Poertner v. Hess

• Citation: 646 S.W.2d 753
• Decision Date: 23 February 1983
• Docket Number: No. 64069,64069
• Parties: Emil L. POERTNER, Respondent, v. Jane A. HESS, as the Administrator of the State Courts of Missouri, et al., Appellants.
• Court: United States State Supreme Court of Missouri

Page 753

646 S.W.2d 753

Emil L. POERTNER, Respondent, v. Jane A. HESS, as the Administrator of the State Courts of

Missouri, et al., Appellants.

No. 64069.

Supreme Court of Missouri,

En Banc.

Feb. 23, 1983.

Rehearing Denied March 29, 1983.

Cullen Coil, Robert J. Swift, Jr., Jefferson City, for appellants.

John Ashcroft, Atty. Gen., Steven H. Akre, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM.

Appellants appeal from the trial court's decision ordering the secretary of state to certify that respondent became a circuit judge of the Twentieth Judicial Circuit on January 2, 1979, and declaring that from that date respondent is entitled to the salary of a circuit judge. Whether respondent is to be a circuit judge, as he claims, or an associate circuit judge, as appellants contend, depends upon the population of Franklin County on January 2, 1979, the effective date of the 1976 amendments to art. V of the Missouri Constitution. The Missouri Court of Appeals, Western District, transferred the case to this Court prior to opinion because this Court has exclusive appellate jurisdiction in cases involving the title to a state office. Mo. Const. art. V, § 3. The judgment of the circuit court is reversed.

The 1976 amendments to art. V abolished the magistrate and probate courts and provided that those courts were to be divisions of the Circuit Court. Id. art. V, § 27(2)(a)-(b). Upon the effective date of the amendments, magistrate judges became associate circuit judges and probate judges became either circuit or associate circuit judges. Id. art. V, § 27(4)(a), -(c). Whether a probate judge became a circuit judge or an associate circuit judge was governed by the provisions of art. V, § 27(4)(a), which provides:

In 1978, all probate judges except those selected under the nonpartisan selection of judges plan shall be elected as provided by law. On the effective date of this article the probate judge of the city of St. Louis and the probate judges of all first class counties and all second class counties with a population of over sixty-five thousand shall become circuit judges of their respective circuits and thereafter shall be selected or elected from the circuit as in the case of other circuit judges and be entitled to the same compensation as provided by law for circuit judges and be entitled to the same compensation as provided by law for circuit judges at the time of the effective date of this article until changed by law, and shall have the same powers and jurisdiction as judges of the circuit courts. Each judge who served as probate judge and who is in office on the effective date of this article in such city and counties shall continue to serve in the capacity of judge of the probate division of the circuit court until his successor is selected and qualified, provided that with his consent any circuit judge or associate circuit judge in the circuit at his request may hear, try and dispose of any matter, case or classes of cases assigned to him by such judge of the probate division, and such judge of the probate division with his consent, may hear, try and determine any case within the jurisdiction of the circuit court. On the effective date of this article the probate judges of counties with a population of sixty-five thousand or less shall become associate circuit judges of their respective circuits and thereafter shall be selected or elected from the county as in the case of other associate circuit judges and shall be entitled to the same compensation as that to which they were entitled on the effective date of this article until changed by law.

(Emphasis added.)

Respondent was elected probate judge of Franklin County, a second class county, ¹ at the general election in November 1978, and he was sworn into office on January 1, 1979. The next day respondent became either a circuit judge or an associate circuit judge, depending upon the population of Franklin County. The parties have stipulated that according to the 1970 United States decennial census Franklin County had a population of fewer than 65,000 persons. The uncontradicted evidence at trial was that based upon the most accurate expert estimates available, Franklin County had more than 65,000 inhabitants on January 2, 1979.

The bone of contention between the parties is whether the population of Franklin County on the date in question is to be determined by reference to the last previous United States decennial census, that of 1970, or by some other method. Appellants argue that § 1.100, RSMo 1978, ² requires that population be determined by reference to the last previous decennial census. That section provides in relevant part that

[t]he population of any political subdivision of the state for the purpose of representation or other matters including the ascertainment of the salary of any county officer for any year or for the amount of fees he may retain or the amount he is allowed to pay for deputies and assistants is determined on the basis of the last previous decennial census of the United States.

