*1 560 SUPREME COURT OP MISSOURI,
State ex Lashly Al. v. Becker. THE STATE ex rel. ARTHUR V. LASHLY v Secretary of BECKER,
CHARLES U. State. 7, Banc,
In December 1921.* Things ORIGINAL PROCEEDING: 1. Considered. An original pro- ceeding involving practically in mandamus organic the whole law legal possessed for by the State calls information either counsel, right if necessary court or to a conclusion the court points will consider outside of the briefs. 2. made SENATORIAL State General would ex same rel. Barrett State power so possess no Assembly, by into senatorial Attorney-General v. these DISTRICTS: Constitution, Hitchcock, three upon its failure districts state duties which first Legislative an act officials, Mo. 433.] by or functions. the or refusal grants who but Action. Governor, to act [Following in its for such grgmt A division power Secretary grants character, .to State -: Power of 3. Executive Officers Since Initiative Amendment: question Stare Decisis. case, involved namely, Secretary Governor, of State Attorney-General,
in view fusal or failure of the General stitution, before the ing that has senatorial stitution, ex rel. Halliburton case the ex rel. ex rel. temporary rejection those question, Stokes further an amendment question eases, and besides to divide but Patterson, districts Supreme does not statute for v. Roach, binding initiative-and-referendum decided be submitted v. statutory Court could in fact Roach, State to the Constitution force 190 S. W. Mo. was that for into enactment 230 Mo. 373, ask for an amendment decision, involved Assembly view of the later doubtful senatorial stare decisis be held to be enacted an 1. e. 408, initiative nor can the by popular vote, to do 279. amendment if dividing nor under districts the Halliburton In so, for questions petition decision the Halliburton has never been their ease of State ease upon of the Con- to the Con- guise State into approval in State demand- decided the re- State of a ease Majority opinion by Graves, separate opinion J., and *NOTE: — Elder, J., 1921; rehearing December motion for filed filed December 7th; dissenting B. 6th; opinion overruled December David motion by Higbee, Blair, J., 8th; J., dissenting filed filed December Blair, opinion, response, J., 9th; concurring James T. December C. December 1921. filed Vol. v. Beeker. and the whether amendment; conditional constitutional executive officers to said three redistrict
grant senatorially failure *2 by the initiative-and-referendum amend- withdrawn had been do so consequently could have issue, not and not 1908 was an of ment been decided. by separate opinion, ELDER, J., by Held, a and DAVID E. in separate dissenting HIGBEE, JJ., opinions, in that BLAIR and in the Halliburton case that the squarely power decided it was is, into senatorial the State districts was and re district Constitution, specifically IV of the Article and by Section 7 of delegated in the first instance exclusively to the General As- perform its and, in the event of failure the sembly, duty, Secretary Governor, Attorney-General, of State and and being specifically delegated power still this so that by initiative-and-referendum amendment the of withdrawn by changed, or affected the its exercise modified nor amendment, said and that it could not thereafter adoption of any authority by other than those to whom it be exercised delegated by said Section 7. thus been had X, BLAIR, response, language by C. in Held, T. that the of JAMES is to construed with decision the former reference a particular question actually of the ease and the circumstances decided; arguments language, and that the under consideration by judge opinion in used his illustrations are to be in- and light facts terpreted judgment in and issues held the in general language ease, and that concrete be me-
in the cannot automatically applied to different chanically or issues dif- question case; in another .that the ferent facts whether grant power of Governor, conditional Sec- Attorney-General retary of State to divide the State into by districts was withdrawn senatorial initiative-and-ref- was not an in the ease, amendment issue Halliburton erendum as is shown clear statement therein of up questions decision; question that the real the two de- gave that case was that amendment cided power by petition propose no initiative a constitutional Legislature proposed; could not amendment the decision of this in no wise affected question whether the three executive officers abrogated. or remained had been Inconsistency. Amendment: CONSTITUTION: An 4. amendment will original prevail constitution, over an inconsistent provision operation by prior its or effect cannot be controlled limited provisions constitutional with it. conflict 290 Mo. —36 OF MISSOURI, SUPREME COURT v. Becker. interpretation -: A 5. -: Construction. fair the lan- having guage used, purpose view the fundamental ascertain give Constitution, to the intention of the framers of effect including been, rule amendment, if there has of con- liberal, technical, struction. should strict or The construction having interpretation, but a fair full view intent framers. atorial Districts: Construction: -: Assembly IV, *3 retary power tically wiped required the tive-and-referendum Assembly. stitution, amended and chapter,” said endum devolved, declaring adjournment amendment in the of State Amendment and to of Article shall and the approve perform people to enact out Section 36 of Article revised fail or vested in over section, and of "if or proviso of 1908: Annullment amendment XV to such the General emergency Attorney-General, or rejeet at refuse to propose it shall declaring reject any time, duty; the General or# at pursuance Repeal By Implication. last the same at the ’ ’ laws and the be the district clauses, and Assembly 1908 of clause polls from Assembly, all "this duty IV, giving within the State for of Other Provisions: amendments legislative on Section 7 Constitution act polls, thirty cause, Constitution provisions with which word of to the General Governor, power and the the General senators, the General The initia- days "only” such by reserved may'be was Article refer- prac- after duty Con- Sen- Sec- this by
Held, pressly lative by implication ing vestment ly powers ment, provisions said amendment such tended enact, of both constitutional of by and separate divide desired ELDER, said amendment repugnancy; it was assembly,” and General irreconcilably and the or of, the State by intendment, designed Governor, Secretary (b) opinions, legislation repealed by implication; legislative DAVID Assembly is not to override and said that to which the referendum alone applies; initiative into senatorial to afford the repugnant that should not be extended E. favored; which the and said amendment power; to do BLAIR provision in if re-invest, statutory an so much and so, that objectional .of and referendum, General people was each districts, or to establish said amendment was in- HIGBEE, as em- that of said Section 7 construction repealed change other; spent (a) and. Assembly it "act a means of enact- upon Attorney-General its force on the and that by or alter by a cardinal JJ., must of construction said amend- did that there is no the failure repeal would not dissenting, the legis- not ex- the in- repeal plain- rule and Yol. 1921. ex rel. v. Becker. from a withdrawal said executive officers
to embrace of power previously grant of with conditional which had been invested. Upon Legislative -: -: Power. Restrictions The sub-
' ject of the initiative-and-referendum grant legislative commission. of the General did not legislative deal aetioh, The with Assembly, but Bill and there power, not restrictions Bights' are reservations it embraced restrictions upon withholds amendment right, its upon certain acts or restrictions power legislative of of omission and subjects or authority action. from upon legislative none im- articles, action found other are legislative by paired amendment; power; it it withdrew no legislative power authority Gen- simply centralized excluding by independent its Assembly, depart- exercise other eral government, reserving right or officers of and ment not Assembly acted, initiate, if refer, if the General and to it did authority” “legislative amendment mentioned act. legislative authority meaning power as such must be construed by itself reserved was not or restricted amendment existing Constitution conflict provisions purpose it. the amendment to secure legislative rights of referendum and initiative all things reserved to them or restricted them are subjects, legislative subjects. DAVID E. Held, by ELDER, separate J., opinion, in a separate dissenting HIGBEE, JJ., opinions,
