State ex rel. Halliburton v. Roach

• Decision Date: 15 August 1910
• Citation: 130 S.W. 689,230 Mo. 408
• Parties: THE STATE ex rel. JOHN W. HALLIBURTON v. CORNELIUS ROACH, Secretary of State
• Court: Missouri Supreme Court

130 S.W. 689

230 Mo. 408

THE STATE ex rel. JOHN W. HALLIBURTON v. CORNELIUS ROACH, Secretary of State

Supreme Court of Missouri

August 15, 1910

Rehearing Denied 230 Mo. 408 at 452.

Writ denied.

John C Brown, John Kennish, C. C. Madison and Homer Hall, counsel for W. S. Dickey, appearing for signers of the petition.

(1) The powers and duties of the Secretary of State in receiving and filing petitions as defined by the Initiative and Referendum Act are purely ministerial. The act clearly distinguishes between the petitions submitting a measure and the measure itself. If the petitions are legally sufficient, that is, if they are signed by the required number of qualified voters and are properly verified and are in substantially the form required by the act, then the Secretary of State should have performed his plain ministerial duty of accepting and filing them when they were offered to him for that purpose. The petition in this case alleges that the petitions presented to respondent were sufficient and complied with all the requirements of the law. The respondent's return does not deny or controvert those allegations, and this court should issue its peremptory writ as prayed. Laws 1907, p. 452; Laws 1909, p. 554. (2) The respondent had no authority to refuse to file the petitions for the reason that the proposed amendment to the Constitution was unconstitutional, and this court will not pass upon the unconstitutionality of the proposed amendment while it is in a formative stage and before it has been adopted by a vote of the people. 16 Am. and Eng. Ency. Law, 423; Albright v. Fisher, 164 Mo 56; State ex rel. v. Allen, 180 Mo. 27; Kansas City v. Hyde, 196 Mo. 506; Jaicks v. Merrill, 201 Mo. 104; State ex rel. v. Thorson, 9 S.D. 154; People ex rel. v. Mills, 70 P. 322; Clayton v. Calhoun, 76 Ga. 270. (3) Courts are not required to pass on the constitutionality of laws before they are enacted. State ex rel. v. Gibson, 195 Mo. 251. (4) The vesting of power in the Governor, Attorney-General and Secretary of State to redistrict the State after the census of 1910 shall be completed and published, is not a contract with said officers, and the people may resume such power at their pleasure. All political power is inalienably vested in the people, and although temporarily granted to agents, it may be recalled at pleasure, even though to do so would oust from office persons elected under its provisions. Constitution of 1875, art. 2, secs. 1 and 2; State v. McBride, 4 Mo. 187; State ex rel. v. Bermondy, 40 Mo. 193; Edwards v. Lesueur, 132 Mo. 433. A highly respectable precedent for the proposed amendment is the Constitution of 1875. The Constitution of 1865 had prescribed a basis whereby the Legislature could have redistricted the State senatorially after the census was taken by the State in 1876, but before that date arrived the people, through their Constitutional Convention, redistricted the State without regard to any census whatever, and at a time when and in a manner the former Constitution did not authorize. Constitution of 1865, sec. 4, art. 7; R. S. 1879, p. 52; Laws 1866, p. 3; Laws 1875, p. 3. (5) The objection that the amendment is legislative in character is without merit. Even though the State could be redistricted by the Legislature or certain State officers, this is no reason why the people, through a constitutional amendment, cannot perform the same act. There is no line of demarcation which excludes the people from doing what they have authorized or may authorize their agents to do. 6 Am. and Eng. Ency. Law (2 Ed.), p. 890; Edwards v. Lesueur, 132 Mo. 433. "The character, that is, the substance and extent of the amendments, is left entirely and exclusively to the discretion of the General Assembly. The right to propose is as unlimited as the right to adopt by vote of the people themselves." If further illustration were necessary to prove that the people always reserve the power to do all things which their agents may do, we will refer to the matter of prohibiting the sale of intoxicating liquors. This court has repeatedly said that the Legislature has power to prohibit the sale of liquors. State ex rel. v. Hudson, 78 Mo. 302; State ex rel. v. Pond, 93 Mo. 623; State v. Bixman, 162 Mo. 21. Yet it is held by all the State courts and Federal Supreme Court that the same end may be accomplished by constitutional amendment. The objection that the proposed amendment is legislative in character, and is, therefore, invalid, is without support both in principle and precedent. For in our Constitution there are many provisions as specific in detail and in requirements imposed as any statute could be. Edwards v. Lesueur, 132 Mo. 410. (6) Whenever the issues in a cause can be properly disposed of without considering the constitutional questions raised, such constitutional questions will be ignored. State ex rel. v. Walker, 132 Mo. 210; Baker County v. Benson, 40 Ore. 207. (7) For at least thirty years it has been the custom in our State to submit to the people more than one proposition in the same constitutional amendment where the matters submitted are germane to each other. For instance, in 1884 an amendment submitted to the people: First, a proposition to extend the jurisdiction of the St. Louis Court of Appeals from four counties to approximately half the State; second, to create the Kansas City Court of Appeals; third, to authorize the Legislature to create a third court of appeals; fourth, to fix the salaries of the judges of the Court of Appeals; fifth, to give the Supreme Court superintending control over courts of appeals. All five of these propositions could have been submitted separately, yet no lawyer in the State doubts that they were properly submitted as one amendment. Laws 1883, p. 215. In 1890 an amendment submitted to the voters the following proposition: First, to increase the number of judges of the Supreme Court from five to seven; second, to divide the court into two divisions, and granting to a majority of each division the power to try and decide cases; third, to vest in Division Two of said court. consisting of only three members, exclusive jurisdiction of appeals in criminal cases; fourth, to vest in the Governor power to appoint two additional judges. All four of these propositions could have been submitted separately and with just as much propriety as to submit the amendment in controversy as two separate propositions. To sustain this objection to the proposed amendment means the nullification of practically all the amendments adopted to our State Constitution in the last thirty years. In the case of Russell v. Croy, 164 Mo. 95, this court said that it would hesitate to disturb a method of submitting amendments which had been followed for ten years, and we submit that this alone furnishes sufficient ground for rejecting the objection of respondent now under consideration. (8) If the proposed amendment submits two incongruous or disconnected propositions, it would be invalid, though adopted by vote of the people. This is well settled law. However, this amendment simply proposes to redistrict the State and to furnish or prescribe a basis for changing the districts hereafter, and the two subjects, if they could be segregated at all, are so closely allied and so absolutely germane to each other that it is entirely appropriate to submit both in one proposition. Gabbert v. Railroad, 171 Mo. 84; State ex rel. v. Timme, 54 Wis. 318; State ex rel. v. Bronson, 115 Mo. 271; State ex rel. v. Miller, 100 Mo. 439; Lynch v. Murphy, 119 Mo. 163. (9) The fact that a constitutional amendment may be repugnant to and in conflict with other provisions of the Constitution will not render such amendment invalid. 6 Am. and Eng. Ency. Law (2 Ed.), p. 927; People ex rel. v. Angle, 109 N.Y. 575; State v. Langworthy, 104 P. 424; 8 Cyc. 749, 750.

