State v. Hitchcock

• Decision Date: 28 March 1912
• Citation: 146 S.W. 40
• Parties: STATE ex rel. BARRETT v. HITCHCOCK et al., Judges.
• Court: Missouri Supreme Court

146 S.W. 40

STATE ex rel. BARRETT v.HITCHCOCK et al., Judges.

Supreme Court of Missouri.

March 28, 1912.

1. STATES (§ 27) — LEGISLATIVE DISTRICTS— REDISTRICTING—NATURE OF FUNCTION.

The districting of the state into senatorial, congressional, and judicial districts is an exercise of legislative authority, so that the redistricting of the state senatorial districts by the Governor, Secretary of State, and Attorney General, pursuant to Const. 1875, art. 4, § 7, upon the failure of the General Assembly to do so, is the exercise of legislative authority.

2. STATES (§ 27) — LEGISLATIVE DISTRICTS— REDISTRICTING.

Under Const. 1875, art. 4, § 7, providing that the Governor, Secretary of State, and Attorney General shall redistrict the senatorial districts of the state every 10 years, in case the General Assembly fails to do so, a majority of the three officials named may redistrict the state.

3. STATES (§ 27) — LEGISLATIVE DISTRICTS—REDISTRICTING—GUBERNATORIAL PROCLAMATION—NECESSITY.

Const. 1875, art. 4, § 5, requires the senatorial districts to be reapportioned every 10 years by the General Assembly, and provides that if the General Assembly shall fail or refuse to do so, it shall be the duty of the Governor, Secretary of State, and Attorney General to do it, and to file in the office of the Secretary of State a statement of the districts formed by them, "said statement to be signed by them and attested by the great seal of the state, and upon the proclamation of the Governor, the same shall be as binding and effectual as if done by the General Assembly." Held, that the provision requiring the apportionment statement to be promulgated by the Governor was mandatory, so that, where the Governor refused to participate in the apportionment, or sign the statement, or assist in filing it, and refused to make a proclamation thereof, there was no valid reapportionment; there being no presumption, under such circumstances, that a proclamation was issued.

4. CONSTITUTIONAL LAW (§ 35)—MANDATORY PROVISIONS — CONSTITUTIONAL PROVISIONS.

Constitutional requirements are construed as mandatory, rather than directory.

5. CONSTITUTIONAL LAW (§ 14) — CONSTRUCTION—CONSTITUTIONAL PROVISIONS.

In ascertaining the meaning of a constitutional provision, its words should be given their usual and ordinary meaning.

6. WORDS AND PHRASES—"UPON"—"ON."

The word "upon" is ordinarily synonymous with "on" in all of its meanings; the prefix "up" being almost eliminated.

7. WORDS AND PHRASES—"ON."

The word "on" is defined as meaning "upon the occasion of; following upon;" when used with a noun of action, to express the time or occasion, or cause, of what follows; after, and in consequence of.

8. WORDS AND PHRASES — "PROCLAMATION."

A "proclamation" is that which is proclaimed or publicly announced, and, in law, designates notice by an administrative or executive officer, as by the President or Governor, as to some public matter, or the exercise of some administrative or executive power affecting the public at large, as a proclamation of martial law, a Thanksgiving proclamation.

9. STATES (§ 27) — LEGISLATIVE DISTRICTS— REDISTRICTING — DISCRETION OF OFFICIALS.

Const. 1875, art. 4, § 5, requires the Legislature to divide the state into 34 senatorial districts, making each district "as nearly equal in population as may be"; and section 9 provides that in forming a district, to be composed of two or more counties, the counties shall be contiguous, and no county shall be divided, and that such districts shall be "as compact as may be." Held, that the Legislature did not have unlimited discretion in redistricting the senatorial districts, but was bound to conform as nearly as possible to the constitutional limitations prescribed.

10. CONSTITUTIONAL LAW (§ 68) — JUDICIAL FUNCTIONS — POLITICAL QUESTIONS — LEGISLATIVE DISTRICTS—REDISTRICTING STATE— STATUTORY PROVISIONS.

The courts may pass upon the validity of statutes apportioning the state into senatorial districts, and declare them invalid for failure to conform to the constitutional limitations.

11. STATES (§ 27)—LEGISLATIVE DISTRICTS— REDISTRICTING — APPORTIONMENT AS TO POPULATION.

The population of the city of St. Louis, by the federal census of 1910, was 687,029, and the population of the state was 3,293,335, giving each of the 34 senatorial districts in the state, if the population were apportioned equally among them, a population of 96,862, so that on such basis of apportionment the city of St. Louis would be entitled to 7 senatorial districts, leaving 8,995 persons unrepresented; but, as the state was redistricted by the Governor, Secretary of State, and Attorney General, only 6 senators were allowed to the city of St. Louis. Held, that the redistricting of the city of St. Louis did not conform to Const. 1875, art. 4, § 5, requiring each district to be made "as nearly equal in population as may be," so that the redistricting was invalid.

