State ex rel. Major v. Patterson

• Decision Date: 21 June 1910
• Docket Number: 2
• Citation: 129 S.W. 888,229 Mo. 373
• Parties: THE STATE ex rel. ELLIOTT W. MAJOR, Attorney-General, v. JOSEPH M. PATTERSON et al
• Court: Missouri Supreme Court

129 S.W. 888

THE STATE ex rel. ELLIOTT W. MAJOR, Attorney-General, v. JOSEPH M. PATTERSON et al

229 Mo. 373

No. 2

Supreme Court of Missouri

June 21, 1910

Record quashed.

Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for relator.

(1) The county court can subdivide the county only at the time the county becomes entitled to more than one representative, or when the number is thereafter increased or diminished. Constitution, sec. 3, art. 4. This constitutional section does not vest the power in the county court to subdivide it -- it vests only the power to subdivide at a time and under conditions explicitly set forth. The county court does not subdivide the county every ten years. The re-subdivision is authorized only when it is necessary in order to conform the number of legislative districts to the number of Representatives to which the county is entitled under legislative apportionment at the session following the decennial census. The Constitution expressly directs the Legislature, in section 7 of article 4, to redistrict for senators every ten years, and provides for the contingency in the event of the failure upon the part of the Legislature. The presence of this express direction in the Constitution as to senators shows that the omission of a like direction as to representative districts was the result of deliberate intent and not an oversight. (2) Legislative omissions cannot be supplied by judicial constructions. State ex inf. v Railroad, 146 Mo. 169; State ex rel. v. Hayes, 50 Mo. 36. Inconvenient or unjust constitutional provisions cannot be redrafted by the courts by construction. Cooley Constitutional Limitations, p. 108. (3) There is no implied power to "change and alter district lines," deducible from section 3 of article 4. (4) Section 9 of article 4 vests no power of any kind in the county court. The county courts are not the general agents of the counties or of the States. Their powers are limited and defined by law. Sturgeon v. Hampton, 88 Mo. 213; State ex rel v. Shortridge, 56 Mo. 129. The county courts act as agents of the counties in the manner and extent prescribed by law. When they step beyond, their acts are void. Saline County v. Wilson, 61 Mo. 239; Steines v. Franklin County, 48 Mo. 177. (5) That "altering and changing the lines of legislative districts is not county business," is self-evident. It is clearly a thing which the Legislature has the right to do. State ex rel. v Higgins, 125 Mo. 368. While it is not strictly a legislative duty, yet it is a legislative power, though it may be delegated. Ibid. (6) The Legislature possesses all powers not denied it by the State and Federal Constitutions. Ex parte Roberts, 166 Mo. 212; State ex rel. v. Warner, 197 Mo. 656. (7) Section 9, article 4 of the Constitution is not self-enforcing. It merely indicates principles without laying down rules by means of which those principles may be given the force of law. Cooley, Constitutional Limitations, pp. 121, 119; State ex rel. v. Gibson, 195 Mo. 260. (8) All representation is based on the United States census. R. S. 1899, sec. 5245.

Scarritt, Scarritt & Jones and C. C. Madison for respondents.

