taxpayers, while gathering such monies from all taxpaying citizens, including those less fortunate who pay substantial portions, if not all, of their earnings for the purchase of necessities. The principal tax burden of the latter class is for sales taxes, gasoline taxes, license fees and similar excises, and yet members of that class are denied, by Proposition # 5, due process and equal protection of the laws guaranteed by Fifth and Fourteenth Amendments to the United States Constitution and Árt. I, §§ 2 and 10 of the Missouri Constitution. This denial arises from Proposition # 5 because the excess from sales and similar taxes paid by members of the prejudiced class will not be refunded proportionately to those paying such monies, but instead such excess sales tax and similar excises will be refunded to *17only those persons, individuals and corporations, paying income taxes and in proportion to the amount of income tax paid. Members of the favored class will receive from the refund: (1) Their share of income tax monies, (2) Their share of the sales and other excise taxes refunded, and (3) (quite unfairly and without constitutional justification) Most, if not all, refunds of sales tax and other excises paid by the nonfavored taxpayers. It requires little imagination to foresee that the principal opinion’s failure to deal with the problem will be interpreted as tacitly approving this invidiously discriminatory scheme, which requires dispensing of the refund monies of “sales taxpayers” to another class of Missourians, “income taxpayers,” without the just compensation assured by Art. I, § 10, Missouri Constitution.

¶3Art. I, § 3 of the Missouri Constitution, limiting the amendatory process, recognizes that the people of the State may alter their Constitution, conditioned, however, that “such change be not repugnant to the Constitution of the United States.” Similarly, Art. VI of the United States Constitution mandates that it “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” Proposition # 5 is patently repugnant to the Fifth and Fourteenth Amendments to the United States Constitution, and for that reason, I join the dissent of my brother, Morgan, J., who, addressing the issue sua sponte, properly decided that the proposition was invalid.

¶4Turning to the briefed contentions on appeal, it is clear the trial court, denying the injunctive relief sought, erred on October 9, 1980, when it decreed that certain of plaintiffs’ allegations (appellants here) had been ruled against them on the merits by this Court in its denial of their petition for mandamus on September 29, 1980, in Case No. 62514. Those issues, involving alleged constitutional defects which the trial court assumed we had decided, were:

(1) That the form of the initiative petition did not meet the standard prescribed in § 126.031, RSMo 1978;

(2) That the petition failed to set forth all integrally related sections of the Constitution that would be changed by the proposed amendment; and

(3) That the title on the initiative petition did not. accurately and fairly state the subjects of the proposed amendment.

¶5Without question, the trial court was mistaken, as this Court did not decide, by its September 29th order denying mandamus, the merits of any issue. This is recognized in the statement of the majority, that mandamus was refused on the basis of a “discretionary denial”. Hence, at the very least, we should reverse and remand for proper consideration of those issues framed when the trial court made its erroneous ruling on October 9, 1980, prior to the election. Further, in this suit for injunction, our review is limited under Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), to an inquiry of (1) whether there is substantial evidence to support the trial court’s action, and (2) whether the trial court erroneously declared or applied the law. There was no evidence to support the trial court’s ruling as to issues mentioned above; instead, the evidence (the judgment of this Court discretionarily refusing mandamus September 29, 1980) squarely affronts the trial court’s determination that the issues were res judicata. However, despite the mandate of Rule 73.01 as interpreted by this Court in Murphy v. Carrón, id.,the majority ignores the trial court’s error and treats the cause as if this body were a trial court with general original jurisdiction, authorized to receive and decide in the first instance petitions for injunction, and then, rendering a de novo determination, (without mention of the trial court’s action) enters in effect a judgment “affirming” the trial court. This unwarranted ad hoc procedure is further aggravated when the principal opinion indulges a presumption of validity to sustain Proposition # 5 and to uphold the manifestly erroneous decision of the trial court.

