State v. Becker

• Decision Date: 02 August 1921
• Docket Number: No. 22961.,22961.
• Citation: State v. Becker, 233 S.W. 641, 289 Mo. 660 (Mo. 1921)
• Parties: STATE ex rel. POLLOCK v. BECKER, Secretary of State.
• Court: Missouri Supreme Court

233 S.W. 641

289 Mo. 660

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

No. 22961.

Supreme Court of Missouri, in Banc.

August 2, 1921.

Original proceeding by the State, on the relation of John H. Pollock to compel Charles U. Becker, Secretary of State, to accept and file referendum petition. Writ made permanent.

This is an original proceeding by mandamus instituted in this court by the relator against the respondent, tie Secretary of State, seeking to compel him to accept and file four certain referendum petitions, hereinafter to be more fully described, so that the laws mentioned in the petitions may be placed upon the ballots at the next general election of the state for confirmation or rejection by the voters of the state.

The pleadings in the case fully and clearly present the legal proposition presented to this court for determination, and for that reason I shall here present them in full. They are as follows:

Petition.

"This action was brought in the name of the state of Missouri at the relation of John H. Pollock against Charles U. Becker, Secretary of State. The petition, which was filed in this court on the 18th day of June, 1921, alleges

that the relator is a resident and citizen of Kansas City, Jackson county, Mo., and a legal voter and qualified elector in said city, county, and state, and at the November election in 1918 was elected justice of the peace within and for Kaw township, in said county and state, for a term of four years, and that the respondent Becker is now the duly elected and acting Secretary of State of the state of Missouri; and the Fifty-First General Assembly convened at Jefferson City January 1, 1921, and adjourned sine die on March 21, 1921, and passed, among others, Senate Bill No. 4 [Laws 1921, p. 233], entitled `An act to amend section 2688 of the Revised Statutes of Missouri 1919, relating to justices of the peace, abolishing the offices of the justices of the peace elected in districts in certain townships, and providing for the transfer of business pending before such justices;' and Senate Bill No. 5 [Laws 1921, p. 234], entitled, `An act repealing article 9, including sections 2923 to 2943, inclusive, chapter 22 of the Revised Statutes of Missouri 1919, entitled "justices and constables in townships of two hundred thousand and less than four hundred thousand inhabitants," and enacting a new article in lieu thereof;' and Senate Bill No. 6 [Laws 1921, p. 231], entitled `An act to amend section 2689 of the Revised Statutes of Missouri 1919, relating to justices of the peace;' and Senate Bill No. 7 [Laws 1921, p. 204], entitled, `An act amending section 2143 of the Revised Statutes of Missouri 1919, relating to constables, abolishing the office of constable in districts in `certain townships and providing for constables in such townships;' that all four of said bills have a common interest and pertain to the same subject, and affect the same parties—that is, said bills abolish the offices of eight justices of the peace and all constables and clerks in Kaw township, Jackson county, Mo. Senate Bill No. 4 provides that on the 1st day of July 1921, the offices of the justices of the peace elected or appointed in districts in all municipal townships containing a city of 100,000 inhabitants and less than 300,000 inhabitants, and the office of clerks to such justices shall be abolished, and all jurisdiction and powers vested in such justices of the peace are vested in other justices of the peace provided for in said bill; Senate Bill No. 5 provides for the election of five justices of the peace in such township at the general election in 1922, and provides that until such election the Governor shall appoint and confer jurisdiction upon such new justices of the peace to make certain rules, etc.; Senate Bill No. 8 provides for the appointment of other justices of the peace by the county court of Jackson county; Senate Bill No. 7 abolishes all of the constables holding office after the 1st day of July, 1921, in said Kaw township, Jackson county, Mo., and provides for the election of new constables at the general election in 1922, and authorizes the Governor to appoint until such general election.

