Preisler v. Doherty

• Decision Date: 14 November 1955
• Docket Number: No. 44808,44808
• Citation: 365 Mo. 460,284 S.W.2d 427
• Parties: Paul W. PREISLER, (Plaintiff) Appellant, v. Michael J. DOHERTY, Daniel J. Nack, Isaac C. Orr, and William E. Buder, as Members of the Board of Election Commissioners of the City of St. Louis; Walter H. Toberman, Secretary of State of the State of Missouri; John M. Dalton, Attorney-General of the State of Missouri, (Defendants) Respondents, Oscar A. Mueller, and Michael Fitzgerald, (Intervenor-Defendants) Respondents.
• Court: Missouri Supreme Court

Page 427

284 S.W.2d 427

365 Mo. 460

Paul W. PREISLER, (Plaintiff) Appellant, v. Michael J. DOHERTY, Daniel J. Nack, Isaac C. Orr, and William E. Buder, as Members of the Board of Election

Commissioners of the City of St. Louis; Walter H. Toberman,

Secretary of State of the State of Missouri; John M. Dalton,

Attorney-General of the State of Missouri, (Defendants) Respondents,

Oscar A. Mueller, and Michael Fitzgerald,

(Intervenor-Defendants) Respondents.

No. 44808.

Supreme Court of Missouri, En Banc.

Nov. 14, 1955.

Rehearing Denied Dec. 12, 1955.

Paul W. Preisler, St. Louis, pro se.

James M. Douglas, St. Louis, for Michael J. Doherty, Daniel J. Nack, Isaac C. Orr and William E. Buder as Members of Board of Election Com'rs of City of St. Louis, defendants-respondents.

Maurice Schechter, St. Louis, for defendant-intervenors-respondents, Oscar A. Mueller and Michael Fitzgerald.

HYDE, Judge.

Action for declaratory judgment to determine validity of the 1952 division of the City of St. Louis into seven senatorial districts. The present Board of Election Commissioners, which did not make the challenged redistricting and have been substituted for the members of the former Board who did make it, filed answer denying the invalidity of the redistricting. However, their answer also contained a counterclaim asking for a declaratory judgment, if the redistricting should be declared unconstitutional and void, which would determine the authority of the present Board to create new senatorial districts. The other defendants also filed answers denying invalidity of the redistricting and certain voters were allowed to intervene and answer as proponents of the validity of the redistricting. The trial court dismissed plaintiff's petition with prejudice and plaintiff has appealed.

This matter was previously before us in Preisler v. Doherty, Mo.Sup., 265 S.W.2d 404, in which we held that Count 2 of plaintiff's petition (the basis of this case) stated a claim for declaratory relief but that Count 1 (based on plaintiff's claimed right to run for the office of state senator at large in the 1952 election) was moot and properly dismissed. This redistricting was also challenged in State ex rel. Sommer v. Calcaterra (State ex rel. Scott v. Calcaterra), 362 Mo. 1143, 247 S.W.2d 728, in which we denied prohibition against the Board, to prevent conducting primary and general elections in these senatorial districts. (We will refer to the Board of Election Commissioners making the redistricting as 'the Board' and to their successors as 'the present Board.') This writ was denied on the ground that redistricting was a legislative function; holding that prohibition will not lie to control administrative, ministerial or legislative functions, but only to prevent bodies exercising judicial or quasi judicial functions from doing unauthorized acts or acts in excess of the authority vested in them. In this present case, the matter of the validity of this redistricting is directly presented on the merits.

