*1 appear in Section or that these articles are not such “articles may products disposed open or market at a profit State,” provisions under the supra, prison produce. board is authorized to manufacture and very I question suggested respondents think the thus must be de- termined, requires plain meaning and the it be of Section contrary respondents’ ruled contention. suggested, none, why prison
No reason is I and can think badges dispose board on a plates license and chauffeurs’ open will- competitive state, municipality person market to. ing buy. knowledge and It of common that such able is matter usually bought open, public, articles are sold unrestricted competition. sought The record here shows that the contract now competition, relators is the or an effort to sell result unrestricted market, prison open performance on the and that board would saving great profit yet, according mean to the State. And majority opinion, respondents claim that board is not authorized produce they these articles because “are and sold manufactured per specifications in a contract and are not articles sold on the ’’ open shoes, clothing market. So are and other articles named quoted per specifications last above clause of 8340 “sold as contract,” large frequently quantities to be manufactured for particular particular purpose customer and for a details, regulations specifications commonly all the attend competitive bidding, just as was in this instance. done help sound, purpose
The evident of-Section is to effectuate a public policy employment of inmates of humane reference to institutions, liberally penal provisions and its should be construed. interpreta- approval narrow and unwarranted respondents Our ’. give as to the
tion of this statute can but rise to confusion and doubt unquestioned, engage in other power, prison board’s heretofore production upon the successful continuance lines of manufacture approval great public depends. Such should not interest Hag- respectfully I dissent. given, for reasons herein stated Ellison, JJ., land and concur. Baylis Gordon, Relator, relation of T. at the Missouri, S. W. Becker, Secretary U. of State of Missouri. 49 Charles (2d) 146. April 1, Banc,
Court En 1932.
.1054 *3 Williamson, Crouse, Floyd John I. Jacobs, Langdon Emmett J. E. Aubrey Ii. Jones, Hammett, Ii. Williams, Fred L. John T. Barker and Charles M. Howell for relator. *4 Ray Weightman, Shartel, Attorney-General, Assistant
Stratton George Willson, tel- Attorney-General, David M. Proctor and Lieu C. Cunningham respondent. lies for original proceeding in
RAGLAND, J. This is an mandamus Baylis Secretary relator, Gordon, compel receive T. State to declaration of his intention and file his office relator’s written 2, August primary election to be held to become candidate senatorial district 1932, for the office State Senator from the Third Clinton, Missouri, composed Clay, Platte, De- counties of August 6, kalb, Holt, promulgated Andrew and as made and certi- and as forth Revised Statutes set county coun- of each fy name as candidate to the clerk relator’s file relator’s ty to receive and Respondent in said district. refuses alterna- declaration, grounds, his return to our on two as disclosed longer State senatorial in this First, tive writ: therе no exists Dekalb, Platte, Clay, Clinton, composed of district the counties super- districting Holt, Act has been that the Andrew Attorney- Secretary Governor, of State of the seded act July redistricting pursu- General, 14, 1931, promulgated Constitution, notwithstand- IV of the ant to Section Article —this power to redistrict previously ruled that ing this court had just by an the officers named withdrawn from been the State had districting Constitution; and, second, that amendment promulgation, has be- of its if valid the time 1901, even Act of a.t through lapse time. come unconstitutional ruling reconsideration I. contention calls The first 560. Three sections Becker, 290 Mo. Lashly in State ex rel. *5 directly involved: are IV of the Constitution
Article here- subject the limitations legislative power, 1. The “Section Representa- House of contained, in a Senate shall vested ” Assembly Missouri.’ State of General tives, styled ‘The to be “Section 7. Representatives Senators and shall be chosen accord- ing to apportionment the rule of Constitution, established in un- this til the next decennial census shall United States have been taken, and the result ascertained, thereof as to this State when the apportionment adjusted shall be revised and on the basis of that census, years ten every upon thereafter the basis of United census; States . . apportionment . such to be made at the first Assembly session of the Provided, General after such census: each any time, That if at any cause, or from the General shall fail or Senators, refuse to district required the State for section, duty Secretary shall be the of the Governor, of State and Attorney-General, thirty days adjournment within after the duty devolved, General on which perform said duty, and to file the office of the full State a state- Secretary by them, including ment of the districts formed the names of the district, thereof; counties embraced in each and the numbers said signed by them, statement to be attested the Great Seal State, proclamation Governor, shall the same binding Assembly.” if and effectual as done legislative
“Section 57. The of the State shall be vested legislative assembly, consisting rep- in a aof senate and house of resentatives, people but the propose reserve themselves Constitution, reject laws and amendments to the and to enact or polls, independent same at the assembly, and also option approve reject polls reserve at their own or at the legislative assembly. petitions . . act of the . Referendum Secretary ninety days shall be filed 'with the than of State more adjournment legislative assembly after the final the session ” passed bill on which . . . the referendum demanded. originally part adopted Sections are of the Constitution as commonly in 1875. known as the initiative and refer- Lashly adopted In endum amendment and was in 1908. case it adoption was ruled that of the initiative referendum necessary implication amendment the of Section was repealed. ruling scrutiny Will that bear of a re-examination? question us. respondent propounds That is the sovereign power except portion delegated All State, of this They general government, to the rests with the of the State. may grant having pleasure at withhold such power, their agencies they gov- granted up it to have set for their own they any part it, through the ernment, withdraw all or By they granted organic law. abоve medium of their Assembly, limitations power to the General grant would have been no broader in the Constitution. The contained contained,” words, “subject been to the limitations herein had the
1059 broadly speaking parts omitted. Because all of state constitu the following agencies tions, general grants powers the to state certain they create, powers, directly are upon but limitations those or County indirectly. Court, 13; People v. 15 v. Draper, Mo. [Hamilton Ed.) 532; Cooley’s (8 N. Y. Const. Limitation so And 61.] grant general legislative authority the of the the State found subject limitations, express said Section is likewise the Constitution; implied, be contained to hold otherwise would repealed of 1908 the whole affirm that the practically amendment as which of stood, Constitution it then course unthinkable. legislative power One which said with limitations Assembly Section 1 Section of Article invests the General is found in 1Y 7. shall provides Section former that the State be said The (34) districts, nearly equal population into convenient as divided may be, by the same to the last decennial census as be ascertained States; appointionment taken the United latter that adjusted years upon the every ten basis senators shall revised census, apportionment “such to be made at the the United States Assembly Un after each such census.” first session the General 1908) (prior adoption of the Amendment der these sections Assembly required apportionment was to make the the General power so, its prescribed; if it to do and at the time failed the manner Patterson, 229 premises was at end. State ex rel. in the an [See legislative power Following these limitations Mo. 373.] over; grant if Assembly, was upon the there a conferred census, first body apportionment to make at its session after failed given Attorney-General Secretary were Governor, of State 7 therefore contained both perform that act. Said grant power. legislative legislative power a limitation on indirectly (That grant regarded operating as itself not affected character was unimportant.) limitation is Its essential (provided) may proviso. “The word cast in form of a because independent out- conjunctive precede sense and be used Commission, 312 J., in Castilo grant power.” and-out [Atwood, ap 7. It thus clearly in said Section It was so used Mo. 269.J originally adopted invested the Gen pears that the Constitution senatorially, to redistrict eral limitations; clearly it also^ said Section con defined redistrict, specific power upon the three state officers ferred contingency only that the General them but to be exercised power given prescribed failed at the time to exercise purpose. for that subject to the ref- legislative people
The acts that the intended through adoption next to be erendum are their said language it: about leav'es no doubt considered. the section op-
“the own reserve to . . at their themselves . approve reject any tion to as- polls at the act of sembly.” question “legis- Nor is there as to what meant assembly assembly:” consisting “A lative of a senate pro- representatives.” and house of Further on the section it is *7 Secretary petitions vided: “Beferendum shall be with the of filed ninety days adjournment State than aftеr final not more the of the legislative session assembly passed the bill on the Very legislative is clearly gov- demanded.” of a the act referendum ernor, secretary attorney general fall state does not within provisions. these referendum if It follows that the of said subsisting Section 7 still part alive and of the Constitution the act districting of the three state therein named the officers state senatorially subject is not to the referendum. people
