State v. Becker, Mo. 23354.

CourtMissouri Supreme Court
Writing for the CourtWalker
Citation240 S.W. 229
PartiesSTATE ex rel. DRAIN v. BECKER, Secretary of State.
Decision Date03 April 1922
Docket NumberMo. 23354.
240 S.W. 229
STATE ex rel. DRAIN
v.
BECKER, Secretary of State.
Mo. 23354.
Supreme Court of Missouri, in Banc.
April 3, 1922.

Original proceeding in mandamus by the State, on relation of Vernon L. Drain, against Charles U. Becker, Secretary of State. Alternative writ made permanent.

Harry J. Libby, of Shelbina, Roy D. Williams, of Booneville, and A. T. Dumm, of Jefferson City, for relator.

Jesse W. Barrett, Atty. Gen., Irwin & Haley, of Jefferson City, and Wm. P. Elmer, of Salem, for respondent.

WALKER, J.


This is a proceeding by mandamus brought in this court by relator to compel the respondent, as Secretary of State, to file relator's declaration of candidacy for the office of judge of the Second judicial circuit that he may be voted for as such at the primary election to be held on the first Tuesday in August, 1922.

The Second judicial circuit, prior to the enactment of the acts of the Legislature hereinafter referred to, consisted of the counties of Macon and Shelby; since that time these counties have been transferred by these acts to circuits otherwise numerically designated.

240 S.W. 230

At the regular session of the Fifty-First General Assembly by an act approved March 28, 1921 (Laws 1921, p. 243), the judicial circuits as then existing were abolished and the counties comprising same were differently classified and the circuits otherwise numerically designated. Within the time limited by the Constitution, this act was suspended by referendum petitions filed in the office of the Secretary of State. After the filing of these petitions, an act was passed at an extra session of the General Assembly, approved July 30, 1921 (Laws 1921, 1st Ex. Sess. p. 50), the purpose of which was to repeal the referred act; but all of its general features were retained, except the transfer of counties to other circuits. The operative effect of the extra session act, fixing the times for holding courts in the various circuits, was postponed until January 1, 1923; in other respects it is provided that it take effect at once.

This proceeding invokes the mandatory process of this court upon the theory that the suspension by referendum of the act passed at the regular session precluded legislative action in the passage of the extra session act and that the latter is void; that the legal existence of the Second judicial circuit as theretofore existing has not been and will not be affected, unless the people refuse to affirm the reference of the regular session act; that the relator, possessing the other qualifications, is entitled to file as a candidate for circuit judge in that circuit; and that the refusal of the respondent to permit him so to do is unauthorized.

The respondent's return admits his refusal to file relator's declaration and urges in support of this action the legality of the extra session act which, if valid, it is contended, nullifies the referendum proceeding. Thus is the issue defined.

Matters incidental will he discussed, if necessary, in the opinion.

I. The determination of the matter at issue neither requires nor demands an encomium or a criticism of the system of direct legislation incorporated in our Constitution in 1908 and out of which this controversy arises. Comparisons, therefore, of this with the former long-established system of lawmaking, embodying comments adverse or commendatory, will be indulged in only when deemed necessary to more fully define the meaning, purpose, and application of that under review. Many of the salient features of this system have here and elsewhere been made to run the gauntlet of judicial criticism without their legal integrity having been impaired or their operative force lessened.

The validity of the system, so far as concerns its harmony with our established form of government, has been affirmatively declared by both federal and state courts.

