Buchanan v. Kirkpatrick
| Citation | 615 S.W.2d 6 |
| Decision Date | 03 April 1981 |
| Docket Number | No. 62564,62564 |
| Parties | Robert W. BUCHANAN, Sammy K. Carter, and David M. Lockton, Appellants, v. James C. KIRKPATRICK, in His Capacity As Secretary of State of the State of Missouri, Respondent, Taxpayers Survival Association, Inc., Mel Hancock, Missouri Farm Bureau Federation, and C. R. Johnston, Intervenors. |
| Court | United States State Supreme Court of Missouri |
Michael Lerner and Earl J. Engle, Kansas City, for appellants.
John Ashcroft, Atty. Gen., Christopher M. Lambrecht, Terry C. Allen, Asst. Attys. Gen., Jefferson City, for respondent.
Alex Bartlett, Jefferson City, James L. Robinett, Jr., Springfield, Forrest P. Carson and Cullen Coil, Jefferson City, for intervenors.
This case is before us on appeal from the decision of the Circuit Court of Cole County refusing to enjoin the respondent, Secretary of State, from placing proposed Constitutional Amendment No. 5 () on the November 4, 1980, election ballot. The present posture of the case results from a series of events and court challenges which began with the filing of the initiative petitions for this amendment with the secretary of state on July 4, 1980. 1
The parties assert that we have jurisdiction by virtue of § 126.071, RSMo 1978. 2 Our jurisdiction to entertain this case comes from the fact that the constitutional validity of the amendment before us is under challenge. Mo.Const. art. V, § 3, as amended August 3, 1976. 3
We take judicial notice of the fact that on November 4, 1980, Amendment No. 5 was approved by the people of Missouri by a vote of 1,002,935 to 807,187. We also take note of the fact that S.B. 192, repealing and reenacting § 52.420, RSMo 1978, designed for the primary purpose of creating a court test of one of the provisions of Amendment No. 5, has already been passed by the 81st General Assembly and signed into law by the Governor. 4
There is a serious question as to whether there is an appealable final judgment in this case, or if there is, whether the same may have been mooted by the election thereby converting this into a declaratory judgment, in effect, originated in this Court. Because of our prior discretionary denial of appellants' petition for mandamus (see note 1, para. 11 supra ) "without prejudice to subsequent litigation of issues not mooted by the election" and our refusal for reason of time constraints to expedite the hearing on appeal in this matter (see note 1, paras. 17 and 18 supra ) and, because of the general interest in and the pressing need for determination of the issues presented, we have resolved all doubts in favor of proceeding with the case. We will not decline to rule upon the constitutionality of the amendment as our sister state Michigan, whose Headlee Amendment is the model for Amendment No. 5, has done on two occasions since its adoption, by reason of "factual and jurisdictional void." In re Request for Advisory Opinion of Constitutionality of 1979 PA 57, 407 Mich. 60, 62, 281 N.W.2d 322, 324 (1979) and In re Request for Advisory Opinion of Constitutionality of 1979 PA 57, 407 Mich. 506, 508, 286 N.W.2d 686 (1980). 5
Questions were raised during argument as to whether certain procedural objections had been waived by reason of the fact that the election was held prior to this hearing. For the same reasons that we choose to proceed with this appeal we also state that no issues raised by appellants will be deemed waived, although some matters objected to prior to election may be judged by a different standard following the election.
We acknowledge that this posture of the case tends to leave the issues less clearly defined than we might otherwise prefer, but there is no misunderstanding of the basic issues before us.
The fundamental and basic issues here involved are:
1. Were there procedural defects in the initiative petition for Amendment No. 5 which would have justified enjoining its being placed on the ballot prior to election, or which would now justify our invalidating the election because of such defects?
2. Is Amendment No. 5 a validly adopted constitutional amendment?
We first examine the applicable provisions of the Missouri Constitution and the implementing statutes.
Article I, § 1, provides:
That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.
(Emphasis added.)
