The State ex rel. Davis v. White

• Decision Date: 21 May 1901
• Citation: 63 S.W. 104,162 Mo. 533
• Parties: THE STATE ex rel. DAVIS et al. v. WHITE et al
• Court: Missouri Supreme Court

63 S.W. 104

162 Mo. 533

THE STATE ex rel. DAVIS et al. v. WHITE et al

Supreme Court of Missouri

May 21, 1901

Writ awarded.

P. H Cullen for relators.

(1) It is firmly established in the jurisprudence of this State and elsewhere that when, by law, a vote is required or permitted to be taken and a majority of the legal voters is mentioned in such law as being necessary to carry the proposed measure such majority must be a majority of all the legal voters voting at such election. State ex rel. v Sutterfield, 54 Mo. 391; State v. Winkelmeier, 35 Mo. 103; State v. Francis, 95 Mo. 44; State ex rel. v. Brassfield, 67 Mo. 331; State ex rel. v Mayor, 73 Mo. 437; State v. McGowan, 138 Mo. 187; People v. Wiant, 47 Ill. 263; People v. Brown, 11 Ill. 478; State v. Foraker, 47 Ohio St. 667, 6 L. R. A. 422; State ex rel. McClurg (Miss.), 48 L. R. A. 652; Stebbens v. Judge, 108 Mich. 698, 66 N.W. 524; Bryan v. Stephenson (Neb.), 35 L. R. A. 752; Belknap v. Louisville (Ky.), 34 L. R. A. 256; People v. Berkley (Cal.), 23 L. R. A. 838; Tecumseh Bank v. Saunders (Neb.), 71 N.W. 779; State v. Harris, 96 Mo. 29. (2) The Constitution declares that no county seat shall be removed unless two-thirds of the voters of the county, voting on the proposition, vote therefor. And even this provision should be construed to require a two-thirds majority of all the votes cast, otherwise how can force and effect be given to the expression "two-thirds of the voters of the county," used in said section? Bouldin v. Lockhart, 3 Baxt. (Tenn.), 262, 1 Lea (Tenn.), 195; Braden v. Stunpf, 16 Lea (Tenn.), 581; Patterson v. Temple, 27 Ark. 202; Hogg v. Baker (Ky.), 31 S.W. 726. (3) Even though it be conceded that under the Constitution two-thirds of the votes on the proposition would be sufficient to carry it, yet the constitutional provision fixes only the lowest limit on which removal may be made and does not restrict the power of the Legislature to require a larger vote than is there fixed. Alexander v. People, 7 Colo. 155; Vance v. Ansill, 45 Ark. 400; Sanders v. Erwin, 49 Ark. 376; Hogg v. Baker (Ky.), 31 S.W. 726; Luce v. Fensler (Iowa), 52 N.W. 517; In re Kindergarten Schools, 32 P. 422; County Com. v. State, 4 So. Rep. 798; People v. Rhodes, 16 P. 298. (4) The provision of the Constitution is not self-enforcing. It restricts or limits the power and authority of the Legislature, but in order that the power retained by the Legislature may become operative, the Legislature must enact appropriate laws putting in operation these reserved powers. Railroad v. Buchanan Co., 39 Mo. 485; Fusz v. Spannhorst, 67 Mo. 256; Jerman v. Benton, 79 Mo. 148; Railroad v. Railroad, 10 F. 497; Schuteherr v. Bordeaux, 63 Miss. 59; Ex parte State, 52 Ala. 231; Brown v. Seay, 86 Ala. 122.

Shepard Barclay, Claude R. Ball, J. D. Barnett, Jas. F. Ball and W. B. M. Cook for respondents.