§ 1.100(1) (emphasis added). Respondent, for a number of reasons, contends that § 1.100 is inapplicable.

We reject appellants' contention that § 1.100 mandates a method of constitutional construction. In our recent decision in State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d 69 (Mo. banc 1982), we reaffirmed our commitment to the longstanding principle that " '[i]t is emphatically the province and duty of the judicial department to say what the law is.' " Id. at 77 (quoting Marbury v. Madison 1 Cranch (5 U.S.) 137, 177 (1803)). It would be inconsistent with that principle to hold that § 1.100 compels the result appellants seek, for such a holding would mean that the legislature could statutorily interpret the language of the Constitution. Constitutional interpretation is a function of the judicial, and not the legislative, branch.

That is not to say that § 1.100 is without significance. Although that section does not directly resolve the issue presented, it is a factor to be considered in ascertaining the intent of those who drafted and adopted the 1976 amendments to art. V. "In determining the meaning of a constitutional provision the court must first undertake to ascribe to the words the meaning which the people understood them to have when the provision was adopted." Boone County Court v. State, 631 S.W.2d 321, 324 (Mo. banc 1982). The "intent of the amendment's drafters" is also "influential." Id. See also McDermott v. Nations, 580 S.W.2d 249, 253 (Mo. banc), cert. denied, 444 U.S. 901, 100 S.Ct. 213, 62 L.Ed.2d 138, cert. dismissed, 444 U.S. 958, 100 S.Ct. 441, 62 L.Ed.2d 138 (1979). Language must not be construed in the abstract but should be defined in light of the construction that those who drafted and adopted the provision must have believed would be placed upon it. It is with these principles in mind that § 1.100 becomes important.

A myriad of state and local classifications and governmental functions are based upon population. It therefore is necessary that there be a stable and accurate source of population data. Section 1.100 reflects the policy of the legislature that such data should be provided by the last previous United States decennial census. That section and its precursors have been a part of Missouri law since 1885, when the legislature abolished the state census and provided that "[a]ll representation or other matters heretofore or now based on the state census shall be based on the United States census of this state." Act of Apr. 3, 1885, 1885 Mo. Laws 46, 46. The census referred to in that statute was necessarily the decennial census, because until Congress acted in 1976 to authorize an interim census, see Act of Oct. 17, 1976, Pub.L. No. 94-521, sec. 7, § 141(d), 90 Stat. 2459, 2461-62 (codified at 13 U.S.C. § 141(d) (1976)), the only population census required by federal law was the decennial census mandated by U.S. Const. art. I, § 2, para. 3, see S.Rep. No. 1256, 94th Cong., 2d Sess. 2, reprinted in 1976 U.S.Code Cong. & Ad.News 5463, 5464. The legislature later passed new legislation that expressly employed the term "decennial census," ³ and the use of that term continues today in § 1.100. Nevertheless because prior to 1976 any reference to the United States census could mean only the decennial census, it is clear that for nearly a century the legislative policy of this state has been to rely upon the United States decennial census.

That fact is highly significant in the present case. The people are not unfamiliar with legislative policy, especially when that policy has existed nearly one hundred years. In view of the longstanding approval of § 1.100 and its precursors, see § 1.100, RSMo 1969; § 1.100, RSMo 1959; § 1.100, RSMo 1949; §§ 654, 13430, RSMo 1939; § 654, RSMo 1929; § 7057, RSMo 1919; § 8056, RSMo 1909; § 5245, RSMo 1899; § 967, RSMo 1889, we think the legislators who drafted and submitted the 1976 amendments to art. V and, more importantly, the people who adopted them believed that population for purposes of art. V, § 27(4)(a) would be determined by reference to the last previous United States decennial census.

That is the only logical belief that the legislature and the people could have had at the time. Population is ascertained by a census. See Union Electric Co. v. Cuivre River Electric Cooperative, 571 S.W.2d 790 794 (Mo.App.1978). Although cities are authorized to take a special census in certain situations, see §§ 71.160, 72.060, 81.020, state law makes no provision for a census of individual counties. The only census by which the population of individual counties can be determined is the federal census. At the time the constitutional amendments at issue here were approved by the voters on August 3, 1976, and a fortiori at the time the amendments were drafted and submitted by the legislature, the only population census authorized by federal law was...