Did the adopting Amendment the intend to legislative make all a affecting whole, including acts the State as the apportionment acts making senators, the State for the election subject language, legislative to the “The authority referendum? The legislative of the State shall assembly, consisting be vested in a of a representatives” senate and house of purpose; was for some used it disposed by cannot be saying that the the framers of amend- blindly wholly copied ment Oregon, it the Constitution dis- regarding existing provisions A of our own Constitution. rule of greatly construction which by respondent stressed is that all and every part of given Certainly a written constitution must be effect. portion just quoted merely of Section was not intended to re- peat grant legislative power confirm the contained said Sec- tion thing. 1—a vain and reasonably useless There could have been but purpose subserv'e, namely, one which it could to recall all the legislative authority granted, which had theretofore been including Assembly both that which had been vested in given that which had been the three state officers to establish districts, power senatorial in order the whole of the then to be grantеd subject relating could be made to the reservations legislative authority initiative and referendum. “The of the State” people granted, means all of it: all of is taken it back and then subject Assembly named, to the reservations to the General alone. Manifestly the intended, framers the Amendment of as did adopting it, every people vestige granted directly agencies by itself Constitution of the state government, of which would whole, exercise affect State as a subject provisions. should be to its initiative and referendum It is ob- vious, however, legislative power conferred various solely agencies regulation government to be used local local has disturbed the machinery Amendment. This because been legislative acts the initiative and refer- lor submission of provides will every instance there vote of contemplates that endum powers. of those reserved of the whole State the exercise courts county courts the circuit with which the IV respectively have Sections of Article been invested Amendment the Constitution has not therefore been affected of 1908. suggested of 1908 with- that,
It has been the Amendment while subject granted draws all to the limita- theretofore Constitution, contained in to vest it in the General tions order alone and in addition the the same limitation referendum, yet limi- concerning reservations the initiative senatorially tation that the General shall district the State census, being specific at its first after each United States session specific power, falls with to which it limitation applicable. eliminated, alone is With limitation would follow Legislature, people, that it is the or the to redistrict duty *8 (just upon the basis of the State for the election of senators once and duty census) census, States and that such is a after each United continuing discharged only by With performance. can one which be unhesitatingly hold, so would these views we are accord and we judg- necessary pass for if in was us the decision of this case it regarding wall for on them There be no reason decision ment making impossible a which are now down as re- we about hand districting for senators for another de- of the State the election of and until after the next census. cade apportion
In this brief discussion it has been assumed legis is a election of senators ment of the State into districts for the by designated act, Assembly or lative whether done the General performance act calls for the exercise state officers. That the of that question. legislative power longer open ex rel. is no [State Becker, (2d) Respondent’s 45 W. counsel con v. S. Carroll 533.] cede as much. foregoing suggested in
The constitutional construction Lashly Becker, rel. respects the one announced in State ex essential it. supra. regard We as sound and reaffirm that construction this court held views present if of the members of majority Even Lashly case, we conclusions reached in accord with the not supposed It was loathe to now overturn that decision. would be finally provision the Constitu- construction have settled the government. Since its goes very State which frame of the tion changed. completely Shall personnel court has rendition organic dependent law' be stability part so vital a of the judges of the personal happen who be members views at end of each decade? court requires that when stability of law
“The this fundamental by the meaning provision of a has been considered constitutional meaning be after decisions, cannot court and declared its argument. . . . The open question or further ward considered change same judges. The court is the Constitution not with the does though de judges change, and it will not overturn a deliberate Legislature under cision the constitutional highest rights exercised without political have been held and 329-30. 264 Ill. question years.” Czarnecki, many for [Scown County, 6 People Idaho, v. Alturas See also 416.] not It be that the of the State have should further noted only effected acquiesced in the construction of the Constitution Lashly case, given it through impliedly but have the decision proposed by the Constitu- Among other approval. their amendments adop- 1922-1923, Missouri, and submitted tional Convention February 26, 1924, was one special tion at a election held 7. provided: said amended It ‘ ‘ Secretary Governor, apportionment Such shall be made Treasurer, or a State, State State Auditor and Attorney-General, majority days of such census them, the result 'within after sixty has been ascertained. Secretary of a full
“Such officers shall file the officeof containing the dis- signed by majority of them statement them a Upon in each. tricts, names of the counties numbers, their and the districting in full force shall be filing the new of such statement and effect. mandatory and of such shall be “The acts officers ministerial
shall, subject, perform shall and failure to to"the referendum not neglect proper- refusal or failure tо impeachment, and cause for discharge ly prescribed shall perform within the time herein *9 fully continue until duty the same shall officers of such but Manual, 1923-1924, p. performed.” 523.] [Missouri overwhelmingly at the defeated was proposed The amendment very rejecting clearly indicated people in polls. The action of the State for the election of power to district the they desired the subject to the refer- Legislature and be with the to remain senators endum. seriously. He respondent not take this contention of
II. We do every mak- contemplation act of said Section argues that within the of ex- for the election senators ing apportionment of the State an it is made years. It is true that of ten pires limitation at the end adjust apportionment Legislature and duty of to revise census, last States but every basis of the United years upon ten nothing if language to indicate that we in the of the section find 1Ó63 If re- duty to an end. government comes performed is not the State legally constituted sound, have not had a spondent’s contention is we In that jure 1911. government, de since senate, consequently and a made year Assembly the three state officers both the General and adjust apportionment, efforts, failed, to revise and abortive but continuously neglected to do so ever has and the General Assembly since. senate, as representation in the relating equality
Matters without State, portions are and the rural between cities Such in this case. question involved influence the decision through constitutional equality representation out must be worked which the usurp powers not This court means. governmеnt, of their upon departments other
State have conferred or reserved to themselves. JJ., Ellison, White,
A Gantt and peremptory. writ is awarded. J., concur; White, separate opinion. in a and J., opinion Frank
Atwood, separate G. in a in which dissents JJ., concur; Frank, J., separate opinion Ecmuood, a Ilenwood, J., Atwood, J.,G. concur. Con- IV, of the WHITE, (concurring) Section Article J. —I. redistr’icting of the apportionment provides for
stitution Assembly, into senatorial districts Assembly fail or re- shall if the General proviso that cause Governor, duty Secre- it is the the State then fuse to redistrict Attorney-General It is claimed that redistrict it. tary of State legislative all-embracing au- upon is a limitation Article, of that thority given by Section to the General grant power. argument power, legislative limitation If it is a mere other articles limitations that article runs, it like other assembly, and it power of the Constitution amendment, 57. by the -was not affected legislative au- directly power of grant proviso is In form the with the them In effect vests officers. thority to three executive But, it is would not have. authority,.which otherwise they grant incidentally a result collaterally argued, because away it is a the General that much it takes limiting loses incidentally effect it it has that Because limitation. grant power. effect of positive as a direct and its character grant, power is a while a general grant argument is that grant. pow'er is not a special grant *10 upon the purpose In an indirect limitation and effect it is not even way any Assembly. function authority It limits in no of the General without that body. could do "Whatever the General could authority with it in force. Those offiсers proviso it had to do any redistricting abridge, modify act of the prevent, or annul not Assembly. power conditional It is said that the effect of General lodged power “withdraw such the three ivas to officials nothing. The It for a limited time.” withdrew adjournment three Legislature before the lapse must power of the They Legislature not act. when the could officials could act. acted “subject con- language Lo the limitations herein The form, effect, tained,” purpose means course limitations specific limitations to there. It does not the direct and referred upon legislative by powers mean the indirect effect functions caused government. upon other branches of the conferred II. In amendment, people saw fit to restate: legislative authority “The shall vested in the Gen- of the State Assembly,” eral but added people power propose