"The petition of relator further alleges that all of said bills were approved by the Governor of Missouri on the 11th day of March, 1921, and that on the 18th day of June, 1921, and within 90 days after the adjournment of the Fifty-First General Assembly, the relator presented to the Secretary of State, in the presence of the Governor, 1,538 legal referendum petitions, containing the total of 65,248 names of legal voters and qualified electors of the state of Missouri, which petitions were legally signed by more than 6 per cent. of the legal voters and qualified electors in more than two-thirds of the congressional districts of the state of Missouri, asking for a referendum on all four of said Senate Bills in order that the people might, at the general election in 1922, vote for the approval or rejection of said measures; that said Secretary of State, wholly disregarding his duties, and without any legal right or authority, refused to accept, receive, and file said referendum petitions against said bills, and assigned as his sole and only reason for such refusal that said bills were not referable, because each of the bills contained, among other provisions, the following language: `This enactment is hereby declared necessary for the immediate preservation of the public peace, health or safety, within the meaning of section 57, art. 4, of the Constitution of Missouri.'

"The petition further alleges that it is not true that said bills, or either of them, are necessary for the immediate preservation of the public peace, health, or safety within the meaning of section 57 of article 4 of the Constitution of Missouri, but that said bills are purely local in their character, and pertain to Jackson county, Mo., only, and that such statements contained in said bills are false and untrue, and that such an attempt on the part of the Legislature to prevent said bills from being referred to the people is unconstitutional and void, and in violation of section 57 of article 4 of the Constitution of Missouri, and that such action on the part of the Secretary of State was and is arbitrary and unfair; that by the refusal of the respondent to accept, receive, and file such referendum petitions, the relator and all other citizens of Missouri have suffered and will suffer irreparable wrong and injury, and the people of the state will be denied their constitutional right to vote for the approval or rejection of said measures, and will be entirely without redress of said wrongs without the interposition and interference of this court by its writ of mandamus.

"The prayer of the petition prays this court to issue its writ of mandamus, directing and commanding respondent as Secretary of State, to forthwith accept, receive, and file in his office at Jefferson City, Mo., all of the said referendum petitions pertaining to said Senate Bills Nos. 4, 5, 6, and 7, and to detach the sheet containing the signatures and affidavits and cause them to be attached to one or more printed copies of the measures so proposed, and to deliver such detached copies of such measures to the relator, and that the respondent be compelled to forthwith transmit to the Attorney General of the state of Missouri a copy thereof in order that said Attorney General shall provide and return to the Secretary of State a ballot title for said measures, and that said respondent be compelled to furnish to each of the county clerks of the state of Missouri a certified copy of the ballot title and numbers of the several measures to be voted upon at the coming general election, and for such other relief as may be found necessary and expedient

to cause the respondent to do that which in justice and right ought to be done.

"After the filing of the petition in this court, relator and respondent entered into a stipulation agreeing that the petition might stand for the alternative writ; that the respondent have until the 28th day of June, 1921, within which to plead; that the cause be submitted to the court upon briefs filed by both parties; that relator have until the 5th day of July, 1921, to file his brief, and that respondent have five days thereafter to file his answer brief, and that relator have three days thereafter if desired, to file reply brief; and that Senate Bills Nos. 4, 5, 6, and 7 be consolidated in one action, and all questions as to joinder be waived."

Answer.

"On the 28th day of June, 1921, respondent filed his answer to said petition of mandamus, and in said answer says:

"Admits that relator is a resident and assessed taxpaying citizen of Kansas City, Jackson county, Mo., and is a legal voter and qualified elector in said city, county, and state, and was on the 2d day of November, 1918, elected a justice of the peace within and for Kaw township, Jackson county, Mo., for a term of four years; admits that respondent is and has been the Secretary of State of Missouri since the 10th day of January, 1921; admits that the Fifty-First General Assembly of Missouri convened at Jefferson City on January 5, 1921, and adjourned sine die on the 21st day of March, 1921, and passed, among other acts, Senate Bills Nos. 4, 5, 6, and 7, with the titles as pleaded; alleges that copies of said Senate Bills Nos. 4, 5, 6, and 7 are attached and marked `Exhibits A, B, C, and D,' and made a part hereof; admits that all four of said bills have a community of interest—that is, said bills are similar, affect the same parties, pertain to the same subject, are companion bills, and one is useless without all; admits that all of said bills were approved by the Governor on the 11th day of March, 1921, and that on the 18th day of June, 1921, in the office of the Secretary of State, and in the presence of respondent and the Governor of Missouri...