State ex rel. News Corp. v. Smith

• Decision Date: 18 January 1945
• Docket Number: 39401
• Parties: State ex rel. the News Corporation, a Corporation, Relator, v. Forrest Smith, State Auditor
• Court: Missouri Supreme Court

184 S.W.2d 598

353 Mo. 845

State ex rel. the News Corporation, a Corporation, Relator, v. Forrest Smith, State Auditor

No. 39401

Supreme Court of Missouri

January 18, 1945

Original Proceeding in Mandamus.

Alternative writ made permanent.

Conkling & Sprague for relator.

(1) The Constitutional Convention was authorized to appropriate and expend such moneys as were reasonably necessary to accomplish the purpose for which the Convention was called. 16 C.J.S. p. 35, sec. 8b. (2) The Convention was authorized to expend such money as was reasonably necessary to inform the electors of the contents of the proposed new Constitution, and was therefore authorized to publish the "Address to the People" in relator's newspapers. Sec. 3, Art. XV Mo. Constitution. (3) "Submit to the electors in such manner as may be provided by such Convention," as used in said Section 3, means to present for consideration, to offer for the judgment of the electors (Century Dictionary) and implies the authority of the Convention to appropriate and expend the state's moneys reasonably necessary to offer to the electors an opportunity to ascertain the contents of the proposed new Constitution. (4) What may be reasonably implied from powers granted the Convention by said Section 3 is as much a part of the section as what is expressed. Dillon v. Gloss, 256 U.S. 368, 65 L.Ed. 994; McCullough v. State of Maryland, 4 Wheat. 316, 4 L.Ed. 579. (5) Section 3 should receive a reasonable and practical interpretation to effectuate the intent and purpose of the people in adopting it. 16 C.J.S. 50, sec. 14; 1 Story, Constitution, sec. 451. (6) The Convention having determined the amount necessary to carry into effect the manner of submission provided for by it, having appropriated that amount, and having provided in detail the purposes for which the amount could be expended and the manner and method of expending and disbursing it, the Convention had exclusive control of the expenditure, and when the voucher in question was approved as provided by the Convention, it became the duty of the State Auditor to draw his warrant therefor. State ex rel. McDowell, Inc., v. Smith, 334 Mo. 653, 67 S.W.2d 50; State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S.W. 524. (7) An appeal to the General Assembly is inappropriate and would not be an adequate remedy at law; the public interest is such as to make imperative a speedy determination of the authority of the Convention, acting through its duly constituted agents, the Executive Committee, to offer an opportunity to the electors of Missouri to inform themselves of the contents of the proposed new Constitution.

J. E. Taylor, Attorney General, and Harry H. Kay, Assistant Attorney General, for respondent.

(1) The Constitutional Convention was bound by the provisions of the present Constitution of Missouri, and such Convention can only exercise such powers as the present Constitution vested in it. Moore v. Brown, 165 S.W.2d 657; Erwin v. Nolan, 280 Mo. 401, 217 S.W. 837. (2) The only authority and power the Constitutional Convention had was to propose amendments to the present Constitution or to propose a new Constitution, and to provide for the manner in which such amendments or new Constitution should be submitted to the electors of the State. Sec. 3, Art. XV, Mo. Constitution. (3) The Constitutional Convention determined the manner in which the proposed new Constitution should be submitted to the electors of the State, and the method or manner provided for did not provide for nor authorize the publication in newspapers of the Address to the People. Ordinance, p. 4, Journal of Constitutional Convention for September 29, 1944. (4) Even if the Constitutional Convention by adopting committee reports or in any other manner undertook to authorize the publication in newspapers of the Address to the People, and to appropriate money to pay for the cost of such publication, such action was without authority and void. State ex rel. v. Blaisdell, 119 N.W. 360, 18 N.D. 31; Noland v. Hayward, 192 P. 657, 69 Colo. 181; In re Norton, 134 N.Y.S. 1030, 75 Misc. 180; Hoar on Constitutional Conventions, p. 213; Jameson on Constitutional Conventions (4 Ed.), p. 530.

Frank B. Williams, amicus curiae pro se.