“Ancl the reserve to themselves the laws reject and amendments to the Constitution and enact them at polls.” people The power regarding, “reserve to themselves” the merely might Assembly, laws v'hich are or be enacted the General covering every subject legislation. but laws that amendment By they authority back, reassume, legislative granted, take all theretofore general grant with the Assembly, before to the General and the additional limitation of initiative and Can it be doubted referendum. that the apply initiativ'e and every referendum and method legislation? people reserve to themselves the unlimited State, to redistrict legislation they to control do other legislation. provided referendum, The method initiative and applying Assembly. latter No pro- to acts the General only vision is made redistricting Governor, for a referendum of Secretary Attorney-General. of State and Can it then be said that people authority intended to leave to them an uncontrolled above granted Assembly? apart to the General To set those officers distinguish beyond their acts as the control of be- people, yond the comprehensive reach reservations of Sec- reserving 57? legislative “power” tion After to themselves all they did- not reinvest those officials as did As- the General sembly formerly granted. with the The absence provision referring of a acts of officers is those grant again away. conclusive of the intention not to taken majority opinion. I concur in the
1065 (dissenting) regular as- ATWOOD, C. fell to me on J. ease —This signment. opinion prepared pursuance and there- submitted majority judges, approval did not with of a and of meet by Ragland, J., has opinion prepared an thereafter and submitted majority opinion in carrying insofar as it follows the received a vote Lashly Becker, 560, State ex rel. Mo. S. W. on the my opin- in issue. Inasmuch as reasons set forth matters here Lashly necessarily why apply overruled ion decision should be equal herein, from opinion force ^nmritv filed my sub- respectfully dissent, opinion incorporated I is herewith and stantially originally as and submitted. written Hen- Frank wood, JJ., my concurring, expression of dissent. as Baylis original T. by relator,
This proceeding is an in mandamus Secretary file in his Gordon, compel of State to receive and become a candi- office relator’s written declaration of his intention to thе of- August 2, primary date in the to be held election Missouri, as fice of state senator from the Third senatorial district in Section promulgated April 6, 1901, made and as set forth and as such certify name 192'9, Revised Statutes relator’s and county county in district. candidate to the clerk of each said alleging requisite qualifications After relator circumstances and elected, July duly petition 14, 1931, then his states that on “the Attorney- acting Secretary qualified Governor, State and and ’’ state, attempt said Missouri, to redistrict the State did initia- illegal in direct conflict with but that such act was because IV, of the Article amendment, Section tive and referendum void conflict, it is Constitution, if not still and that even so districts provisions that senatorial because violative constitutional may bé. equal in as compact nearly popuation shall be as cer- qualifications and respondent In relator’s his return admits generally the remainder allegations petition, denies tain other in his redistricting things, denies, among specifically other Constitution officials is violative of said three state act redistricting is alleges that said alleged; and otherwise inv'alid as as. district of the Third senatorial that relator is not a resident valid, districting Act of under validly formed, and that now in- declaration, is unconstitutional his said relator seeks to file respondent’s re- allegations denying the reply filed valid. Relator doctrine stare application of the estoppel and turn, pleading 1901. redistricting Act of decisis defense Secretary of State Governor, redistricting the State In thus (State mandate, Attorney-General so under the assumed to do 40; 433, 464, S. W. Hitchcock, 241 Mo. rel. Barrett v. ex (8 Ed.) 1), p. 164, аppearing n. Limitations Cooley’s Constitutional incorporated in IY, 7 of Article first in the follows: adopted which section is as State Constitution according to the Bepresentatives shall be chosen “Senators and Constitution, next until the apportionment established in this rule taken, and the decennial United States shall have been census apportionment ascertained, when the result thereof to this State every census, adjusted of that shall be revised and on the basis *12 census; if years of the United States or ten thereafter the basis a State delayed, the basis of taken, such census be not or is then on Gen- the first session of the census; apportionment to be made at such time, any if Assembly Provided, That at eral after each such census: fail or refuse to dis- cause, or from the General shall section, required in it shall be Senators, trict the State for this Attorney-General, duty Secretary of and Governor, of the State thirty adjournment of General within after the days duty, file in the duty perform on which said and to devolved, Secretary of the districts formed officeof the of State a full statement by dis- them, including in each the names of the counties embraced by signed trict, thereof; them and the statement to be numbers said proclama- by upon the State, and attested Great Seal of the and binding effectual as Governor, tion of the shall be as the same Assembly.” if done the General authority deny for state executive
Counsel relator these perform contending officials in the duty, quoted of the repealed above first clause impliedly section was first sentence of initiative referendum amendment in 1908. This sen Constitution, IV, adoptеd Section 57 of Article is as follows: tence legis-
“The
State
in a
of the
shall be vested
assembly, consisting
representatives,
lative
of a senate and house of
propose
but
laws and
reserve to themselves
reject
Constitution,
amendments to
or
the same at
and to enact
polls, independent
legislative assembly,
also
reserve
reject
polls any
option
approve
at their own
at the
act
assembly.”
decisis,
up
plea
As stated in relator’s
of stare
this contention was
Lashly
1017.
Becker,
560,
held in State ex rel.
v.
Mo.
235 S. W.
likely
It
is not
the soundness of this decision would now be
challenged by
in
proceeding
a similar
this court but for the fact that
years
lapse
Assembly, following
its cus
after the
of ten
fifty
again
years,
obey
for
has
tom unbroken
more than
failed to
constitutional mandate to district
senators at its first
taken
session after each decennial census
the United States. It is
every
a
of no little concern to
citizen of
his
matter
the State that
suffrage
handicap
under
right must be exercised
of an an-
tiquated
redistricting
grossly unequal plan
and now
of senatorial
thirty years ago.
majority
laid out more than
It well
said
opinion
redistricting
in the
ease of State ex rel. Barrett
Hitch-
433,
“Inequality
representation
Recurring position to in this his relator’s adoption of amendment point brevity, say that the this mendable and concerned, change case is no so far as this “made in the Constitution away Secretary of At- Governor, State and except to take from torney-General in them theretofore vested and State for senators of Article of the Constitution to district the equal people directness power in the of the State.” With to vest that can respondent by no intendment for insist that reasonable counsel change was made. it be said amendment of the initiative and referendum
The interpretation Lashly opinion in the case urged following relator, majority of that this “deals the course quote, we section from which rights “undertaking to of referendum secure legislation,” and legislative subjeсts,” framers this upon all and initiative gather and up to by the first clause thereof intended amendment authority in the General power or legislative all center they (the in- people) legislative forum; could single so “one thereby excluding initiative,” 'or the the referendum voke either independent branches, authority from other power or “legislative ’’ they say, repealing so, government, and officers, .1068 581, 582, Article IV. Mo. l. c. quoted Section 7 of 583.] above [290 also applicable to statutes are
The established rules of construction Carthage Hack applicable ex rel. City to constitutions. [State 1078; mann, ex rel. Buchanan 287 Mo. S. W. State 293, 301, A County Imel, S. fundamental W. 783.] Mo. statutory interpretation rule of constitutional as well as is that legislative sought of all intent first words “should language employed; ambiguity and if the words free from and are distinctly doubt, express plainly, clearly and and the sense instrument, the framers no there is occasion to resort Statutory to of interpretation.” other means Lewis-Sutherland [2 Ed.) (2 Ed.) 366, p. 798; (8 Construction 1 Cooley’s sec. Cons. Linn. p. 125, p.1, n. n. 1.] quoted words used the above first sentence the initiative appear ambiguity referendum amendment to be free
doubt, contrary. relator por- makes no claim to the In the latter purpose of this sentence the ex- clearly tion the amendment pressed being (italics ours) to enable the to “reserve propose laws and amendments the constitu- themselves tion, reject enact or polls, independent the same at legislative assembly, and also reserve option at their own approve reject any legislative assembly.” polls at the act It language plain follows that neither so calls nor admits of construction, necessarily precludes pur- existence broader pose assumed to opinion exist when the held majority it was thereby intent of the framers (italics of this amendment to secure ours) rights legislative “the referendum and initiative subjects.”
