State v. Becker

• Decision Date: 03 December 1921
• Docket Number: No. 23320.,23320.
• Citation: 235 S.W. 1017,290 Mo. 560
• Parties: STATE ex rel. LASHLY v. BECKER, Secretary of State.
• Court: Missouri Supreme Court

235 S.W. 1017

290 Mo. 560

STATE ex rel. LASHLY v. BECKER, Secretary of State.

No. 23320.

Supreme Court of Missouri, in Banc.

December 3, 1921.

Respondent's Motion for Rehearing Denied December 7. 1921.

Dissenting Opinions December 7 and 8, 1921.

Original mandamus proceeding by the State, on relation of Arthur V. Rashly, against Charles U. Becker, Secretary of State. Alternative writ made permanent.

Original case in mandamus. The relator, according to both petition and return, is duly qualified to be elected as a member of the proposed and approaching constitutional convection. He has been duly nominated for such delegate by the Democratic party as a candidate for such place by the Democrats of the Twenty-Fifth state senatorial district of the state, as such district has existed from 1901, up until the present Governor, Attorney General and Secretary of State, since the adjournment of the last regular session of the Missouri General Assembly (session beginning in January, 1921) subdivided the state into 34 state senatorial districts. Laws 1921, p. 719. The return attacks the legality of the redistricting in 1901 (Laws 1901, p. 273), but does not attack the one of 1891 (Laws 1891, p. 227). The Twenty-Fifth state senatorial district was the same, both under the action taken in 1891, and that of 1901. By both actions the Twenty-Fifth state senatorial district was made up of the counties of Franklin, Gasconade, and St. Louis. In fact the counties of Franklin, Gasconade, and St. Louis were placed in the Twenty-Fifth senatorial district by the Constitution of 1875 and remained there until 1881 (Laws 1881, p. 238), when Franklin was cut out and Jefferson inserted. Mo. Const. 1875, art. 4, § 11. In 1891 the constitutional district was re-established, and has since remained until the action in 1921.

By the action of the present Governor, Secretary of State, and Attorney General, on April 16, 1921, the Twenty-Fifth state senatorial district was so made as to include only the counties of Dunklin, Mississippi, New Madrid, Pemiscot, and Scott. If this apportionment and redistricting is valid, the relator is not even a resident of such district. He lives in the county of St. Louis, in the old Twenty-Fifth district. After receiving his nomination from the Twenty-Fifth district Democrats, as such district has existed sine 1891, he offered to file his certificate of nomination with Hon. Charles U. Becker, the present Secretary of State, and respondent herein, who refused to file the same. For such action no personal or official blame can attach to the action of this officer. The legality or illegality of the redistricting in 1921 was a court question, and by his act he properly left it to a court decision. The pleadings bespeak the utmost fairness of distinguished counsel upon both sides. They have sheared the case of all rubbish, so that the questions of decision are few and simple. They are: (1) Were the present three state officials, above mentioned, authorized or empowered to redistrict the state in 1921, under the Constitution as it now stands? (2) If they were so authorized and empowered, have they followed the mandate of the Constitution in so doing, and, as contended by respondent, (3) was the action taken in 1901 (in redistricting the states) pursuant to the constitutional mandate? Other details can best be considered in the opinion.

Wilfley, Williams, McIntyre, Hensley & Nelson, of St. Louis, A. T. Dumm, of Jefferson City, Henry L. Jost and John T. Barker, both of Kansas City, T. R. R. Ely, of Kennett, Wayne Ely, of St. Louis, and John I. Williamson, of Kansas City, for relator.

Jesse W. Barrett, Atty. Gen., and Merrill E. Otis, Asst. Atty. Gen., for respondent.

GRAVES, J. (after stating the facts as above).

I. Simplicity and candor should mark every statement in this case. This because of the settings which surround it. The real picture should not be dimmed by mere abstruse statements or unwarranted assertions. The case is of too much importance for such things. The law, and the law only, should prevail. That law should be stated with such directness and simplicity that he who runs may read, and, in addition, could understand. The responsibility rests upon the court, and not upon counsel, who have, with marked ability, presented their views of the case. The case practically involves the whole organic law of the state, under the suggestion made in some of the briefs. This has occasioned a reading and several re-readings of that historic document of 1875. This has been a work of pleasure, as well as of profit to the writer. If, therefore we step beyond the argued points of briefs upon either side, we will be pardoned. The argued points are limited, but the side suggestions are varied. But be that as it may, this is an original case in this court, and it calls for all the legal information possessed by either court or counsel. So much in advance of the opinion.

