| Mo. | Feb 5, 1896
This is a suit by plaintiff, as a property owner of Jefferson City, to restrain the secretary of state from discharging the duties enjoined upon him in respect to submitting to a vote of the electors of the state a proposal, passed by the last general assembly, for amending the constitution so as to provide therein for the removal of the seat of government from the City of Jefferson to the city of Sedalia.
“Concurrent resolution submitting to the qualified voters of Missouri an amendment to the constitution thereof, providing for the removal of the seat of government from the City of Jefferson to the city of Sedalia.
“Be it resolved by the house of representatives, the senate concurring therein, as follows:
“At the general election to be held on Tuesday next following the first Monday in November, A. D. 1896, an amendment to the constitution of Missouri shall be submitted to the qualified voters of the state in the following words:
“The seat of government shall be removed from the City of Jefferson and located at the city of Sedalia. Any person or persons may grant and donate to the state any land, sum of money, or other thing of value, to be used for the purpose of erecting the necessary public buildings at the city of Sedalia, or may deposit with the governor sufficient securities or obligations to guarantee the erection of such buildings. Whenever a suitable capitol building, having the same or greater floor area and appointments as the present capitol and supreme court buildings, and equal thereto in stability and architectural merit, together with grounds of the same or greater area, and an armory building likewise similar or superior to the present armory, and an executive mansion likewise similar or superior to the present building used as the governor’s residence, together with the grounds and appurtenances, shall be erected at the city of Sedalia, the same shall be accepted by a commission, consisting of the governor, secretary of state, auditor, treasurer, and attorney general, and such officers shall at once remove the public records and personal property to such new buildings, and the city
It is charged in the petition that said resolution is, and if adopted will be, invalid for the reason that it
It is further charged that the resolution is invalid, and if adopted by the necessary vote of the people would not become an amendment to the constitution for the reason that it was not read on three different
A further charge is that by the act of congress admitting the state of Missouri into the union, the action of the convention of the territory called in pursuance of said act, and the subsequent legislation of the state in accepting and acting upon the conditions of said act, the seat of government was established at Jefferson City and can not be changed without the consent of the United States.
It was also charged in substance that under said enabling act and the acceptance thereof by the people of the territory certain lands were donated by the United States to the state of Missouri upon which to locate its seat of government, and such lands were sold by the state with the assurance to purchasers that the seat of government would permanently remain at the City of Jefferson, and such purchasers, and their assigns, relying on the good faith of the state, made valuable and lasting improvements thereon by reason of all which they acquired certain vested rights which should be protected and preserved.
A general demurrer to the petition was overruled, and, defendant refusing to plead further, judgment was rendered for plaintiff on the demurrer, and a perpetual injunction was granted. From this judgment defendant appealed.
I. It has been said that “the right of the judiciary to declare a statute void and to arrest its execution, is one which, in the opinion of all courts, is coupled with responsibilities so grave that it is never to be exercised except in very clear cases; one department of the government is bound to presume that another has acted rightly.” Railroad v. Casey, 26 Pa. St. 287, quoted in State v. Addington, 77 Mo. 117.
The power and jurisdiction of the judiciary to de
In respect to the subject of amendments to the constitution that instrument declares: “The people of this state have the inherent * * * right * * * to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness: Provided, such change be not repugnant to the constitution of the United States.” Section 2, art. 2, const. 1875.
That all just government is founded upon the consent of the people, is a maxim which has been held sacred by the American people since the declaration of independence in 1776. Under our system the people are the source of all governmental power. In recognition of this principle, the people of this state, first in delegated convention and afterward by their own voice through the polls, proclaimed in their bill of rights: Section 1. “That all political power is vested in and derived from the people, that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.”
Upon the adoption of the constitution of 1875 by a popular vote, the direct power of the people was withdrawn from governmental affairs, and the administration of the functions of government was delegated to the executive, legislative, and judicial departments of state, to be exercised by officers selected by the people, with such limitations upon the powers of each as- they saw fit to impose. But the right to . govern was not
This reserved power is declared in sections 1, .2 and 3 of article 15. Sections 1 and 2 relating to amendments read:
Section 1. “This constitution may be amended and revised only in pursuance of the provisions of this article.”
Sec. 2. “The general assembly may, at any time, propose such amendments to this constitution as a majority of the members elected to each house shall deem expedient; and the vote thereon shall be taken by yeas and nays, and entered in full on the journals. The proposed amendments shall be published with the laws of that session, and also shall be published weekly in some newspaper, if such there be, within each county in the state, for four consecutive weeks next preceding the general election the next ensuing. The proposed amendments shall be submitted to a vote of the people, each amendment separately, at the next general election thereafter, in such manner as the general assembly may provide. If a majority of the qualified voters of the state, voting for and against any one of said amendments, shall vote for such amendment, the same shall be deemed and taken to have been ratified by the people, and shall be valid and binding, to all intents and purposes, as a part of this constitution.”
