State v. Thomas

• Decision Date: 04 March 1926
• Docket Number: No. 26979.,26979.
• Citation: 282 S.W. 34
• Parties: STATE ex rel. FAUST v. THOMAS, Mayor, et al.
• Court: Missouri Supreme Court

282 S.W. 34

STATE ex rel. FAUST v. THOMAS, Mayor, et al.

No. 26979.

Supreme Court of Missouri, in Banc.

March 4, 1926.

Original mandamus by the State, on the relation of John H. Faust, against Cecil W. Thomas, Mayor, and others. Peremptory writ awarded.

D. W. Peters, of Jefferson City, for relator. James T. Blair, Jr., of Jefferson City, for respondents.

WALKER, J.

Mandamus. This case is submitted without oral argument by agreement of the parties hereto. It is an original proceeding in mandamus to compel the respondents in their official capacities to fix a day for the registration of voters in the city of Jefferson.

The statute upon which the relator bases his right of action is as follows:

Sec. 5089. "There shall be a registration of all the qualified voters in cities of this state, now or hereafter having a population of ten thousand inhabitants and less than one hundred thousand inhabitants, except in cities in counties which now have or hereafter may have one hundred thousand inhabitants or more and registration is provided for by law, whether organized under general law or special charter, which registration shall be had under the provisions of this article; and the population of cities within this state containing such population shall for the purposes of this article be ascertained from and determined by the last decennial census taken by the federal government."

This statute, approved May 2, 1925, was enacted by the Fifty-Third General Assembly (Laws 1925, p. 203) under the constitutional mandate in section 5 of Amendment No. 9 of the state Constitution, recommended by the Constitutional Convention of 1922-23 and adopted by the people at the special election held February 26, 1924. It is as follows:

"Section 5. The General Assembly shall provide by law for the registration of voters in counties having a population of more than one hundred thousand and in cities having a population of more than ten thousand, but not otherwise. The first General Assembly held after the adoption of this Constitution shall pass laws necessary to enforce this provision, and for such purpose may classify such counties and cities according to population, but such laws shall be uniform as to each class." See Laws 1925, p. 410.

I. The meaning of this section, like that of any other law, is to be measured by the recognized rules of construction. In determining its character and purpose, however, something more than the usual tests applied to ordinary expressions of the legislative will is authorized. Its enactment embodies more than an expression of the legislative will, in that it carries with it the express sanction of the people themselves, as definitely declared in the constitutional amendment. The character of the section is mandatory ; the purpose of its enactment was salutary. The crying need in the exercise of the right of suffrage is regulation; this right free from restrictive limitations is a menace to the perpetuity of free government. An event in our own national history signally demonstrates this truth. The adoption of the Fifteenth Amendment to the federal Constitution has been the source of more plagues to the body politic than the legends tell us were visited upon Pharoah by the God of Israel.

This section and the article in which it is incorporated, while not attempting to discriminate between voters as to their other qualifications, in prescribing that they shall register before voting, necessarily limits the right to permanent residents the majority of whom will be of good repute. Possessed of this helpful feature the validity of the section should be upheld if in its enactment the Constitution and the rules of construction have not been violated.

II. We fail to find merit in the contention that mandamus is not an appropriate remedy in this proceeding. It is true the granting of the writ is addressed to the discretion of the court; but, where an official duty is prescribed by law and those charged with its performance refuse to act, mandamus is the proper remedy, and a court's discretion is not abused in granting it.

There is no ground for cavil concerning the right of the relator to this writ. He is a citizen and a qualified voter of Jefferson City. As such he is interested in the enforcement of the law, and as a consequence in the welfare of the community. Possessing this right and interest, he is entitled, if officials, from whatever cause, are not performing their duties, to ask the court to require them to do so. We therefore hold that, in a case of this character, mandamus is the appropriate remedy, and that the relator is a proper party as petitioner therefor.

III. It is contended that the title to the section does not conform to the requirements of the Constitution, which provides that

"No bill * * * shall contain more than one subject, which shall be clearly expressed in its title." Section 28, art. 4, Const. Mo.

The title to which this objection is made is as follows :

"An act to repeal section 5089 of article 15 of chapter 30 of the Revised Statutes Missouri 1919, relating to registration in cities with 25,000 and less than 100,000 inhabitants, and enacting in lieu thereof a new section relating to the same subject-matter, to be known as section 5089."

We have often held that the foregoing constitutional provision in regard to titles of legislative enactments should be wisely and liberally construed so as to not...