The Constitution, article 4, section 3, undoubtedly confers upon the county court the authority and power to establish legislative districts in the county. The Constitution then provides, in section 9 of article 4, that "representative districts may be altered from time to time as public convenience may require." There is no authority conferred by the Constitution on any but the county court to subdivide the county into representative districts. There is no specific authority given in the Constitution to the Legislature to either subdivide, alter or change any of the representative districts in any county. It follows, therefore, that section 9 refers to the county courts, and authorizes them to alter representative districts from time to time as the public convenience may require. There is nothing in the Constitution that militates against this. No legislative act could affect it, inasmuch as it is a constitutional provision, and there has been no attempt on the part of the Legislature, at any time, to interfere with the authority of the county court in districting or redistricting the representative districts in any county. On the other hand, the Legislature recognizes the authority of the county courts to "alter or divide" legislative districts in the county in section 8390 of the Revised Statutes of 1899, wherein it is said, "When any district or county shall be so altered or divided during the term for which a member shall be elected, and the new district or county shall be authorized to elect other members before the expiration of the term of the former member, in that case the election to fill the vacancy shall be held for the district or county as it shall remain after such alteration or division, and not as it was at the last preceding general election." By section 2 of the same article of the Constitution it is required that the General Assembly shall apportion among the counties the number of representatives to which they shall be entitled, and that this apportionment shall be "ascertained by the last decennial census of the United States." And by section 7 of the same article of the Constitution it is provided that, "Representatives shall be chosen according to the rule of apportionment established in this Constitution until the next decennial census of the United States shall have been taken and the result thereof as to this State shall be 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." The power to establish senatorial districts, where there is more than one Senator to a county, is conferred upon the circuit court by section 6 of the same article. It is clearly seen, therefore, that the Constitution has lodged in the General Assembly the authority and power to apportion the representatives among the counties of the State based upon the population of the State as shown by the last preceding United States census, and to reapportion the same every ten years. The same Constitution has lodged in the county courts of the several counties the authority and power to subdivide a county into districts and to alter the same from time to time as the public convenience may require. The same Constitution has lodged in the circuit courts the authority and power to subdivide the counties of the State into senatorial districts and to alter the same from time to time as public convenience may require. It has divided this power and authority among the three instrumentalities for the good of the government. Having given the power to the county courts to create representative districts, and having given the power of apportionment to the Legislature, and not giving them any power with reference to the creation of representative districts, it follows from the well known rule of construction, The expression of one thing is to the exclusion of all others, that the power of alteration given in section 9 refers, and can refer alone, to the instrumentality, namely, the county court, which has the power and authority to create. In construing the Constitution and statutes, reference must be had to the subject-matter, the objects which prompted and induced their enactment, and the mischief they were intended to remedy. Spitzler v. Young, 63 Mo. 42; Neenan v. Smith, 50 Mo. 525; Ross v. Railroad, 111 Mo. 18; Pugh v. Railroad, 118 Mo. 506; Pembrook v. Huston, 180 Mo. 627.

GRAVES, J. Fox, C. J., Gantt, and Valliant, JJ., concur; Woodson and Burgess, JJ., do not sit; Lamm, J., dissents.

OPINION

In Banc.

Certiorari.

GRAVES J. -- By its order of May 2, 1910, the county court of Jackson county undertook to subdivide said county into new legislative districts. The Attorney-General applied for and was granted a writ of certiorari, requiring said court to certify up its records relative to such question and the same was submitted to this court upon oral argument and briefs, and the order made by said court on May 2, 1910, was quashed, in a per curiam judgment handed down at the time. It therefore only remains for us to assign our reasons, by opinion, for such judgment. The members of the county court were divided in their judgment as to the power which they undertook to exercise. One member of said court, Judge E. E. Axline, disclaimed authority for their act, and conceded that the Attorney-General's complaint of want of authority was well taken. Judges Patterson and Harnden, by whose votes the order had been made, by their return acknowledged the making of the order of May 2, 1910, but averred that they had legal authority therefor. The question is, therefore, a clean-cut proposition of law, and should be disrobed of all other phases, if it could be said other phases appear. Upon the record, other phases do not appear, and only from the briefs would one be impressed with the idea of there being a reason back of the order. This reason to a lawyer is immaterial, with the record we have before us. If there was legal authority for the order, it should stand, being otherwise unimpeached. Our remarks will therefore be addressed to what we think is a clear legal conclusion. That conclusion, as heretofore announced by this court, is that the county court was without power to act at the time it did act. The order of the court is entitled, "In the Matter of Creating New Legislative Districts," and assigns as a reason therefor that the order theretofore made by the county court on May 18, 1892, "no longer subserved the purposes of equal representation as contemplated by the Constitution and ...