State ex rel. Lashly v. Becker

• Decision Date: 07 December 1921
• Citation: 235 S.W. 1017,290 Mo. 560
• Parties: THE STATE ex rel. ARTHUR V. LASHLY v. CHARLES U. BECKER, Secretary of State
• Court: Missouri Supreme Court

235 S.W. 1017

290 Mo. 560

THE STATE ex rel. ARTHUR V. LASHLY v. CHARLES U. BECKER, Secretary of State

Supreme Court of Missouri

December 7, 1921 ^[*]

Writ granted.

Wilfley Williams, McIntyre, Hensley & Nelson, A. T. Dumm, Henry L Jost, John T. Barker, T. R. R. Ely, Wayne Ely and John I Williamson for relator.

(1) Section 7 of Article 4 of the Missouri Constitution is repealed by Section 57 of Article 4, and the redistricting by the Governor, the Secretary of State and Attorney-General is void. 8 Cyc. 749; People v. Angle, 109 N.Y. 564, 17 N.E. 413; 12 Corpus Juris, 724; Board v. County, 58 Fla. 391, 50 So. 574; 36 Cyc. 1073; Pool v. Brown, 98 Mo. 675; Maxwell v. Dow, 176 U.S. 602; State ex rel. v. Hitchcock, 241 Mo. 433; State ex rel Westhues v. Sullivan, 224 S.W. 327; Sears v. Multnomah Co., 49 Ore. 43; Arksansas Tax Comm. v. Moore, 103 Ark. 53; In re Interrogatories by Governor, 181 P. 197. (2) This attempt at redistricting is so unfair, both as to equality of population and compactness of territory, as to make it void. State ex rel. v. Hitchcock, 241 Mo. 433; Secs. 5, 6, 9, Art. 4, Mo. Constitution; 36 Cyc. 846-848; Donovan v. Comrs., 225 Mass. 55, 2 L. R. A. 1344; State ex rel. v. Cunningham, 81 Wis. 440, 15 L. R. A. 561; Denny v. State, 144 Ind. 403, 31 L. R. A. 726; People v. Thompson, 155 Ill. 451; Brooks v. State, 162 Ind. 568; Ragland v. Anderson, 125 Ky. 141, 100 S.W. 865; Atty. Gen. v. Comrs., 224 Mass. 598; Giddings v. Blacker, 93 Mich. 1, 16 L. R. A. 402; Williams v. State, 145 Mich. 447; Stevens v. State, 181 Mich. 199; State ex rel. v. Stoddard, 25 Nev. 452, 51 L. R. A. 229; Baird v. County, 138 N.Y. 95, 20 L. R. A. 81; Re Timmerman, 100 N.Y.S. 57; Moore v. New York, 160 N.Y.S. 471; Williams v. Woods, 162 S.W. 1031; State ex rel. v. Cunningham, 83 Wis. 90, 17 L. R. A. 145; Re Dolling, 219 N.Y. 44; Sherrill v. O'Brien, 188 N.Y. 185; Re Livingston, 160 N.Y.S. 462. (3) Respondent is estopped to question the validity of the apportionment of 1901. Adams v. Bosworth, 126 Ky. 61; Ragland v. Anderson, 125 Ky. 141; In re Reynolds, 202 N.Y. 439; State ex rel. v. Howell, 92 Wash. 540.

Jesse W. Barrett, Attorney-General, and Merrill E. Otis, Assistant Attorney-General, for respondent.

