State ex rel. Gordon v. Becker

• Decision Date: 01 April 1932
• Docket Number: No. 31699.,31699.
• Citation: 49 S.W.2d 146
• Parties: STATE OF MISSOURI, at the relation of BAYLIS T. GORDON, Relator, v. CHARLES U. BECKER, Secretary of State of Missouri.
• Court: Missouri Supreme Court

49 S.W.2d 146

STATE OF MISSOURI, at the relation of BAYLIS T. GORDON, Relator, v. CHARLES U. BECKER, Secretary of State of Missouri.

No. 31699.

Supreme Court of Missouri, Court En Banc.

April 1, 1932.

PEREMPTORY WRIT AWARDED.

John I. Williamson, Emmett J. Crouse, Floyd E. Jacobs, Langdon R. Jones, Aubrey R. Hammett, Fred L. Williams, John T. Barker and Charles M. Howell for relator.

(1) The adoption of the Initiative and Referendum Amendment of the Constitution of Missouri in 1908 made no change in the Constitution so far as this case is concerned, except to take away from the Governor, Secretary of State and Attorney-General the power theretofore vested in them by Section 7, of Article 4 of the Constitution to district the State for senators and to vest that power in the people of the State. State ex rel. Lashly v. Becker, 290 Mo. 623; Sec. 1, Art. 4, Mo. Constitution; Secs. 7, 44, 45, 46, 47, 57, of Art. 4, Mo. Constitution; 1 Story on Constitution, 451; WHITE, J., in Downes v. Bidwell, 182 U.S. 312, 21 Sup. Ct. 796, 45 L. Ed. 1088; Straughan v. Meyers, 268 Mo. 580; State ex rel. Barrett v. Hitchcock, 241 Mo. 433. (2) The attempted redistricting of 1931 is so unfair as to convenience, equality of population and compactness of the territory, as to make it void. State ex rel. v. Hitchcock, 241 Mo. 479; People v. Thompson, 155 Ill. 451, 40 N.E. 307; Ragland v. Anderson, 125 Ky. 141, 100 S.W. 865; Wilson v. State, 145 Mich. 447, 108 N.W. 749; Stevens v. State, 181 Mich. 199, 148 N.W. 97; Re Timmerman, 100 N.Y. Supp. 57; Moore v. New York, 160 N.Y. Supp. 471; State ex rel. v. Cunningham, 81 Wis. 440, 15 L.R.A. 561; Sherrill v. O'Brien, 188 N.Y. 158; Donavan v. Commissioners, 225 Mass. 55, 2 A.L.R. 1344; In re Dowling, 113 N.E. 545; Merrill v. Mitchell, 153 N.E. 562; Stigltiz v. Schardien, 40 S.W. (2d) 315; Myre v. Lewis, 40 S.W. (2d) 322; State v. Brooks, 162 Ind. 568, 70 N.E. 980; Giddings v. Blacker, 93 Mich. 1, 52 N.W. 944; State ex rel. v. Stoddard, 25 N.W. 452, 62 Pac. 237. (3) Respondent is estopped to question the validity of the apportionment of 1901; and since the decision of this court in the Lashly case, it is stare decisis. Adams v. Bosworth, 126 Ky. 61; Ragland v. Anderson, 125 Ky. 141; Re Reynolds, 202 N.Y. 430; State ex rel. v. Howell, 92 Wash. 540; Fesler v. Brayton, 145 Ind. 71, 44 N.E. 37; State ex rel. Lashly v. Becker, 290 Mo. 560; State ex rel. v. Imel, 280 Mo. 558; Greene County v. Lydy, 263 Mo. 88.

Stratton Shartel, Attorney-General, Ray Weightman, Assistant Attorney-General, George C. Willson, David M. Proctor and Lieutellus Cunningham for respondent.

The counties shall be contiguous in districts composed of two or more counties, and in the formation of such districts no county shall be divided. Should the division of the State into Senatorial Districts be revised and adjusted after the taking of each decennial census of the United States? The above cited provisions of the Constitution are so plain that he who runs may read, and require that such revision and adjustment be made. The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the people who adopted it. That is the rule followed in the courts of the United States and of each of the states. 12 C.J. 700, par. 43, and authorities there collected; McGrew v. Railroad Co., 230 Mo. 496, 132 S.W. 1076. The words and terms of the Constitution must be construed in their most natural and obvious meaning. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40; State ex rel. Buck v. Railroad Co., 263 Mo. 689. This court has uniformly held that such provisions of the Constitution are mandatory. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40. The people of the State through their Constitution have given a mandate that the senatorial districts of the State be revised and adjusted after the taking of each decennial census of the United States. We submit that the above question should be answered in the affirmative and that there is no authority for holding otherwise. State ex rel. Major v. Patterson, 229 Mo. 373.