It will be seen that no measure of power over any governmental subject has been wholly surrendered. Power is retained, and, through the action of the general assembly, which is composed of the nearest representatives of the people, control may be resumed, over
It is true the general assembly can only propose amendments under the power delegated to it by the people. This power must be construed according to the general principles which govern courts in the construction of delegated powers. In the exercise of such power every substantial requirement must be observed and followed or there can be no valid amendment. In respect to the mode of proposal and submission, the provisions of the constitution must be regarded as absolute. The courts should not hesitate to see that the constitution is obeyed in these particulars. State v. McBride, 4 Mo. 306.
But whether the courts have jurisdiction to come between the people and their authorized and accredited agents and representatives, and arrest their will in respect to what the organic law should be, is an entirely different and more serious question. The constitution is intended for observance by the judiciary as well as other departments of government. The judges are sworn to support the constitution, and the provision for its amendment is as obligatory upon the courts as any other part of it.
“The general assembly may, at any time, propose such amendments to this constitution as a majority of the members elected to each house shall deem expedient” is the unequivocal letter of attorney given by the people. No stronger language could have been used to express authority as unlimited as the subject upon which the agent is authorized to act. The character, that is, the substance and extent, of the amendments, is left entirely and exclusively to the discretion of the general assembly. The right to propose is as unlimited as is the right to adopt by vote of the people themselves. It is as unlimited as would.be the power of a
The power, or rather the want of power, in the courts,' to review the policy or wisdom of constitutional amendments is thus expressed by Mr. Justice Bkewek, then of the supreme court of Kansas, in Prohibitory Amendment Cases, 24 Kan. 706: “But questions of policy are not questions for the courts. They are wrought out and fought out in the legislature and before the people. Here the single question is one of power. We make no laws; we change no constitutions; we inaugurate no policy. When the legislature enacts a law, the only question which we can decide is, whether the limitations of the constitution have been infringed upon. When a constitutional amendment has been submitted, the single inquiry for us is, whether it has received the sanction of popular approval in the manner prescribed by the fundamental law. So that whatever may be the individual opinions of the justices of this court as to the wisdom or folly of any law or constitutional amendment, and notwithstanding the right which as individual citizens we may exercise with all other citizens in expressing through the ballot box our personal approval or disapproval of proposed constitutional.changes, as a court, our single inquiry is, have constitutional requirements been observed, and limits of power been regarded. We have no veto.”
There can be no doubt that the question of the establishment of the seat of government is one which is a proper subject of constitutional control, and is, therefore, a proper subject for amendment. If the peo
It is plain that in order to secure a removal of the capital an amendment to the constitution is necessary. The general assembly deemed it proper that the expediency of a removal to Sedalia should be submitted to the people. It is not seriously insisted that an unconditional proposal for removal would not have been valid. But it is insisted that the amendment as proposed is, and, though adopted by the people, would be, invalid on account of the conditions annexed thereto, and the powers delegated to certain officials.
What has been said in reference to the unlimited discretion of the general assembly should be a sufficient answer to this objection. The objection is directed against the wisdom of the measure and its expediency. As has been said, these are questions upon which the people are to pass, and over which the courts have no power. The amendment derives its force from the people and not from the legislature. If ratified “it shall be valid and binding to all intents and purposes as a part of this constitution,” is the language of that instrument. Every condition and every delegation of power contained in the amendment will come direct from the people as a part of the organic law. The peo
It will be observed also that the amendment does not propose to effect a change in the location of the seat of government, but to provide the means by which a change can be effected. It might have delegated the power to the general assembly to make the change; instead of doing so it has provided a means much more complicated, but which the courts are bound to uphold and respect. The people are to judge of the practicability of the methods proposed. If the amendment is adopted it ceases to be a mere resolution of the assembly, and becomes “to all intents and purposes” apart of the constitution. The conditions will be imposed and the power will be delegated by the constitution itself.
Much reliance is placed by the plaintiff upon the authority of the case of Livermore v. Waite, 102 Cal. 114, in support of his position. While we have great respect for the supreme court of California, and the distinguished jurists who compose it, yet if the opinion is to be taken as holding that under such powers as our constitution confers upon the general assembly in respect to proposing amendments, a proposed amendment which, by the terms of the constitution is to become valid and binding to all intents and purposes upon its adoption by the people, will be ineffective because conditions are therein imposed and powers are thereby delegated, we are unwilling to give our assent to it. We do not deem it necessary to analyze that opinion in order to show that no such principle was announced, though expressions used by the judge who wrote the opinion may be open to such construction.
II. • The petition charges that by the act of congress admitting the state of Missouri into the union, the action of the convention called in pursuance of said
The control of the United States is supposed to result from the terms of .admission proposed by congress and accepted by the convention. Section 6 of the enabling act (p. 49, R. S. 1889), provided: “That the following propositions be and the same are hereby offered to the convention of the said territory of Missouri, when formed., for their free acceptance or rejection, which, if accepted by the convention, shall be obligatory upon the United States.”