BLAIR and legislative all from the if said amendment withdrew assembly, Assembly legislative re-invested General the, right subject popular initiative, referendum limitations Constitution and restrictions struck out authority prior Legislature, and withdrew all upon the grants authority to cities constitutional Assembly, prior dele- agencies other than and all it- made the General gation of *4 self; revolutionary such and result is com- that conclusion grant the pelled, the amendment withdrew conditional of if power officers the legislative the executive to divide to three by districts invested them into senatorial theretofore . attempted accomplished or 7; that the amendment all require power approval by people of the reservation a initiate Assembly, enactments of General and to of the certain Assembly might pass the fail laws that and enact hence,, Constitution; restrictions and, amend the and to legislative upon power provided else- grants of limitations affected, grant not Constitution were and the the where MISSOURI, OP COURT SUPREME Beeker. officers to divide the State into senatorial three executive the Legislature was not upon the failure to do so districts affected it. therefore withdrawn or J., concurring, unless it true 3.'eld, BLAIR, T. that by JAMBS O. city enacting power the exercised a council ordi- that legislative delegated power nances, exercised a and the the agent, Commission, part Public is a of such as the Service delegations of legislative power sense, a constitutional municipal legislative agents corporations not power unconstitutional; there conflict between invalid or that .no legis- of the amendment declares that clause that “the authority legislative of lative the State as- shall vested a sembly” authority Assembly conferred the General upon city a city, council to enact ordinances for conferring authority upon cities is not delegation a law-making power of the government; the General delegate law-making power cannot its legis- its or authority, city’s authority lative but enact ordinances legislative power not an exercise in the constitutional municipalities sense; power to authorize to act in matters power concern,' of local public and the to ''establish a service or other commission board for the better administration regulating public utilities, parts law are consistent of “the legislative authority” expressed in amendment, but it no repeals or more affects those powers, passed pur- or acts them, repeals suance to than it passed or affects under acts part legislative power other as it existed under Constitution at the time the amendment was adopted; legislative power amendment invested in the General As- sembly, subject to referendum and initiative, but it did any existing affect constitutional reservations; restrictions or by declaring legislative that “the authority of the State shall legislative be vested in a assembly,” subject right referendum, initiative the amendment withdrew from three legislative executive officers the power to form sena- districts, torial but did thereby withdraw, destroy existing or affect restrictions legislative ' Assembly. the General -: -: Veto Bower Governor. The initiative-and-ref- erendum amendment of the Constitution destroy did not the veto power of the Governor. Whether the veto be considered legislative executive, amendment confines action single in a forum, so that would have the full power of initiative referendum, single and this forum includes all of- required ficers complete whose aets are -or defeat law; if the part Governor power, him; includes if he *5 1921. TEEM, OCTOBEE Yol. 290.] ex reí. Becker. by power preserved itself, the amendment not, veto his power the Governor shall- "the veto of not extend that to declares If people.” passed an act the General measures referred Governor, it can Assembly is vetoed still be referred again passed by Assembly spite in people, if his of approved by veto, people again he referred to and but if cannot process power the initiative it; as to laws enaeted his veto veto . cannot be exercised. HIGBEE, JJ., separate dissent-
Held, by in DAVID BLAIR 35. legis- ing did not concentrate opinions, that said amendment single forum, except power power, in but left such lative a previous- right initiative, where it to the of referendum and had ly existed. Legislative Authority: -: Senatorial Districts. The P — -: All authority declaring legislative "the amendment of 1908 that legislative assembly consisting of of the State shall be vested a representatives,” by provisions followed and a house senate legislative people right to refer reserving to the acts and to authority, single legislative laws, forum all vested,in initiate one away took from the executive officers conditional three legislative grant power the State into senatorial dis to divide dissenting, HIGBEE, JJ., DAVID E. BLAIR and [ELDER, tricts. separate opinions.] Legislative Power: Conditional Grant -:-: Investment of 10. The initiative-and-referendum to Executive Officers Withdrawn. authority legislative declaring "the amendment of 1908 that assembly, consisting of legislative a sen- vested State shall be representatives,” reserving people house ate and a right initiate, precludes any to refer conclusion and to both belongs It any portion authority elsewhere. grant of theretofore annulled conditional Secretary Attorney-General Governor, of State and vested in the re- into senatorial districts the failure or divide the State gave so. the General do fusal legislation dividing right to initiate the State into such dis- tricts, right to them gave the have referred act of Assembly making division, away and it thus took the General grant legis- three officers the conditional from these executive E. [ELDER, them. DAVID vested lative theretofore separate opinions.] HIGBEE, JJ., dissenting, BLAIR and Invalidity. Act of 1901: -: Formation of Senatorial Districts: Governor, Sec- If it be Act of 1901 which the conceded Attorney-General retary sena- divided State into State and invalid, concession does not a re- avail torial districts validity of the Aet of spondent who does attack the SUPREME COUNT OF MISSOURI, Laslily ex rel. v. Beeker. *6 by placed which the same counties were in the senatorial district resides placed which relator ás were therein the said Aet of 1901 have ever since and constituted said district; for if it be conceded that the division made the three executive officers invalid, respondent relegated 1901 was would be to the division in 1891, questioned. made which is not Timely -: -: 12. -:-: Attack: Laches. The di- into vision the State senatorial districts in 1901 the three 'having unchallenged executive officers remained more for than twenty years, being largely political its nature and ad- involving rights pertain ministrative no individual other than electorate, the whole hold it invalid would result confusion, litigant utmost will not be heard this late date to at In question validity. question its such ease the whether laches can give validity, to a will void act not be decided, being but the aet purely political, administrative individuals who have seen operation unchallenged long series years will not be validity. heard to its Mandamus. Granted.
Writ
Wilfley, McIntyre., Hensley Williams, & Nelson, A. Henry
T. L. T. Ely, Durum, Jost, John T. Barlcer, B. R.
Wayne Ely I. and John Williamson for relator.
(1) Section 7 of Article of the 4 Missouri Constitu repealed by tion is 57 of Article 4, and the redistricting Secretary Governor, of State Attorney-General Cyc. People is void. 8 749; v. Angle, Corpus Y. 12 564,17 109 N. N. E. 413; Juris, 724; County, Cyc. v. Board 58 Fla. 50 36 391, 574; 1073; So. 675;
Pool 98 Mo. Dow, v. Maxwell v. Brown, 176 U. S. rel. 602; State v. 241 Mo. Hitchcock, 433; ex State ex rel. v. 224 Sullivan, 327; Westhues S. W. v. Sears Mult- Co., nomah 49 Ore. Arksansas Tax Comm. 43; Moore, v. Interrogatories by Ark. re 53; 103 In Governor, 181 Pac. (2)
(Colo.) attempt redistricting 197. This at is so un population compactness equality of fair, both as to territory, as to make ex void. rel. v. Hitchcock, State 567 Vol. Lastly ex Becker.
State rel. v. Art. Mo. 5, 6, 9, 4, Constitution; Mo. Secs. 433; 241 36 Cyc. 225 846-848; Comrs., Donovan v. 55, Mass. 2 L. Cunningham, A. ex rel. v. 81 1344;
R. State "Wis. 440, Denny 561; 15 L. R. A. v. 144 Ind. 31 L. State, R. 403, People Thompson, Ill. 726; 451; A. 155 Brooks v. v. State, Ragland Ky. 162 v. 125 Anderson, Ind. 100 568; 141, S. Atty. Giddings 224 Comrs., 598;
865;W. Gen. v. v. Mass. L. R. A.-402; 93 Mich. Williams v. Blacker, 1, State, 181 Mich. 447; State, 199; 145 Mich. Stevens v. R. 229; 25 Nev. 51 L. A. Baird Stoddard, v. County, L.
v. N. Y. 20 R. A. Re 81; Timmerman, Supp. N. Moore 160 N. 57; York, Y. v. New Y. Supp. 1031; 162 S. 471; Woods, Williams W. *7 Cunningham, 17 L. R. A. 145;
ex v. 83 Wis. Dolling, 219 188 Y. 44; Re N. Y. v. N. O’Brien, Sherrill (3) Supp. Livingston, Respond- 462. N. Y. 185; Re 160 validity apportion- estopped of ent is the the Ragland Ky. 126 61; v. Bosworth, ment 1901. Adams- of Ky. Reynolds, 141; 125 In re 202 N. v. Y. Anderson, 540. Howell, ex rel. 92 Wash. 439; State v. Attorney-General, Barrett, and Merrill E.
Jesse W. Attorney-General, respondent. Otis, Assistant (1) The initiative-and-referendum amendment did repeal of of Article the Section IV Constitution. 7 (2) 230 Roach, v. Mo. 408. rel. Halliburton State ex adoption Repeatedly since of the initiative-and-refer- the recognized Supreme Court has endum amendment in force. ex rel. 7 of Article IV still State Section Mo.-408; rel. Hitch- 230 Roach, Halliburton v. 457; Patterson, ex rel. v. 229 Mo. 241 Mo. To
cock, (3) say, that the initiative-and-refer- does, relator removed from Constitution all amendment endum exceptions legislative authority on limitations absurdity, namely, an of leads of the multitude the Constitution the elimination from Legisla- important of limitations on of Ihirty-three including out of set the' Section ture, SUPREME COURT OF MISSOURI, y.
State ex rel. Becker. power, Article IY, and the Governor’s veto which is an part legislative authority essential of the of the State.