Elliott W. Major, Attorney-General, John M. Dawson, John M. Atkinson, Chas. G. Revelle and James T. Blair, Assistant Attorneys-General, for respondent.

(1) The redistricting of the State into senatorial districts is legislative and not constitutional in its nature and is not the subject of a constitutional amendment. (a) 1. The amendment proposed is not the subject of a constitutional amendment. It is purely a legislative act, temporary in its nature. The courts, both State and Federal, as well as text writers on constitutional subjects, define a Constitution as follows: "A Constitution is in fact a fundamental law or basis of government. It is a rule as contradistinguished from a temporary or sudden act. Permanent, uniform and universal." 1 Story, sec. 339; Ware v. Hylton, 3 Dall. 199; Livermore v. Waite, 102 Cal. 118. The diversity between matters constitutional and legislative is distinctly recognized by the initiative and referendum amendment to the Constitution, since it expressly provides for the proposal and adoption of legislative measures as well as amendments to the Constitution. In fact, this idea runs through the entire Constitution and permeates every section thereof. 2. Only a plan or method for redistricting the state is a subject for fixed and permanent rules and principles while the matter of actual redistricting is a subject of only temporary arrangement. It is something that must be altered or changed with the ever changing population, and is entirely beyond the pale of the present constitutional scheme, but clearly and exclusively within that of legislative action. Nor can the power to amend the Constitution be expanded into a power to propose for insertion in that instrument something wholly beyond the constitutional plan and wholly legislative in character. Livermore v. Waite, supra; Jameson on Const. Conv., secs. 570, 540, 551. 3. The mere act of dividing the State into...