It is well settled that courts have jurisdiction and authority to pass upon the validity of legislative acts apportioning the state into senatorial or other election districts and to declare them invalid for failure to observe non-discretionary limitations imposed by the Constitution. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, loc. cit. 473, 146 S.W. 40, loc. cit. 53 and cases cited; Annotation A.L.R. 1337; 18 Am.Jur. 191-201, Secs. 16-31; 16 C.J.S., Constitutional Law, Sec. 147 p. 438. See also Jones v. Freeman, 193 Okl. 554, 146 P.2d 564, loc. cit. 570, stating that the courts of 38 states had exercised this power. However, as these authorities show, the courts may not interfere with the wide discretion which the Legislature has in making apportionments for establishing such districts when legislative discretion has been exercised. It is only when constitutional limitations placed upon the discretion of the Legislature have been wholly ignored and completely disregarded in creating districts that courts will declare them to be void. In such a case, discretion has not been exercised and the action is an arbitrary exercise of power without any reasonable or constitutional basis. As said in a leading case, State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53 N.W. 35, 55, 17 L.R.A. 145: 'If, as in this case, there is such a wide and bold departure from this constitutional rule that it cannot possibly be justified by the exercise of any judgment or discretion, and that evinces an intention on the part of the legislature to utterly ignore and disregard the rule of the constitution in order to promote some other object than a constitutional apportionment, then the conclusion is inevitable that the legislature did not use any judgment or discretion whatever.' Likewise, In re Sherill, 188 N.Y. 185, 81 N.E. 124, 128, the Court said: 'But, if the Legislature under the assumption of an exercise of discretion does a thing which is a mere assumption of arbitrary power, and which, in view of the provisions of the Constitution, is beyond all reasonable controversy, a gross and deliberate violation of the plain intent of the Constitution, and a disregard of its spirit and the purpose for which express limitations are included therein, such act is not the exercise of discretion, but a reckless disregard of that discretion which is intended by the Constitution. Such an exercise of arbitrary power is not by authority of the people. It is an assumption, and, when it is claimed that an act is thus in violation of the Constitution, a question of law is presented for the determination of this court.' Thus, in the matter of districting, as well as in other matters, the Legislature has no authority to enact unconstitutional laws.

Those cases, and others cited, 241 Mo. loc. cit. 473, 146 S.W. loc. cit. 53 involved apportionment laws of state legislatures. However, in this case, we are not dealing with a law enacted by our General Assembly, which as a coordinate branch of our government has all of the legislative power of the State except that denied it by express limitations of the Constitution. This is true because the 1945 Constitution has taken away from the General Assembly the whole matter of senatorial districting. Art. III, Secs. 5, 7 and 8, 1945 Const., V.A.M.S. Section 7 provides for a commission to redistrict the State after each United States decennial census. Section 5 provides that no county shall be divided in making districts composed of more than one county; and, no doubt, because of this provision, Section 7 authorizes a variance in population of districts which shall not be more than one-fourth of the quotient of the division of the population of the State by the number of districts. When this commission allots more than one Senator to any county or to the City of St. Louis, Section 8 provides for local districting by local administrative officers. In the City of St. Louis this is 'the body authorized to establish election precincts', which is the Board of Election Commissioners. Sec. 118.150, statutory references are to RSMo and V.A.M.S. except when otherwise noted. Thus, in this case, we are considering acts of administrative officers who have been delegated very limited legislative power for a single purpose, namely: to divide the City into senatorial districts 'of contiguous territory, as compact and nearly equal in population as may be.' There is even good authority for proceeding against such officers by mandamus when they have not followed mandatory constitutional provisions in districting. See Attorney General v. Suffolk County Apportionment Commissioners, 224 Mass. 598, 113 N.E. 581; Donovan v. Suffolk County Apportionment Commissioners, 225 Mass. 55, 113 N.E. 740, 2 A.L.R. 1334; State ex rel. Herbert v. Bricker, 139 Ohio St. 499, 41 N.E.2d 377. Moreover, they are not limited to any subdivision lines (wards, etc.) except by necessity to precincts which they make and may revise at any time. Sec. 118.150. Therefore, it is obvious that it is much easier for them to make compact districts than for a legislature or commission restricted to county lines (or following town, ward or other district lines) and that there can be no reasonable basis for failing strictly to follow this mandatory constitutional requirement. Furthermore, the Political Atlas of the City in evidence, showing there are many reasonably compact Wards, Legislative Districts, Magistrate Districts and Congressional Districts, in the City, indicates there is no necessity for the departure from constitutional standards shown in this case

With these principles in mind, we will consider the facts of this case; and in doing so, we will consider all the evidence duly preserved, which we find to be admissible, whether rejected by the trial court or not, Sec. 510.310, taking judicial notice of some generally known facts and official records. Maps of the City showing all seven districts, and of the districts separately, show that none of them are compact. Topographical maps of the City made by the United States Geological Survey show that this lack of compactness is not due to physical features of the area or works of man in the area. In fact, such features and works that might be reasonable natural boundaries are disregarded. For example, in the 3rd District, the large open space of Forest Park is in the center with 30 precincts on the south side and 25 precincts on the north side; and also three precincts are included on the east end of the Park from another ward, which are completely separated from the precincts north and south of the Park. It also includes a long strip separated from the Park by the west branch of the 5th District. In the 4th District there are precincts on both sides of the railroad yards. Likewise, in the 5th District, the main business section of the City separates the two parts of the District; one part extending north from the business section and...