12. STATES (§ 27)—SENATORIAL DISTRICTS— REDISTRICTING — CONSTITUTIONALITY OF STATUTES.

Const. 1875, art. 4, § 5, provides that in redistricting the senatorial districts of the state the districts shall be made "as nearly equal in population as may be"; and section 9 provides that no county shall be divided, where the district is composed of more than one county.If the population of the state by the last federal census, according to which it was redistricted, were divided equally among the 34 senatorial districts, each district would have a population of 96,862.Jackson county was divided into three senatorial districts by the reapportionment when its population was such that, basing the reapportionment upon that ratio, it would only be entitled to two districts, with a surplus population of 89,798.Held, that Jackson county was properly allowed three senatorial districts, in view of the constitutional provision prohibiting the dividing of a county and placing a part of it in one district and the remainder of it in another.

13.STATES (§ 27)—LEGISLATIVE DISTRICTS—APPORTIONMENT — GERRYMANDER—EVIDENCE.

Evidence held to show that the senatorial districts, as reapportioned, were not "as compact as may be," as required by the Constitution.

14.STATES (§ 27)—LEGISLATIVE DISTRICTS— APPORTIONMENT — GERRYMANDER — CONSTITUTIONAL PROVISIONS.

Const. 1875, art. 4, § 9, providing that, in forming a senatorial district composed of two or more counties, the counties shall be contiguous, and the districts "as compact as may be," requires the counties constituting a district to touch each other and be closely united territory, so as to prevent, as far as possible, the legislative evil known as "gerrymandering."

15.MANDAMUS (§ 69)—PURPOSE OF WRIT.

Const. art. 4, § 6, requiring the circuit courts, in those counties of the state which are entitled to more than one senatorial district, to subdivide such counties into the number of districts each is entitled to under the general redistricting, made pursuant to the article, confers upon such circuit courts a legislative power, the exercise of which cannot be controlled by mandamus, so as to compel them to subdivide a county.

In Banc.Petition for mandamus by the State, on the relation of Jesse W. Barrett, against George C. Hitchcock and others, Judges of the Circuit Court of the City of St. Louis.Peremptory writ denied.

This is an original proceeding by mandamus, instituted in this court by the relator, seeking to compel the respondents, the judges of the circuit court of the city of St. Louis, to apportion or redistrict said city into six senatorial districts, as required to be done under certain conditions by section 7 of article 4 of the Constitution of 1875.A petition for an alternative writ of mandamus was filed, and, after due consideration, it was ordered to issue; and it was made returnable January 2, 1912.The writ was issued and duly served; and upon the return day the respondents filed their return.Upon the incoming of the return, the relator filed a motion for judgment on the pleadings; and it will therefore be necessary for a proper understanding of the case to set out the alternative writ, the return, and the motion for judgment.

The writ is as follows (formal parts omitted):

"Your petitioner, Jesse W. Barrett, relator herein, respectfully represents that he is a citizen, resident, and taxpayer of the city of St. Louis, Missouri, and is a qualified elector in the Fifth precinct of the Twenty-Eighth ward of said city, and in the Thirty-Second senatorial district of Missouri; and that respondentsGeorge C. Hitchcock, J. Hugo Grimm, Daniel D. Fisher, Hugo Muench, George H. Shields, William B. Homer, Charles C. Allen, William M. Kinsey, James E. Withrow, Eugene McQuillin, Leo S. Rassieur, and Wilson A. Taylor, are the duly elected, qualified, and acting judges constituting the circuit court, city of St. Louis, Missouri.

"Your petitioner respectfully represents that in the year 1910 there was taken the thirteenth decennial census of the United States, and the result thereof as to the state of Missouri was ascertained and made public on September 30, 1910, according to which the state of Missouri has a population of 3,293,335, and the city of St. Louis a population of 687,029; that the next session of the General Assembly was duly held in the city of Jefferson, as is duly provided by law; that, under the provisions of section 7 of article 4 of the Constitution of Missouri, it became the duty of said Forty-Sixth General Assembly to revise and adjust the apportionment of the state of Missouri for senators on the basis of such census, but the said Forty-Sixth General Assembly failed to district the state for senators, as required in said section, and adjourned on March 20, 1911, and under the terms of said section it then became the duty of the Governor, Secretary of State, and Attorney General, within 30 days thereafter, to perform the said duty; that on April 18, 1911, the Governor,...