Applying interpretation the same preceding rule of clause of the first sentence of amendment, must taken to mean just says, what to-wit: “The
shall be assembly, consisting vested of a senate and *14 representatives,” apart house of existing long etc. But from and prior adoption to the of this 1 of IV amendment was Section Article which, the Constitution pursuant plan separation to powers, delegation also covered the field of legislative power whole Assembly to the manner, except "General in like it contained clause, ours) (italics limitations as follows : contained, to the limitations herein legislative power, “The shall be in a representatives, styled vested Senate and House of to be ” ‘The General State of Missouri.’
Now how should provisions Cooley’s these tw'o 1 construed? In (8 Ed.) 2, Lim. 127, very Const. n. it is said proper that a rule of statutory the whole is to be constitutional and construction is “that arriving part; with a at examined view the true intention each
1069 genuine regards and Sir Edward natural and this Coke as the most 129) authority (p. expounding Also, method of a statute.” same says: constitution, adoption “Upon the of an to a amendment thereof; if it been part becomes a much so as had amendment as originally Constitution; construed incorporated in and to be it 228, 784, 93 accordingly. Chicago, R. 195 W. etc., Co., v. Mo. S. [State Miller, 92 Rep. 661; Hopkins 113 Co. v. Steele, Am. St. & Meredith 1917C, 1023, 110 Ann. 115, 648, 1916C, Ohio N. R. St. E. L. A. Cas. provisions possible, If it be harmonized with all other must 926.] 479, E. 313, 136 Ga. 71 S. Clark, v. the Constitution. [Hammond S.) So. (N. 727, 38 L. v. 119 81 77; Jackson, R. A. State Miss. 1.] last prevail.” will If cannot be the amendment this done [Cases 564, 17 Angle, 109 N. also, People v. Y. cited: ex rel. Killeen above N. E. 413.]
If, insists, first clause 'the first as relator sentence gather up here intended to and amendment under consideration was Assembly, legislative contains redelegate all to the General being and in ir having adopted no been later limitations clause and delega conflict with because it is unlimited reconcilable legislative repealed tion limitations in Section power, clause delegated any legislative power all without limitation what and Assembly. legislative soever Lewis-Suther to the branch General [1 (2 Ed.) 475, Luckett, Gorham 250, 78, land Const. sec. Stat. n. Cooley’s Monroe, Ky. 6 B. Lim. 146, 154, cited; therein Cons. (8 Ed.) cited; Law, p. 129, n. and cases Black’s Constitutional 41; p (c), 52; Lashly n. ex 12 C. J. sec. n. rel. 560, 589, 235 S. W.
Becker, Mo. 1017.] majority Lashly opinion in the case undertakes to avoid by merely saying contention “it is un inevitable result relator’s people,” at say that thinkable to such was intent of assuming purpose refer same of the initiative and time extend clearly already observed, beyond that ex amendment, endum legislative “all so as include sub pressed in the amendment itself jects.” l. Neither framers Mo. c. do we believe 582.] [290 then repeal any of the limitations of this amendment intended delegated in the Constitution contained that this Assembly, if there been intention to the had gathering up redelegating purpose serve the clause should legis single as “one to the General surely appear forum,” a limitations clause such then lative expressly ing have been then аnd there inserted would brought construing by judicial construction. When to be left a constitution resort be had an amendment interpreting Legislature proposing amendment, act of the the title 41), purpose gathered (12 n. but no such can be from such p. J. C. *15 concurrent “Joint and title to as follows: this amendment which is qualified an submitting resolution of Missouri amend- to the voters and ref- concerning initiative ment to the Constitution thereof 1907, p. erendum.” [Laws 452.]
As a clause fact, presence matter for of this first the reason legisla- of the first apparent sentence of the amendment is ascertaining history tive amendment, proper consider Lewis-Suthe,rland Ed.) (2 (2 the intent of the framers Stat. Cons. p. 884, 47), copied literally from n. that its was almost is text previously initiative and referendum that had been amendment Oregon adopted having constitu- well as other states no such provision Consequently, tional if in our 1 of Section Article IV. any thought proposing adopting now before us amendment given was to the force and of this first it must been effect clause have pre- a introductory was mere Section reaffirmation fatory purpose to a statement of the of the one amendment Assembly by was further limit the carving reserving out and t.lm uowers to initiate and stated, any- refer laws as therein and that this clause neither added thing anything to nor took IV, from Section which was Article ’ ' - — already part a Indeed, of the Constitution. counsel for their brief: “The pari two sections stand materia are to be construed
together. construing them, legal So Section effect said: 'The legislative authority of State, subject to' limitations herein contained, shall assembly vested consisting of ” Sеnate Representatives.’ House
Having thus made the 1 part limitations clause of Section first clause relator, majority counsel for following the opinion in Lashly ease, repeals by say that this first im- clause plication proviso grant because the “a is power and not a limitation.” However, given the reason is an thus play words, universally on for it is a recog- unwarranted truism interpretation nized of state grant constitutions every implied is also an limitation of grant the source agency other to which the might same has been or granted. But more of this anon. favored, Repeals by implication (1 Cooley’s are not (8 Cons. Lim. Ed.) p. 316), and the above evidently conclusion reached un- qualified application general rule, mentioned the same authority, page on column, second “that when a new statute evidently intended to the whole relates, cover to which it by implication repeal it will prior all subject.” statutes on But pains their we cannot see that counsel have aided posi- their
1071 They any justification or conclusion reached. tion offered tlie 1 because repealed any part claim 57 of Section do not that Section they Say pari the same the in and mean two sections are materia not, 7 thing. they Nor in is provision do Section contend that effect, officers special delegation power in of the state executive named. If it does fall limitations clause therein within the say, so, 57, Section they rightly think be read into and we should appear- meaning it the same clause how could have been within the of delegated was not ing in 1? The of the so Section nature сhanged by 57. limitation passage If it never was a of Section general delegation General As- sembly imparted it it cannot be said that it ever was valid validity districting color of that has even senatorial been redistricting 1901, yet, notwithstanding since 1875. made And right peremptory under which relator to a writ of mandamus claims respondent, redistrictings adop- made against prior and all since 1875 in have been made state executive tion of the Constitution again have assuming power, act this we time and officers under suggests validity proviso now one affirmed the even no meaning was within limitations it not a limitation 1. clause Section contention, proviso
If above that the we should concede relator’s question general grant not a limitation 1 which Section first clause of Section is reaffirmed in the validity proviso prior adoption even to the of Section invoking recognized exception could be sustained only a well general stated, to the rule of construction last above ours) (italics given plainly particular “effect intent must be to a expressed though apparently opposed part constitution, one of a general Cooley’s to a parts.” intent from other Const. deduced [1 citing p. 129, Shuman, Lim. 5 Tex. How n. Warren 454.] ever, if this as an doctrine can invoked to ex sustain prevail though apparent pression particular of a intent that should ly general simultaneously adopted, opposed to the intent Section equal propriety with like wdien the be invoked effect identically general proviso is with the intent read connection same subsequently If first clause expressed adopted. Section first, legislation” 57 “deals with the sentence course generally accomplish purpose initiative and so does manifestly expressed, deals referendum as therein while purpose subject specially accomplish the different with the same redistricting. of senatorial applicable is thus stated The doctrine here Ruling Case ;
Law, page 922, section 171 implied repeal “To effect an they of one statute another must subject object pur- both have relate same the same pose. purview Where there is a difference in the whole of two apparently relating statutes subject, to the same former is not ’’ repealed. Cyc. Also, page IV: section subject there dealing general “Where is one with a statute comprehensive dealing part terms and with a another same in a more way minute definite two should *17 together read possible, if with ef- harmonized, -giving a view to fect to legislative any a consistent policy; to the extent of but necessary repugnancy them, special prevail between the will over general the regarded special statute. Where will be later, the statute is it exception
as an to, qualification prior general of, or the one; and where general later, special the will act is the be con- exception strued as remaining terms, repealed an to unless is its it express: by necessary in implication.” words or
