Edwards v. Lesueur, Secretary of State

• Decision Date: 05 February 1896
• Parties: Edwards v. Lesueur, Secretary of State, Appellant
• Court: Missouri Supreme Court

33 S.W. 1130

132 Mo. 410

Edwards v. Lesueur, Secretary of State, Appellant

Supreme Court of Missouri

February 5, 1896

Appeal from Cole Circuit Court. -- Hon. D. W. Shackleford, Judge.

Reversed.

R. F Walker, attorney general, Lee & McKeighan and J. H. Bothwell for appellant.

(1) The courts of this state have no legal power to enjoin the secretary of state in the performance of his constitutional and statutory duties in connection with the submission of the proposed amendment to the constitution of the state of Missouri, or to prevent the qualified voters from ratifying or rejecting the said amendment in the manner provided in the constitution and statutes, unless the court first determines that the general assembly did not propose any amendment to the constitution in the mode prescribed in the organic law. See authorities cited under other points. (2) Missouri is a free and independent state, and all political power is vested in the people, from whom government originates, and who have the inherent, sole, and exclusive right to alter or revise their constitution to any extent they may choose, subject only to the limitations of the constitution of the United States. Constitution of Missouri, art. 2, secs. 1, 2 and 3; Cooley's Constitutional Limitations [6 Ed.], pp. 41 and 45, chap. 3; Black's Constitutional Law, pp. 44 to 49; Potter's Dwarris on Statutes and Constitutional Construction [1871 Ed.], 346, 347, 348; Blair v Ridgeley, 41 Mo. 63; Wells v. Bain, 75 Pa. St 39; In Matter of Oliver Lee & Co.'s Bank, 21 N.Y. 9. (3) The constitution of this state is specific careful, and complete in its provision for originating and holding a convention for revising and amending the constitution; and where general revision or amendment is not considered necessary, the general assembly has full power to propose such specific amendments as a majority of the members elected to each house shall deem expedient. Constitution of Missouri, art. 15, secs. 1, 2, and 3. (4) A proposed constitutional amendment need not be read in each house of the general assembly on three separate days, nor need it take the course of a bill. The provisions of Missouri's constitution in this regard are in harmony with those of many other states, while others have different modes prescribed. Const. of Mo., art. 5, sec. 14; and art. 15, secs. 1 and 2; Jameson on Const. Conv. [4 Ed.], secs. 541, 542, 543; 3 Encyclopedia of Political Science, pp. 802, 803; 1 Stimpson's Am. Statute Law, p. 133, secs. 990-996. (5) In proposing an amendment to the constitution, the general assembly exercises delegated political power, not ordinary legislative authority. Its members may propose any specific amendment which they may deem expedient, and they are not limited by directions or restrictions made applicable by the constitution to ordinary legislative acts alone. The general assembly may, in the mode designated in the constitution propose any specific amendment that might properly be framed and submitted by a convention. Const. of Mo., art. 15, secs. 1 and 2; Borgeaud's "Adoption and Amendment of Constitution," pp. 188, 323; Jameson on Const. Con. [4 Ed.], secs. 547 to 555, and cases cited; 1 Stimpson's Am. Statute Law, p. 133, secs. 990-996; 3 Encyclopedia of Political Science, p. 802; 1 Bryce's Am. Commonwealth [2 Ed.], pp. 419 to 423; State v. Mason, 9 So. Rep. 776; Nesbit v. People, 36 P. 221; State v. Cox, 3 Eng. (Ark.) 436. (6) The only limitation on the power expressly delegated by the people to the general assembly to propose specific amendments to the constitution is the implied limitation which requires the general assembly to propose, pass, and submit such amendments in the mode or manner prescribed by the constitution itself. See authorities cited under other points. (7) The rulings of courts of last resort of various states show that wide latitude is indulged in favor of propositions to amend state constitutions; though the limitation as to the mode of proposing and ratifying an amendment will be enforced by the courts, both principle and precedent are against the proposition that the courts may determine either the form or substance of a constitutional amendment, or prevent its ratification, because its form or substance may not meet the approval of the court. Jameson's Constitutional Conventions [4 Ed.], chap. 8, p. 9; Trustees v. McIver, 72 N.C. 76; State ex rel. v. Gray, 32 P. 191 (Nev.) ; In Matter of Oliver Lee & Co.'s Bank, 21 N.Y. 9; Collier v. Frierson, 24 Ala. 100; Prohibitory Amendment Cases, 24 Kan. 700; State ex rel. v. Timme, 54 Wis. 318; State v. McBride, 4 Mo. 303; Worman v. Hagan, 27 A. 616; State v. Mason, 9 So. Rep. (La.) 776; Nesbit v. People, 36 P. 221; State ex rel. v. Tooker, 25 Lawyers' Rep. Ann. (Mont.) 560; State v. Cox, 3 Eng. (Ark.) 436. (8) State