(1) The Constitutional Convention of 1943-44 ceased to exist September 29, 1944, and the delegates thereto became private citizens with no power or authority after the adjournment of the Convention sine die to perpetuate or extend the activities of the Convention through an Executive Committee or agents and said private persons have no power or authority to contract state debts over which the Convention has no control and their contracts entered into are without authority of law are void. (2) That the manner of holding an election submitting the proposed Constitution of Missouri to the electors and fixing the date of said election, was determined by the Ordinance adopted by the Convention, which makes no provision for the printing or publication in any newspaper of the "Address to the People." (3) The "Address to the People" is no part of the submission of the Constitution to a vote of the electors under the provision of Section 3, Article XV of the present Constitution of Missouri. The term "Address to the People" is unknown to our statute and constitutional law and to legal lexicographers. The term has never been legally defined or given any particular legal significance. (4) The Constitutional Convention exercises only such power to appropriate state funds as is granted by the exact language of Section 3, Article XV of the Constitution and it has no implied powers to make appropriations for any purposes other than granted by said Section. Had the framers of the initiative act (Art. XV) intended the grant of general powers claimed by relators, they would have said so in plain terms. Their failure to make a general grant negatives any presumption of an intention to make it. 11 Am. Jur., p. 667 sec. 57, p. 668, sec. 58; State ex rel. v. Dirckx, 211 Mo. 568, 111 S.W. 1; Henderson v. Koenig, 168 Mo. 356, 68 S.W. 72, 57 L.R.A. 659; State ex rel. v. St. Louis, 319 Mo. 497, 5 S.W.2d 1080; State ex rel. v. St. Louis, 11 S.W.2d 1010; State ex rel. v. Hussman, 5 S.W.2d 1086; State v. Gas Co., 138 P. 781; State v. Butter, 69 So. 771; People v. Deutsche, 94 N.E. 162. (5) The appropriation from the general revenue for purposes and expenditures stated in the committee reports and resolutions of the Constitutional Convention is not made pursuant to Section 3, Article XV of the Constitution and is not made pursuant to an appropriation by law, that is, by statute and is not made for expenditures incurred by the Convention while it remained a legally constituted body; and such appropriation can be used for such purposes only as set out in the ordinance adopted by the Convention which provides the manner or procedure to be followed in submitting the proposed Constitution to a vote of the people. Sec. 19, Art. X, Sec. 15, Art. III, Mo. Constitution; Brown v. Moore, 165 S.W.2d l.c. 664. (6) The general power of appropriating state funds is exclusively in the Legislature and no monies shall ever be paid out of the treasury of this State, or any of the funds under its management, except in pursuance of an appropriation by law. The grant of special power to the Constitutional Convention is an exception, a temporary grant only made by the people, and must be strictly construed since its life is for the duration of the Constitutional Convention. Sec. 19, Art. X, Mo. Constitution; Moore v. Brown, 165 S.W.2d l.c. 664; State ex rel. v. Burton, 266 Mo. l.c. 717, 182 S.W. 746; Ward v. Colo. E.R. Co., 22 Colo.App. 332; Screbner v. State of Oklahoma, 132 P. 933, Ann. Cas. 1915B, 381. (7) The Constitutional Convention cannot delegate its authority or powers of discretion to private persons and cannot grant such power and authority to private persons beyond the life of the Convention. The persons who were to wield the powers of the Convention, the delegates, were chosen, elected, by the people. They constituted the body of the Convention. Their powers and the powers of the body to incur expenditures are non-delegable. Expenditures legally could be incurred only by the body. The body's power to incur expenditures expired with sine die adjournment. The body could act through agents only while it had life. The body could not project its powers beyond its life. Sec. 3, Art. XV, Mo. Constitution; State v. Dirckx, 211 Mo. 568, 111 S.W. 1. (8) The word "submitted" as used in Section 3, Article XV means the final draft or finished document, yielded or deferred to the opinion or authority of the people for adoption and does not connote the "submission" of the "Address to the People" which is no part of the "Constitution" to be voted upon by ballot at a special election "as may be provided by the Convention." Webster's International Dictionary, Second Edition, Unabridged. Title "Submitted." (9) The word "manner" as used in Section 3, Article XV means a mode or method in which the "Constitution or constitutional amendments" without embellishment or modification must be "submitted." Webster's International Dictionary, Second Edition, Unabridged. Title "Manner." (10) The word "such" in the phrase "in such manner," used in Section 3, means in the manner as "characterized and specified and of the sort or degree indicated or contextually implied." It is essentially a term of comparison. It means "of that kind"; of the same or like kind; identical with or similar to something specified. Webster's International Dictionary, Second Edition, Unabridged. State ex rel. King v. Board of Trustees of Firemen's Pension Fund of Kansas City, 184 S.W. 929, 192 Mo.App. 583. (11) The rule noscitur a sociis applies. It...