State ex rel. Millar v. Toberman

• Decision Date: 02 October 1950
• Docket Number: No. 42279,42279
• Citation: 360 Mo. 1101,232 S.W.2d 904
• Parties: STATE ex rel. MILLAR et al. v. TOBERMAN, Secretary of State et al.
• Court: Missouri Supreme Court

Page 904

232 S.W.2d 904

360 Mo. 1101

STATE ex rel. MILLAR et al. v. TOBERMAN, Secretary of State et al.

No. 42279.

Supreme Court of Missouri, en Banc.

Oct. 2, 1950.

Taylor Sandison, St. Louis, Arthur U. Simmons, W. H. Leyhe, Jr., Clayton, Thomas F. McDonald, St. Louis, for relators.

Walter N. Davis, St. Louis, Erwin Tzinberg, Wm. J. Becker, Clayton, for respondents.

J. E. Taylor, Atty. Gen., of Missouri, C. B. Burns, Jr., Richard H. Voss, Asst. Attys. Gen., for respondent Walter H. Toberman, Secretary of State of Missouri.

HOLLINGSWORTH, Judge.

This is an original proceeding in mandamus to compel respondents in their respective official capacities to submit to the qualified voters of the Thirteenth Judicial Circuit of Missouri the question whether the non-partisan court plan shall be adopted in that Judicial Circuit under the provisions of Section 29(b) of Article V of the Constitution of Missouri, Mo.R.S.A.

Each of the respondents waived issuance of the alternative writ and filed separate returns.

Relators are citizens and qualified voters of the Thirteenth Judicial Circuit of Missouri, which comprises the County of St. Louis. Respondent, Walter H. Toberman, is the Secretary of State of the State of Missouri. The other respondents constitute the Board of Election Commissioners of the County of St. Louis.

On the 6th day of September, 1950, relators presented to both respondent Secretary of State and respondent Board of Election Commissioners duplicate sets of petitions signed by themselves and 'more than 800' other citizens and qualified voters of said Circuit. These petitions were jointly addressed to both respondents. They made demand on respondents that they submit to the qualified voters of the Thirteenth Judicial Circuit for their approval or rejection at the regular November, 1950, election the question: 'Shall the Judges of the Circuit Court in the Thirteenth Judicial Circuit and the Judge of the Probate Court in St. Louis County in said circuit be appointed by the Governor in the manner provided for the appointment of judges to the courts designated in Section 29(a) of Article V. of the Constitution, by filling any vacancy which shall occur in such offices by appointing one of three persons possessing the qualifications for such office, who shall be nominated and whose names shall be submitted to the Governor by a non-partisan judicial commission established and organized pursuant to the provisions of Section 29(d) of Article V. of the Constitution of Missouri, and the said judges now holding said offices or hereafter appointed thereto as above provided, submit the question of their retention in office at judicial elections in the manner, and at the times, provided in Section 29(c) of Article V. of the Constitution. Yes No (Scratch one)'.

Respondents, and each of them, refused to accept the petitions so tendered by relators.

Alleging these facts as grounds, relators, on behalf of themselves and the 'more than 800' other qualified voters, brought this action, pleading further that a construction of the Constitution of the State of Missouri, and particularly Section 29(b), Section 29(g) and Sections 29(a)-(g) of Article V thereof, was involved in this action; that the petitions were filed pursuant to the provisions of Section 29(b), and that said section by its terms was self-enforcing and fully effective without need of any legislation.

The return of respondent Secretary of State is a demurrer based upon grounds that the petition does not state facts sufficient to constitute a cause of action, in that Section 29(b) is not self-enforcing, and that if it is held to be self-enforcing, then the petitions tendered for filing to the Secretary of State and Board of Election Commissioners fail to comply with Section 50, Article III of the Constitution of Missouri, relating to initiative petitions.

The return of respondent Board of Election Commissioners admits all facts alleged by relators and pleads: that a permanent writ of mandamus should be denied relators for the reason that their petition does not state a cause of action; that neither Section 29(b) nor any existing law provides a manner of submission of the question, nor has the General Assembly provided such a manner as is required by the section itself, nor is there any authority of law or precedent vested in any agency or official to submit the question, and that relators have no right or authority so to do.

