State ex rel. Moore v. Toberman, Nos. 43288

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHOLLINGSWORTH; LEEDY, J., dissents and concurs in separate dissenting opinions of ELLISON, C. J., and HYDE; ELLISON; HYDE, J., dissents in separate opinion in which ELLISON, C. J., and LEEDY; ELLISON; I respectfully dissent from the principal opinion
Citation363 Mo. 245,250 S.W.2d 701
Decision Date14 July 1952
Docket NumberNos. 43288,43289
PartiesSTATE ex rel. MOORE v. TOBERMAN et al. MOORE v. TOBERMAN et al.

Page 701

250 S.W.2d 701
363 Mo. 245
STATE ex rel. MOORE v. TOBERMAN et al. MOORE
v.
TOBERMAN et al.
Nos. 43288, 43289.
Supreme Court of Missouri, en Banc.
July 14, 1952.

[363 Mo. 246]

Page 702

Alden A. Stockard, Jefferson City, William Barton, Jefferson City, James A. Potter, Jefferson City, Charles C. Madison, Kansas City, for Moore.

[363 Mo. 249] A. D. Sappington, William W. Beckett, William H. Becker, Columbia, for Fred V. Heinkel and others.

[363 Mo. 248] J. E. Taylor, Atty. Gen., Arthur O'Keefe, Asst. Atty. Gen., Gilbert Lamb, Asst. Atty. Gen., for Toberman.

[363 Mo. 252] Joseph K. Owens, Kansas City, for amicus curiae.

HOLLINGSWORTH, Judge.

On the 8th day of July, 1952 these two cases came to the writer on reassignment.

The relator-appellant-respondent Moore and the interveners-defendants, cross-appellants Heinkel et al., appeal from judgments of the Cole County Circuit Court in two consolidated cases against the respondent Secretary of State, one in mandamus and the other for a declaratory judgment. Both present essentially the same issues. The ultimate question for determination is whether Senate Bill 267, enacted during the last session of the 66th General Assembly, V.A.M.S. Sec. 128.201 et seq., dividing the State into eleven new congressional districts, is now in effect or is suspended under the referendum provisions of the Constitution.

The facts are not in dispute.

On January 21, 1952, the 66th General Assembly enacted Senate Bill 267 apportioning the State into eleven new congressional districts. Thereafter, on the same day, by concurrent resolution, it prescribed that all laws previously passed and not then effective, including Senate Bill 267, should take effect ninety days thereafter or on April 22, 1952, and then recessed for more than thirty days. On March 5, 1952, Senate Bill 267 was approved by the Governor.

On April 19 and 21, 1952, referendum petitions from congressional districts one to thirteen, inclusive, designed to refer Senate Bill 267 for a vote of the people, were tendered to the Secretary of State, who accepted and filed said petitions and ruled that, on their face, they were legally sufficient and were signed by at least five percent of the legal voters in at least each of two-thirds of the congressional districts as measured by the total vote for governor at the general election of 1948. On April 24, 1952, he officially declared he intended to take the constitutional and statutory procedures to refer Senate Bill 267 for approval or rejection by the people at the general election to be held on November 4, 1952.

On May 3, 1952, interveners filed in the Circuit Court of Cole County, Missouri, a suit for injunction praying that the Secretary [363 Mo. 253] of State be enjoined from referring Senate Bill 267. A temporary restraining order was issued and is still in force. On June 2, 1952, interveners commenced in that suit the presentation of evidence to sustain their prayer for a temporary injunction, and, on the next day, all parties conceded, and now agree, that the referendum petitions, previously tendered to the Secretary of State, from the third, fifth, tenth, eleventh and thirteenth congressional districts are legally insufficient and are not signed by five percent of the legal voters of such congressional districts, as measured by the total vote for governor at the general election of 1948.

On May 29, 1952, prior to the presentation of evidence in the injunction suit, appellant Moore tendered to the Secretary of State twenty-one supplemental referendum petitions identical in form and substance, except for signatures, to those petitions previously filed on April 19 and 21, 1952, containing signatures of 499 legal voters, among which were 228 valid signatures on petitions from the tenth congressional district. The Secretary of State

Page 703

refused to accept and filed said twenty-one referendum petitions.

