Preisler v. Kirkpatrick, 59049

• Decision Date: 08 September 1975
• Docket Number: No. 59049,59049
• Citation: 528 S.W.2d 422
• Parties: Del C. PREISLER et al., Plaintiffs-Respondents, v. James C. KIRKPATRICK, Secretary of State, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 422

528 S.W.2d 422

Del C. PREISLER et al., Plaintiffs-Respondents, v. James C. KIRKPATRICK, Secretary of State, Defendant-Appellant.

No. 59049.

Supreme Court of Missouri, En Banc.

Sept. 8, 1975.

Irving Achtenberg, David Achtenberg, Kansas City, for plaintiffs-respondents.

John C. Danforth, Atty. Gen., Andrew Rothschild, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for defendant-appellant.

HENLEY, Judge.

Del C. Preisler et al. (plaintiffs) sought by their petition (1) a judgment declaring unconstitutional existing senatorial districts on the sole ground that they are not compact; ¹ (2) a decree enjoining the Secretary of State (defendant) from taking any action with respect to elections for the state senate until the senatorial districts are reapportioned in accordance with Mo.Const. Art. III, § 5; ² and (3) an order by which the trial court would retain jurisdiction to (a) examine and approve or disapprove, and enforce its orders in connection with, any new reapportionment; and (b) fix and allow attorney fees to plaintiffs. Judgment was for plaintiffs on (1) and (2), and defendant appealed. The judgment fails to mention (3) and plaintiffs, treating this failure as a judgment denying the relief sought therein, have cross-appealed.

The case was submitted to the trial court on the pleadings, a two-part stipulation of facts, and exhibits consisting mostly of maps showing the boundaries of the districts.

In February, 1971, the Governor of Missouri, acting pursuant to Mo.Const. Art. III, § 7, appointed a Senatorial Redistricting Commission (Commission) to reapportion and establish the numbers and boundaries of the thirty-four senatorial districts of the state. ³ Thereafter, on August 30, 1971, the Commission filed its report with defendant. The report stated, inter alia, the results of its reapportionment of the districts with a description of the boundaries established and the number assigned each district.

The Commission allotted twelve districts to the St. Louis area, comprising St. Louis city, St. Louis county and St. Charles county; five to Jackson county (Kansas City area); and the remaining seventeen districts to the rest of the state. The boundaries of thirty-one districts follow county lines; only three districts cross county lines. Those crossing county lines are: district 1, part of which is in the city and part in the county of St. Louis; district 2, part of which is in St. Louis county and part in St. Charles county; and, district 33, consisting of nine counties and a small portion of Greene county immediately below the southeast corner of Polk county.

The report of the Commission does not contain a statement of its reasons for the location of the boundary lines of the several districts. The parties agree that the shapes of the districts are not the result of physical features of the areas involved and appear to agree that there is no evidence that any historical factors were considered. There is no evidence bearing upon the reasons or motives of the Commission for the location of any part of the boundary line of any district.

The trial court found only that 'the Senate Districts * * * are * * * in violation of Article III, Section 5, * * * in that they are not compact.' The court was not requested to do so and did not make and file findings of fact as to any of the districts or state any reasons why it found the districts not compact.

The 1970 decennial census shows Missouri's population, according to stipulation exhibit 6, to be 4,677,399. The location of that population in the counties of the state is shown by stipulation exhibit 12 (a map from page 1420 of the 1971--72 Official Manual of Missouri), attached to this opinion as appendix 1.

The 1970 population of 4,677,399 divided by 34 (the number of senators, Art. III, § 5) produces the quotient of 137,570 (the number of persons per senator, or the population figure each district is required to equal 'as nearly as possible'). The numbers of the districts, as established by the 1971 reapportionment, the population of each, and the percentage of variation of that population from the ideal 137,570 persons are shown on stipulation exhibit 6, attached as appendix 2.

A map showing the boundaries of the districts, as apportioned in 1971, except the twelve districts allotted to the St. Louis area and the five allotted to Jackson county, is attached as appendix 3.

A map showing the boundaries of the districts (districts 3, 4, 5, 6 and a part of district 1), as apportioned in 1971, located in the city and county of St. Louis, is attached as appendix 4.

A map showing the boundaries of the districts (districts 7, 13, 14, 15, 24, 26) located wholly within St. Louis county, that part of district 1 in St. Louis county which adjoins the part of that district in St. Louis city, and that part of district 2 in St. Louis county which adjoins the part of that district in St. Charles county is attached as appendix 5.

A map showing the boundaries of the districts (districts 8, 9, 10, 11 and 16), as apportioned in 1971, located in Jackson county, is attached as appendix 6.

A map showing the boundaries of the districts (district 30 and part of district 33), as apportioned in 1971, located in Greene county, is attached as appendix 7.

As stated, the sole question presented is whether the senatorial districts established by the Commission violate the requirement of Mo.Const. Art. III, § 5, that they be 'as compact * * * as may be.' We are concerned with the constitutional requirements that they be of contiguous territory and as nearly equal in population as may be ⁴ only insofar as those requirements may have affected or influenced the 'compactness' requirement. Another factor with which we are concerned in connection with the compactness question is the requirement of our constitution that county lines be followed, except when absolutely necessary to cross them for the purpose stated in Article III, § 7, quoted in footnote 3.

In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) the United States Supreme Court, holding that a state legislature must be apportioned on a population basis, said: '* * * the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.' 377 U.S. at 577, 84 S.Ct. at 1390.

The court recognized in Reynolds v. Sims, supra, that factors in addition to 'equality of population' properly may be considered in reapportionment of state legislative districts: 'A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underlie such aims. Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering.' 377 U.S. 578--579, 84 S.Ct. 1390. See also: Mahan v. Howell, 410 U.S. 315, 321--322, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Preisler v. Hearnes, 362 S.W.2d 552, 556(2) (Mo. banc 1962). But the court emphasized that in accomplishing the state's requirements, '* * * the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.' 377 U.S. at 579, 84 S.Ct. at 1390.

In Preisler v. Doherty, 284 S.W.2d 427(7, 8) (Mo. banc 1955) the court said, page 435: 'Certainly the framers of the Constitution did not intend for senatorial districts to be laid out according to the free will and caprice of the officers charged with that duty. The requirements of contiguity and compactness were placed there for a purpose. Our original Constitution of 1820 did not contain them. See Sec. 6, Art. III, Const.1820, 1 V.A.M.S. p. 79. No doubt they were found to be necessary to the preservation of true representative government and they appear in the 1875 Constitution in substantially the same form as in the present Constitution. See Secs. 5, 6 and 9, Art. IV, Const.1875, 1 V.A.M.S. pp. 177--179. It has been stated that the purpose of these requirements was "to guard, as far as practicable, under the system of representation adopted, against a legislative evil, commonly known as the 'gerrymander,' and to require the Legislature to form districts, not only of contiguous, but of compact or closely united, territory." State ex rel. Barrett v. Hitchcock, supra, 241 Mo. loc. cit. 497, 146 S.W. loc.cit. 61; See also 2 A.L.R. 1337.'

Preisler v. Hearnes, supra, the last word of this court on the 'compactness' issue, involved an attack upon the validity of a 1961 legislative act redistricting Missouri's ten congressional districts. Quoting from Preisler v. Doherty, supra, the court said: '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 § 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 ...