State ex rel. Shartel v. Westhues

• Citation: 9 S.W.2d 612
• Decision Date: 26 September 1928
• Docket Number: No. 29179.,No. 29178.,29178.,29179.
• Parties: THE STATE EX REL. STRATTON SHARTEL, Attorney-General, v. HENRY J. WESTHUES, Judge of Circuit Court of Cole County (Two Cases with Same Title. Numbered 29,178 and 29,179).
• Court: United States State Supreme Court of Missouri

9 S.W.2d 612

THE STATE EX REL. STRATTON SHARTEL, Attorney-General, v. HENRY J. WESTHUES, Judge of Circuit Court of Cole County (Two Cases with Same Title. Numbered 29,178 and 29,179).

No. 29178.

No. 29179.

Supreme Court of Missouri. Court en Banc.

September 26, 1928.

Certiorari.

RECORD QUASHED.

Stratton Shartel, Attorney-General, and Smith B. Atwood and L. Cunningham, Assistant Attorneys-General, for relator.

(1) The Supreme Court has general superintending control over all inferior courts and proceedings therein. Sec. 3, Art. 6, Constitution. (2) Whenever a question of great public concern is involved in the proceedings of an inferior court or tribunal, the Attorney-General has full authority to apply to the Supreme Court for a writ of certiorari, in order that such proceedings may be quashed, reviewed or corrected. State ex rel. v. Harrison, 141 Mo. 12. (3) Whenever the Attorney-General applies to the Supreme Court for a writ of certiorari in a matter of great public concern, the writ issues as a matter of course. State ex rel. v. Wurdeman, 254 Mo. 561. (4) Certiorari is a proper remedy where an appeal is inadequate, even at the instance of one of the parties to the action. State ex rel. v. Guinotte, 156 Mo. 513. (5) The Secretary of State shall designate a newspaper in each county for the publication of the proposed amendments to the Constitution. He has no authority to take bids or fix the price. Article 15, Constitution; Sec. 4942, R.S. 1919. (6) In submitting constitutional amendments and laws proposed by the initiative, the Secretary of State and all other officers shall be guided by the general laws and the act submitting Section 57 of Article 4 of the Constitution, until legislation shall be especially provided therefor. So that the general provisions of the Constitution and the laws in relation to the publication of proposed amendments to the Constitution apply both to amendments by the initiative and laws proposed by the initiative. (7) The price to be paid for the publication of proposed constitutional amendments is fixed by Sec. 10401, pp. 322, 323, Laws 1923, and is to be paid upon the publisher making claim therefor and the same being certified by the Secretary of State to the State Auditor under Sec. 4942, R.S. 1919. The Secretary of State should not certify nor the State Auditor pay a claim in excess of the rate fixed by Section 10401, but neither of them have any right or authority to fix the rates. Respondent, by the decree entered in the Circuit Court of Cole County, acted in excess of his jurisdiction and undertook to command the Secretary of State to perform his duty in a manner not authorized by law. Neither the Secretary of State nor the courts have any authority to enact laws, but must obey them as enacted by the law-making branch of the government.

Irwin & Bushman for respondent.