This court clearly has jurisdiction to determine the cause.

Section 29(b) reads: 'At any general election the qualified voters of any judicial circuit outside of the City of St. Louis and Jackson County, may by a majority of those voting on the question elect to have the judges of the courts of record therein appointed by the governor in the manner provided for the appointment of judges to the courts designated in Section 29(a). The general assembly may provide the manner in which the question shall be submitted to the voters.'

Quite obviously it vests in the qualified voters of any judicial circuit the right to determine at any general election by a majority of those voting whether the non-partisan plan shall become effective in such circuit, but it does not set up any manner of submission of the question to the people. It authorizes, but limits the authority of, the Legislature to do only that one thing.

Many rules and criteria have been adopted and applied by this court and those of other jurisdictions in determining whether a given constitutional provision is self-enforcing. 16 C.J.S., Constitutional Law, Sec. 48, pages 98, 101; 11 Am.Jur., Constitutional Law, Sec. 74, pp. 691, 692. No useful purpose would be served by a discussion of any of them, except such as are necessary to a decision of this case.

In State ex inf. Barker v. Duncan et al., 265 Mo. 26, 175 S.W. 940, loc. cit. 945, this court, quoting with approval from an opinion of the Supreme Court of Colorado, held that: 'Constitutional provisions are self-executing when it appears that they shall take immediate effect, and ancillary legislation is not necessary to the enjoyment of the right thus given, or the enforcement of the duty thus imposed; in short, if a constitutional provision is complete in itself, it executes itself'; and further held, quoting from an opinion of the Supreme Court of the United States, Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249, that: 'Where a constitutional provision is complete in itself, it needs no further legislation to put it in force. When it lays down * * * general principles, * * * it may need more specific legislation to make it operative; in other words, it is self-executing only so far as it is susceptible of execution. But where a Constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provisions.'

In State ex rel. City of Fulton v. Smith, 355 Mo. 27, 194 S.W.2d 302, 304, this court quoted with approval from 11 Am.Jur., Constitutional Law, Sec. 74, pp. 691, 692, as follows: 'One of the recognized rules is that a constitutional provision is not self-executing when it merely lays down general principles, but that it is self-executing if it supplies a sufficient rule by means of which the right which it grants may be enjoyed and protected, or the duty which it imposes may be enforced, without the aid of a legislative enactment. * * * Another way of stating this general, governing principle is that a constitutional provision is self-executing if there is nothing to be done by the legislature to put it in operation. In other words, it must be regarded as self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the Constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action.'

Relators' action is based on the law as declared in the foregoing cases and texts and the following cases cited in the City of Fulton case, supra: State ex rel. Clark County v. Hackmann, 280 Mo. 686, 218 S.W. 318; State ex rel. Miller v. Missouri, K. & T. R. Co., 164 Mo. 208, loc. cit. 213, 64 S.W. 187, loc. cit. 188. Their contention is that the respondent Secretary of State is vested with authority in all matters relating to election of state officers (judges of the circuit court), and that respondent Board of Election Commissioners is vested with similar power in regard to the election of all county officials (judges of the probate court), and that Section 29(b) places upon them the mandatory duty to do all acts and things necessary to submit the question set forth in said petitions, and that, therefore, a sufficient means exists under our present laws and Section 29(b) for the submission of the question here involved.

Although there is no provision in Section 29(b) for the manner of initiating and holding the election, and the Legislature as yet has not provided any means for so doing, nevertheless, the cases and authorities cited above establish that it may be self-enforcing if there exists in our election lows sufficient authorization of an efficacious means of so doing. But these cases do not establish, nor purport to establish, that any authority is vested in any person or agency or governing body of either the State or any judicial circuit to initiate or order the election here involved. Neither do they establish that any manner or means exists for holding such an election. All that they do hold is that the elections in question in those cases were ordered and held by the proper governing body, to wit, the city council in the city elections, and the county court in the county elections, and that in each instance these respective agencies had lawful authority under existing statutes or...