These propositions, five in number, provided for grants of land by the United States to the state of Missouri. The fourth proposition is as follows:
“Fourth. That four entire sections of land be and the same are hereby granted to the said state, for the purpose of fixing their seat of government thereon, which said sections shall, under the direction of the legislature of said state, be located, as near as may be, in one body, at any time, in such townships and ranges as the legislature aforesaid may select, on any of the public lands of the United States.”
These propositions were upon the condition that the convention should provide “by an ordinance, irrevocable without the consent of the United States, that every and each tract of land sold by the United States, from and after the first day of January next, shall remain exempt from any tax laid by order or under the authority of the state.”
The convention of the territory in accepting the terms of admission declared: “And this convention,
The convention also framed a constitution, article 9 of which was devoted to the subject of the seat of government of the state, and provided that the legislature should appoint five commissioners for the purpose of selecting the land to be donated, and also a permanent seat of government; if the four sections of land selected were not deemed suitable for a site they were authorized to select another, and to purchase the necessary land. If the land selected was approved the commissioners were authorized to lay out a town under the directions of the general assembly.
The commissioners were duly appointed by the general assembly; they selected land upon which the City of Jefferson is located; their selection was approved; a town was laid out; lots were sold by the state, and by an act of the legislature the permanent seat of government was located at the City of Jefferson where it has since remained.
The contention is that under those various proceedings the state became irrevocably bound to maintain its seat of government at Jefferson City, unless by the consent of the United States; and also that the property owners have secured vested rights in the location of the capital which the state has no power to take from them even by a constitutional amendment.
In answer to the first proposition it may be said in the first place that no such condition was coupled with the proposal submitted by the act of congress. The acceptance should not be construed to be broader than the offer. The irrevocable character of the ordinance must be construed to refer to the conditions which were required to be irrevocable.
Third, the act of admission required a copy of the constitution, when framed, to be transmitted to congress. We must presume that the convention did its duty in this regard and that congress knew the interpretation that had been given to the grant, and, as the state government has ever been recognized by the United States, that it was satisfied with such interpretation, and ratified it.
In the fourth place, the plain terms of the compact negative any intention of the United States to control the state in the future changes of its seat of government. The fourth section of the act authorized the convention to form its own constitution and state government, provided it should be republican in form and not repugnant to the constitution of the United States. No limitation whatever is placed upon its political or governmental power or the power to manage its own internal affairs. The power, then, to select and afterward, if deemed expedient, to change its own seat of government is necessarily implied.
TIL Nor have the property owners of the City of Jefferson secured such vested rights in the location of the seat of government by reason of any implied contract with the state, as will prevent its removal.
The constitution of 1820 declared the exclusive right of the people to regulate the internal government of the state and to alter their constitution whenever
But neither the convention nor the legislature had power in this respect to irrevocably bind the people of the state. The right of the people to establish and remove their seat of government at pleasure involves a governmental subject about which there can be no irrepealable law.
An injunction was sought to prevent the removal of a county seat, on the ground that the citizens had secured a vested right therein which a removal would violate. The ease came before the supreme court of the United States. That court, speaking through Mr. Justice Swayne, after announcing the principle that one legislature could not bind another as to subjects of a governmental character, illustrated the proposition in this language:
“If a state capital were sought to be removed under the circumstances of this case with respect to the county seat, whatever the public exigencies, or the force of the public sentiment which demanded it, those interested, as are the plaintiffs in error, might, according to their argument, effectually forbid and prevent it; and this result would be brought about by means of a bill in equity and a perpetual injunction. * * * A proposition leading to such consequences must be unsound. The parent and the offspring are alike. ” Newton v. Commissioners, 100 U. S. 560.
The claim that property owners will be entitled to compensation in case of a removal is not involved in
IV. Another ground upon which the resolution is claimed to be invalid is that it was not read on three different days in each house of the general assembly, and did not, in other respects, take the course required by the constitution in ordinary legislation.
The provision for adopting resolutions proposing amendments is distinct from, and independent of, all provisions which are provided for the government of legislative proceedings. The provisions are in'themselves complete and are not in pari materia with those required in the passage of a bill.
The general assembly in proposing amendments does not, strictly speaking, exercise ordinary legislative power. It acts in behalf of the people of the state under an express and independent power.' The mode of its exercise is prescribed and must be observed, but the assembly is not required to look outside its power of attorney to ascertain its duty. It is only required, and it is therefore only necessary, that the vote be taken by yeas and nays-and entered in full on the journals. That this was done is not disputed.
We are of the opinion that the proposed amendment, if adopted by the people in the manner prescribed by the constitution, would be effectual as a part of the organic law of the state.
We have not discussed the question whether the remedy by injunction is, in any event, available for the purposes contemplated in this case, because defendant has expressly waived that question, and requested a decision on the broader grounds which we have accordingly considered. The judgment of the circuit court