So, in Sedgwick Statutory on Construction of and Constitutional (3 Ed.) respect Law p. 98, the rule: author observes to this philosophy “The is, reason that when the mind rule legislator a has been to details of and he subject, turned the subsequent general treating has acted in upon it, terms, a statute or general manner, expressly in a contradicting the and not original act., the shall not be as intended to affect the considered particular positive previous provisions, more or it is ab- unless solutely necessary give to a in construction, the latter act or- any der that its meaning words shall at all.” have have in Tax We also thus stated doctrine State ex rel. Com the Crawford, mission Mo. S. W. 341: special “Further, repealed a is gen- act not to be held one of nature, eral enactment, negative even later in the absence of inconsistency necessarily an words unless irreconcilable is raised. M. County Court, rel. M. & Railroad Co. v. ex Mo. [State 453.] special provision applicable object if particular And a to a be in- general special provision consistent with even later will law, a the prevail. Mo. Green, [State 583.]” bearing So, in proviso special in mind that the Section ais delegation legislative power withdrawn from General As- the sembly particular for a purpose, and that first clause of Section 57 is at most a in a previous gen- reaffirmation identical terms of delegation legislative eral power Assembly pre- to General liminary accomplishment wholly a purpose, different rights which was not “to secure the of referendum and initiative legislative subjects,” erroneously upon assumes, relator but itself, reserve “power as stated the amendment propose laws and amendments to the and to Constitution, enact reject at polls, legislative same independent of as- or,re- sembly, option and also approve ... at their own ject polls any at act assembly,” seems clear that the labored upon bring construction relied relator to about implied repeal proviso wholly in question is unwarranted. power delegated by
But the redistrict, 'the IV, of Article if character as contended relator majority opinion» Lashly and as held in ably case, in the is indubit- upon legislative power a limitation generally delegated upon if a limitation power delegated there a it is limitation its reaffirmation initiative referendum amendment which is Section 57. delegation loosely While such is referred sometimes to as uniformly “grant,” reality authorities hold that is “grant” limitation because special agency valid to a necessarily agency limitation another to which the same generally been granted, has counsel for relator neces- sity rest their ipse claim that it is not a limitation on the dixit of majority opinion Lashly case. clearly
The distinction thus indicated Black’s Constitutional (Hornbook (3 Ed.) (italics ours) Law p. : 137), Series sec. *18 system government
“Under in the of United States, the the any power people possess of each of states the the inherent to make portion own governance. plen- laws their But a of this ary legislative power by each has been surrendered of the states by people to the United States. The remainder is confided the by state, constitution, representatives their to their constitut- ing legislature. time, the state At the same the in- same they upon strument, impose certain restrictions and limitations delegated. legislative power the Bu4 thus state constitutions are not construed, sense), grants general poiver (except he as in most the legislature. as the the hut rather limitations state may principles legislature Prom lawfully it the a state these follows that any law, character, any subject, on unless is enact expressly prohibited, particular instance, in either the or neces- sary provisions implication, the of some law which it is bound i-egard supreme.” as 352, approval page 42,
On note the same cites with Henderson, (Ky.) 74, to the effect that “a Collins v. Bush con thing directing particular done provision stitutional is legisla legislative power the on extent that limitation prevent doing lawfully any action which' take would ture cannot ) (8 Cooley’s Lim. thing p. directed.” In Cons. Ed. ; ours) is said, (italics with reference to constitutions state only “By up tie they they the constitution establish, well; agencies, as hands their their own hands but official aggregate State, an people neither nor whole as the officers of liberty body, to this fundamental opposition are at take action ’’ law. v. authority quotes approval Oil Hamilton page the same follows, arguendo, County Court, Bates, 13, per St. 15 Mo. Louis (italics ours) : every
“A written instance a limitation constitution is powers government agents;“ etc. hands v. So, page 176, authority, the case Russ note on of same (N. S.) 409, 105 Am. Com., 210 1 L. R. Pa. St. Atl. A. following Rep. 825, approval St. effect: cited with What restriction. test of is constitutional “The representatives organic law shall have not said their they may not do, do.” 260, 154 N. W. Whisman, 36 D. page, S.
And on same 1; 1917B, R. to like effect: and other cases L. A. may express im- either or inhibition of a Constitution “The any specified prohibit may expressly plied; Constitution Legislature, or its inherent terms act of the the Constitution Legislature by reason of necessity prohibit certain acts of a the Constitu- the terms of inherent conflict that would arise between Legislature.” in favor of the tion and the claimed Draper, N. People Also, page Denio, J., on Ch. (italics ours) 532, 543, Y. : follows lays limitations have
“The first article down ancient government, always a constitutional been considered essential through the popular; whether there are scattered monarchial authority. provisions a few in restraint of instrument other arrangements general prescriptions But affirmative Legis upon the far more fruitful of restraints the Constitution are any Every positive against implication lature. direction contains pur thing contrary disappoint it, which would frustrate or *19 grant government, the provision. the pose of that The frame authority, legislative power itself, organization of the executive the implied justice, create principal the courts of limita erection the law-maldng strong though negative tions the restraints, instance; independently of these expressed was in each but govern scope civil express implied, every within Legislature.” Also, by see ment liable be dealt is 477; 506, 507, 91 S. 497, 192 W. Sheppard, ex rel. Henson v. Mo. 1076; 132 W. v. Railroad, 496, 522, Rourke McGrew 230 Mo. S. v. 272; Ry., 579, 166 S. W. State ex rel. 555, St. 257 Mo. Holmes Drabelle, W, 146; Burton, Mo, 711, 267 717, S. 266 182 Pitman v. 1075 687, 78, 84, 1055; 183 244 Co., 664, Mo. S. W. Mo. Harris v. Bond 149 S. mention. present and other W. cases too numerous foregoing As far as distinction we have been ascertain the abie to universally State, except has been observed the courts of this Lashly con- proviso ease now under where the conclusion that the any sideration is citation of not a limitation w^asannouncеd without supporting authority. rule limiting characteristic, both length
We have thus indicated at express implied, it demonstrates state Constitutions because which plain language the natural of Section 7 force and effect of the legis compels is a limitation proviso the conclusion that its Assembly, and, therefore, it is power delegated lative to the General impliedly repealed by first clause of Section but is ex says cepted therefrom the limitations clause must relator be into The natural read the initiative referendum amendment. appropriate proviso office of a limit the ante is to restrain o.r 56; (25 Brown p. 984, 8; p. R. n. n. cedent clause C. L. Cyc. Patterson, 224 1), Mo. which in case is the S. W. specific delegation redistricting power to the General of senatorial Assembly. “grant” (the Here, delegation or term used un is necessarily exception important) is delegated and, terms, extent of its a limitation on the granted delegated or in the antecedent thus clause because the necessary with agency implication the same time to one state at agency. drawn the other necessarily proviso of Section implied limitation thus arising character, differing only degree, as that is of same delegates Constitution
from Section of the same article duty As- county court, to the General and not to district to the Rep- county than one sembly, any shall be entitled to more “when county resentative;” court duty to the circuit and the same Representatives.” county than ten “entitled to more wdien the provides: article of the same Also, the last sentence of Senator, to more than onе any shall be county “When entitled districts,” county into to be sub-divided cause such circuit court shall too, these, are limita- doubt etc. Can there .reasonable Assembly such as districting power of the General upon the tions in Section appearing clause limitations contemplated in the wise yet 57? these And properly first clause of read into the under local authorities must delegations power to the explicit ground swept reasoning Lashly aside on decision center all gather up was purpose of Section the assumed “to secure in order legislative pow'er in the General subjects.” upon all rights and initiative of referendum *20 1076 this that relator’s contention
We sustain not, should order to constitu naught rules limitation, well established is not a set at which is in 7, by taking Section interpretation statutory tional and and for construction plain that it does not call language so clear and its following suggestion relator’s none, admits of therefore tea.r of it make beginning proviso, of the single at the sentence asunder limitation both a sentences, call the first sentence separate two and the Assembly to redistrict grant General power and a merely “grant the same grant” over” of second a “conditional but not a named power executive officers therein to the three state Assembly. How legislative power General upon limitation ever, if second sentence' would still even such were done the first, delegated in the upon power implied restriction or limitation Rice, 135 redistricting People rel. Carter v. cases ex because in the essentially 353, 356, 97 McGovern, N. J. L. 473, N. and Botti v. Y. now in the antecedent clause language appearing as that same construed any proviso in the constitutions without such before us but one, redistriet) (to a continuous duty held to mean that “the was Legislature succeeding which has and is cast in turn each obligation performance obligation, until the defaulted Yes, is fulfilled.” even “Provided” and its antecedent if the word 7, from Section and this section contained clause were eliminated nothing “grant” delegation than a of senatorial redistrict more given ing power period of time to the state executive officers clearly named, general therein still be a limitation would delegation legislative Assembly power the General in Section necessary effect would be to reaffirmed because its awmy gen power take from the General that much of the erally delegated implication” to it forbid the “inexorable Assembly exercising during such time. every proviso anything, by applicable