Article I, § 3, provides:
That the people of this state have the inherent, sole and exclusive right to regulate the internal government and police thereof, and to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness, provided such change be not repugnant to the Constitution of the United States.
(Emphasis added.)
Article XII, § 2(b), provides in part All amendments proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law.... No such proposed amendment shall contain more than 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 added.)
Article III, § 49, provides:
The people reserve power to propose and enact or reject laws and amendments to the constitution by the initiative, independent of the general assembly, and also reserve power to approve or reject by referendum any act of the general assembly, except as hereinafter provided.
(Emphasis added.)
Article III, § 50, provides in part:
Petitions for constitutional amendments shall not contain more than 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, and the enacting clause thereof shall be 'Be it resolved by the people of the state of Missouri that the Constitution be amended'.
(Emphasis added.)
Article III, § 51, provides in part:
The initiative shall not be used for the appropriation of money other than of new revenues created and provided for thereby....
Chapter 126, which contains the implementing statutes, sets forth the main procedural requirements which requirements for the sake of brevity are summarized.
1. Section 126.031, prescribes the form and format of the petition. See also Mo.Const. art. III, § 50.
2. Each petition shall contain signatures from only one congressional district. Section 126.041.
3. Each petition must contain a full text copy of the amendment. Section 126.041; Mo.Const. art. III, § 50.
4. Petitions must be signed by eight percent of voters in each of two-thirds of the congressional district. Section 126.051; Mo.Const. art. III, § 50.
5. Section 126.061 prescribes the form of the circulator's oath.
6. Section 126.081 provides for the attorney general to formulate the official "ballot title" which is to be voted upon in the election. See Mo.Const. art. XII, § 2(b).
7. Section 126.151 states qualifications for signers, with penalties. See Mo.Const. art. III, § 50.
8. Two sections make provision for court tests of the legal sufficiency of initiative petitions. Section 126.071 provides that if the secretary of state refuses to certify or file petitions, the sponsors may go to the Circuit Court of Cole County for mandamus to compel certification and filing. It is also provided that upon showing that any petition is not legally sufficient, the court may enjoin the certification and printing upon the ballot of the amendment. Provision is made for the expediting of appeals.
Section 126.081.5 provides that any citizen dissatisfied with any official ballot title or fiscal note may appeal to the Circuit Court of Cole County by petition within 10 days after its preparation by the attorney general.
It is clear that the framers of our Constitution intended that the Constitution be a permanent and abiding instrument allocating and defining the powers of our government.
In State ex rel. Halliburton v. Roach, 230 Mo. 408, 130 S.W. 689 (1910), this Court stated:
Constitutional provisions and amendments to the Constitution relate to the fundamental law and certain fixed first principles upon which government is founded.... The purpose of constitutional provisions and amendments to the Constitution is to prescribe the permanent framework and a uniform system of government, and to assign to the different departments thereof their respective powers and duties.... "The very term 'constitution' implies an instrument of a permanent and abiding nature, ..."
230 Mo. at 433, 130 S.W. at 694, quoting, Livermore v. Waite, 102 Cal. 113, 118, 36 P. 424, 426 (1894) (emphasis added).
It is equally clear that the framers of our Constitution recognized the inherent right of the people to amend their Constitution when in Article I, § 1, they stated, "That all political power is vested in and derived from the people ..." and in Article I, § 3, "That the people ... have the inherent, sole and exclusive right ... to alter and abolish their constitution and form of government..." and in Article III, § 49, that "The people reserve power to propose and enact ... amendments to the constitution by the initiative...."
Inherent in the power of the people to "alter", "amend", or "abolish" their Constitution is the power and right to amend wisely or unwisely.
Our power to judge the wisdom of the people in adopting Amendment No. 5 was most clearly and succinctly stated by this court in 1896 in the case of Edwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130 (banc 1896), when this Court stated:
The power or, rather, the want of power in the courts to review the policy or wisdom of constitutional amendments is thus expressed by Mr. Justice Brewer 6 (then of the supreme court of Kansas) in Prohibitory Amendment Cases, 24 Kan. 709. ...
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