17 Mo. 521 | Mo. | 1853
delivered the opinion of the court.
An information in the nature of a quo warranto was filed in the Circuit Court of Bates county, against Scott, charging him with exercising unlawfully the powers, and performing the duties, of the office of sheriff within the limits of the county of Bates, when another person had been duly elected and qualified as sheriff of that county, and was in the discharge of its duties. The defendant pleaded that the general assembly, by an act approved February 17th, 1851, established the county of Vernon out of territory which before had been partly in Bates and partly in Cass counties ; that the sixth section of that act provided, that a poll should be opened at all the precincts in the counties of Bates and Cass, on the first Monday in August, 1851, and if the majority of the aggregate votes of the two counties, should be in favor of establishing the new county, then the act should be and remain in force, unless the majority of votes given within the limits of the new county should be “ against its ratification,” in which case, the act should be void and inoperative, and none of the provisions of the act to be in force until after such election. The plea alleged that the vote had been taken, as required by the act, and that the majorities had been in favor of the establishment of the new county, and that, under the provisions of the law, the defendant had been regularly appointed sheriff of the county of Vernon, in which
The rejoinder to the second replication admits the effect of the act to be, that Bates county was reduced by the establishment of Vernon county below the ratio of representation then existing, and attempts to avoid the effect thus produced by alleging that, under the act, Vernon county is not to be entitled to a separate representation until the population will authorize it; and in the mean time, her inhabitants are to vote in Bates and Cass counties, as if no new county had been established. It is obvious, from this statement, that if the section of the act which provides for the citizens of Vernon county voting in Bates and Cass counties, does avoid the effect of the reduction of the free white population of Bates county below the ratio of representation, the act is unconstitutional.
Bates county, having been established before the amendment of the constitution, is never to be reduced in population, by the establishment of a new county, below the ratio of representation. This is a positive prohibition, and is not only for the benefit of Bates county, but of every other county in the state ; for all other counties are interested in preventing a full representation being allowed to a fraction of representative population. Bates county, as an old county, is entitled to a representative, whether she have more or less than the ratio. To reduce her below that ratio, is to give, to the fraction of the ratio a full representation, and this is the very result forbidden by the amended constitution. Now if the inhabitants stricken off from Bates and included in Vernon county, were always to vote as inhabitants of Bates, or were not to have a separate representation until both Bates and Vernon were each equal to the ratio of representation, then no wrong to any other portion of the state would be done. But the amendment to the constitution will entitle Vernon county to separate representation, whenever her permanent free white inhabitants shall be .equal to three-fourths of the ratio of representation then be
It has been said, in argument, that the design of the whole amendment was to approximate to equality of representation, and that the present act does not violate the spirit of the provision, while the inhabitants of Yernon, for the purpose of representation, are still to be considered as in the old counties of Bates and Cass. But it is to be remembered that the act itself is a violation of the prohibitory clause of the constitution in reducing Bates county below the ratio of representation, and this court is not at liberty to speculate upon the probability that the voters in Yernon will continue to vote in their old counties, until Bates county will have a full ratio. . We are not speculating whether, in the future, there may be a violation of the constitution, but, according to the pleadings in this case, there has already been a violation of the constitution ; and we are asked to conjecture, whether the injurious effects of that violation may not be avoided by facts that may hereafter occur.
. It has also been urged, that Vernon county is not organized fully as a county, entitled to all the privileges of a county, but as a district, with a smaller number than three-fourths of the ratio of representation, organized for civil and military purposes, under the last clause of the amendment. The prohibition in relation to the representation of new counties is in these words : “Nor shall any county hereafter established, be entitled to a separate representation unless the number of permanent free white inhabitants therein shall, at the time, be equal to three-fourths of the ratio of representation then being.” This prohibition is entirely independent of that which forbids the establishment of a new county, when establishing it would reduce an
The act creating Yernon county a distinct county, for civil and military purposes, is not unconstitutional, because its population is too small; for the number necessary to such an organization is not specified in the constitution; but if it reduces Bates below the ratio of representation, then it is unconstitutional. Does it now reduce Bates below that ratio? The county of Bates is the territory that remains after that taken to form Yernon is cut off; for in no sense is the territory of Yer-non a part of Bates county, although its inhabitants or voters may vote “ as in Bates.” Their right to vote in elections of Bates and Cass counties does not constitute the portion of
With this view of the act, it is the opinion of the court that, as the case is now presented upon the record, the act is unconstitutional and void.
Upon the issue of fact, the finding was fully against the defendant, and no question has been made in the discussion at bar upon that part of the case.
The judgment of the Circuit Court is, with the concurrence of the other judges, affirmed.