(4) The initiative-and-referendmn amendment must be great light read rules constitutional and statutory (a) parts All construction: the Constitu- together; possible (b) tion to be read of two when particular provision of a constructions one is har- mony repugnant provi- other another dealing subject, sion, with the same the first must be adopted; (c) presumption against repeal by im- plication. language When so read, amendment legislative authority —“the state” —can legislative authority mean construed to elsewhere delegated Assembly, in the Constitution to the General subject exceptions to all the limitations and the Con- (5) stitution stated. there is doubt of If as to whether repeals (and the amendment Section 7 Article IV ,at appears least that such -a doubt exists from the deci- Supreme sion and the numerous Court declarations judges thereof IY Article repealed by amendment), may then we look to history amendment to ascertain the actual history adopting intent of it. That shows repeal that the never Section 7 of Article IY was con- templated suggested. (6) redistricting of being legislative presumed to be constitutional. act, *8 (7) compactness redistricting of both 1921, The as to population greatly superior equality is to' of those attempted 1911 1881, of 1901 and the 1891, redistrict- ing. redistricting superior any The that fact a is laid ever before out men shows that reasonable approach is at least a reasonable standards fixed (8) redistricting in The the Constitution. both of compactness population, equality greatly as to is of’ superior to of 1875 that the Constitution itself as that appears redistricting 11 of Article That IY. Section redistricting proper measuring a rod. That redistrict- ing presumed must constitutional satisfied redistricting standards. A is constitu- better fortiori n Yol. Lastly Becker. ex rel. v. redistricting (9) tlie best The 1921 is
tional. nearly thereof are The districts com- made. can be (10) pact population equal may be. To set redistricting to continue that of 1901, aside the departs grossly from the constitutional standards. jurisdiction Supreme not exercise Court will when ex rel. Hitchcock, result. State that is inevitable necessary (11) element his cause Mo. 516. As alleg’es validity of the 1901 redis- of action relator puts tricting. that in re- issue. The 1901 return departs districting patently constitutional from the re- quirements. is relator entitled In therefore, no event, to a mandamus. Attorney-General, Merrill E. Barrett,
Jesse W. Attorney-General, respondent, sup- for Assistant Otis, plemental brief:
(1) 10 of Article X of the Constitution Section legislative important vesting authori most directs the ty (that of taxes), corporate levying authorities cities towns. Elsewhere in Constitution counties, authority required delegated legislative to be like amend If the initiative-and-referendum school districts. authority, legislative revesting of all
ment constituted a part delegation provision thereof with no for the none), (and X 10 of has then there is Section Article says, implication. (2) repealed by as relator If, been in 1908 first resumed all originally authority the General on had conferred legislative Assembly, and then vested and others only authority in the time but supersedes, unquestionably then the amendment proviso 1 of but Article Section con Why the section which IV. leave Constitution authority, original vesting when tained the original Then Section vesting* withdrawn? has been “subject including repealed, the clause, 1 also has been that clause contained,” limitations herein *9 SUPREME COURT OF MISSOURI, Beeker. qualification but a bestowed and power, qualification, withdrawal of of course, meaning. to have ceases is result is that the relator original theory, forced back his and discarded namely people, says, having when as he resumed again theretofore bestowed, vested it, any (3) vested it without limitation whatsoever. If the (as obey great amendment read if should be we statutory construction) rules of constitutional and in con nection with rest of the Constitution there no difficulty.. meaning legislative authority Then of “the legislative authority of the State” will be seen to be the delegated of the State not otherwise the Constitution subject exceptions to all the limitations and purpose Constitution stated. the true Moreover, language appar initial of the amendment becomes then conjunction merely joining ent. It is the substance original equivalent amendment -tothe constitution, saying legislative authority “while shall remain provide method hitherto, now direct legislation part on their own and for referendum.” perfectly plain It is from the whole amendment that there was no intention to recast the old Constitution, but merely something there to add to it. If had been subjecting redistricting intention thority whatever of au of the three executive officialsto referendum, accomplished simply saying it could have been every subject “legislative act” shall referen applying every “act dum, instead of Legislature.” attempt accomplish an How absurd easily, by so which could have been reached end, vague, indirect method cumbrous, resuming obscure of first legislative authority revesting then it! McIntyre, Hensley Wilfley, & Williams, T. Nelson, A. Ely, Henry Barker, L. T. R.
Dumm, Jost, John T. R. Wayne reply. Ely for relator, and John I. Williamson
(1) original of our brief, have corrected Point I We application power formerly pos- to limit so as its *10 Yol. 1921. y. Lashly ex reí. Becker/ by
sessed the Governor and his associates as to district- ing body clearly the Of course, State. brief repealed we shows, never that contended Section 57 all (2) of Section have 7. We never contended that Section any repealed prohibition in the contained Constitu- Legislature whereby tion is forbidden to exercise power. legislative certain We claim that of those all prohibitions absolutely by unaffected Section 57. position solely restate
We our because of the statement respondent’s made in we brief that did claim these repealed. (3) Respondent limitations were has his argument virtually brief an oral confessed that our Point right. One He admits that so much Section 7 as upon power any confers Governor his associates grant ais a limitation. But since 57 re- Section assigns legislative authority and relocates all of “the ’’ any part State, and does of it bestow they legislative Governor and his associates, no power authority, perform legis- or cannot hence redistricting theory lative act of Even on the State. phrase power” legislative
that the “the in Section One equivalent is the exact or is used Constitution as synonymous legislative authority with “the of the State,” judgment, as used in Section we are 57, still entitled to these No one instant reasons: can for an contend that power legislative all Constitution was, 1875, Assembly vested in the General Governor large legislative All associates. his powers number of prohibited of which is use one grant Constitution are excluded from to the Assembly and his Governor associates. “subject This exclusion is effected clause herein contained” in limitations Section It follows beyond legislative power much so doubt, then, granted prohibited as remained the excluded after legislative powers subtracted from were deducted or legislative power, using phrase in its broadest sense.
Clearly this remainder of all that ever was vested of 1875 the Gen- Constitution MISSOURI, COURT OF SUPREME Beeker. in the Governor and his associates. eral “legislative power” phrase nsed Sec- If, then, only this even then, tion 1 remainder, embrace held power” phrase “legislative in Section if the as used phrase equivalent of the “the the exact construed as legislative authority as used the State” Section prohibitions necessarily it upon follows that the constitutional powers remain abso- of certain the use notwithstanding lutely in- Section we 57, as untouched, all of this But since 57 vests re- sist do. *11 legislative power, authority, the mainder or in Senate of (subject Representatives to the reservation and of House people), rights initiative and referendum legislative power in the and there is no Governor still they Re- his redistrict the and cannot State. associates, spondent may he take horn this dilemma whichever event, (b) prevail chooses. should Relator either legislative authority of the State” words “the power legislative all Section embrace theretofore 57 granted Assembly by the Article 4 to and to the General Governor do confer associates, and his and legislative authority, power or other additional legislative powers by hence the excluded the Constitution grant 1875 still excluded. the Section 57 Since pow- associates, does include the the Governor and his away. granted by er 7 is taken theretofore them Section (4) Respondent’s cannot be for it leads true, contention people, is the true, absurd results. If contention his right by the State; redistriet initiative, can (if Assembly General can State, redistrict act) his associates can re- fails the Governor and separate legislative district bodies the State. Three power people, thus have to do act, to-wit, the same legislature. (5) the General the miniature respondent’s Another By result of contention this: absurd people power undoubtedly have to re- Section approval redistricting rejection, for fer a their owu Assembly. by made This is evidence of an General Assembly. popular But distrust TERM, 1921. Yol. Lastly ex rel. v. Becker. by redistricting
people made “minia- cannot refer a power legislature” to refer because the contained ture “any applies act Section assembly” assembly Section 57 repre- “consisting of and house of senate
defined as representa- house of But senate and sentatives.” power redistricting. given first to act tives are theory, people respondent’s reserved Under representatives senators, and 34
to review the acts of right to the act of the Governor, but reserve no such Secretary Attorney-General. That no State and absurdity is evidenced intended legislative power is taken the fact away named. from three officials Another reason deprivation power may be in the fact —if found respondent’s distinguished according that, be a fact— every every Governor, exercise of this counsel, Attorney-General Secretary had been a of State power. glaring abuse of Original case in mandamus. re- GRAVES, J. according duly petition return, both
lator, proposed qualified to be elected as member *12 approaching He and constitutional convention. has been delegate duly by the nominated for such Democratic party place as a the Democrats candidate such 25th District of the as State, State Senatorial present up has from 1901 until the district existed Attorney-General, Secretary and Governor, State, adjournment regular the last session since (session beginning in Janu- Missouri 1921) ary, into 34 State Senatorial subdivided State legality of the re- Districts. The return attacks the districting in one of 1891. but does not attack.the 1901, the same, The 25th District both State Senatorial was By 1901. under the action taken in 1891 and was made both up the 25th District actions State Senatorial St. Louis. of the counties of Gasconade and Franklin, Gasconade, fact, Louis In and St. counties Franklin, n SUPREME COURT OF MISSOURI, y.
