Moore v. Brown

• Decision Date: 12 November 1942
• Docket Number: 38381
• Parties: Hunt C. Moore v. Dwight H. Brown, the Secretary of the State of Missouri, Appellant
• Court: Missouri Supreme Court

165 S.W.2d 657

350 Mo. 256

Hunt C. Moore v. Dwight H. Brown, the Secretary of the State of Missouri, Appellant

No. 38381

Supreme Court of Missouri

November 12, 1942

Appeal from Cole Circuit Court; Hon. Sam C. Blair, Judge.

Affirmed.

Roy McKittrick, Attorney General, W. O. Jackson, Tyre W Burton and Russell C. Stone, Assistant Attorneys General, for appellant.

(1) The government of the State is divided into three separate departments, the Legislative, Executive and Judicial. Art III, Mo. Constitution. (2) Article IV, Section 57, recalls all legislative power theretofore granted to the end that the whole power of legislation is subject to the initiative and referendum. Art. IV, Sec. 57, Mo. Constitution; Marsh v Bartlett, 121 S.W.2d 737; State ex rel. Gordon v. Becker, 329 Mo. 1053, 49 S.W.2d 146. (3) The courts have no power or jurisdiction to enjoin the defendant from performing statutory duties, as agent of the people, pertaining to certifying and causing to be printed the Proposed Amendment No. 46a, Article IV, to the Constitution, because it is an interference and encroachment by the judiciary branch of the government. State ex rel. Carson v. Kozer, 270 P. 513; State ex rel. Cranmer v. Thorson, 9 S.D. 149, 68 N.W. 202, 33 L. R. A. 582; State ex rel. Stokes v. Roach, 190 S.W. 277; State ex rel. Bullard v. Osborn, 143 P. 117; State ex rel. v. Gates, 190 Mo. 540; Anderson v. Byrne, 242 N.W. 687; State ex rel. Berry v. Superior Court in and for Thurston County, 159 P. 92; State ex rel. Wells v. City of Charleston, 114 S.E. 382. (a) Courts have no power to restrain the introduction or passage of any bill in the Legislature, valid or invalid (even though it appears unconstitutional upon its face) for the reason that courts cannot interfere with any action of the General Assembly. Pittman v. Drabelle, 181 S.W. 1055; State ex rel. v. Kozer, supra; State ex rel. Abel v. Gates, 190 Mo. 540; State ex rel. Cranmer v. Thorson, 9 S.D. 149; Mississippi v. Johnson, 4 Wall. 500. (4) Since the courts do not have power over the legislative matters before the General Assembly, it would be inconsistent and ridiculous to say the courts had jurisdiction over initiated legislative measures. State v. Kozer, supra; State v. Osborn, supra; Art. IV, Sec. 57, Mo. Constitution; White v. Wheeling, 57 P.2d 703; State ex rel. Stokes v. Roach, 190 S.W. 277; State ex rel. Murcolin v. Smith, 138 N.E. 881, 105 Ohio St. 570. (5) The courts have no power or jurisdiction to enjoin the defendant in the performance of ministerial duties in complying with the statutes relating to certifying and causing to be printed the ballots. State ex rel. v. Carter, 257 Mo. 52; State v. Kozer, supra; State ex rel. Allen v. Dawson, 284 Mo. 427. (6) The duties imposed upon the Secretary of State relating to certifying and causing to be printed on the ballots Amendment No. 46a of Article VI of the Constitution, are plainly ministerial. State v. Kozer, supra. (7) The court erred in enjoining the Secretary of State from performing ministerial duties relating to certifying and causing to be printed Proposed Constitutional Amendment No. 46a of Article IV, if said statutes are directory as the court has no power or jurisdiction to encroach on the exercise of the discretionary power of the Secretary of State, if such, unless abused or unless he acts fraudulently or in bad faith. State ex rel. v. Westhues, 9 S.W. 612; Corpus Juris, p. 242, sec. 384. (8) The certifying and printing of the proposed Amendment No. 46a, Art. IV, is an integral part in the exercise of the political power of the government and therefore is beyond judicial control. Art. II, Secs. 1, 2, Mo. Const.; State ex rel. Byerley v. State Board of Canvassers, 172 N.W. 80; Widner v. King, 1 S.W.2d 587; State v. Kozer, supra; 33 A. L. R., 1379; 14 R. C. L., secs. 76, 77, pp. 374, 375; 70 A. L. R. 736; Sec. 12289, R. S. 1939. Courts have no jurisdiction to determine in advance the validity or invalidity of any proposed constitutional amendment. State ex rel. Gordon v. Becker, 329 Mo. 1053, 49 S.W.2d 146; Marsh v. Bartlett, supra; McAllister v. State of Oklahoma ex rel. George F. Short, 95 Okla. 200; 33 A. L. R. 1370; State v. Kozer, supra. (9) The petition filed in the circuit court by the plaintiff made no attack upon sufficiency of the initiative petition filed in the Secretary of State's office and therefore the court was without jurisdiction to enjoin the Secretary of State from performing his statutory duties relating to certifying and printing the Proposed Amendment No. 46a. Sec. 12289, R. S. 1939; State v. Osborn, supra; State v. Kozer, supra. (10) Section 12289, R. S. 1939, provides on "showing that any petition filed is not legally sufficient" the phrase "legally sufficient" refers to the form only and not to the validity of the substantive matters. The initiative and referendum Constitutional Amendment of Arizona follows Oklahoma and Oregon. The Missouri initiative and referendum Constitutional Amendment follows the Oregon Act. The Statutes of Arizona, Oklahoma and Oregon, containing the phrase "legally sufficient" have been construed by the courts to mean, applying to the form of the petition and not to its legality. State v. Osborn, supra; State v. Olcott, 62 Ore. 277, 125 P. 303. (11) The court erred in holding that the proposed amendment to Article IV, known as Amendment No. 46a, violates Section 57 of Article IV of the Constitution of Missouri, in that the initiative petition did not refer to the sections of the Constitution which proposed to amend or alter or supersede. Marsh v. Bartlett, supra; Anderson v. Byrne, 242 N.W. 687; State ex rel. v. Thompson, 19 S.W.2d 642, 323 Mo. 742. (12) The court erred in holding that the Proposed Amendment No. 5, to be known as Section 46a, violates Section 2 of Article XV of the Constitution in that it contained more than one amended and revised article of the Constitution. Marsh v. Bartlett, supra; State ex inf. McKittrick v. Bode, 113 S.W.2d 805. (13) The court erred in holding that the proposed Amendment Section 46a, Article IV of the Constitution was legislative in character. Marsh v. Bartlett, supra; State ex rel. State Highway Comm. v. Thompson, 19 S.W.2d 642. (14) The court erred in holding that the proposed initiative measure Amendment No. 5, contains two subjects: (a) Making grants to certain persons over sixty-five years of age and; (b) Making grants for the aid of dependent children. Marsh v. Bartlett, supra; Shelly v. Blind Pension Comm., 309 Mo. 612.