If the in Section meant ever interpretation rule of that it is a limitation meant and still means indicated, adopted meaning as above and such have is the we Major 894; Patterson, 364, 388, in State ex rel. 129 S. W. Mo. 689; Roach, State ex rel. Halliburton 230 Mo. 130 S. W. Hitchcock, 458, 513, State ex rel. Barrett v. W. Mo. 146 S. 40; every recognized other decision proviso that has having validity. Therefore, ever had any relator’s contention that is not a limitation on the of the Gen- eral Being should be overruled. such a limitation it was excepted general delegation in both Sections repealed and was the latter.
We have reached the above conclusions with little to ex- reference trinsic language circumstances because the of the sеctions considered unnecessary, more is and resort thereto plain is so clear and *21 permissible change plain never to meaning*of word. the the written (8 Cooley’s Ed.) As said in im p. 141, Cons. Lim. “We not to are port constitution, into a difficulties consideration of extrinsic facts, appear upon also, when face.” v. Coun none its Hamilton [See Court, 3; ty Heimberger 15 Mo. State ex rel. of Curators Board University Missouri, of of 268 Mo. 188 W. S. 128.] 587) Lashly In majority opinion (290 in the ease Mo. l. c. it said was that if after the General of to redis failed State, people triet the had initiated such law which a received required thereby adopted, vote was had and m interim there a-redistricting been proviso, under initiated would this then the law prevail, very and that people “the fact that have unre right (within restrictions) stricted to initiate laws constitutional dem onstrates that these of officers were shorn hypothesized
this amendment.” As we view the as facts and the sumptions obiier, they of law which proceed, which are mere they prove nothing except that the law last enacted would stand enactment; body lieu of the saying first but this is far from that the promulgated might that no so. with had to do One first equal say Assembly passed that if the General propriety a redistrict ing bill a people adopted and thereafter the initiated law such against and the latter stood the former it would demonstrate that body legislative power. this amendment had shorn that of such Adverting though argument, it, to this not espousing counsel suggest if proviso that of allowed to stand the scheme relator redistricting confusing “cumbersome, productive
would be of possible Certainly To will mischief.” whom it be so? not to redistricting in history voters the State because of senatorial only fifty years than State for more has demonstrated that the evidently practical proviso. means to that end is under such a Such was the judgment of framers of the Constitution mature they proviso having when this part law, a made the fundamental only lived under delegated the Constitution of which this Assembly. they unlikely If body General so deemed it that a performance numerous as would undertake the difficult, duty fraught views, contrariety so delicate and with we should 1908 with not accredit framers of the Amendment of They ensuing likely, wisdom. doubtless considered it less less years proved, duty that performed hav'e would be ac- direct in their people unwieldy power tion of the exercise of the far more result, if of the initiative. Even confusion which we do some should concede, permitted fear of such not mani- should thwart the provide fairly expeditious intent fest certain and redistrieting fail, means when others and would most un- adoption that reasonable to hold their of the initiative ref- deprive themselves
erendum amendment intended means only practical experience their had shown was the light they aetual- obtaining redistricting. In what senatorial ¿FLd by im- they say repeal cannot we intended written by their easily have so plication they when so done could discussion, opinion word. Nor should we burden this imagines obiter, questions relator merely at best would be will be When such cases arise hereafter confront this court. say judiciary should enough that the time consider them. It Legislature has plainly as the plainly declare the intent law clear, consequences, meaning written When the a law is its it. *22 change itself, to be only by a law evil, even if can be avoided by judicial not government and branch of effected Cons, n. (2 Ed.) 702-3, p. Stat. construction. [Lewis-Sutherland 38.] re- We a of relator’s claim now turn to consideration 9 of requirements of Sections and districting of 1931 violates territory compactness of IV of State Constitution as
Article to (italics follows equality population. sections are as These ours) : members, thirty-four 5.
“Section The Senate shall consist of qualified respective districts be voters of their chosen years. divided in- For Senators State shall be four the election of nearly population may be, in districts, equal as to convenient as by the by the decennial census taken same to be ascertained last States.” United altered, be Representative '9. districts may
“Section Senatorial and may require. time, convenience When public as time they composed counties, of two or more district shall be Senatorial be, compaat may contiguous; to be as such districts as shall be county no shall be divided.” in the formation same great jurisdic- According wnight have courts apportionment act contravenes tion to determine whether not Cyc. p. 1002, requirements. 848; R. L. sec. constitutional C. [36 23; 1334; Attorney-General Apportionment A. L. R. Commis- sioners, Mass. 602.] Cyc. 848: scope inquiry is in
The thus indicated re- apportionment contravenes the constitutional “An act jurisdiction pass upon have quirements Void, is and the courts validity may set an unconstitu- apportionment acts and aside discretion; determining in as an tional act abuse ac- Legislature will take into whether the has abused its discretion Legislature But the vested count all the of the case. is circumstances apportionments, making its action considerable discretion is not to control review unless such discre- courts plainly grossly abused,, apportionment is not tion and an will therein,” except declared invalid for serious defects Also, Brophy Apportionment Commissioners, Mass. requirement being representatives the constitutional there assigned “equally, nearly be, according to the relative legal districts,” speaking the court number of voters the several through Rugg, J.,C. said: diversity opinion selecting is
“There room of honest for some among forming possible the various methods the best one for reaching right Sagacity districts. demanded in determination. a example The apportionment division and is not mere in arithmetic. judgment practical wisdom. It involves the exercise of sound judg- report disregards application When the of sound reasonable equality ment, acting voting positive within the command for Constitution, contained the amendment to then Every nullity. presumption reasonable must be made favor of report of the commissioners. The of the court is function judgment legitimate its of official within review or revise limits, exercise only apportionment void a division and so but declare vicious its nature as to constitutional transcend the ’’ commissioners. redistricting pre now us is the same act before attended *23 1342; (2
sumption A. L. R. Donovan of that attends a validity statute Commissioners, 58), 225 Apportionment 55, v. Mass. and the burden above specify show it contravenes the is on relator to wherein say .requirements. “should not His counsel that we constitutional (241 433, Mo. except Hitсhcock case have to consider case redistricting attempted 478, 479), to conclusion that reach the this com with provisions reference of violates constitutional Comparing districts population.” certain pactness equality attempted plan in the redistrict in the 1931 with districts included in they by the that ing 1911, condemned decision claim was say give way, or 1931 “must case, they redistricting of that the pre with pointed out admirable As Hitchcock case be overruled.” Lashly (290 1.Mo. c. ease opinion in the majority cision in the actually ruled ease opinion the Hitchcock 575-6), majority in jurisdiction which was single question court’s of the nothing but the rendering all else that part opinion, thus in the latter denied separate con pointed in the two plainly out mere obiter as was said so confident comparison So, standards curring opinions. relator’s purported in have the au fact opinion do from this ly drawn thority judicial precedent. redistricting is not to constitutionality measure a course,
Of such with another comparison that the fact determined measure, under adjudicated and the merits of which have never been right better or question claimed, appears which the to be is not plans applied plan worse than the latter. The true test to be actually Supreme Judicial under consideration is thus stated through 607, again speaking 598, Court of Massachusetts in Mass. Kings J., Supervisors v. approval C. who cites with Baird Rugg, 95, 138 Y. 114: Co., N. apportion- fair minded men from an examination of the
“When can no reasonable doubt that there is a ment and division entertain inequality grave, unnecessary between different and unreasonable duty it is the of the districts, the Constitution has been violated and court so to declare.” Ky. 865, Ragland Anderson, 141, 100 S. W.