State ex rel. Becker. placed 25th were Senatorial District the- Con and stitution of remained there nntil 1881, when Franklin cnt out, was and Jefferson [Mo. Con inserted. (1875), stitution Art. sec. In IV. 1891 the constitu was tional district re-established and has since remained until the action
By present Secretary the action of the Governor, Attorney-General, April on State 16, 1921, the 25th District so made to in Senatorial as Mississippi, clude of Dunklin, the counties New apportionment Pemiscot Madrid, If this Scott.
redistricting is relator even a valid, resident County of such He district. lives of St. Louis, receiving the old 25th District. After his nomination from the 25th District as such Democrats, district has existed since he to file his offered certificate of present nomination Hon. U. Becker, Charles respondent Secretary herein, who State and refused personal to file the same. For such action no or official blame can officer. legality attach the action of this illegality redistricting in 1921 was a court question, properly his he left it to a act court bespeak pleadings decision. The the utmost fairness of distinguished They counsel both sides. have shear questions rubbish, ed case of all so that the of deci simple. They (1) pres sion are few and ent three were the are: mentioned authorized state above officials empowered to redistrict under the they (2) if stands; now were Constitution so au empowered, thorized followed man doing; date of the in so and, Constitution contended (in respondent, (3) in 1901 action taken re pursuant districting State) to the constitutional man opin date? details Other can best be considered ion. every Simplicity
I. state candor should mark *13 settings ment in because of This, this case. picture
surround The not be it. real should dimmed Yol. 290.] ex rel. v. Becker.
by mere abstruse statements or unwarranted import The assertions. case is of too much Important Proceeding: Original things. Things for such ance The law, and the law only, prevail. should That law should be Consi simplicity dered. stated with such directness and may read, runs and,
he who addition, could responsibility upon rests understand. the court, and upon present ability, counsel, have, who marked practically of the case. The case ed their views involves suggestion organic law the under the State, the whole briefs. made in of the This has occasioned a read some re-readings ing several historic document of pleasure, 1875. This has been a as well as of work profit beyond step therefore, writer. we If, argued points of either we briefs will side, pardoned. argued points are but the side may, limited, suggestions But be that as it are varied. this is original an it for all court, case calls legal possessed by information either court or counsel. opinion.
So much in advance of character, II. not debate need We act performed the three state officers. simple. pure Article character, Section 7 of IV it,
the Constitution so classifies because this grants section first Legislative Act.
Assembly. Upon grants failure act, its grant same to three but for this officials,who, power, possess legislative duties no or functions. would [State so ruled. Barrett v. Hitch This court has opinions 241Mo. All in that cock, three case so rule. respondent press for here undertaken to
Counsel argumentative excerpts from the views of Valliant, C. J., support in that of his claims J., case here. Graves, opinions say carefully it to Suffice when*those single .they but will be rule one read question. discovered very carefully J.,C. at outset Valliant, question worded the solved and the solution, *14 MISSOURI, OF COURT SUPREME Lashly Becker. ex rel. page concurring opinions. At by 511 of the two Report lie said: Missouri this court the threshold has is, on
“The pleadings? Counsel jurisdiction in the of the case stated ‘ say: proceeding respondents is in This a their brief apportionment validity an to test mandamus contained in a cer- into senatorial districts of the of the districts filed office tain statement ’ April Secretary That doubtless on is 18,1911. of State juris- purpose no if this court suit, but has pronounce judgment on the case it cannot diction of might anything dispute point therefore we subject simply indi- say on the would viduals.” opinions the reason that two announce
Later these jurisdiction. that the circuit The reason had no we judges sought acting legis in a be mandamused were capacity; judicial capacity this a lative The writer, case. to act such a court had no following used this lan J., C. the views Valliant, guage : regulated function cannot
“The compel judicial bodies action. We cannot acting. enjoin This nor can we them from sub- act, beyond ject-matter jurisdiction of this or en- mandamus court. either When we are asked to join legislative body, only reply make, is, can we subject-matter beyond Constitution, under the that, jurisdiction. in this be done That is what should our opinions. why Then dis- both case what done questions have no over we a lot of a case cuss jurisdiction? we say one over which Why case is upon pass jurisdiction, proceed yet have no nothing, alleged be- decides merits? Such discussion Especially it not be done it is mere should cause obiter. parties interest actual case, where ’’ never been heard in this court. juris- agreed opinions had no that we
Whilst all judges because St. Louis, to mandamus the diction Vol. 290.]
State ex rel. v. Beeker. acting legislative capacity, were in a it is clear separate that the two concurrences no went further than simply jurisdiction. to opinion, majority rule our jurists, including
concurred in five eminent opinion, the writer of the and Lamm, Ferris Kennish, passed upon and Brown, JJ., went much further, merits of the case. So far as we is the know, that last *15 although personally, announcement the matter, we, expressed opinion upon no that matter, and have none express to in the view which we have now, reached.
III.
In addition to State ex rel. Barrett
Hitch
v.
Mo.
cock, 241
we are cited
ex rel.
to State
Hallibur
question
ton v.
“First: the Were the as re- spondent, legally Secretary sufficient State, to author- of ize the submission to the voters of this State an amend- (the Constitution) change organic ment to or law petitions this State? other do Or, words, the em- in fact a brace demand for the submission of a constitu- contemplation purview tional amendment within adopted of the initiative amendment this State legislation approved as the November, 1908, well June as carrying providing^or the out of such initiative 12, 1909, amendment the Constitution? provisions Under the
“Second: of the initiative legislation to the Constitution and the en- amendment Assembly' approved by of this acted State, respondent, Secretary State, can June 12,1909, petition subject-matter embraced does as if the purview the initiative referen- within the not fall legis- as to the as Constitution, well amendment dum 290 Mo.—37 SUPREME MISSOURI, COURT OF Laslily ex rel. Becker. pro- carrying
lation purpose for the enacted out visions ac- amendment, such decline constitutional cept Dickey petitions presented and file Messrs. Secretary
and Lake? In other has the of State words, subject-matter petitions is a discretion where foreign contemplated the initiative and what petitions? referendum file amendment decline to propositions “These court' are the with which this is confronted.” Chief thus answered learned
Justice: proposed
“As en- heretofore the measure stated, tirely foreign to an to the amendment Constitution which subject petitions- pre- deals with sented. embraced The initiative-and-referendum amendment to speaks Constitution and amendments Con- laws plain Manifestly in their stitution. those used terms ordinary petitioners and in our sense, right put in Constitution, no to undertake permanent organic regarded law which is providing for the exercise State, mere acts *16 powers.” of certain majority holding that the words,
In other proposed in ef was not amendment Constitution organic act, and should fect but law, cognomen the false an amendment. under submitted districts, 1875fixed senatorial Constitution “Whilst temporary they for made them it is evident that duty purposes, thereafter. it as act and and fixed [S 1875.] IV, Art. Const. ec. be considered it is a doubtful
It further that should question rel. Halliburton v. to whether binding supra, effect Missouri. further Roach, has 190 S. l. c. Roach, Stokes v. State ex rel. W. See opinion pointed majority out wherein column, first present opinion in Halliburton’s case. The the vice overruling case, the Halliburton writer combatted opinions vigor possessed, but two he with speak for themselves. have concurrences will their Vol. 290.] TEEM,
State ex
v. Becker.
at
questionable
least leaves the Halliburton case as
au-
thority.
authority,
But if an
what
written therein
did
question presented
not discuss or have in
view
present
usually
questions
ease. Courts
discuss the
raised
questions
counsel, without reference to
which
might
passed
have
upon
been raised. Until
raised
they
position
do not rise
stare
now
decisis,
urged by
Attorney-General.
the learned
All the cases
upon
he cites
plane.
the„same
as stare decisis are
So too,
theory
upon
on
question
of stare decisis
here in-
authority
no
can be drawn from
volved,
the case of State
ex rel. v.
amendment, Constitution be part operation of the fundamental law, comes and its a. by previous be limited or cannot controlled
and effect may or laws conflict with constitutions it.” Hardage p. 709; 106 Ark. [12 Grant, C. J. l. c. applied this rule *17 283 case, Westhues Mo.