The dire results doctrinaires and ultra conservatives predicted would follow its adoption have not materialized. Worshipers of the fetishes of established forms, chilled in the mold of inertia, as reactionaries have always bean, contended that any modification of the power of legislation as theretofore exercised would endanger free government, and as a consequence prove inimical to individual liberty. Experience has demonstrated that these fears were unfounded. Considered as a whole, whether we have reference to the initiative or the referendum, the practical operation of this, to us, new method of making or unmaking laws, cannot be said to have proved detrimental. Nor do they, as the superficial thinker or one uninformed as to their operation and effect, interfere to any material extent with the province and power of what we term the three co-ordinate branches of government. The executive department still administers the law, the judicial determines it, and the legislative creates it. Whatever life and operative power the first two possess, they derive from the third; in it is vested the entire legislative power of the state, subject only to such restrictions as are found in the national and state Constitutions. The arbitrary subdivision—in itself admirable of all governmental powers into three branches is surrounded, however, by no sacred aura which renders either immune from change. To reason otherwise concerning these powers necessitates, in its final analysis, the conclusion that the creature is greater than the creator. Only in fiction—notably in the weird novel of Mrs. Shelley—but never in fact, in a free government, can there be found a substantial resting place for such a conclusion. It has endured in monarchies only so long as the people continued under the spell of that superstition that there is "a divinity that doth hedge a king."

Under our system, that intangible thing we call "government," the existence of which is least felt when best administered, has its origin in and draws its life and inspiration from the people. They frame and adopt the organic law, which defines the limits of legislative action; they incorporate therein whatever provisions they may deem proper. Thus empowered, as are the people in all goverments organized as is ours, the inevitable conclusion follows that if they determine, as they have in the adoption of the initiative and referendum, to limit the province or modify the purview of the Legislature in the adoption or rejection of laws, there is no power that: can say them nay.

II. We are concerned here more particularly with the referendum provision. Its meaning, purpose, and the extent to which it may be applied constitute the vexing questions seeking solution.

A referendum may be defined to be a reservation by the people of the right to have submitted to them for their approval or rejection any laws passed by the Legislature,

240 S.W. 231

except those necessary for the immediate preservation of the public peace, health, or safety, appropriations for the current expenses of the state government, the maintenance of state institutions, and the support of public schools. The wisdom of these exemptions is apparent in that they concern in the first three instances the protection of the state from public peril; in the fourth and fifth, the necessary maintenance of organized government and its institutions, eleemosynary and otherwise; and, sixth, in the support of public education. All right-minded citizens are in accord with the adoption and immediate operation of laws of this character, and hence the application of the referendum thereto was wisely declared to be unnecessary. As to all other laws, the people have reserved the right to refer them upon a compliance with the provisions of the Constitution (section 57, art. 4, Const. Mo.) and the statutory procedure (chapter 47, R. S. 1919) in regard thereto.

III. The meaning of the referendum having been ascertained, what was the purpose of its adoption? Primarily, to restrict or subject to more immediate control the lawmaking power. While in a sense novel as then applied, we were not entirely without precedent for its adoption. As theretofore existing, the Constitution affords evidence of numerous other checks upon the exercise of legislative power. Among these may be mentioned: The limitation upon the General Assembly to contract debts; the prohibition against loaning the state's credit or the granting of public money; or authorizing subdivisions of the state to lend their credit or grant aid with public money; or to grant extra pay to public officers; or pay unauthorized contracts; or subscribe for stock in incorporations ; or release liens upon railroads; or extinguish any debt due the state, a county, or other municipality; or provide for the payment of a certain war debt; or pass any local or special law in the cases stated, except under the conditions and in conformity with the procedure therein prescribed or where no general law can be made applicable such question to be subject to judicial determination; or to legalize the invalid acts of an officer or agent of the state; or enact a special or local law for the repeal of a general law. Article 4, subdiv. Limitations on Legislative Power, Const. Mo. Another marked reservation is the deferring of the operation of other laws than those having the emergency clause, until 90 days after the adjournment of the Legislature; and, in addition, other illustrations are afforded in statutes concerning township organization, local option, and stock laws. From these illustrations it will appear that the contention is without foundation that the incorporation in the Constitution of the power here under review is foreign to the spirit and purpose of our organic law, and is to be viewed askance and construed timorously as an innovation. The evident purpose in the incorporation of these reservations at the time of the adoption of the state Constitution was to prevent the possible exercise of unwarranted powers by the Legislature, which were held by the people to be...

