State ex rel. Barrett v. Hitchcock

• Citation: 146 S.W. 40,241 Mo. 433
• Parties: THE STATE ex rel. JESSE W. BARRETT v. GEORGE C. HITCHCOCK et al., Judges of the Circuit Court of the City of St. Louis
• Decision Date: 28 March 1912
• Court: Missouri Supreme Court

146 S.W. 40

241 Mo. 433

THE STATE ex rel. JESSE W. BARRETT v. GEORGE C. HITCHCOCK et al., Judges of the Circuit Court of the City of St. Louis

Supreme Court of Missouri

March 28, 1912

Writ denied.

W. C Irwin for relator.

(1) Under section 3 of article 4 of the Constitution, the Supreme Court has jurisdiction to compel the judges of the circuit court of the city of St. Louis to subdivide said city into senatorial districts under an apportionment made in accordance with section 7 of article 4 of the Constitution where the circuit judges refuse to perform the duty imposed upon them by section 6 of article 4 of the Constitution. State ex rel. v. Higgins, 125 Mo. 364; State ex rel. v. Patterson, 229 Mo. 364; State ex rel. v Patterson, 229 Mo. 373; People ex rel. v Broom, 138 N.Y. 95; State ex rel. v. Smith, 105 Mo. 6; State ex rel. v. Field, 107 Mo. 445; State ex rel. v. Jones, 155 Mo. 570; State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Broaddus, 207 Mo. 107. The Supreme Court has jurisdiction by its writ of mandamus to compel the judges of the circuit court to act where it appears that the inferior court has refused to perform its duty. State ex rel. v. Turner, 210 Mo. 77; State ex rel. v. McCamman, 11 Mo.App. 626; State ex rel. v. Smith, 105 Mo. 6; State ex rel. v. Neville, 157 Mo. 386; State ex rel. v. O'Bryan, 102 Mo. 254; State ex rel. v. Oliver, 50 Mo.App. 217; State ex rel. v. County, 41 Mo. 221; State ex rel. v. Field, 37 Mo.App. 83. And it is immaterial in the case at bar whether the act which the circuit judges are required to perform is a legislative, ministerial or judicial duty, in as much as the power is conferred upon the Supreme court by express constitutional grant. Constitution, sec. 3, art. 6; State ex rel. v. Higgins, 125 Mo. 364; State ex rel. v. Patterson, 229 Mo. 364; State ex rel. v. Patterson, 229 Mo. 373; State ex rel. v. Broom, 138 N.Y. 95. (2) Under sec. 7, art. 4 of the Constitution, in the event of the failure of the General Assembly to district the State for senators, the duty devolves upon the Governor, Secretary of State and Attorney-General, and if all three officers are present, a statement of the senatorial districts formed, signed and filed in the office of the Secretary of State by the Secretary of State and Attorney-General, constituting a majority of such officers, and attested by the Great Seal of the State, has the same force and effect as if done by all three officers. 29 Cyc. 1433; In re State Treasurer, 51 Neb. 116. The rule is well settled that, where authority is conferred by law upon three or more persons to execute a public trust or agency, and in the execution therof all are assembled to deliberate, or had notice or opportunity to be present, the act of a majority is binding unless the statute expressly requires the concurrent action of all. In re State Treasurer, 51 Neb. 116; People v. Coghill, 47 Cal. 361; State v. Wilksville, 20 Ohio St. 288; State v. James, 4 Wis. 408; Hopkins v. Scott, 38 Neb. 661; State v. Bemis, 45 Neb. 724; Williams v. School, 21 Pick. (Mass.) 75; Lank v. Wood, 15 Ill. 256; People v. Nichols, 52 N.Y. 478. When the Governor refuses to participate in the forming, filing, and signing of a statement of the senatorial districts and the same are formed by the Secretary of State and Attorney-General, who filed in the office of the Secretary a statement of the districts signed by them and attested by the Great Seal of the State, and the Governor refuses to proclaim the statement, the proclamation of the Governor is not necessary in order that the statement shall be binding and effectual. 36 Cyc. 966; State v. Click, 2 Ala. 26; Peterman v. Huling, 31 Pa. St. 432; County v. County, 15 Lea (Tenn.), 266. The officer upon whom rests the duty of making a proclamation is conclusively presumed to have promptly and properly discharged that duty. Lepeyre v. United States, 17 Wall. 195; Walsey v. Chapman, 101 U.S. 770. The court conclusively presumes that the proclamation was made on the day it should have been made and will permit no inquiry into extrinsic matters. Lepeyre v. United States, 17 Wall. (U.S.) 195; Walsey v. Chapman, 101 U.S. 770.

Rassieur & Schnurmacher, Jones, Jones, Hocker & Davis and Alroy S. Phillips for respondents.