We 547, original l. 334, c. and held that the 224 S. W. Constitution interpretation had been modified 57. A fair Secton of language having pur used, view the fundamental give pose to ascertain and effect intent of the fram- 580 SUPKEME CO'UET OP MISSOURI, ex rel. v. Beeker. including ers of the such instrument, amendments if there have is rule of construction. The been, construc- tion not be nor it be or technical, should should liberal interpretation having but should fair in full strict, a. organic [12 law. of the of
view intent framers 700.] C. J. urge a rather liberal con however,
Some authors, Interpretation [Black on of secs. 7 Laws, struction. They Story, 44.] 6 R. L. sec. 412;
11 sec. C. inclusive; 1 agree the intent of the framers is corner it matters not the construction. In this case stone for you just the rule take. If amendment of which view given subject, portions conflicts 1908, on the amendment, stood before those instrument as expressions portions the later obedience to must fall found that there was con amendment. in the We found 36 of Article amendment and Section as between flict practically wiped out the conflict and that IV, emergency Legislature [State ex over clauses. l. c. So too 547, Mo. S. W. Sullivan, rel. v. ‘‘This which reads: Constitution XV, 1 of Article Section pursuance may revised amended ’’ provisions chapter. amendment Legislative amendment constitutional authorizes and this modifies and the Section initiative, Action: Restrictions. wiped XV. It word of Article out the whole sophistry “only.” can No hide two conflicts sort'of supra. proviso, The conflict mentioned, between IV, Article and the last clause amendment judgment just try in our clear as we shall succeeding having paragraphs, in the mind demonstrate thoughts and rules of constitutional and statu the divers tory apparent If the conflict rules con construction. simply point aid. can little no We shall
struction lend that the intent declare prevail, of the amend conflict, out expression must because the last of 1908 ment subject. subject the same of the grant upon legis legislative poAver, not restrictions about briefs restric- Much is said action. lative *18 .1921. VoL 290.] Becker.
State ex rel. upon legislative tions contend action, counsel which wiped prevail. would be out relator if contention of dealing Tbe idea is far fetched. The amendment was upon right, power authority with restrictions or of Assembly. legis It General the course of deals with subject-matter legislation. lation, rather than the It of legislation so deals with the course of as to make people the ultimate either referendum or arbiters, the initiative. both therefore intended cover part upon of acts commission and omission of legislative body. We shall of dif discuss shades power” “legislative “legislative ference between Oregon authority.” original In Article IV Con ‘‘ legislative authority they stitution used the terms, legislative assembly,” of the state shall be in vested Deady [Oregon etc. Laws When they adopted the initiative and referendum later, original used same as used constitution words from borrowed of 1908, of 1857. We Oregon, the amendment Oregon, copied or some state which from “authority” power. instead of use of the word hence the power equivalent Oregon as term. The or an used authority is what act, of the General authority and restrictions after reservations left, through organic law. There declared upon nothing indicate the face this amendment wipe all restrictions intention of framers out an They be found in our Constitution. will or reservations perhaps XII, elsewhere. X IV, Articles II, really (our Rights) Bill are decla in Article II Those necessary republican things form of to a rations largely government, the Federal borrowed and are from rights really They are reservation Constitution. subjects legis from
people, of such a withdrawal they Only limited sense can lative action. authority. legislative power called restrictions rights, there They over which in fact reservations department. grant was no sections the other restrictions there are numerous But SUPREME* MISSOURI, COURT OF Laslily v. Becker. body law-making named, junction, in with the is met (Sections shall not,” “.Thou two 15) 14 and are found in Article II. These are restrictions in the true may, sense the term. But be this there is no evident intent to be drawn from the amendment *19 justify of 1908 which would that it conclusion was purpose people previous to tear so asunder the organic any legis upon toas law, withdraw restriction power. authority lative or If this amendment withdrew one say it withdrew it restriction, and unthinkable to all, people.
that such was the intent of the con On the trary they undertaking rights were to secure the of legislative subjects. referendum and initiative all Things people, to reserved and restricted people, legislative subjects. They were not were under taking grants legislative power so fix to of or auth subject ority legislative as to all action to the referen way dum and the initiative. The best to do this was place legislative power, recognized, then in a single right if forum, reserve refer, this forum legislative if initiate, or not act. The then acted, power did was limited reservations restrictions, tliey dealing with it as it then existed, were and not drop otherwise. that reservations and So restrictions [Kadderly v. Portland, 146; out of the case. State ex rel. 44 Ore. 319.] l. c. Ore. Richardson, people authorizes the
This amendment initiate yet they hold no court that would could laws, initiate opposed any if law such a valid law was reservation legislative power, power, or restriction contained adoption at Constitution the amendment. Oregon supra, See the eases both of which were before adopted we ment our amendment. The framers amend- clearly no such and their intent,
had intent must they appear If from the document. initiated and voted lending person, a law credit “to the State’s associa- corporation” tion or we have to would hold such law through- void, as 45 of Article violative IV. So upon legislative power authority. out the restrictions or Yol. Lastly v. Becker. authority or to centralize sole idea single given so that the referendum forum-, people preserved. rights of the would initiative he thoughtful
They intend, do think, did not nor destroy they utterly re- intended to reservations they amending. As were document strictions legislative power purpose to center or said their authority (as supra) single in one we defined they so that could invoke forum, either referendum the initiative. That forum made or assembly. legislative power general This excludes independent authority branches, officers, other from government, thing inus a constitu- and the before grant legislative powers three executive tional of- ficers. urged if relator’s contention
Y. is further wipes good, out the veto then amendment of *20 power [State the is true. v. Kline, This Governor. Oregon, Oregon, Oregon l. Tel. Tel. Co., c. & 431; v. legislative by is act,
l. c. it is a an 164.] said, This, if the idea was to officer, and hus executive legislative band in the General Governor's Veto. power power swept authority then this or up away uniform are not the Governor. cases from signing the bills, whether on as to legislative vetoing or executive—whether bills, is power, grant legislative placed restriction or a it is a authority. power legislative In some states, portion power grant is in that of the o.f this where the department, relating it the executive is constitution legislative executive, but these acts are ruled upon legislative action. restriction therefore but another In our Va. Mounts, 36 W. [State granted power by 12 and 13 of Article Sections V, is solely functions to the executive of the which refers power many government. where this states In by portion of in him that the state is vested Governor legislative pertains power or constitution SUPREME COURT OP MISSOURI, State ex rel. v. Beeker. authority, these acts Governor are to he held
legislative. very do not We deem this distinction mate right holding pur case, if we rial that the pose of single amendment was to confine action people ato so that the forum, should have the power single full of initiative and referendum. That required would forum include all officers acts whose were complete either to or defeat In a law law. other words, part it would include the he if be Governor, power, legislative very yet preserved and if it is not, preserved, amendment In itself. fact, whether be either acts or executive, the matter enacting defeating Bearing laws. mind pole star of construction is the intent of the framers of a constitution, ah amendment let thereto, us turn to the amendment itself. In it find the we sentence, power “The veto of the Governor shall not extend to people.” measures referred This shows the clear intent of the framers. This a withdrawal of the veto power from the Governor toas all bills referred and upon by people. every voted inIt, reasonable sense, refers not to measures under the referendum, but to initiated laws. to them As veto could not be ex might pass through ercised. To a law illustrate, Assembly, usual channel of the vetoed. It passed might then over the veto, and later referred to people. In such case the veto was taken away, provided people voted to sustain the law. If a law initiated people, and voted then the law is enacted. There is no veto there. Oregon supra.]
[See cases, So that clear, *21 this amendment the framers thereof did not intend or destroy absolutely power. to undertake the veto The fair readings considering exception incorporated the it, quoted, supra, as therein, we have shows that as to all matters referred to the Governor the General Assembly veto left his was intact. If intent power, exception destroy why quoted, veto supra? There would be no for it, need fact 1921. Vol. Lastly Becker.