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23 practice notes
  • Oklahoma Tax Commission v. Smith, No. 55079
    • United States
    • Supreme Court of Oklahoma
    • May 5, 1980
    ...no provision remotely similar 2 to the last-quoted Oklahoma Constitutional provision, and it is the Missouri authority of Drain v. Becker, 240 S.W. 229 (Mo.1922), which is relied upon heavily in In re Referendum Petition # 1, supra. Insofar as the trial authority stated the Legislature may ......
  • Harris v. Missouri Gaming Com'n, No. 76123
    • United States
    • United States State Supreme Court of Missouri
    • January 25, 1994
    ...by the voters. 3 The power to repeal or modify a referendum law is within the power of the legislature. State ex rel. Drain v. Becker, 240 S.W. 229, 232 (Mo. banc 1922). Enactment of a referendum law does not "deprive any member of the General Assembly of the right to introduce any measure,......
  • Luker v. Curtis, 7103
    • United States
    • United States State Supreme Court of Idaho
    • April 28, 1943
    ...in substitution for those repealed." (State v. Roach, 230 Mo. 408, 130 S.W. 689, 139 Am. St. Rep. 639; State ex rel Drain v. Becker, 240 S.W. 229, 232.) In 1910 Colorado adopted substantially the same provision in relation to the initiative as was contained in the Missouri amendment (Const.......
  • First Continental Sav. & Loan Ass'n v. Director, State Dept. of Assessments and Taxation, No. 344
    • United States
    • Court of Appeals of Maryland
    • July 9, 1962
    ...passed. In fact, no petitions for referral of Ch. 1 were filed. 4 In re Opinion of the Justices, 132 Me. 512, 174 A. 853; State v. Becker, 240 S.W. 229 (Mo.); In re Referendum Petition No. 1, 203 Okl. 298, 220 P.2d 454. See also Jackson v. Denver Producing & Refining Co., 96 F.2d 457 (10th ......
  • Request a trial to view additional results
23 cases
  • Oklahoma Tax Commission v. Smith, No. 55079
    • United States
    • Supreme Court of Oklahoma
    • May 5, 1980
    ...no provision remotely similar 2 to the last-quoted Oklahoma Constitutional provision, and it is the Missouri authority of Drain v. Becker, 240 S.W. 229 (Mo.1922), which is relied upon heavily in In re Referendum Petition # 1, supra. Insofar as the trial authority stated the Legislature may ......
  • Harris v. Missouri Gaming Com'n, No. 76123
    • United States
    • United States State Supreme Court of Missouri
    • January 25, 1994
    ...by the voters. 3 The power to repeal or modify a referendum law is within the power of the legislature. State ex rel. Drain v. Becker, 240 S.W. 229, 232 (Mo. banc 1922). Enactment of a referendum law does not "deprive any member of the General Assembly of the right to introduce any mea......
  • Luker v. Curtis, 7103
    • United States
    • United States State Supreme Court of Idaho
    • April 28, 1943
    ...in substitution for those repealed." (State v. Roach, 230 Mo. 408, 130 S.W. 689, 139 Am. St. Rep. 639; State ex rel Drain v. Becker, 240 S.W. 229, 232.) In 1910 Colorado adopted substantially the same provision in relation to the initiative as was contained in the Missouri amendment (C......
  • First Continental Sav. & Loan Ass'n v. Director, State Dept. of Assessments and Taxation, No. 344
    • United States
    • Court of Appeals of Maryland
    • July 9, 1962
    ...passed. In fact, no petitions for referral of Ch. 1 were filed. 4 In re Opinion of the Justices, 132 Me. 512, 174 A. 853; State v. Becker, 240 S.W. 229 (Mo.); In re Referendum Petition No. 1, 203 Okl. 298, 220 P.2d 454. See also Jackson v. Denver Producing & Refining Co., 96 F.2d 457 (1......
  • Request a trial to view additional results

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