State v. Roach

• Decision Date: 01 August 1910
• Parties: STATE ex rel. HALLIBURTON v. ROACH, Secretary of State.
• Court: Missouri Supreme Court

130 S.W. 689

230 Mo. 408

STATE ex rel. HALLIBURTON v. ROACH, Secretary of State.

Supreme Court of Missouri.

August 1, 1910.

On Rehearing, August 15, 1910.

On Motion to Dismiss.

1. MANDAMUS (§ 23) — PERSON ENTITLED TO SUE.

A citizen and voter who has not signed an initiative petition under the initiative amendment of the Constitution and the statutes adopted pursuant thereto may sue to compel the Secretary of State to file the petition.

2. DISMISSAL AND NONSUIT (§ 71) — MOTION — VERIFICATION.

Where there is nothing on the face of an original proceeding in the Supreme Court to show that it is a moot case, the court will not dismiss the proceeding on the ground that it is a moot case, in the absence of a verification to the motion therefor.

3. COURTS (§ 207)—JURISDICTION—CONSTITUTIONAL PROVISIONS.

The provision in the initiative and referendum act (Acts 1909, p. 554), that the circuit court of Cole county shall have jurisdiction by mandamus to compel the Secretary of State to file initiative petitions, etc., does not deprive the Supreme Court of the power granted it by Const. art. 6, § 3 (Ann. St. 1906, p. 214), to exercise its original jurisdiction in mandamus to control the action of the Secretary of State on initiative petitions presented to him.

On the Merits.

4. CONSTITUTIONAL LAW (§ 9)—AMENDMENTS —INITIATIVE.

The initiative amendment to the Constitution adopted in 1908, reserving to the people the power to propose any amendment to the Constitution requires that where an amendment to the Constitution is desired, the initiative petition therefor must embrace the full text of the amendment.

5. STATUTES (§ 35½)—ADOPTION—INITIATIVE PETITION.

The initiative amendment to the Constitution adopted in 1908, reserving to the people the power to propose any law independent of the Legislature, requires that the full text of any proposed law shall be embraced in the initiative petition therefor.

6. STATUTES (§ 149) — REPEAL — POWER OF LEGISLATURE.

The initiative amendment to the Constitution adopted in 1908, providing that the power reserved in the people to enact any law independent of the Legislature shall not deprive any member of the Legislature of the right to introduce any measure, authorizes the Legislature to repeal any law enacted by the people under the initiative.

7. CONSTITUTIONAL LAW (§ 9)—INITIATIVE PETITION.

The allegations of petitions under the initiative amendment to the Constitution adopted in 1908, and the initiative and referendum act (Acts 1909, p. 554), determine their character, and the fact that an initiative petition calls the matter to be submitted to the people, a proposed amendment to the Constitution does not determine that it is an amendment instead of a legislative act.

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

The right to alter senatorial districts under the initiative amendment to the Constitution adopted in 1908, and the initiative and referendum act (Acts 1909, p. 554), cannot be exercised until Const. art. 4, § 7 (Ann. St. 1906, p. 179), authorizing the Legislature to apportion the state into senatorial districts is so amended as to authorize the people by the initiative to divide the senatorial districts, and the people cannot by the initiative create senatorial districts by merely amending section 11, creating senatorial districts, since such section is a temporary provision and is limited until appropriate provisions may be made for the apportionment of the state by the Legislature.

9. CONSTITUTIONAL LAW (§ 9)—AMENDMENTS TO "CONSTITUTION."

A petition under the initiative amendment to the Constitution adopted in 1908, and the initiative and referendum act (Acts 1909, p. 554), to amend Const. art. 4, § 11 (Ann. St. 1906, p. 180), fixing the senatorial districts until changed as provided by the Constitution, by creating senatorial districts which shall continue until the federal census of 1920, when the districts shall by a law enacted by the people, or by the Legislature, be adjusted on the basis of that census, is a petition for a legislative enactment of a temporary character, and not a petition for a constitutional amendment; a "constitution" being a fundamental law as distinguished from a temporary act, and implying an instrument of a permanent nature.

10. CONSTITUTIONAL LAW (§ 9) — AMENDMENTS.

The rules applicable to the submission of a constitutional amendment to the voters are applicable to amendments proposed under the initiative amendment to the Constitution adopted in 1908, and to an amendment proposed by the Legislature, and in each case the amendment submitted must in fact be an amendment to the Constitution.

