162 Mo. 533 | Mo. | 1901
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 as
There is no dispute as to the facts. Erom 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
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 two-thirds of “all legally registered voters.” At the election in that case 547 votes for'candidates had been cast, 244 for and 47 against removing the county seat. It was also shown that there were 694 names on the registration lists at that time. At that time
In State ex rel. v. Brassfield, 67 Mo. 331, it was held that the clause of the Constitution (see. 14, art. 11, 1865), which declared that “the General Assembly shall not authorize any county, city or town to become a stockholder in .... any.... corporation unless two-thirds of the qualified voters of such county, city or town, at a regular or special election to be held therein, assent thereto,” meant all the legal voters in the county, city or town and not merely all who voted. And it may be said that all the utterances of this court that bear on this question are to the same effect. [State ex rel. v. Mayor, 73 Mo. 437; State ex rel. v. Francis, 95 Mo. 44; State ex rel. v. McGowan, 138 Mo. 187.]
It will be noticed that the two cases last above quoted from turned chiefly upon the construction given the clause of the Constitution in question in each case, although the statute then in question was also a subject of construction. In each instance the general form of expression in the Constitution was to place a restriction on a power existing, whilst that of the statute was to confer a power; the requirement of the Constitution was that the act shall not be done “unless,” etc., while the provisions of the statute was that it may be done, “if,” etc., the statute’s permission being intended to be within the limits of the Constitution’s restriction.' In the Sutterfield case the Constitution had forbidden the removal unless tWthirds of the
It is argued by the learned counsel for respondents that the object of this change in the Oonstitution was to change the rule laid down by this court in the Sutterfield case. The rule laid down in that ease was not a declaration of any principle of
The Constitution of Colorado is, in the particular feature we are now discussing,' exactly like ours except that it forbids the removal unless a majority of the voters assent. The Legislature in that State passed an act requiring the assent of two-thirds of the voters to a removal of a county seat. It was contended that the act of the Legislature was invalid. The Colorado court in an able opinion by Beck, C. J. (Alexander v. People, 7 Col. 155), held that except as restricted by the Constitution, the will of the Legislature was supreme in the matter, drawing the distinction between the powers of Congress conferred by the Federal Constitution and the inherent powers of a State Legislature; said that court: “There would be greater force in the argument employed to demonstrate the invalidity of the law of 1881, if the State Constitution, like the National Constitution, was a grant of enumerated powers. In such case we would look into the Constitution to see if the grant was broad enough to authorize the Legislature to declare what vote should be necessary to remove a county seat. But the Legislature being invested with complete powers for all the purposes of civil government, and the State Constitution being merely a limitation upon that power, we look into it, not to
It may be that in the sometimes-hurried course of revision the language of our statute as we now' have it has been repeated in the several revisions since the adoption of our present Constitution without very close attention to the change of terms from the old to the new Constitution, but a court can not take such a hypothesis into account. We must take the law as it is written and assume that it expresses the deliberate mind of the lawmaker.
We are not indifferent to the argument of the importance of this question to the people of Montgomery county and the inconvenience that will attend the annulling of the act of the county court essaying to remove the county seat from Danville,' but a court has no right to allow such considerations to influence its judgment. While the statute remains as it’ is, the county seat can not be removed until two-thirds of the qualified voters of the county signify their assent thereto at a general election; that they have not yet donq. The general election in 1900 showed that there were 4,002 qualified voters in the
We do not perceive anything in the case to justify a refusal of the writ on the ground of laches in the relators; they seem to have moved with as much expedition as could be expected.
The peremptory writ of mandamus is awarded.