¶6*18In my view, the problem has been subtly warped and attention diverted from the threshold question, which, simply is: Was there compliance with the requirements of the amending process? To amend the Missouri Constitution, proponent must comply with the amending process prescribed by our Constitution and laws. It is not enough to say that the people have the right to change the Constitution and, because an election was held with the issue on the ballot, the discussion is effectively closed. Further, it begs the question to state (as is repeatedly suggested by the majority) that passage in an election creates a presumption of validity which helps satisfy the requirements of the amendatory process. This fallacious presumption of the majority faultily stems from the cited case, Gabbert v. Chicago, 171 Mo. 84, 70 S.W. 891 (Mo. banc 1902), which involved constitutional challenges raised after an election was held. Here, however, the issues were raised and ruled prior to election and we, on this appeal, should review only the trial court’s action for error. It is indefensible to introduce a new fact, not existing at the time of the trial court’s judgment, and employ it to either uphold or reverse the judgment.

¶7The issues are: (1) Was the amending process properly followed? I submit it was not. (2) Should a presumption of validity be raised to protect Proposition #5? I submit it should not.

¶8To be sure, the people may amend the Constitution by initiative, but to safeguard this process and protect against abuse by private interests seeking to impose their will on an unsuspecting public, the framers of our Constitution and the legislature by implementing statute provided the proper manner therefore to insure a true exercise of the people’s will. The point is well stated in Edwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130, 1133 (Mo.banc 1896), cited by the majority, page 11. There, referring to challenges arising after an election had been held, the Court said:

When a constitutional amendment has been submitted, the single inquiry for us is whether it has received the sanction of popular approval, in the manner prescribed by law. (Emphasis added).

¶9Most certainly, we should examine whether the amendatory process was followed at the critical stages, in the manner prescribed by law, in this case involving challenges to that process raised before the election.

¶10I

¶11The organic law and implementing statutes are designed to prevent submission of a carefully packaged or neatly camouflaged proposal containing multiple subjects not easily perceived as such nor readily unraveled by the electorate. In this connection, our Constitution carefully confines the manner for its amendment. Art. XII, § 1 provides

this Constitution may be revised and amended only as therein provided,

¶12and Art. XII, § 2(b) provides that no proposed amendments submitted through the initiative process

shall contain more then one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith. (Emphasis supplied).

¶13That subsection further makes provision for situations, such as here, in which more than one subject is offered for adoption, requiring those subjects be placed in different amendments to “enable the electors to vote on each amendment separately.” (Emphasis added). This Court has condemned the practice of submitting two subjects jointly to the voter, characterizing it as a species of legal fraud, for it compels the voter, in order to obtain what he honestly desires, to cast his ballot for something which he does not understand or in truth want. State v. Holman, 296 S.W.2d 482 (Mo.banc 1956). The proposed constitutional change, containing more than 1,300 words is in the nature of a constitutional revision, rather than a mere amendment, with its nine sections, arguably containing six subjects: (1) Taxation lid (§§ 16, 17, and 18) upon State Government; (2) Spending lid (§§ 18, 19 and 20) upon State Government; (3) Di*19rective dictating the manner (§ 21) in which the funds must be spent by State Government; (4) Taxation lid (§ 22) upon local governments; (5) Limitation upon local governments (§ 22) in obtaining revenues based upon assessments and property; and finally, (6) A novel grant of original jurisdiction to the Supreme Court, thus amending Art. V, §§ 3 and 4, Mo.Constitution. The sixth subject appears in the Proposition’s § 23 which provides that the Supreme Court shall have original jurisdiction when the

state is involved ... to enforce the provisions of sections 16 through 22, inclusive of this article and, if the suit is sustained, [the prevailing party] shall receive from the applicable unit of government his costs, including reasonable attorneys’ fees in maintaining such suit.

¶14This not only alters the Court’s original subject matter jurisdiction by amending Art. V, §§ 3 and 4,1 but imposes as constitutional law, payment by the “applicable unit of government” of the prevailing parties’ costs and attorneys’ fees. The latter hardly seems appropriate for inclusion in the Constitution, but more importantly, this dramatic alteration of our judicial system, including the questions of subject matter jurisdiction, costs, and attorney’s fees, are changes which should only have been considered by the people as a separate amendment. The initiative petition proclaims that Proposition # 5 is amending Article X, the Taxation Article of the Constitution, but § 23 in fact drastically alters Art. V, the Judicial Article. It cannot reasonably be said that this is merely “incidental to and necessarily connected with the control of spending and taxing in the State,” as the majority would have us believe. Instead, it tells us those who prepared and promoted this petition were reluctant (or afraid) to submit this proposition altering the Supreme Court’s jurisdiction in a separate amending proposal or to point out to the voters by reference in the initiative petition the constitutional provisions (Art. V, §§ 3 and 4) so markedly changed. We must be mindful that the initiative process misses the benefit of debate in the houses of our Legislature with input from concerned professionals familiar with the involved problems such as subject matter jurisdiction of courts. Sadly, this and other profound changes were neither separated for individual consideration by the people nor referenced as affecting or altering existing sections of the Constitution.