Also, 158, Stiglitz Ky. Ap 869, approval Schardien, Court of cited (2d) 315, peals, S. W. it is said: equality representation is be made “It is not insisted that the mathematically manifestly impossible. exact. All that This is requires equality representation Constitution is that ordinary knowedge population State which an of its sense justice suggest.” common would Ruling page 1003,
It is in 9 Law, said Case section passing questions presented on as court con- are here “the judicial fined in its determination to matters of which it take may notice. into The two considerations which enter the determination questions geographical ar- population all of these are those of and of rangement. judicial authority will take Pursuant the courts census, notice of whether taken under the of the state States, judicial knowledge or the United and will also take location, general boundaries, juxtaposition of the several counties, knowledge.” towns, common and wards and of matters of requirement
As to the constitutional that districts shall “be compact be,” say “a examina- counsel for relator casual many map tion of the will of these districts this case disclose compact, question are not and the has not been con- convenience ’’ sidered, they but mention as deficient only districts merely respect, saying in this and content themselves with so. It is *24 suggest doing carry in relator almost needless to so fails to his, showing burden, which is of wherein these districts are not “as may physical compact as be.” The mere boundaries of districts as constitutionality necessarily map shown on a do determine their standpoint compactness, although from the of the districts created 1931, respect compared in even in this with those created in 1901 they presently may be, appear 1875 as shall show we to be far compactness Constitution itself subordinates compact. The more requirement county divided;” that “no shall be further and in
1081 155 People Thompson, 479, v. Ill. 451, compactness it is said that “may also, application, in requirement equality be modified of manifestly population.” equality representation Inasmuch as of sought the end under our Constitution this observation latter must Therefore, be sound. relator should have indicated wherein these districts, regard limitations, “may with due to these be” more com pact, redistricting but he has not done so of 1931 in re and the spect, therefore, unimpeached. stands discussing
In redistrieting viewpoint 1931 act of from the of the other requirement equality population constitutional of coun- again sel for comparing relator fall into of re- the error it with a districting act, 1921, that of the merits of which were never ad- judicated by any rights court and under which no are here claimed. However, districting the senatorial made members of the con- stitutional incorporated by body convention of 1875 along requirements Constitution of with their all future as to may redistrictings, constitutionality be taken fair as a standard of in the respects they above mentioned, presumed for will not be grossly disregarded requirements. redistricting their own Also, the right act of 1901 is before us for consideration because relator claims to our writ p. 1004, 24, of R. L. thereunder. C. sec. [9 mandamus 5; People 507, 509; Hough-
1082 and greater excesses following
Contrast above with the far many redis- nearly created deficiencies districts twice showing a half tricting more than of 1900 of based on the census 121,838 2 and of population: population with a million less District a. 72,611 30,466; population 6 of and an of district with a excess 70,913 a 18,761; population 9 a of and deficiency of district with 105,590 an deficiency 20,459; 10 and population of with a of district 65,256 de- 14,218; population excess of district 11 with a of and a 69,658 ficiency 26,116; of de- population with a and a of district 12 119,703 ficiency 21,714; of an ex- population district 19 a and of with cess, 120,710 28,331; population 20 and an excess of district a of with 112,641 of of 21 and an excess 29,338; population district with a of deficiency a of 72,993 23 21,269; population with a of district deficiency of and a 18,379; 71,275 24 of population district wnth a deficiency 188,445, 34 total 20,097. total districts was The excess .121 188,458, 376,903, or of the then and the sum total of variations population total of the State.
Also, following districting shown the constitutional of 1875 based on the census of 1870 half under Missouri had less than 2 population on redistrieting 1931 of is based: District with population 61,578 10,952; a of 4 and an excess of with a district population 59,135 of 8,509; and an of 5 popula- excess district with a 56,300 5,654; tion of and an of excess 6 with a population district of 58,160 an 7,514; population 43,498 excess of district with a of deficiency and a 7,128; population 30,977 district a deficiency of 19,649,; population 44,409 district -with a 6,217; deficiency 44,667 population district with a deficiency 5,959. 103,374, The total excess in all 34 districts urns deficiency 52,060 total and the sum total of .09 155,434, variations population the then total of the State. redistrieting The four 1931 allots County, senators Jackson city which contains the of Kansas City, population totаl rep- so being 470,454, average 10,867 resented or an excess of in each of these four districting districts. In the of 1875 County, Jackson pop- with a ulation in 1870 of 55,041, an 4,415 had excess of above the ratio entitled it to on©senator. In redistrieting it popula- had a 195,193, 12,449 tion of or an excess of the ratio above entitled to two senators. redistrieting of 1931 allots seven city senators to of St. population 821,960 Louis with a average and an 10,422 excess of each In districting district. of 1875 it ivas allowed senators, six population 351,189 with a in 1870 of average or 7,905 excess of In redistrieting each district. given of 1901 was the same num- ber of population 575,238 senators with a an average excess of each district. say Counsel for relator Jackson Coun- city that the of St. Louis and *26 ty, having population “a 1,292,414, combined entitled to of are senators,” they but do not indicate which should have the additional given If city average senator. of the St. Louis it would create an deficiency eight County’s of 4001 districts, in each of Jackson unchanged. given excess would remain If its five Jackson districts deficiency would average 12,655, greater have an much than the of present average excess, of the St. Louis districts and the condition unchanged. would remain indicate, Nor does relator as he should do really carry if trying showing districts his burden of population nearly equal created as the act of are not “as may be,” in one the remainder of the case or other inequality representa- could increasing of redistricted without tion when this extra senator is taken therefrom. foregoing facts and judicial
We are to take notice of the bound figures good faith оf the plainly bespeak which the reasonableness blandly yet redistricting it is discretion exercised in of 1931. And notwithstanding redistricting of that, insisted in relator’s behalf give would, example, right file, for 1901, under which claims the he County 470,454, only two sena present population with a of Jackson 213,492 according to the affording representation a combined tors wholly 256,962 population of leaving an ratio and excess state-wdde on writ of mandamus peremptory unrepresented, he is entitled to our aggregate 1931, shows an ground redistricting that the for want only 43,468, is unconstitutional county for the excess same ruling would that such equality representation. It is obvious inequalities represen gross voters of the State other force similar glaring. As just said apparent as and almost as tation holding 509, 473, 506, 135 Y. Rice, People case ex rel. Carter v. N. “This of consideration: consequence proper matter that such a was a equality, propriety ideas of travesty law on would be a justice.” com redistricting cannot of 1931 say that the It is no answer to raised the has not 1901 because relator pared of 1875 and to those 1931 can The act constitutionality proceeding. in this of the latter showing the discretion only a clear on unconstitutional be held grossly abused plainly and has been necessarily in the makers vested ap 501, quoted 135 N. Y. Rice, Carter v. (People ex rel. 185, 196), Y. so that N. O’Brien, 188 Sherrill proval in Matter of apportionment an examination men from minded '“fair grave, un there is doubt that reasonable no can entertain division districts.” inequality between different necessary and unreasonable Commissioners, 224 Mass. Apportionment [Attorney-General judg- districting the sоund that satisfied A senatorial supra.] the Constitu- framers practical the illustrious ment and wisdom of equality same end guided have been tion of who must redistrictings, all future they laid down representation men fair minded of what criterion certainly inappropriate not who Also, one respect. variation regard should as a reasonable redistricting ground challenges constitutionality on of a be- cannot the several districts inequality representation as between ground of that on same comparison men avoid a fore fair minded When, should be effective. redistricting which he asserts with the one directly appear transcend redistricting assailed does here, comparisons such discretion, when of a reasonable the bounds dis- representation between the variation above show that 1931 are redistricting range of variation in tricts and the total utterly fails, as in this relator others, and when than either of the less *27 reasonably made more could the districts case, to show wherein re- the to declare nearly not hesitate equal population, in we should carefully all considered have districting 1931 constitutional. We opposed to the find of them none in behalf and cited relator’s cases reasoning above followed. writ mandamus heretofore alternative our
For the reasons stated
Kenwood, JJ., concur.