State ex rel. placed proof positive it amendment is that was preserve power, -intent was to veto that whether legislative or executive in character. he it could There strong-er evidence of this intent no than this he clause excepting from the certain measures veto. Such act as to others was left in meant that all the veto force. thought may say in mind, we that this
Whilst hut emphasizes the fact that intent of this amendment (in law-making power-in center the forum so one cluding Governor) so that subject should to either acts from forum or the initiative. of this later. referendum But Suffice destroys respondent’s say it to the amendment itself . contention of the Governor veto question of conflict VI. now reach between We proviso, or last clause Section 7 of Article IV, amendment of Amendments to constitu usually pre tions made to either add correct organic provisions In of the law. either
vious might arise, eqnflicts Senatorial arise. If do case Districts: the framers of the the real intent of amend Legislative provisions prevails orig of the Power. ment over the universal, inal. This rule so indicated supra, need here. we add authorities, pointed supra, distinct conflicts, out two have, We indicated purpose point is to out in now a third. proviso between the
plain the conflict terms the amendment 1908. We shall IV, Article of previous paragraphs having in elimi words, not mince preclude camouflaging so as nated all underbrush thought vital of conflict. or views (which prevails By if con- of 1908 the amendment original parts organic law) previous flicts with ‘ ‘ authority legislative of shall is said: The assembly, consisting legislative of a senate be vested ’’ representatives. Then follows reserv- and house rights acts, to refer ed so referred include to, laws. acts initiate *22 MISSOURI, SUPREME OP COURT y. Lashly Becker.
State ex rel. approval power and of the Governor, veto have as we Legisla indicated and as held. above, the authorities power authority tive as or here used must as be construed meaning such as was reserved or restricted, as we just That so discussed. meant framers is clear purpose they very from from what did, and purpose, referendum initiative. Their and their in and lodge gather together legislative tent and one legislative power authority. forum all If this was purpose gathered intent then amendment, legislative grant legisla forum the conditional ‘‘ legis tive those three officers. The executive authority legislative lative of the state” includes au thority, existing legislative authority at the time. If all given legislative (including legislative was vested in a i#>rum Governor) au thority gathered three these officerswas executive unto naught legisla fathers, the tive and must be for held. “The authority” defining. no needs is in substance all authority. legislative legislative authority All must be light construed reservations and restrictions upon legislative action. As to reservations restric preserve tions intent of the framers them, but legis it is clear that their as intent was to so concentrate legislative give super lation or them acts, vise them either the referendum or the initiative. very was the reason for the All
This amendment. con and if cede, cases and the not, Constitution so hold, redistricting legislative the State is a act. If thought they the framers of the amendment had gathered legislative authority into one bunch all had power, placed they it in so that channel, one could might they if review the same, dissatisfied, have extend They thought, the referendum initiative. ed both place authority” intended to “the in position to enable them to review referendum all character. acts If this be the intent of proviso, then it amendment, conflicts with or last of Article clause, Section 7 IV. '
Yol. Beeker. say that this was not To intent of the framers adopting amendment and of the it would *23 say they had be to more confidence in these three they Assembly, than executive officers had General or even in themselves. This the too, face of the his- thirty years torical fact for or more there was complaints people press from continous the and the about performed the manner in these executive officers legislative By legislative this function. use of “the au- thority” people place meant to so func- position redistricting tion State in a where by They could referendum. But review this is not all. right Legisla-
reserve the to initiate and after the laws, (or before) people ture right to act refused even had the (not amendment) to initiate a law a constitutional redistricting the State. Their to initiate is laws provided unrestricted, such laws violate no reserved rights legislators, restrictions. As people are under restrictions same
Assembly. Whether such initiated laws violate the legis- Constitution is a matter courts after the process (the lative is law products) over, and the finished presented is to the courts. One illustration to demon- Suppose strate conflict in the matter us. before after the General of 1921 had failed to re- people proper petitions by district had Suppose initiated a law. further that the initiated required thereby adopted. received the law vote, and was Suppose further that interim three these executive redistricting officers made had a law the State. Which question would stand? There no can be that the initiated very law would have to be sustained. If so then the right fact that the unrestricted to initiate (within restrictions) laws constitutional demonstrates legislative authority by that these officers this amendment. shorn of were We have read Missouri Constitu- (both tion until in day our mental vision night) pictures upon we can it as see see the we thought sitting room wall. best been we have has MISSOURI, OF SUPREME COURT ex rel. v. Beeker. question given question involved. new diligent far one in this so as our State, elsewhere, gone. preceding In no Missouri case has research has argued by presented question Iso been counsel. language previous no value, cases where lated the question urged. language At most such saying, conclude decisis. We obiter, stare judgment there fatal conflict that, in our is a between proviso amendment or last clause conflict Section 7 of Article IV. That reason of such without the latter must the state officers were fall, power to redistrict. discussing
VII. the redis Before permitted tricting one may done we be add *24 thought pre in the last more to the matters discussed paragraphs? amendment the vious Under of 1901. Acts through legislation (1) must be 1908 all of Assembly ordinary (the and Govern the channel through people or), referen (2) the the acts of the right through (3) to initiate the reserved dum, or latter In the desire enacted. and all that the laws the must be within as the such laws first, as in case, well in the Constitu and restrictions contained reservations 319.] l. [State 48 Ore. c. Richardson, ex rel. v. tion. Oregon initiative-and-referen case construed
This April, inwas construction and this amendment, dum years or two in after 1908, borrowed the amendment We Oregon Supreme announced had of Court respondent’s fallacy of The whole case. in Richardson’s grant they argue constitutional position if a& legislative power a three officers was these of legislative grant upon, au of, rather than a restriction gathered power, legislative it grant thority. of As a solely and placed in up the General say “the 1908. You cannot people by amendment of in a authority be vested legislative shall State of of consisting house assembly, a senate of both to the people reserve representatives,” 1921, Yol. Lastly Beeker. ex rel.
right any portion yet say that initiate, to refer and very authority belongs elsewhere. language precludes such a conclusion. urged redistricting it that the
In the return provisions was violative of constitutional previous redistricting been void. acts have This and charge objected partisanship and un Laches of the Constitu and even violative fairness, that this in measure and we have little doubt tion, but wording 1908, influenced the the amendment of placed posi people by rights were which reserved if But even tion to take the matter their hands.. own redistricting (which do) granted be it do not we respondent. help Should' 1901was invalid, does up respondent’s favor, we take and rule the relegate redistricting it would us to the composed District 25th Senatorial This Act of Act of 1901. identical counties as pleadings. unchallenged if we So, 1891 stands invalidity would relator of the Act concede the composed which counties in the 25th District, present their candidate name as choice now his delegate coming Convention. Constitutional has existed facts that he a district which lives redistricting act is act, from the 1891 same form manda questioned to his writ of relator here, entitles as to sena Act of 1901 status mus, whatever torial districts. officers in petition the three the act of *25 attacks to to this attack It other. no defense and none is
1921, say previous were also officers other acts other some Rag Ky. 63 [Adams 64; l. c. 126 Bosworth, void. v. might Ky. l. c. With this we Anderson,
land v. (there being stop. hut is such However, situation delegates coming to Constitu time left short select to. something Convention) further should feel that we tional redistricting redistrict 1901. This as to be said twenty unchallenged for than ing more stood act has appears in the return years. attack court The first SUPREME COURT OF MISSOURI, v. Becker. mutterings among case. Of course there were people (or them) public press, some of and in the known history. as state In State ex rel. Howell, Warson Supreme Washington Wash. l. c. Court of in dis cussing redistricting their Act said:
“But even if it concluded that the Act of 1901 were departure requirements was such a from the of the Con disregard pro stitution as to disclose wilful of its we think it visions, the too late for now the relator to raise question. complained unques The act of has stood years. legislatures for more tioned than fifteen Seven passed have been under it. elected Laws have been rights so far affect the of the electors that a return to the old districts marked out the Constitution would requiring result in the utmost if not confusion, chaos, perhaps Legislature a session of the before an election required, complaint could held. No be court is aon made lapse years, subject after this to
State to the turmoil such a course cause. This would legislation great political form of to a extent ad is ministrative in its and involves no nature, individual rights pertain other than such as electorate as a Legislature whole. who conceive has Persons disregard acted in of the mandates of the Constitution promptly act must, therefore, else bewill held right at waived their to act all. argument “The an if act is that, invalid when passed, long continued live in vice it as as it re- may mains on the and therefore be statutes, annulled attempted applied at is sound when time, legislation political or administrative in its validity give may nature. true cannot laches property right to a but when no act, void involved, purely political question in- and administrative, parties operation seen that have the act in dividuals years, the affairs carried on it, under objection offering making protest, without will not be validity. day They its at a late must heard delay act seasonable time and until the conditions *26 591 Vol. y. Becker. acquiesced