¶15Thus Proposition # 5 required a voter to cast a single vote for several subjects as one, regardless of whether he approved all or only part of the proposal. For example, a voter may have favored taxing limits but have been opposed to the suggested change in the jurisdiction of the Supreme Court of Missouri. Yet, in the form proposed, he must take neither or both.2 Such dilemmas, compounded by confusion of subjects, are precisely what Art. XII, § 2(b) of the Missouri Constitution is designed to prevent.

¶16The proponent’s failure to separate the included subjects for proper consideration by the electorate as prescribed by the *20amending process renders the Proposition a nullity.

¶17II

¶18It is required “that a proposed amendment by the initiative must disclose (emphasis added) what integrally related provisions of the Constitution it is changing, and that the initiative petition will be legally insufficient if that showing is not made.” Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657, 661 (Mo.banc 1942). The petition failed to reference or disclose in any manner numerous Constitutional provisions changed or repealed by Proposition # 5. The involved sections arguably number as many as 79 sections of the Missouri Constitution. The petition listed or disclosed on the bottom of the back page only 28 sections allegedly affected, thus depriving its signers of vital information regarding the Proposition’s impact. The principal opinion sweeps this allegation of error aside with the generality that the purpose3 of the amendment is to impose financial restraints on state and local government, and the many related sections (e. g., the Judicial Article V) are somehow not directly affected by nor in conflict with Proposition # 5. The majority fails to mention name or number of those sections 4 except to suggest the loose generality mentioned above. The people should not be called upon to vote for such constitutional change unless apprised by the petition of existing sections repealed or substantially altered by the proposal for change.

¶19As previously noted, the presence of § 23 in Proposition # 5 renders it legally insufficient. The majority in footnote 8, page 13, virtually admits this § 23 conflicts with Art. V, §§ 3 and 4, stating that “Our jurisdiction is set forth in Mo. Const, art. V, §§ 3 and 4, which do not extend to suits to enforce the provisions of Mo.Const. art. X” [§ 23 of Proposition # 5 becomes § 23 of Art. X]. Because the petition does not disclose this alteration of Art. V, the initiative must fail.

¶20In addition, as discussed above, § 23 en-grafts a subject other than taxation. Inclusion of this separate subject is abhorrent to Art. XII, § 2(b) and Art. Ill, § 50, and this, too, causes the Proposition to fail. The majority deals with these fatal flaws by first acknowledging that the jurisdiction of the Supreme Court of Missouri (as noted above) is indeed

set forth in Mo.Const., art. V, §§ 3 and 4, which do not extend to suits to enforce the provisions of Mo.Const., art. X. (footnote 8, page 13.)

¶21Stated differently, the majority concedes the present constitutional provisions (prior to § 23 of Proposition # 5), establishing the jurisdiction of this Court, do not permit the commencement of such actions here. The principal opinion proceeds further, stating,

that despite § 23 of the amendment, this Court has no original jurisdiction of suits which seek to enforce the provisions of the amendment, (footnote 8, page 13.)

¶22This, I submit, conclusively demonstrates that Proposition # 5 must fail as violative of the imperative of Art. XII, § 2(b), and Art. Ill, § 50, and the requirement of notice prescribed in Moore v. Brown, supra. Apparently acutely aware of these fatal flaws, the majority comments as follows in footnote 8:

“In short, the provision [§ 23], which is ineffectual with respect to suits being filed in this Court for the reasons earlier stated, is severable. (Emphasis added).