11. CONSTITUTIONAL LAW (§ 9) — AMENDMENTS — INITIATIVE.

Under the initiative amendment to the Constitution, and the initiative and referendum act (Acts 1909, p. 554), the Secretary of State may decline to file initiative petitions for a constitutional amendment, where the subject-matter as embraced in the petitions does not fall within the purview of the initiative amendment and the statutes, because the Secretary of State is vested with discretion subject to judicial control.

12. CONSTITUTIONAL LAW (§ 9) — AMENDMENTS —INITIATIVE.

Under the initiative and referendum act (Acts 1909, p. 554), providing that, on the refusal

of the Secretary of State to file any initiative petition, any citizen may apply to the circuit court for mandamus, and authorizing the court, on finding that the petition is legally sufficient, to compel the Secretary of State to file it, and, on finding that the petition is not legally sufficient, to enjoin the Secretary of State from certifying on the official ballot the ballot title and number of the proposed measure, etc., the legal sufficiency of an initiative petition is not limited alone to the sufficiency of the number of signers thereto and their qualifications, but its legal sufficiency must be determined by the entire petition, and a petition is not legally sufficient where the subject it deals with is not within the initiative amendment to the Constitution, or where it does not include the full text of the proposed measure as required by the initiative amendment.

13. CONSTITUTIONAL LAW (§ 70)—LEGISLATIVE POWER—JUDICIAL INTERFERENCE.

Courts cannot by mandamus compel the Legislature to act on a given proposed law.

14. CONSTITUTIONAL LAW (§ 70) — LEGISLATIVE POWER — JUDICIAL INTERFERENCE.

Courts cannot enjoin the Legislature from acting on a proposed law, though it may be violative of the Constitution.

15. MANDAMUS (§ 73)—MINISTERIAL ACTS.

The Secretary of State in filing an initiative petition, under the initiative amendment to the Constitution adopted in 1908, and the initiative and referendum act (Acts 1909, p. 554), is only a ministerial administrative officer, and the courts will by mandamus control his discretion.

Lamm and Woodson, JJ., dissenting.

In Banc. Mandamus by the State, at the relation of John W. Halliburton, against Cornelius Roach, Secretary of State, to compel respondent to file initiative petitions for a constitutional amendment. Denied.

Jno. W. Halliburton, pro se. Elliott W. Major, Atty. Gen., and John M. Dawson, John M. Atkinson, C. G. Revelle, and James G. Blair, Asst. Attys. Gen., for respondent. John C. Brown, John Kennish, C. C. Madison, and Homer Hall, for Walter S. Dickey, appearing for signers of the initiative petition.

On Motion to Dismiss.

FOX, C. J.

On July 11, 1910, Hon. Walter S. Dickey, through his attorneys, asked leave to file a motion to dismiss this proceeding. This leave was granted, and the motion to dismiss was, in accordance with the directions of this court, duly filed by the clerk. We have given to this motion as well as the suggestions in support of it our most careful consideration. In our opinion this court has jurisdiction of this proceeding.

Counsel for Mr. Dickey urge: First. That this is a collusive or moot case, and is not founded upon any real or existing controversy between the relator, John W. Halliburton, and the respondent, Cornelius Roach. It is sufficient upon that proposition that Mr. Halliburton is a citizen of this state and a qualified voter, and, notwithstanding he may not have signed the petitions as presented by Mr. Dickey to the Secretary of State, yet as a citizen and a voter he has as much interest and the same right to institute this proceeding as any citizen who may have signed such petitions. As to this proceeding being a moot case, there is nothing upon the face of the proceeding to indicate such fact, and the motion that alleges that it is a moot case has not been sworn to by either Mr. Dickey or his counsel. But, aside from all this, it is perfectly manifest that this is a live proceeding — one of vital importance to the people of this state, and should be determined as speedily as possible. If under the Constitution and laws of this state the petition should be filed and the question of the amendment to the Constitution dividing the state into senatorial districts be submitted to the vote of the people of Missouri at the next general election, then this court, upon the hearing of this cause, will unhesitatingly so declare. On the other hand, it necessarily follows that, if under the Constitution and laws of this state there is no authority for submitting such constitutional amendment, this court will so announce such conclusion. Second. As heretofore indicated, in our opinion the relator, Mr. Halliburton, in this proceeding being a qualified voter, has such an interest as a citizen of this state of authorize him to maintain in this cause. Third. Under the Constitution of this state (article 6, § 3 [Ann. St. 1906, p. 214]), this court has original jurisdiction in mandamus proceedings to compel administrative state officers to perform administrative or ministerial acts, and the mere fact that the statute (Laws 1909, p. 554 to 558) provides for an application by any citizen to...