The State ex rel. Faust v. Thomas

• Citation: 282 S.W. 34,313 Mo. 160
• Parties: THE STATE ex rel. JOHN H. FAUST v. CECIL W. THOMAS, Mayor, and MEMBERS OF COUNCIL OF CITY OF JEFFERSON
• Decision Date: 04 March 1926
• Court: United States State Supreme Court of Missouri

282 S.W. 34

313 Mo. 160

THE STATE ex rel. JOHN H. FAUST v. CECIL W. THOMAS, Mayor, and MEMBERS OF COUNCIL OF CITY OF JEFFERSON

Supreme Court of Missouri

March 4, 1926

Peremptory writ awarded.

D W. Peters for relator.

(1) The title to the Act of 1925 is clearly within the constitutional regulation. A careful comparison of the title to the amended section, with the section itself, and the original section shows that it is neither ambiguous, uncertain, nor does it make reference to any other subject-matter. (2) Said act is neither a local nor special law and does not attempt to divide a natural class, and the question of its conflict with paragraphs 2, 12, 15 and 33 of Section 53 of Article IV of the Constitution is clearly determined by Section 5 of Amendment 9 to the Constitution of Missouri adopted at a special election held February 26, 1924. If there was any reasonable ground for contention as to the provisions of Article IV of the Constitution of Missouri, cited by the respondents, it is very evident from a reading of the amendment adopted in 1924, that such limitations upon the power of the General Assembly have been removed. (3) The manifest intent of the Legislature was to comply with the provisions of Article 5 of Amendment 9 to the Constitution and provide registration for all cities in this State having a population of more than 10,000 and less than 100,000. The fact that all subsequent sections were not amended by said act so as to strike out the words and figures 25,000 and insert in lieu thereof the words and figures 10,000, does not serve to prevent the construction that the legislative intent was to provide registration under the provisions of that article in all cities having a population of more than 10,000 and less than 100,000. The proper rule of statutory construction is to ascertain the intent of the Legislature and give effect to such intent if possible. Strottman v. Railroad, 211 Mo. 251; Hawkins v. Smith, 4 Mo. 688; Spicer v. Spicer, 249 Mo. 582.

James T. Blair, Jr. for respondents.

(1) One who seeks the aid of the writ of mandamus must show himself clearly entitled thereto by alleging and proving a clear and specific right to the thing claimed. State ex rel. Porter v. Hudson, 226 Mo. 239; State ex rel. Kern v. Stone, 269 Mo. 334; State ex rel. Holman v. Dickey, 280 Mo. 536; State ex rel. Lyons v. Bank, 174 Mo.App. 589; State ex rel. Brewery Co. v. Railroad, 194 Mo.App. 668. (2) The amended article is inapplicable, for failure to amend Secs. 5090 to 5114, inclusive, by striking out the words "twenty-five thousand," and for failure to insert the words "ten thousand" in lieu thereof. (3) The alternative writ commands the city council to do a thing which only the county court has power to do, to-wit: "Appoint days and fix places of registration." Sec. 5095, R. S. 1919, is the only section which purports to confer power upon anyone to "appoint day of registration." (4) Sec. 5092, R. S. 1919, is the only section which provides for the appointment of registrars. This section is expressly limited to "all cities of this State which now contain, or may hereafter contain 25,000 inhabitants and less than 100,000 inhabitants." Jefferson City is not within such a classification. (5) The Act of 1925 cannot stand because it is a local or special law, and violates the express provisions of subsections 2, 12, 15 and 33 of Section 53 of Article IV of the Constitution. (6) There is no statute or law which authorizes the city council to expend city moneys for any election held under the provisions of Art. XV, Chap. 30, R. S. 1919. (7) Section 5089 is unconstitutional, because the title is defective, in that it violates the express provisions of Section 28 of Article IV of the Constitution. State ex rel. v. Edwards, 241 S.W. 945; State v. Sloan, 258 Mo. 313; State ex rel. v. Hackmann, 237 S.W. 742.

Walker, J. All concur, except Otto, J., who concurs in the result, and Graves, J., absent.

OPINION

WALKER

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."

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 Pharaoh 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...