they have become firm- in and assented to have ’’ ly part system government. established as a Ky. In l. the court Adams v. c. 65, 126 Bosworth, said: complained
“If invalid be- enactment requirements, cause it violated the constitutional years party complaining before thirteen this fact knew their believe that this suit commenced. Persons who political rights injuriously by unconstitution- affected period legislation wrong long al cannot for a condone the years by taking passively to defer consenting it, from the result chaos, action until if not would confusion, long delay. open as to them 1893 The courts were political parties, individ- well no than as more sought sleep rights. to it is uals, can on their When great involving vacate life of one enactments government public departments co-ordinate orderly affairs de- practicable interest administration of mand that action be taken as should soon objected ef- known and
after the condition becomes argument when if an act is invalid that, fective. passed, long re- live in it as the vice continues may annulled be statutes, and therefore mains on the applied attempted be not sound when time, at political legislation in its administrative that is or validity give may cannot true that laches nature. right property involved, no but when act;
ato void political administrative, purely operation parties act in have seen the individuals it, under on years, carried and the affairs of for making objection protest, will not offering without validity.” day question its a late heard at Reynolds, Y. l. c. N. Matter the case In 438 it is said: Legislature at its the census of “After [Ch. 431.] apportionment act. passed an in 1906 session application by an validity was attacked of that act Secretary to issue of State a mandamus apportion- the old in accordance notices election SUPREME OF COURT MISSOURI,
State ex rel. Beeker. v. ground ment oil nullity. apportionment that the was a new application Supreme This was denied in Court both branches and the of elections 1906 were apportionment year. ap held under the act of On peal to Supreme this court, however, the of orders April, apportion Court were, in reversed 1907, [Matter ment under review declared invalid. of Sherrill Thereupon, v. 188 N. Y. O’Brien, 185.] at an extraor dinary Legislature year, of session held in that present apportionment was enacted. it have Under general been held the 1907, elections of 1908, 1909 and during period petitioners 1910, which have taken no steps validity apportionment have the to of reviewed. things stability are
There in few world which requisite government. than order more It could any not have during been constitutional intent that time at apportionment period the decennial for which an up continue—even last moment—it should subject to attack.” Ragland Ky. To like effect is Alexander, l. c. upon
161. These authorities to be seem founded reason, late of if so it is too the Act at 1901, this rule. and we so From we conclude that the all, time, of writ mandamus this case should be made alternative Blair, C. permanent. so ordered. James J., T. Higbee, Walker, JJ., concur; D. E. Woodson separate opinions to be Blair, JJ., filed; dissent Elder, separate opinion. J., files opinion). (separate view the ELDER, J. im- —In thought
portance unbecoming' case, I have this my although thereon, to state individual views somewhat expressed. opinion hurriedly being No other before me preparation nothing at the time of the hereof, said here- upon anything in is intended a comment or answer to may any contained in be filed my associates. primary proceeding
I. The in this issue involves provisions placed construction two Yol.
State ex Lstshly v. Beeker. relator, Learned counsel for their
of our Constitution. original Article brief, contend that so much Section 7 district Constitution as vests IV Governor, Senators Construction. Attorney-General gecretary of and the repealed and that IV, of said Article is redistricting by the under date
made officials said April Article is void. Section 7 of IV as follows: Representatives be chosen ac- shall
“Senators and cording apportionment rule established until decennial census Constitution, the next *28 the result there- taken, United shall been and States apportionment ascertained, when as the of to this State adjusted on that be and the basis of census, shall revised upon years every the of the ten thereafter and basis census be not census; United or.if taken, States such then, delayed, a census; on the basis or is apportionment of State such at the of
to made first session the be Assembly each census: Provided, General after any any if the cause, That or from General As- time, at sembly or to district for Sena- shall fail refuse State required duty in shall be of Section, this tors, Attorney-General, Secretary of State and the Governor, thirty days adjournment within Assembly of General after duty perform
,on to devolved, said which such duty, Secretary in of the and to file the office State a by including them, districts formed full of the statement in each embraced district, counties the names signed to thereof; statement and the numbers said by by of the and the Great Seal State, attested them, proclamation of the the same Governor, binding if effectual shall be as done General ’ ’ Assembly. pertinent portion hereto
That 57 Section which is as follows: legislative authority' of the shall be
“The assembly, consisting senate vested representatives, people but to reserve house 290 Mo.—38 SUPREME MISSOURI, COURT OP Lastly
State ex v. Becker. power propose themselves to laws amendments to reject enact Constitution, and or the same at the independent polls, legislative assembly, of the and also power option approve reject at their reserve own at polls legislative assembly.” act of the support argue In of their contention counsel sub stantially adopted thus: That Constitution people disposition legis 1875 the full “made all the power reserving lative of the State, none whatever to except, themselves, course, amend the ’’ Constitution to write a new that one; Consti adopted provided originally tution as Section “ subject power, of Article IV that, The. contained, limitations herein shall be vested a Senate ‘ Representatives, styled House (Italics ours); of Missouri’”
that one of limitations mentioned in Section was portion being embodied Section hereinbefore Secretary giving set out, of State and Governor, Attorney-General, contingency, in a certain Senators; district State for 1908 the arrangement “had become dissatisfied and de adopted change it,” sired an amendment to the being partly 57 of Article Constitution, IV, Section here- legisla set forth; inbefore 57 all *29 power disposed the tive of State was of find vested in Representatives, with a Senate and House of reservation, but one power people of to-wit, the the themselves propose “to ject laws amendments enact or re and to. independent polls, legisla same of at the the assembly;” disposition legis tive that of of the such all part power elsewhere; left no of lative that ac cordingly the former limitation in favor of the Governor, Secretary Attorney being General, of in State and irrec thereby conflict in oncilable with was effect Section out stricken and the Governor and his “shorn associates legislative authority of all theretofore vested them.” logical reasoning have To followed this to its con- inevitable have been clusion, the result reached would 1921. Vol. Lastly v. Beeker. 57 also out of the all
that Section struck Constitution authority Legislature, on the the limitations against impairing prohibitions enacting any law as speech obligation contracts, the freedom of or against permitting money treasury drawn from the except pursuance regular appropriations made against loaning State, giving, or of the law, the credit against contracting except in instances, debts certain against money, against subscribing granting public against stock on behalf of the of the the enactment State, thirty-three special laws Section and local inhibited taxing against 53 of IV, Article the exercise power contrary prescribed by Article restrictions imposed by together many restraints X, other comprehended “the the words the Constitution, all appearing herein Section contained,” limitations reasoning fallacy startling must upon utter of this apparent for, for relator become counsel initially argument, they theory oral thus abandoned upon an attenu advanced, and case bottomed relator’s legis meaning of hair ated line distinction between “power” IV, and 1 Article lative used in Section legislative “authority” Article 57 of in Section as used (Italics ours.) reply endeavor IV. In their brief authority power (which in our differentiate between equivalent judgment in the Constitution used power terms), substantially all thus: That originally people; so the Constitution people upon power the State as much was bestowed re either not bestowed bestow; saw fit legis abeyance; people that the in power held mains “measure the State lative bestowed extent;’.’ legislative authority State; “legislative ray when Article 1 of IV power, subject contained,” herein to the limitations Representatives, vested and House of Senate that under Sec vested; so the, limitations embracing one tion 7 of IV, Article contemplated by his as- *30 the Governor Section
596 SUPREME MISSOURI, COURT OF
State ex rel. v. Becker. part empowered sociates, a thus State, become contingency act in the named; that when 57 Section adopted, re-assign- Article IV was said section made a ment of authority had State, which theretofore been vested the Senate and House of Representatives, exclusively, except such as was reserved accordingly, themselves; and that, Governor and his associates have au- neither nor thority to redistrict the State for Senators. If this con- people by clusion be true, then, when Section re- 57 originally sumed authority given all of the Assembly and the Governor his associ- ates and re-vested the same the General superseded alone, Section 57 the limitation em- contemplated braced but the limitations being Section 1 well, the numerous limitations ad- supra. Palpably, verted to us relator therefore, driven theory, hack his abandoned which is so revo- lutionary contrary principles so of constitu- require slight tional construction as to but reflection to compel adversely us to decide thereto. urges
The real sum and substance of relator what so much of Section as is relevant hereto was re- pealed by by implication, Section 57 and this in the face statutory of the cardinal rules of both constitutional and repeal by implication construction, is not favored, repeal provisions that to establish must be the two plainly irreconcilably repugnant to each and that if, reasonable other, both construction, provisions together, can be construed both will sus- tained. disposition our
However, of relator’s insistence does depend upon analysis an es of the principl of con effect this court has struction, heretofore r.Jed point invo made, a case now S l Stare Decisis. v i ng at sufficiently those facts analogous controlling. bar to Halliburton In State ex rel. proceeding court issue Roach, Mo. have.fhis Secretary peremptory agahist the its writ of mandamus *31 597 Yol. ex rel. Beeker.