(1) The right of the Secretary of State to publish constitutional amendments is not questioned. Secs. 4941, 4942, R.S. 1919; Sec. 2, Art. 15, Constitution. But these sections were enacted long prior to the adoption of the initiative-and-referendum provision of the Constitution, and could not be construed to be included therein, and no mention is made concerning any publication, other than constitutional amendments. The provisions of the Constitution relating to the mode of initiating and referring laws, known as the initiative and referendum, make no mention of any publication of laws proposed under it as is provided for with reference to amendments to the Constitution. Sec. 57, Art. 4, Constitution. This amendment was adopted at the general election held in November, 1908. At the meeting of the next General Assembly, in 1909, it proceeded to enact what is now Chap. 47, R.S. 1919, relating to "Initiative and Referendum." Section 5910 of Chapter 47, provides that when a petition has been filed with the Secretary of State he shall forthwith transmit a copy thereof to the Attorney-General who shall prepare a ballot title therefor which shall set forth the purpose of the act. This section concludes with the words: "The Secretary of State shall print on the official ballot the title thus certified to him." Section 5911, provides that the Secretary of State, at the time he furnishes to the several county clerks certified copies of the candidates for state and county offices, "shall furnish to each county clerk his certified copy of the ballot title and the number of the several measures to be voted upon at the coming general election." This section further provides that the county clerk shall publish the title along with the official ballot. (2) Proposed amendments to the Constitution are required to be published in a newspaper in each county in the State and the city of St. Louis. Sec. 2, Art. 15, Constitution; Secs. 4940, 4941, 4942, R.S. 1919. Section 10401, as amended, provides that in publishing public notices and advertisements there shall not be allowed therefor a higher rate than one dollar per square for the first insertion and fifty cents for each subsequent insertion. Sec. 10401, R.S. 1919, amended, Laws 1923, p. 322. Sec. 10402, R.S. 1919, provides that in procuring the publication of any law, proclamation, advertisement, order or notice, as in the next preceding section mentioned, the public officers shall accept of the most advantageous terms that can be obtained, not exceeding the rates limited in the preceding section. Relator contends Section 10402 is repealed by implication by new Section 10401, Laws 1923, p. 322, but the repeal of statutes by implication is not favored by the courts, and the presumption is always against the intention to repeal where express terms are not used. To justify the presumption of an intention to repeal one statute by another either the two statutes must be irreconcilable or the intent to effect appeal must be otherwise clearly expressed. State ex rel. Hyde v. Buder, 287 S.W. 309: 36 Cyc. 1071, 1072. The repeal of one section specifically raises a clear implication that no other repeal was intended. State v. Morrow, 26 Mo. 141; State ex rel. Hyde v. Buder, 287 S.W. 309. An act expressly repealing a designated article raises an implication that no further repeal was intended. Wrightsman v. Gideon. 296 Mo. 225.

BLAIR, J.

Certiorari to review two judgments of the Circuit Court of Cole County. Respondent waived service of notice and issuance and service of our writ in each case and accepted the petitions of relator and exhibits attached thereto as and for our writs. Certain stipulated facts and other facts alleged in the pleadings are taken as true. Oral argument was waived in each case. They have been submitted on briefs of counsel and can be disposed of in one opinion.

Relator is Attorney-General of Missouri; respondent is Judge of the Cole County Circuit Court, and Charles U. Becker, mentioned in the pleadings, is Secretary of State.

I. We quote from relator's petition in case No. 29178 (case No. 5845 in the circuit court), as follows:

"Relator further states and shows that on the 2nd day of July, 1928, there was filed in the office of the Secretary of the State of Missouri a petition duly signed by more than eight per cent of the qualified voters in each of more than two-thirds of the Congressional districts of the State of Missouri, proposing an amendment to the Constitution of the State of Missouri, to authorize the incurring by the State of an indebtedness of $75,000,000 and the issuance of bonds of the State therefor, and that the Fifty-fourth General Assembly of the State of Missouri, by joint and concurrent resolution, approved April 6, 1927, proposed an amendment to the Constitution of the State of Missouri; that each of said proposed amendments to the Constitution of the State of Missouri shall be submitted to the qualified voters of the State for adoption or rejection at the general election to be held in this State on the first Tuesday after the first Monday in November in the year 1928.

"Relator further states that it became and was and now is the duty of said Charles U. Becker as Secretary of the State of Missouri to cause said proposals for the amendment of the Constitution of this State to be published according to law and to designate a news-paper in each of the several counties of the State and in the city of St. Louis in which the same should be published; that said Charles U. Becker as such Secretary of State was proceeding to execute and perform the duties thus devolving upon him on the 6th day of August, 1928, on which date there was filed in the Circuit Court of Cole County, Missouri, and before Honorable Henry J. Westhues as judge thereof, a petition for injunction to restrain said Secretary of State from publishing said proposed amendments, in which John Fugel ... et al., are plaintiffs, and Charles U. Becker, Secretary of the State of Missouri, is defendant."

It is then alleged that respondent issued a temporary injunction and, after certain proceedings, made the temporary injunction permanent, and refused, on motions for new trial and in arrest of judgment, to set the same aside.

The theory of the petition filed by plaintiffs John Fugel and others (case No. 5845 in the circuit court) is:

"That by virtue of the provisions of Section 10402. Revised Statutes 1919, it becomes and is the duty of the Secretary of State in the publication of said proposed amendments to accept the most advantageous terms that can be obtained, not exceeding in any instance the rate of one dollar per square for the first insertion of 250 cms and fifty cents per square for each subsequent insertion and for the fractional squares in the same proportion; that it is the duty of the Secretary of State when letting contracts for the printing of constitutional amendments to award the same to the lowest and best bidder to some newspaper in each county in the State of Missouri."

We further quote from said petition, as follows:

"Plaintiffs say that...