II. We need not debate the character of the act performed by the three state officers. It is legislative in character, pure and simple. Section 7 of article 4 of the Constitution so classifies it, because this section first grants the power to the General Assembly. Upon its failure to act, it grants the same power to three officials, whom, but for this grant of power, would possess no legislative duties or functions. This court has so ruled it. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S. W. 40. All three opinions in that case so rule. Counsel for respondent here have undertaken to press argumentative excerpts from the views of Valliant, C. J., and Graves, J., in that case in support of his claims here. Suffice it to say that when those opinions are carefully read it will be discovered that they rule but one single question. Valliant, C. J., at the very outset carefully worded the question for solution, and the question solved by the two concurring opinions. At page 511 of 241 Mo.; at page 66 of 146 S. W., he said:

"The question on the threshold is, Has this court jurisdiction of the case stated in the pleadings? Counsel for respondents in their brief say: `This is a proceeding by mandamus to test the validity of an apportionment of the state into senatorial districts contained in a certain statement of the districts filed in the office of the Secretary of State on April 18, 1911.' That is doubtless the purpose of the suit, but if this court has no jurisdiction of the case it cannot pronounce judgment on the point in dispute, and therefore anything that we might say on the subject would be simply the opinion of individuals."

Later these two opinions announce the reason that `we had no jurisdiction. The reason was that the circuit judges sought to be mandamus were acting in a legislative capacity and not in a judicial capacity; that this court had no power to act in such a case. The writer,, following the views of Valliant, C. J., used this language:

"The legislative function cannot be regulated by judicial action. We cannot compel legislative bodies to act, nor can we enjoin them from acting. This is a subject-matter beyond the jurisdiction and power of this court. When we are asked to either mandamus or enjoin a legislative body, the only reply we can make is that, under the Constitution, the subject-matter is beyond our jurisdiction. That is what should be done in this case, and what is done by both opinions. Then why discuss a lot of questions in a case over which we have no jurisdiction? Why say the case is one over which we have no jurisdiction, and yet proceed to pass upon the alleged merits? Such discussion decides nothing, because it is mere obiter. Especially should it not be done in this case, where the parties in actual interest have never been heard in this court."

Whilst all opinions agreed that we had no jurisdiction to mandamus the judges of St. Louis, because they were acting in a legislative capacity, it is clear that the two separate concurrences went no further than to simply rule upon our jurisdiction. The majority opinion, concurred in by five eminent jurists, including the writer of the opinion, and Judges Lamm, Kennish, Ferriss, and Brown, went much further, and passed upon the merits of the case. So far as we know, that is the last announcement upon the matter, although we, personally, expressed no opinion upon that matter, and have none to express now, in the view which we have reached.

III. In addition to State ex rel. Barrett v. Hitchcock et al., 241 Mo. 433, 146 S. W. 40, we are cited to State ex rel. Halliburton v. Roach, 230 Mo. 408, 130 S. W. 689, 139 Am. St. Rep. 639. The question in that case is not the question in this case. No suggestion was made in that case as to the fact of section 57 (Initiative and Referendum) modifying legislative power or authority. In that case the petitions were for redistricting the state through a constitutional amendment. The real questions involved are tersely stated by Fox, C. J., on page 426 of 230 Mo., on page 691 of 130 S. W. (139 Am. St. Rep. 639), thus:

"First. Were the petitions as presented to the respondent, Secretary of State, legally sufficient to authorize the submission to the voters of this state of an amendment to or change in the organic law (the Constitution) of this state? Or, in other words, do the petitions embrace in fact a demand for the submission of a constitutional amendment within the contemplation and purview of the Initiative Amendment adopted in this state in November, 1908, as well as the legislation approved June 12, 1909, providing for the carrying out of such Initiative Amendment to the Constitution?

"Second. Under the provisions of the initiative amendment to the Constitution and the legislation enacted by the General Assembly of this state, approved June 12, 1909, can the respondent, the Secretary of State, if the subject-matter as embraced in the petitions does not fall within the purview of the initiative and Referendum Amendmen...