(1) The history of the organic and statutory law of Missouri, touching elections for removal of county seats, demonstrates that the vote in this case was sufficient to remove. Const. 1865, art. 4, sec. 30; Const. 1875, art. 9, sec. 2; G. S. 1865, sec. 22, p. 223; State ex rel. v. Sutterfield, 54 Mo. 391; R. S. 1879, sec. 5391, now (1899) sec. 6740; Railroad v. Evans & Howard Co., 85 Mo. 307; Lehman v. Robinson, 59 Ala. 219; Cooley, Const. Limits. (6 Ed.), p. 79. (2) A law must be construed as constitutional if possible. State v. Addington, 77 Mo. 110; Railroad v. Casey, 26 Pa. St. 287; 23 Am. and Eng. Ency. of Law, p. 349. (3) The effects of a proposed construction of a law are to be considered in reaching its intent. 1 Bl. Com., p. 60; Lamar Co. v. City of Lamar, 128 Mo. 188. (4) The words of the law -- "two-thirds of the legal voters of said county" -- mean such a majority voting "on the proposition at a general election," as the Constitution emphatically declares. Richardson v. McReynolds, 114 Mo. 649; State v. Mayor, 37 Mo. 270; Davis v. Brown, 46 W.Va. 716; Carroll County v. Smith, 111 U.S. 556; People v. Warfield, 20 Ill. 160; Madison Co. v. Priestly, 42 F. 817; Wells v. Ragsdale, 102 Ga. 53, 29 S.E. 165; State v. Cincinnati, 52 Ohio St. 419; State v. Langlie, 5 N. Dak. 594; 7 Am. and Eng. Ency. of Law (2 Ed.), p. 1034. (5) The Constitution by naming the vote "on the proposition" as a basis to figure the necessary majority, excludes the consideration of other votes in ascertaining that majority. "Expressio unius," etc., applies to constitutions. Bank v. Graham, 147 Mo. 251; People v. Draper, 15 N.Y. 544; Com. v. Williams, 79 Ky. 42; People v. Raymond, 37 N.Y. 428; State v. Helmantel, 21 Wis. 566; Bouldin v. Lockhart, 3 Baxter (Tenn.), 262. (6) Elections for removal of county seats are separate elections, and so the language of the act -- "by such election" -- means the election "on the proposition." State v. Co. Comrs., 19 Fla. 518; People v. Warfield, 20 Ill. 160; Clark v. Jack, 60 Ala. 271. (7) Laches is a bar to relators. Mandamus is a discretionary writ. High, Extraord. Rem. (2 Ed.), sec. 9; People v. Jeroloman, 139 N.Y. 14; People v. Board, 137 N.Y. 201. (8) Mandamus will not go where, as here, important rights have vested while relators delayed their application for the writ. True v. Melvin, 43 N.H. 503; State v. Young, 84 Mo. 90; State v. Finley, 74 Mo.App. 216; McDowell v. County Co., 96 N.C. 514.

VALLIANT, J. Robinson, Brace and Gantt, JJ., concur; Burgess, C. J., and Sherwood, J., dissent; Marshall, J., absent.

OPINION

In Banc

Mandamus.

VALLIANT J. --

Original mandamus.

At the general election in November, 1900, a proposition to remove the county seat from Danville to Montgomery City was submitted to the voters of Montgomery county. At that election there were 4,002 votes cast for the candidates for national and state offices, 2,111 votes cast in favor of the removal of the county seat and 782 against that proposition. In due time the county court canvassed the vote and declared the proposition to remove carried, appointed commissioners who selected the site, which was duly approved, a deed to the same was made out and accepted, and the county court assigned rooms in the building for the county offices, respectively. The object of this suit is to require the county court to annul its proceedings in this matter, declare the proposition to remove not carried, and require the respondents composing the county court to retain the county seat at Danville.

There is no dispute as to the facts. From the record it appears that more than two-thirds of those who voted on the proposition to remove voted in favor of it, but it does not appear that two-thirds of the legal voters of the county voted for the removal. The sole question for our consideration is, did the vote authorize the removal?

The language of the statute is: "If it shall appear by such election that two-thirds of the legal voters of said county are in favor of the removal of the county seat of such county, then the county court shall appoint five commissioners to select a site whereon to locate the seat of justice." [R. S. 1899, sec. 6740.]

This section appeared in the General Statutes of 1865, p. 223, except that for "legal voters" as it now is, it was "legally registered voters." At that time the law required registration as a prerequisite to the right to vote. In 1879, the general requirement of registration having been eliminated, this statute was revised into the form in which we now have it, specifying only "legal voters of said county."

The principle involved in this case has several times received the consideration of this court. As early as 1864 a similar question arose on the construction of an Act of 1857, which authorized the city of St. Louis to license persons to keep open refreshment booths on Sunday "whenever a majority of the legal voters" of the city should authorize it. The proposition had been submitted at an election when city officers were elected and at which more than 13,000 votes had been cast for candidates for city offices, 5,035 votes were for [162 Mo. 538] and 2,001 against the proposition. The court held that the proper construction of the statute required a majority "of all the legal voters of the city," and not merely those voting on the proposition, and that the license to keep the establishment open on Sunday, attempted to be granted by the city to defendant founded on the assumption that the proposition had carried, was invalid. [State v. Winkelmeier, 35 Mo. 103.]

Very shortly afterwards a similar case came before the court wherein the defendant claimed to hold a license of like character based on the same election, and it was held that his license was valid. [State v. Binder, 38 Mo. 450.]

But in the last-named case the record did not show how many votes had been cast for the candidates for office; it only showed the vote on the proposition. The court, therefore, unless it had taken cognizance of a fact outside the record in the case before it, had no information except as to the vote on the proposition. In the opinion it is said: "An election was held, accordingly, on the day named, the result of which was, as it appeared by the returns of the vote to the city register (a certified copy of which was given in evidence), that the whole number of votes cast at said election was seven thousand and eighty-five, of which five thousand and fifty-one were given in the affirmative, and two thousand and thirty-four in the negative of the proposition. . . . This was the whole evidence concerning the election and vote." That case, therefore, can not be considered as at all in conflict with State v. Winkelmeier.

In State ex rel. v. Sutterfield, 54 Mo. 391, the court construed the statute involved in the case now under consideration, as it was in 1865, when it required the assent of...