¶23Footnote 8 teaches several things: (1) § 23 indeed introduces a separate subject into the proposed amendment. (2) Art. V, §§ 3 and 4, though undisclosed by the petition, *21are in fact amended by the propositions of § 23. (3) To avoid a collapse of the proponent’s (respondent’s) position, the majority states in one breath that the people may speak their volition by altering the Constitution and have so spoken by amending Art. V, §§ 3 and 4, through proposed § 23, but then rejects that demonstration of the people’s will, and by judicial fiat in footnote 8, holds § 23 of Proposition # 5 unacceptable. However, the flawed Proposition cannot be salvaged by this Court’s unprecedented device of announcing that one portion is ineffectual (and thus implicitly excised) because it conflicts with a prior existing constitutional section on the subject. Nor can the Proposition be shorn up by an arbitrary announcement that § 23 is offensive to the majority’s view of this Court’s jurisdiction and, therefore, confers on the Court the power to arbitrarily accept only selected parts of Proposition # 5. After the vote of the people, by what authority may the majority declare one portion of the amendment “ineffectual” and thus severed, without declaring a failure in the amending process?

¶24III

¶25It also appears that the proposed amendment violates Art. Ill, § 51, avowing that the “initiative shall not be used for the appropriation of money other than of new revenues created and provided for thereby....”

¶26IV

¶27By presuming validity of the amendment, the principal opinion improperly penalizes appellants in the quest for adjudication of their claims challenging the validity of Proposition # 5. During the two months prior to the election, opponents of Proposition # 5 (now Amendment to Art. X) petitioned this Court in three different proceedings to decide their challenges to the Proposition. These efforts were made in timely fashion, prior to submission of the issue on the ballot in November, 1980. In each of these proceedings, this Court refused to consider their claims, without the benefit of opinion or exposition of rationale. The harmful effects from these inactions have been compounded by the principal opinion’s employment of a presumption that the recently suffraged amendment is valid. The three denials of requests to consider the issues occurred as follows:

¶28FIRST: A petition for mandamus was brought by proponent of Proposition # 5 on September 5, 1980, praying that we order the Secretary of State to replace certain signatures on initiative petitions recently filed. This Court, in the exercise of its discretion, honored the proponent’s petition, issuing the alternative writ on September 9, 1980. Opponents of the Proposition filed their motion to intervene on September 11, 1980, seeking to raise many of the issues now before the Court. This motion was denied September 19, but on that day the preliminary writ was made peremptory.

¶29SECOND: On September 24, opponents (present appellants) filed their petition for writ of mandamus to compel the Secretary of State to remove the measure from the ballot. On September 29, this Court entered its order, without explanation, denying the opponents’ petition for mandamus, adding only that the order was “without prejudice to subsequent litigation of issues not mooted by the election.” Hence, in an exercise of discretion we entertained the proponent’s petition for mandamus, but without reason given, we issued a “discretionary denial” of the opponents’ petition. The issues were then matters of great importance and pressing concern ripe.for determination, unhampered by any presumption of validity, but the Proposition’s opponents were turned aside by our “discretionary denial” of the writ. The irony lies in the fact that we now consider the challenges because (according to the principal opinion, Page 9) “of the general interest in and the pressing need for determination of the issues presented...” (Emphasis ours). Though the pressing need and general interest were brought to our attention and urged upon us in September, and October, 1980, we remained unimpressed with that “need” and “general interest” and refused to consider the claims during those months.

¶30*22THIRD: Still persevering, on October 1, 1980, the Proposition’s opponents (appellants here) brought the present action for injunction in the Circuit Court of Cole County. Appellants’ petition was denied there October 9,1980. Because of the trial court’s apparent uncertainty as to the meaning of this Court’s brief order of September 29, 1980,5 petitioners moved in this Court on October 10, for clarification of its enigmatic order, but that motion too was summarily denied here on the date of filing. On October 17,1980, in probably their most critical attempt to bestir this Court, appellants (opponents) filed their notice of appeal from the Cole County Circuit Court’s judgment, and an accompanying motion for expedited appeal. Three days later, this Court, again without opinion or comment, overruled that motion, refusing to hear the issues which appellants repeatedly sought to present, prior to the November election. The majority asserts our refusal to expedite the hearing on appeal was “for reason of time constraints.” (page 9). This assertion is note borne out by the record. Thus, in spite of this Court’s refusals to act in September and October of 1980, and notwithstanding this Court’s order of September 29, 1980, stating that our action would not prejudice subsequent litigation of issues not mooted by the election, the majority now prejudices appellants for the so called lateness (the election has taken place) by raking a presumption of validity to defeat their claims.