RAGLAND, J.

This is an original proceeding in mandamus by relator, Baylis T. Gordon, to compel the Secretary of State to receive and file in his office relator's written declaration of his intention to become a candidate in the primary election to be held August 2, 1932, for the office of State Senator from the Third senatorial district of Missouri, composed of the counties of Clay, Platte, Clinton, Dekalb, Andrew and Holt, as made and promulgated August 6, 1901, and as set forth in Section 11269, Revised Statutes 1929, and to certify relator's name as such candidate to the county clerk of each county in said district. Respondent refuses to receive and file relator's declaration, on two grounds, as disclosed by his return to our alternative writ: First, that there no longer exists in this State a senatorial district composed of the counties of Clay, Platte, Clinton, Dekalb, Andrew and Holt, that the districting Act of 1901 has been superseded by an act of the Governor, Secretary of State and Attorney-General, promulgated July 14, 1931, redistricting the State pursuant to Section 7, Article IV of the Constitution, — this notwithstanding that this court had previously ruled that the power to redistrict the State had been withdrawn from the officers just named by an amendment of the Constitution; and, second, that the districting Act of 1901, even if valid at the time of its promulgation, has become unconstitutional through the lapse of time.

I. The first contention calls for a reconsideration of the ruling in State ex rel. Lashly v. Becker, 290 Mo. 560. Three sections of Article IV of the Constitution are directly involved:

"Section 1. The legislative power, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives, to be styled `The General Assembly of the State of Missouri.'"

"Section 7. Senators and Representatives shall be chosen according to the rule of apportionment established in this Constitution, until the next decennial census by the United States shall have been taken, and the result thereof as to this State ascertained, when the apportionment shall be revised and adjusted on the basis of that census, and every ten years thereafter upon the basis of the United States census; ... such apportionment to be made at the first session of the General Assembly after each such census: Provided, That if at any time, or from any cause, the General Assembly shall fail or refuse to district the State for Senators, as required in this section, it shall be the duty of the Governor, Secretary of State and Attorney-General, within thirty days after the adjournment of the General Assembly on which such duty devolved, to perform said duty, and to file in the office of the Secretary of State a full statement of the districts formed by them, including the names of the counties embraced in each district, and the numbers thereof; said statement to be signed by them, and attested by the Great Seal of the State, and upon the proclamation of the Governor, the same shall be as binding and effectual as if done by the General Assembly."

"Section 57. The legislative authority of the State shall be vested in a legislative assembly, consisting of a senate and house of representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly... . Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded... ."

Sections 1 and 7 are part of the Constitution as originally adopted in 1875. Section 57 is commonly known as the initiative and referendum amendment and was adopted in 1908. In the Lashly case it was ruled that upon the adoption of the initiative and referendum amendment the proviso of Section 7 was by necessary implication repealed. Will that ruling bear the scrutiny of a re-examination? That is the question respondent propounds to us.

All the sovereign power of this State, except the portion delegated to the general government, rests with the people of the State. They may at their pleasure grant or withhold such power, or having granted it to the agencies which they have set up for their own government, they may withdraw all or any part of it, through the medium of their organic law. By Section 1 above they granted the legislative power to the General Assembly, subject to the limitations contained in the Constitution. The grant would have been no broader had the words, "subject to the limitations herein contained," been omitted. Because broadly speaking all the parts of state constitutions, following the general grants of powers to certain state agencies which they create, are but limitations upon those powers, directly or indirectly. [Hamilton v. County Court, 15 Mo. 13; People v. Draper, 15 N.Y. 532; 1 Cooley's Const. Limitation (8 Ed.) 61.] And so the general grant of the legislative authority of the State found in said Section 57 is likewise subject to all the limitations, express or implied, contained in the Constitution; to hold otherwise would be to affirm that the amendment of 1908 repealed practically the whole of the Constitution as it then stood, which of course is unthinkable.

One of the limitations upon the legislative power with which said Section 1 invests the General Assembly is found in Section 5 of Article IV and said Section 7. The former provides that the State shall be divided into (34) convenient districts, as nearly equal in population as may be, the same to be ascertained by the last decennial census...