John G. Madden, James E. Burke and Madden, Freeman & Madden for respondent.

(1) The proposed measure is not in truth and in fact an amendment to the Constitution of Missouri, but is an illegal, void and abortive attempted legislative act, and, therefore, under the terms and provisions of Section 12289, R. S. Mo. 1939, the Cole County Circuit Court properly held that the petition filed with the Secretary of State was legally insufficient and that the Secretary of State should be enjoined from certifying or printing the same on the official ballot. State ex rel. v. Carter, 257 Mo. 52. Section 1 of Article XV of the Missouri Constitution provides as follows: "This Constitution may be revised and amended only in pursuance of the provisions of this article or as otherwise provided in this Constitution." Section 57 of Article IV of the Constitution, dealing with the subject of initiative petitions for the amendment of the Constitution of Missouri, provides that: "The petition shall include the full text of the measure so proposed." Section 2 of Article XV of the Missouri Constitution provides that: "No proposed amendment shall contain more than one amended and revised article of this Constitution or one new article which shall contain not more than one subject and matters properly connected therewith." The Constitution itself (Section 1 of Article XV) specifically provides that it may be amended only in accordance with the provisions therein contained. Gabbert v. Railways, 171 Mo. 84. Cooley on Constitutional Limitations (8th Ed.), p. 81. The court may determine in an injunction action whether or not a proposed amendment to the Constitution of the State of Missouri is in fact an amendment to the Constitution of the State of Missouri. State ex rel. Halliburton v. Roach, 230 Mo. 408; State ex rel. v. Thompson, 19 S.W.2d 642; Marsh v. Bartlett, 121 S.W.2d 737. (2) The proposed measure is not in truth and in fact an amendment to the Constitution of Missouri for the reason that such amendments can only be proposed in the manner provided by the Constitution, and this proposal does not meet the requirements of Section 57 of Article IV of the Constitution of Missouri, which provides that, "The petition shall include the full text of the measure proposed." Gabbert v. Railways, 171 Mo. 84; 1 Cooley on Constitutional Limitations (8th Ed.), p. 81; State ex rel. Halliburton v. Roach, 230 Mo. 408. (3) The proposed measure is not in truth and in fact a constitutional amendment for the reason that the measure contains more than one amended and revised article of the Constitution of Missouri. Section 2 of Article XV of the Missouri Constitution provides in part: "No proposed amendment shall contain more than one amended and revised article of this Constitution . . ." Section 43 or Article IV of the Missouri Constitution provides: "All revenue collected and moneys received by the State from any source whatever shall go into the treasury, and the General Assembly shall have no power to divert the same, or to permit money to be drawn from the treasury, except in pursuance of regular appropriations made by the law. All appropriations of money by the successive General Assemblies shall be made in the following order: First, For the payment of all...