quashed. Frank
issued should
employed
FRANK,
agree
reason
(dissenting)
J.
not
with the
do—I
re-
I, therefore,
opinion.
principal
or the conclusion
in the
reached
dissenting opin-
spectfully
in the able
dissent therefrom and concur
ion written
Chief
Justice
Atwood.
question in
57 of
The
the case is whether оr not Section
Article
7
repealed
proviso
IV
in
Constitution
contained
Section
mandatory duty
Gov-
of the same Article which
of the
makes
ernor, Secretary
Attorney-General
State
of State and
to district the
senatorially
Assembly
in event the General
fails or refuses to do so
specified
at the time
7.
of this
in
Section
The determination
said
question
1, 7
involves a consideration of
of Article
Sections
n IVof the Constitution.
principal opinion
is
ruling
bottomed on the
in
ex rel.
State
Lashly
Becker,
v'.
Mo.
opinion
“The to the limitations herein Representatives, shall be vested a Senate to be and House ” (Italics styled, Assembly of ‘The General the State of Missouri.’ ours.) granted
By express Gen- terms this section the the- State, Assembly power eral all the wiiich includes the apportion the into for the election of districts senators granted act. was because But pro- General to all contained in limitations other alone the visions of Constitution. If Section stood apportion would have exclusive unlimited any might State into senatorial districts at time or manner *28 7 fit. in connection with Section see But this section must be read subject districting State IV wdiich deals with the the Article for the election of senators. do,
Reading 1 7 together, we con Sections must the 7 which provision clusion is irresistible that contained in Section the designated commands in event the state officers to redistrict the State Assembly specified the General fails or at time refuses to do so the section, granted legislative power said clear limitation on the Assembly by 1. the General Section grants Assembly legislative power 1 all
Section the General State, Constitution. the limitations contained unqualified grant agency powder, Absent some limitation on this no Assembly power other than the General would have to redistrict Turning 7 to Section find that it commands the General State. w''e following Assembly to redistrict the State at its first session each census, provides any decennial that if at time or from cause Assembly perform duty, fails or refuses to that it the General shall designated thirty officials, performed the three state within 1086 Assembly. apprehend I no adjournment General
days of the after Assembly power to redis- has General would contend one designated state during period time trict the construc- The reasonable do so. officers have exclusive As- General is that the together, tion of Sections and when read State, provided power with all to redistrict sembly is vested it fails or re- in ev'ent specified in but does so at the time Section power to re- specified, the perform duty within the time fuses to designated state lodged three from it and with the district is taken 7. Section specified in said officials, period of time at least for the alone, one, standing section dispute about the fact that There is no Assembly legislative principal The power. in the General all vests the State is power to redistrict opinion in this so holds. The case granted power legislative included in the and is therefore Assembly taking power If to redistrict General this section. lodging it with another Assembly General the State least, Section does agency as is done for a limited time at Assembly by legislative Sec- power granted General limit the to the on what it does have -1, tion I am at a loss to understand effect taking away or my judgment original grant power. In granted legislative power to the suspension part of a Assembly limitation on the by Section amounts to a power originally granted. principal says proviso contained in Section opinion begging question. The grant power.
is a This is on the is a limitation issue in this is whether or not Section cаse 1. If it Assembly legislative power vested the General other legislative power to some is, grant also the fact that that Sec- figure It must be remembered agency, no in the case. cuts including legislative power grants Assembly tion to the General necessary part effect of power to the State. The redistrict designated grants Avhich three state officers to the power from the General State, to redistrict is to withdraw say poAver this because such for a limited time at least. We in the General could not at one and the same time be A^ested grants agency it. The AAdthdrawal and in the other to which Section Assembly is from the General to redistrict the State legislative power extent of the limitation its Avithdrawn. *29 grants This up case summed in a words. Section feAV Assembly.
legislative power grant to the General Section limits that by vesting part legislative power designated a in the state specified 7. officials under the conditions in said Section No other say legis- willing conclusion can be reached unless we are that the now as Section Assembly granted to the General lative had the have been would as it complete and unlimited full, the conclusion escape from is no There 7 not been enacted. Section legislative au- part taking from General elsewhere, amounts depositing thority to it and originally granted authority. cannot sub- You original grant limitation on the ato the whole undiminished and leave the whole part tract limitation. without 7 author- in Section proviso contained my judgment that the It is in event the State designated to redistrict state officers
izing the legis- limitation on so, is a Assembly fails refuses to do being 1, and in the Generаl power vested lative 57. repealed authority, it is not limitation, on limitation, amounts to a hold- repeals holding A that Section repealed. are in the Constitution contained ing all limitations my judg- opinion which, in to an my concurrence I cannot lend contained on limitations ment, invalidates all right guar- of Missouri a Constitution, to the citizens and denies Constitution. to them the anteed quashed. Ativood, issued should writ heretofore
The alternative J., Hemvood, J.,C. concur. Joseph Haupt, Appellant. (2d)W. 53. S.
Kate H. Furrer April 2, One, 1932.
Division notes Rice, N. Y. ton Secretary 638, 653, 92 Mich. County State, of 654.] judicial notice, The United States census of of which we take population 3,629,367, making showed the of Missouri the ratio representation 106,746 of for of the 34 each state senators. 3,106,665 making census of ratio population showed a representation 91,372. a population The census of showed 1,721,295 making 50,626. a ratio of Adopting 107,000 redistricting approximate as the ratio specify following districts, counsel for relator outside of St. County City situated, sup- Louis and Jackson in which Kansas port provision of their claim that it is violative of the constitutional “ nearly equal that the districts population so formed shall be as 2 having 112,425 5,452 be:” population District a or excess ratio; having 97,365, 9,635 district 8 population or than less ratio; district 14 having 96,959, 10,041 a population of or less than ratio; having district 17 a population 95,565, 11,435 or less than ratio; having 9'4,163, district 18 population 12,837 less or ratio, than the having district population 99,077 7,923 less (relator than the ratio. 121,771 The total excess districts was 27,400 figure only states excess as but this includes excess of dis- one County city trict in Jackson Louis), in the of St. one total deficiency 129,205, and sum total of .069 of 250,976, variations population State. the total