All parties agree that the number of valid signatures theretofore filed from the tenth congressional district, if augmented by the 228 supplemental and valid signatures, constitutes a legally sufficient petition for said tenth district; and that, disregarding the legally insufficient petitions for the third, fifth, eleventh and thirteenth districts, such petitions for the tenth district and the admittedly legally sufficient petitions for the first, second, fourth, sixth, seventh, eighth, ninth and twelfth districts, amounting in the aggregate to legally sufficient petitions from two-thirds of all districts, authorizes the Secretary of State to refer Senate Bill 267 to a vote of the people at the general election to be held November 4, 1952, if said bill is otherwise referable.

The trial court adopted the following conclusions of law and entered judgments accordingly:

'1. Senate Bill 267 is subject to the referendum provisions of Section 52, Article III of the Constitution of 1945 [V.A.M.S.].

'2. Since Senate Bill 267 became effective April 22, 1952, by virtue of Senate Concurrent Resolution No. 13 of the General Assembly, the right of the relator [Moore] and others to file petitions to refer said bill expired on April 22, 1952.

'3. The filing of petitions for referendum prior to April 24, 1952, which said petitions have been proved to be legally insufficient, did not suspend the effective date of Senate Bill 267 nor extend said effective date beyond April 22, 1952.

'4. Petitions to refer Senate Bill 267 filed May 29, 1952, might be filed as petitions supplemental to those filed prior to April 24, 1952, and considered an addition to those filed prior to April 24, 1952, if timely filed.

[363 Mo. 254] '5. The petitions tendered to respondent on May 29, 1952, by the relator were not timely filed.

'6. The respondent Secretary of State should not be compelled to accept and file the petitions to refer Senate Bill 267 which were tendered to him for filing on May 29, 1952.

'7. This Court should not issue its peremptory writ of mandamus to compel the respondent to accept and file the said petitions tendered to him on May 29, 1952.'

Appellant Moore's appeal is from the judgments on the merits. Interveners Heinkel, et al., are satisfied with the result of the judgments and with appeal only as to the part thereof holding that Senate Bill 267 would have been referable upon the timely filing of petitions therefor.

This appeal presents two basic issues:

(1) Whether under the provisions of Sec. 29, Art. III, of the Constitution, V.A.M.S., Senate Bill 267 became effective on April 22, 1952;

(2) And, if it did become effective, then whether under the provisions of Sec. 52(a), Art. III, of the Constitution, it may at any time within ninety days after the final adjournment of the general assembly on April 30, 1952, be suspended by referendum.

Section 29 provides: 'No law passed by the general assembly shall take effect until ninety days after the adjournment of the session at which it was enacted, except [certain laws not involved in this case]; provided, if the general assembly recesses for thirty days or more it may prescribe by joint resolution that laws previously passed and not effective shall take effect ninety days from the beginning of such recess.'

Appellants contend that this section refers only to laws passed by the general assembly and that inasmuch as the governor had not approved Senate Bill 267 prior to the recess (he approved it on March 5, 1952), it was not a law passed by the general assembly within the meaning of the section. They point out that Sec. 30, Art. III, requires that after a bill has been passed it shall be signed by the presiding officer in open session (that was done in the instant

Page 704

case prior to the recess); that Sec. 31, Art. III, provides 'If the bill be approved by the governor it shall become a law'; and that Secs. 32 and 33 provide the manner by which a bill either vetoed or not returned by the governor shall become a law if the general assembly so declares in the manner and form therein provided.

They then argue that in no other way may a bill become a law and that on January 21, 1952, the date of the resolution and recess, Senate Bill 267 was not a law. Nichols v. Robinson, 277 Mo. 483, 211 S.W. 11, 13, is cited in support of that contention. In that case, the question was whether under the Constitution of 1865 a certain law relating to homestead went into effect ninety days after passage thereof or from and after its passage. It was held that under the [363 Mo. 255] Constitution of 1865 all laws became effective ninety days after passage unless a different time was therein appointed, and that the bill itself appointed a different time, to-wit: from and after its passage, which this court held in that case to be from and after its approval by the governor. In the course of that opinion the court said: 'The legislative authority in Missouri is not wholly with the General Assembly. The governor is a factor in legislation. When the General Assembly used the clause 'after its passage,' as it did in section 3 of the act, it meant after the signature and approval of the Governor, or, in the event he vetoed it, the final passage over his veto, as provided in the Constitution. It would be far-fetched to say that the legislative body meant that the law should become effective without the presentation to the Governor.'