(1) The initiative-and-referendum amendment did not repeal Section 7 of Article IV of the Constitution. State ex rel. Halliburton v. Roach, 230 Mo. 408. (2) Repeatedly since the adoption of the initiative-and-referendum amendment the Supreme Court has recognized that Section 7 of Article IV is still in force. State ex rel. Halliburton v. Roach, 230 Mo. 408; State ex rel. v. Hitchcock, 241 Mo. 457; State ex rel. v. Patterson, 229 Mo. 388. (3) To say, as relator does, that the initiative-and-referendum amendment removed from the Constitution all limitations on and exceptions to the legislative authority of the General Assembly leads to an absurdity, namely, the elimination from the Constitution of the multitude of important limitations on the power of the Legislature, including the thirty-three set out in Section 53 of Article IV, and the Governor's veto power, which is an essential part of the legislative authority of the State. (4) The initiative-and-referendum amendment must be read in the light of the great rules of constitutional and statutory construction: (a) All parts of the Constitution are to be read together; (b) when of two possible constructions of a particular provision one is in harmony with and the other repugnant to another provision, dealing with the same subject, the first must be adopted; (c) the presumption is against repeal by implication. When so read, the language of the amendment -- "the legislative authority of the state" -- can only be construed to mean the legislative authority as elsewhere in the Constitution delegated to the General Assembly, subject to all the limitations and exceptions in the Constitution stated. (5) If there is a doubt as to whether the amendment repeals Section 7 of Article IV (and at least that such a doubt exists appears from the decision of the Supreme Court and the numerous declarations of the judges thereof that Section 7 of Article IV was not repealed by the amendment), then we may look to the history of the amendment to ascertain the actual intent of the people in adopting it. That history shows that the repeal of Section 7 of Article IV was never contemplated or suggested. (6) The redistricting of 1921, being a legislative act, is presumed to be constitutional. (7) The redistricting of 1921, both as to compactness and equality of population is greatly superior to those of 1881, 1891, 1901 and the 1911 attempted redistricting. The fact that a redistricting is superior to any ever before laid out by reasonable men shows that it is at least a reasonable approach to the standards fixed in the Constitution. (8) The redistricting of 1921, both as to compactness and equality of population, is greatly superior to that of the Constitution of 1875 itself as that redistricting appears in Section 11 of Article IV. That redistricting is a proper measuring rod. That redistricting must be presumed to have satisfied the constitutional standards. A fortiori a better redistricting is constitutional. (9) The redistricting of 1921 is the best that can be made. The districts thereof are as nearly compact and equal in population as may be. (10) To set aside the 1921 redistricting is to continue that of 1901, which grossly departs from the constitutional standards. The Supreme Court will not exercise jurisdiction when that is the inevitable result. State ex rel. v. Hitchcock, 241 Mo. 516. (11) As a necessary element in his cause of action relator alleges the validity of the 1901 redistricting. The return puts that in issue. The 1901 redistricting patently departs from the constitutional requirements. In no event, therefore, is relator entitled to a mandamus.

Jesse W. Barrett, Attorney-General, and Merrill E. Otis, Assistant Attorney-General, for respondent, in supplemental brief.

(1) Section 10 of Article X of the Constitution directs the vesting of most important legislative authority (that of levying taxes), in the corporate authorities of counties, cities and towns. Elsewhere in the Constitution like legislative authority is required to be delegated to school districts. If the initiative-and-referendum amendment constituted a revesting of all legislative authority, with no provision for the delegation of any part thereof (and there is none), then Section 10 of Article X has been repealed by implication. (2) If, as relator says, the people in 1908 first resumed all of the legislative authority they had originally conferred on the General Assembly and others and then vested that legislative authority but this time only in the General Assembly, then the amendment unquestionably supersedes, not only the proviso in Section 7, but all of Section 1 of Article IV. Why leave in the Constitution the section which contained the original vesting of legislative authority, when that original vesting has been withdrawn? Then Section 1 also has been repealed, including the clause, "subject to the limitations herein contained," for that clause was but a qualification of the power bestowed and with the withdrawal of the power, the qualification, of course, ceases to have meaning. The result is that the relator is forced back to his original and discarded theory, namely that when the people, as he says, having resumed the power theretofore bestowed, again vested it, they vested it without any limitation whatsoever. (3) If the amendment is read (as it should be if we obey the great rules of constitutional and statutory construction) in connection with the rest of the Constitution there is no difficulty. Then the meaning of "the legislative authority of the State" will be seen to be the legislative authority of the State not otherwise delegated in the Constitution and subject to all the limitations and exceptions in the Constitution stated. Moreover, the true purpose of the initial language of the amendment becomes then apparent. It is merely a conjunction joining the substance of the amendment to the original constitution, equivalent to saying "while the legislative authority shall remain as hitherto, the people now provide a method for direct legislation on their own part and for the referendum." It is perfectly plain from the whole amendment that there was no intention to recast the old Constitution, but merely to add something to it. If there had been any intention whatever of subjecting the redistricting authority of the three executive officials to the referendum, it could have been accomplished by simply saying that every "legislative act" shall be subject to the referendum, instead of applying it only to every "act of the Legislature." How absurd to attempt to accomplish an end, which could have been reached so easily, by the cumbrous, vague, indirect and obscure method of first resuming all legislative authority and then revesting it!

Wilfley, Williams, McIntyre, Hensley & Nelson, A. T. Dumm, Henry L. Jost, John T. Barker, T. R. R. Ely, Wayne Ely and John I. Williamson for relator, in reply.

(1) We have corrected Point I of our original brief, so as to limit its application to the power formerly possessed by the Governor and his associates as to districting the State. Of course, as the body of the brief clearly shows, we never contended that Section 57 repealed all of Section 7. (2) We have never contended that Section 57 repealed any prohibition contained in the Constitution whereby the Legislature is forbidden to exercise certain legislative power. We claim that all of those prohibitions are absolutely unaffected by Section 57. We restate our position solely because of the statement made in respondent's brief that...