¶31The majority states that the same issues may “be judged by a different standard” (page 9) because they were not entertained prior to the election. This unfair presumption of validity should be raised only if cause for delay can be traced to appellants or if their suit had been commenced after the election. However, such is not the case. In this appellate review, we are bound to evaluate the trial court’s actions as of the date they occurred, i. e., October 9, 1980, prior to the election. The trial court ruled the issues in the light of the facts then presented at a time when no election had occurred, and we must review the facts in the same light.6

¶32V

¶33The initiative petition is the instrument containing the proposed amendment circulated for signatures among at least 8% of the voters in two-thirds of the Congressional Districts. That the electorate may be informed concerning the proposal submitted to them by the proponent’s solicitors, the Legislature has provided by § 126.031, RSMo 1978, that such petitions shall be “substantially” in a prescribed form. The Legislature has formulated the exact language for an initiative petition, demonstrating an intent to circumscribe its permissible contents. The proponent overstepped the limits of this safeguard as to the petition’s form. As stated by the majority, “All of these procedural safeguards are designed either, (1) to promote an informed understanding by the people of the probable effects of the proposed amendment, or (2) to prevent a self-serving faction from imposing its will upon the people without their full realization of the effects of the amendment.” (Page 11). The petition, upon which the amending process is predicated, bears on its reverse side the proposed constitutional amendment, requiring sixty-four printed lines to display the fifteen sections and subsections containing more than 1,300 words. In addition to this voluminous revision of the Constitution (erroneously entitled an amendment), the petition bears extensive propaganda designed to sway the voter to the promoter’s point of view. On the front of the petition, approximately 35% of the space (outside the area reserved for signatures) allocated to printing is devoted *23to advertising copy. On the back, more than 22% of the area allocated printed matter is devoted to such material, including charts and more hard-sell copy. This form richly deserves the following admonishment of the majority: “we would caution those who would use the initiative in the future against indulging in similar practices of including extraneous materials.” (Page 12). Such variations from the form prescribed in § 126.031, RSMo 1978, not only deserve the court’s admonishment, but in my view are sufficient to declare the petition in noncompliance and insufficient under the law to support the proposal’s certification by the Secretary of State for inclusion on the ballot.7

¶34*24APPENDIX I

¶35

¶36*25

¶37*26I would reverse the judgment of the trial court, and because the issue of injunction is no longer viable, I would, for the reasons set out herein, declare the proposed amendment a nullity.

¶46dissenting.

¶47I respectfully dissent because the challenged amendment to the Missouri Constitution (adopted by way of Proposition 5) is violative of and totally inconsistent with the “equal protection” clause of the United States Constitution in that it sets the stage for collecting taxes both from the rich and the poor but refunding excesses thereof only to the rich. Even a casual inquiry as to the constitutionality of such a procedure dictates that the flagrant discriminatory classification thus created cannot stand.

¶48The issue was not considered by the majority opinion presumably because it was not presented by the parties, but that approach does not discharge our duty. Although judges of a state court, our oath of office requires that we uphold the United States Constitution. As said in Edwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130, 1133 (Mo. banc 1896): “The constitution is intended for observance by the judiciary, as well as other departments of government. The judges are sworn to support the constitution, and the provision for its amendment is as obligatory upon the courts as any other part of it.”

¶49While it is true that this Court’s jurisdiction cannot be predicated upon the existence of a constitutional question not raised or preserved below, Kansas City v. Graybar Electric Co., 454 S.W.2d 23 (Mo.1970), Lang v. Callaway, 134 Mo. 491, 35 S.W. 1138 (Mo.1896), it is equally true that when we already have original or appellate jurisdiction on other grounds, we may decide a constitutional question sua sponte. City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 378-79 (Mo. banc 1949), and authorities cited therein.

¶50On the question of the supremacy of the United States Constitution, we need quote only from the watershed case of McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405-06, 4 L.Ed. 579 (1819):

In discussing these questions, the conflicting powers of the general and State governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might expect it would be this — that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it, by saying, ‘this constitution, and the laws of the United States, which shall be made in pursuance thereof,’ ‘shall be the supreme law of the land,’ and by requiring that the members of the State legislatures, and the officers of the executive and judicial departments of the States, shall take the oath of fidelity to it.

The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, ‘any thing in the constitution or laws of any State to the contrary notwithstanding.’