But this is far afield from the point here involved. No one questions the fact that a law becomes effective only after approval of the governor or his veto thereof or failure to return it is overridden by the legislature in the manner provided by Secs. 32 and 33, and then only at the time prescribed by the Constitution, which is either ninety days after adjournment of the session or ninety days from the beginning of a recess of more than thirty days and the prior adoption of a joint resolution as provided in Sec. 29.

The phrases 'law passed by the general assembly' and 'laws previously passed',...

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15 practice notes
  • Rathjen v. Reorganized School Dist. R-II of Shelby County, R-II
    • United States
    • United States State Supreme Court of Missouri
    • November 14, 1955
    ...to constitutional construction and to require consideration of every word and every phrase. State ex rel. Moore v. Toberman--Banc, 363 Mo. 245, 250 S.W.2d 701; State ex rel. Russell v. State Highway Com., Banc, 328 Mo. 942, 42 S.W.2d 196, 203; State on Inf. of McKittrick v. Williams, Banc, ......
  • Redmond v. Carter, No. 59949
    • United States
    • United States State Supreme Court of Iowa
    • November 23, 1976
    ...my view See State v. School District No. 1 of Fergus County, 136 Mont. 453, 348 P.2d 797, 801, 78 A.L.R.2d 1012 (1960); State v. Toberman, 363 Mo. 245, 250 S.W.2d 701, 705 (1952) (an en banc); Board of County Commissioners v. McCulloh, 52 N.M. 210, 195 P.2d 1005, 1008 (1948); Mahood v. City......
  • Carson v. Oxenhandler, No. 30545
    • United States
    • Court of Appeal of Missouri (US)
    • April 19, 1960
    ...166 Mo. 529, 559, 66 S.W. 361, 369; State ex rel. Kirks v. Allen, Mo.App., 255 S.W.2d 144, 148. And in State ex rel. Moore v. Toberman, 363 Mo. 245, 250 S.W.2d 701, 705, the court quoted with approval: "If a literal interpretation of the language used in a constitutional provision would giv......
  • Barnes v. Bailey, No. 67631
    • United States
    • Missouri Supreme Court
    • February 19, 1986
    ...perform our role of interpreting constitutional amendments in accordance with accepted canons of interpretation. In State v. Toberman, 363 Mo. 245, 250 S.W.2d 701 (Mo. banc 1952), this Court In constitutional construction, the instrument must be read as a whole, insofar as other parts may t......
  • Request a trial to view additional results
15 cases
  • Rathjen v. Reorganized School Dist. R-II of Shelby County, R-II
    • United States
    • United States State Supreme Court of Missouri
    • November 14, 1955
    ...to constitutional construction and to require consideration of every word and every phrase. State ex rel. Moore v. Toberman--Banc, 363 Mo. 245, 250 S.W.2d 701; State ex rel. Russell v. State Highway Com., Banc, 328 Mo. 942, 42 S.W.2d 196, 203; State on Inf. of McKittrick v. Williams, Banc, ......
  • Redmond v. Carter, No. 59949
    • United States
    • United States State Supreme Court of Iowa
    • November 23, 1976
    ...my view See State v. School District No. 1 of Fergus County, 136 Mont. 453, 348 P.2d 797, 801, 78 A.L.R.2d 1012 (1960); State v. Toberman, 363 Mo. 245, 250 S.W.2d 701, 705 (1952) (an en banc); Board of County Commissioners v. McCulloh, 52 N.M. 210, 195 P.2d 1005, 1008 (1948); Mahood v. City......
  • Carson v. Oxenhandler, No. 30545
    • United States
    • Court of Appeal of Missouri (US)
    • April 19, 1960
    ...166 Mo. 529, 559, 66 S.W. 361, 369; State ex rel. Kirks v. Allen, Mo.App., 255 S.W.2d 144, 148. And in State ex rel. Moore v. Toberman, 363 Mo. 245, 250 S.W.2d 701, 705, the court quoted with approval: "If a literal interpretation of the language used in a constitutional provision would giv......
  • Barnes v. Bailey, No. 67631
    • United States
    • Missouri Supreme Court
    • February 19, 1986
    ...perform our role of interpreting constitutional amendments in accordance with accepted canons of interpretation. In State v. Toberman, 363 Mo. 245, 250 S.W.2d 701 (Mo. banc 1952), this Court In constitutional construction, the instrument must be read as a whole, insofar as other parts may t......
  • Request a trial to view additional results

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