(1) The statement of the senatorial districts formed by the Governor, Secretary of State, and Attorney-General and filed in the office of the Secretary of State in accordance with sec. 7, art. 4 of the constitution, when proclaimed by the Governor, has the same status as an act of the General Assembly, and is subject to the same rules as a statute as to its construction and validity, and where the judges of the circuit court, city of St. Louis, refuse to proceed in accordance with the duty imposed upon them by sec. 6, art. 4 of the Constitution to subdivide the city into suitable districts thereunder, on the ground that the apportionment contained in the statement is unconstitutional, a proceeding by mandamus to compel them to subdivide the city into suitable districts under the statement, is a proper proceeding in which to pass upon the validity and constitutionality of the statement. Constitution, art. 4, secs. 2, 6, 7, 25; Laws 1882, p. 4; Laws 1892, p. 15; Laws 1901, p. 204; State ex rel. v. Patterson, 229 Mo. 373; State ex rel. v. Roach, 230 Mo. 408; State ex rel. v. Ziegenhein, 144 Mo. 283; State ex rel. v. Warner, 197 Mo. 650, State ex rel. v. Gordon, 236 Mo. 164; State ex rel. v. Roach, 230 Mo. 408; State ex rel. v. Messerly, 198 Mo. 351; State ex rel. v. Nast, 209 Mo. 708; People ex rel. v. Rice, 135 N.Y. 473; People ex rel. v. Supervisors, 147 N.Y. 1. (2) Under the provisions of sec. 7, art. 4 of the Constitution, the statement of the senatorial districts formed by the Secretary of State and Attorney-General and filed in the office of the Secretary of State on April 18, 1911, does not become binding and effectual until proclaimed by the Governor, and in the absence of such proclamation the statement is not binding and effectual and imposes no duty upon the judges of the circuit court, city of St. Louis, to subdivide the city into suitable districts thereunder. 4 Words & Phrases, 4962; 36 Cyc. 965, 1190-1200; Forry v. Ridge, 56 Mo.App. 618. (3) In passing upon the validity of an apportionment of the State for senators made by the General Assembly the courts will not consider the motives of the General Assembly, but will declare the act unconstitutional and void where it plainly appears that in forming the districts the General Assembly has not considered or applied at all to any extent the limitations imposed by article 4 of the Constitution upon the exercise of discretion, or has so grossly abused the discretion to such an extent as to show an entire disregard of the limitations. Where the apportionment is made by the Governor, Secretary of State and Attorney-General, they act in that capacity as public officers and not as a sovereign legislative body, and the courts will consider their partisan motive and declare their apportionment unconstitutional and void where it plainly appears that they exercised their discretion in an arbitrary, capricious or unreasonable manner for partisan purposes. Constitution, art. 4, secs. 5, 6, 7, 9, 10, 11; People v. Thompson, 155 Ill. 451; People v. Carlock, 198 Ill. 150; People ex rel. v. Rice, 135 N.Y. 473; People ex rel. v. Broom, 138 N.Y. 95; Sherrill v. O'Brien, 188 N.Y. 185; State ex rel. v. Cunningham, 81 Wis. 440; State ex rel. v. Cunningham, 83 Wis. 90; Giddings v. Blacker, 93 Mich. 1; Supervisors v. Blacker, 92 Mich. 638; Parker v. State, 133 Ind. 178; Denny v. State, 144 Ind. 503; Brooks v. State, 162 Ind. 568; State ex rel. v. Wrighton, 56 N. J. L. 126; Harmison v. Commissioners, 45 W.Va. 179; People ex rel. v. Rice, 135 N.Y. 500; People v. Thompson, 155 Ill. 451; Kansas City v. Hyde, 196 Mo. 498; State ex rel. v. Philips, 97 Mo. 331; State ex rel. v. Gibson, 187 Mo. 536; State ex rel. v. Board, 103 Mo. 22; State ex rel. v. Adcock, 206 Mo. 550; State ex rel. v. Bourne, 151 Mo.App. 104, State ex rel. v. Board, 134 Mo. 296. (4) The facts in the case at bar are sufficient not only to show that in forming the districts the Secretary of State and Attorney-General exercised their discretion in an arbitrary, capricious and unreasonable manner for partisan purposes, but also to show that they have not considered or applied at all to any extent the limitations imposed by article 4 of the Constitution upon the exercise of their discretion and have so grossly abused their discretion as to show an entire disregard of its limitations. People v. Thompson, 155 Ill. 451; State ex rel. v. Cunningham, 81 Wis. 440; Sherrill v. O'Brien, 188 N.Y. 185; Parker v. State ex rel., 133 Ind. 178; People ex rel. v. Broom, 138 N.Y. 95; Giddings v. Blacker, 93 Mich. 1; State ex rel. v. Cunningham, 83 Wis. 90; State ex rel. v. Cunningham, 81 Wis. 440; People v. Rose, 203 Ill. 46; State ex rel. v. Board, 134 Mo. 296.

WOODSON, J. Valliant, C. J., concurs, not for the reasons stated in the opinion, but for the reasons stated in separate opinion in which Graves, J., concurs, and also in separate opinion filed by him; Kennish, J., does not concur in what is said regarding the Campbell case.

OPINION

In Banc

Mandamus.

WOODSON, J.

This is an original proceeding by mandamus, instituted in this court by the relator, seeking to compel the respondents, the judges of the circuit court of the city of St. Louis, to apportion or redistrict said city into six senatorial districts as is required to be done under certain conditions, by section 7, article 4 of the Constitution of 1875.

A petition for an alternative writ of mandamus was filed, and after due consideration it was ordered to issue, and it was made returnable ...