¶51In Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1880), the Supreme Court examined a provision of the Constitution of the State of Delaware limiting the right to vote to white males only. Such provision was alleged to be violative of the fifteenth amendment to the Constitution of the United States. In sustaining this challenge, the Court said:

Beyond question, the adoption of the Fifteenth Amendment had the effect, in law, to remove from the State Constitu*27tion, that provision which restricts the right of sufferage to the white race .... The presumption should be indulged, in the first instance, that the State recognizes, as is its plain duty, an amendment of the Federal Constitution, from the time of its adoption, as binding on all of its citizens and every department of its government, and to be enforced, within its limits without reference to any inconsistent provisions in its own Constitution or Statutes.

¶52Id. at 389-90, 26 L.Ed. 567.

¶53Consistent therewith, this Court has recognized that if a provision of the Constitution of the State of Missouri is in conflict with the United States Constitution, it is void. Household Finance Corp. v. Shaffner, 356 Mo. 808, 203 S.W.2d 734 (Mo. banc 1947).

¶54It is clear, therefore, that if Proposition 5 contravenes any part of the Constitution of the United States, it is utterly void, and this Court should so declare. A reading thereof reveals that the refund provision requires a pro rata refund of any excess state revenues. Section 18(b) says: “For any fiscal year in the event that total state revenues exceed the revenue limit established in this section by one percent or more, the excess revenues shall be refunded pro rata based on the liability reported on the Missouri state income tax (or its successor tax or taxes) annual returns filed following the close of such fiscal year. If the excess is less than one percent, this excess shall be transferred to the general revenue fund.” The difficulty is that the section only gives refunds to those who have incurred a personal income tax liability, this despite the fact that all state tax revenues, including real and personal property taxes, personal or corporate income taxes, gasoline taxes and sales and use taxes, are considered in determining whether the state has collected excess revenue. It is clear, then, that Proposition 5, on its face creates a classification based solely upon wealth. Only those who earned enough money to incur personal income tax liability are eligible for a refund; those who do not make that much money will never receive a refund, despite the fact that they may have paid an untold amount of sales, property, use or other taxes. Thus, the amendment blatantly discriminates against the poor in favor of the rich.

¶55Classifications based upon financial condition or wealth are suspect. Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); McDonald v. Board of Election Commissioners’ of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1965); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The rule that statutes which create suspect classifications will be “strictly scrutinized” to determine whether they further a compelling state interest is so well established that citations are not necessary. It does not appear that any state interest that possibly might be served by Proposition 5 is justified by discriminating against a vast number of the citizens of this state. Some might argue that refunds will be given only to those who pay income taxes because those persons are easily identifiable, and it would be unduly burdensome to make refunds to all taxpayers, both large and small. But, is administrative convenience a reasonable justification for such blatant discrimination? I think not.

¶56A situation substantially similar to the case at bar was presented in Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). During the period of 1959 to 1963, the California legislature passed statutes known as the Rumford and Unruh Acts which purported to make race discrimination in private real estate transactions unlawful. Thereafter, in 1964 the California electorate adopted Proposition 14 which amended the state constitution to prohibit any state agency from in any way limiting or controlling a land owner’s discretion in renting or selling his land to whomever he chose. Proposition 14 was *28challenged in the state courts as being vio-lative of the Equal Protection Clause of the Fourteenth Amendment because it legalized private race discrimination. The California Supreme Court held that the amendment was indeed in conflict with the United States Constitution and struck it down. See: Mulkey v. Beitman, 64 Cal.2d 529, 50 Cal.Rptr. 881, 413 P.2d 825 (Cal.1966). The U.S. Supreme Court affirmed by holding that the mere authorization of race discrimination violated the fourteenth amendment.

¶57In the instant case, the challenged amendment (Proposition 5) goes far beyond condoning or authorizing discrimination in violation of the “equal protection” clause of the United States Constitution. In fact, it affirmatively mandates that revenue personnel treat classes of Missouri citizenry differently; which is even more reprehensible because it takes from those sorely needing tax relief and gives to those who can afford not to receive a refund. The observation thus made is not a comment on the merits of the amendment, with which we are not to be concerned, but only to point up the glaring presence of an unconstitutional classification. Without being facetious, I would suggest that the scheme itself would have caused Robin Hood great consternation.