constitutions now are not simply brief frameworks of state governments, defining fundamental rights or distributing and limiting delegated powers, but they are elaborate instruments, with many miscellaneous provisions not formerly found in written constitutions, and are often used to enact fundamental laws by ratification of the voters, which would otherwise be left to ordinary legislation, or be in conflict with other provisions of the organic law. Const. of Mo., arts. 9, 10, 11, 12, 13, 14; 1 Stimpson's Am. Statute Law, sec. 1, introductory note to part 1; Borgeaud's "Adoption and Amendment of Constitutions," introductory note, pp. 9 and 10, 40, 146 to 151; 1 Bryce's Am. Commonwealth [2 Ed.], pp. 419, 429, 436, 438, 441, 442, and 447; Poore's "Charters and Constitutions," vols. 1 and 2; State v. Mason, 9 So. Rep. (La.) 776. (9) No provision of the present or any former state constitution has ever expressly established the seat of government at Jefferson city. The first constitution delegated to the legislature and to certain commissioners the necessary power to locate the seat of government, and it was their subsequent acts that resulted in locating the town and in fixing the capital there. The establishment of the present seat of government at Jefferson City was brought about by acts of commissioners contributing to that end, by ministerial or executive acts, deriving their power or authority from the constitution. Const. of Mo. of 1820, art. 11, secs. 1, 2, 3, and 4; Laws of Missouri, 1821, approved December 31; Same, 1822, approved January 11. (10) After the capital was established at Jefferson City, the people, by express constitutional limitation, subsequently withdrew from the legislative department the power to remove the seat of government by simple legislative act. But for that express limitation the seat of government might be removed by ordinary statute law, because the exceptions to a power granted mark its extent. Const. of Mo. 1865, art. 11, sec. 10; Same, 1875, art. 4, sec. 56; Gibbons v. Ogden, 9 Wheaton, 191; Brown v. Maryland, 12 Wheaton, 438; Morris v. Powell, 125 Ind. 281; State ex rel. v. Cunningham, 83 Wis. 90. (11) Neither in the "Enabling Act," passed by the congress in 1820, nor in the "Ordinance of Acceptance" of the constitutional convention of the state, will be found anything which deprives or limits the state in its sovereign right to reestablish its seat of government. Act of Congress, 1820, 1 R. S. Mo., pp. 47 to 50; Ordinance of Acceptance, 1820, 1 R. S. Mo., 1889, pp. 51 to 63; Cooley's Const. Lim. [6 Ed.], pp. 473, 474; 4 Am. and Eng. Encyclopedia of Law, 403; 2 Beach on Injunc., sec. 1390; Armstrong v. Commissioners, etc., 4 Blackf. (Ind.) 208; Elwell v. Tucker, 1 Blackf. (Ind.) 285; Newton v. Commissioners, etc., 26 Ohio St. 618; S. C., 100 U.S. 548; Alley v. Denson, 8 Tex. 297; Gilmore v. Hayworth, 26 Tex. 89; Harrell v. Lynch, 65 Tex. 149; Adams v. County of Logan, 11 Ill. 336; Harris v. Shaw, 13 Ill. 4; Attorney General v. Board, 33 Mich. 289. (12) The pending amendment will simply add something to the constitution, and will be complete and effective as a valid and binding expression of the people's will as soon as it is ratified. It does not delegate to anyone nor leave to any subsequent contingency the determination of the validity and binding force of the amendment. Its ratification by the people will be a final and effective decision and act, and all its provisions can then be enforced by observing its prescribed rules and limitations. (13) The legal force and validity of the proposed amendment will not depend upon the decision or actions of anyone, except upon its ratification by the qualified voters. Upon being ratified by the people, the proposed amendment will become binding and effectual as an authority to remove the capital on the conditions set forth. It will make lawful that which otherwise would be unlawful. Constitution of Mo., art. 15, sec. 2. (14) The actual exercise of powers conferred by a law is not essential to the legal force and validity of either a statute or a fundamental law. When the law has been enacted in due form, and is a complete and final expression of the will of the legislature, or of the people, then it will be valid and binding, even though its future effect and operation may be dependent or contingent on facts or conditions to arise or be brought about in the future, and which facts or conditions may possibly never arise or be found to exist. Sedgwick Const. of Stat. and Const. Law [2 Ed.], pp. 135 to 138, and cases cited; Cooley's Const. Lim. [6 Ed.], pp. 98 to 101, 137 to 146, and cases cited; First Constitution of Mo. (1820), "Seat of Government," art. 11, secs. 1, 2, 3 and 4; Walton v. Greenwood, 60 Me. 356; State v. Parker, 26 Vt. 357; Pratt v. Allen, 13 Conn. 119; Lathrop v. Stedman, 42 Conn. 583; Newton v. Commissioners, etc., 26 Ohio St. 618; Starin v. Genoa, 23 N.Y. 439; Bank v. Village, 18 N.Y. 38; Cargo v. United...