State v. Lashl/ presented compel petitions him to certain State file by acting right to him under a assumed to citizens by been conferred the amend initiative and referendum (being IY), petitions ment Section of Article -which 57 submitted the an amendment to redistrict Constitution senatorially, ing 7, that Section State was held adoption notwithstanding the continued to 57, Section altering control matter of the senatorial districts opinion fully State, an concurred Fox, J., by our learned brother l. c. 431: “Mani said, Graves, festly before districts the senatorial can-he divided suggested proposed the manner as in the con so-called 4 stitutional Section 7 Article the Con amendment, changed of this must he amended and stitution so polls by at as to authorize, initiative, ... In other to divide senatorial districts. power by to alter the initiative
words, .exercise legislative by a en divide the senatorial districts dislodging cannot have the force effect of actment power under Section of the Constitution vested apportionment providing for the of senatorial Article 4, power to alter divide sen Before districts. ap an there must be can be exercised
atorial districts dislodging propriate amendment Constitution under the and alter such districts divide to so This present laws of this State.” Constitution (the holding ruling that Section 57 tantamount Amendment) repeal did not Initiative-and-Referendum reposi section the' sole that said remained 7, but redistricting tory authority the State. extant Article is still 7 of IV That Section re-apportionment senatorial governing matter of a recognized 21, 1910, this court on June further adoption ex rel. in State of Section than later proceeding Major a certiorari Mo. Patterson, v. County quash Jackson Court of order made an county subdividing into new dis said County l. c. “Of 388; said J., it was tricts, wherein Graves, Legislature districts, if as to senatorial course, SUPREME MISSOURI, COURT OP Lastly Beeker. apportion, apportionment fails by’ tlie may be made other officers mentioned Section 7 of Article 4 of the part Constitution, which action their stands lieu page action.” And at “It 389: further, is clear that as except- to all senatorial districts save and single county, those within to fix the- lines Legislature, thereof lies with the or in the event of its Secretary failure to act, with the Governor, State and ’’ Attorney-General.
Again, controlling that Section 7 is in still the mat- re-apportioning ter of the State for Senators, con- adoption ceded on March 28, also later than the 1912, in57, rel. Barrett v. Hitchcock, Mo. applied. wherein said section construed and pronouncements These three are decisive of the presented. here un- follows, that therefore, precedent departing less we are now desirous from the the contention of established, thus relator must be ruled against him. “attempt”
II. Relator also insists that the made Secretary Governor, Attorney-General of State and a redistricting equal " t is unfair so as convenience, ity population compactness and of ter ritory, as to make it void.” ma Convenience: Compactness: e t r of convenience is not stressed relator t Population. and we shall not dwell thereon. requirements respect The constitutional with they are that “convenient;” senatorial districts shall be nearly equal population they be in that shall "as as composed may that of two or Avhen more coun be,” continguous, “they shall districts to be as ties, may compact the formation be, as same no ’’ county [Secs. divided. 5 and shall be Art. Under IV.] duty upon imposed the Governor the Constitution they shall is not that so his district the associates every exactly equal population district State as to territory. compact perfectly Exact mathematical requirement, precision and, when is considered not a is Yol.
Stg,te ex reí. Becker. county county that lines unless is to, must adhered equitably in entitled to more than one and that senator, shape population, vary in divisible size, counties precision is obvious attained. The that such cannot be duty enjoined they upon acting real that the officials is lay nearly shall out the so districts “as equal” population compact” may be,” ‘‘as “as territory language may “as be.” Such is yardstick Constitution. And it that the action expression nearly taken must be “as measured. as may nearly be” not mean as a mathematical does
process can be followed. but a direction addressed It is body expressive charged prescribed, duty with the apportionment general principles good faith shall be made..
Applying us, before to the districts standard thereof, we are convinced an examination fairly considered as
same, when whole, essential, Having requirements. comply constitutional separate commands of the Constitu- in mind several required argument that absolute no to show tion, equality If in districts cannot be obtained. numerical *33 population disparity county in cannot be broken, lines the'requirement that also evident if unavoidable. given compactness there must be a effect, is to be
as to regard population. Therefore, of action in latitude thirty-four out attacked as four districts of when but question non-compact, being with room for as average and when variation merit such attack, of equality, population as the true ratio of shown from per respondent’s cent, but and four-tenths five brief, judgment prepared dis- that the to hold are not we not ex- his associates was of Governor and cretion practicable within manner, reasonable, in a ercised contemplation when com- And, the Constitution. of validity of pared 1901, the districts created with by respondent filed return his is attacked here- supe- infinitely patent districts are that the 1921 it is in, conforming every respect, to the constitutional rior, mandate. MISSOURI, SUPREME OP COURT Laslily Beelser.
Prom what has been it follows that relator’s said, redistricting invalidity insistence as to the of the 1921 against should-be him. ruled
Entertaining respect- I indicated, views herein fully submit that' the writ of mandamus should be denied. (dissenting). DAVID E. BLAIR, J. am unable —I majority my opinion to concur in the and will state briefly reasons I can. as as
The vital in the case is the on effect Sec adoption 7, tion Article our of of IV, of Constitution 57, IV, Article known as initiative-and-refer endum amendment. Relator in brief and argument vigorously 'attacked the senatorial of Effect redistricting performed act of 1921, Amendment of Attorney-General Secretary G-overnor, ground apportionment State, on the that fair it is and violated the mandates of the Constitution as com pactness, equality population. convenience and But compared redistricting when with the for senators done attempted apportionment 1901 and the 1881, 1891, and even the model fixed with the Constitution redistricting of 1921 itself, is shown to excel on.every comparison, all them basis of those by partisanship seriously blinded or self interest will redistricting contend the 1921 does not as come near requirements ly complying Constitution . possible do it is holding In Section Article IV, it the Constitu repealed provides tion has been in so far for the performance redistricting duty the State designated majority state officials, Construction. universally recognized violates the statutory constitutional construction rules parts including constitution, amendments, law *34 together; that when must read two constructions of possible, particular provision are is a mony and one in har provision repugnant other with another dealing subject, with the same construction which that is TEEM, Vol. 290.] Becker. harmony provision adopted; the other mhst by implication presumption against repeal repeal has
such is not favored. Article 7, IY, If Section repealed by adoption IY, Article been in 57, Section by implication presumption is 1908, and the repeal. against such
Every progress history student of recent government for knows that the reason science of adoption amend of the initiative-and-referendum of the several
ments to the constitutions dissatis states was the distrust of-and the Purpose of Amendment. legislature in the faction with the character subjects respect ordinary of its enactments in to the legislation, responsiveness of such lack of. popular
bodies of de for the enactment demand legislation. seriously contended sired It cannot be Assembly to its the failure of our exercise leaving duty thereby to be redistrict State, to performed by slight played officials, named state expressed part in est the demand for the initiative. provide
purpose the initia of the amendment was Nothing in the title of tive and referendum. said submitting “re amendment about the resolution such legislative power. p. locating” [Laws 1907, great
Observing of construction referred rules difficulty appears leaving IV, Article 7, Section no to, intact, merely construing Article 57, IV, Section reserve to them declaration power by the refe selves the use Construction. r e n d u , pass upon the General the laws enacted m ordinary powers as Assembly fixed Con its within adoption amendment, the time of at stitution and propose pass laws initiative to means pass. might itself as the General express having re terms amendment initiative duty our to construe Article IV, to Section ferred including the in such Constitution, amendment, the whole if it way Article preserve IV, intact, adoption by the of Section words, In other can be done. *35 SUPREME COURT OF MISSOURI,
State v. Becker. simply 57, people Article tire IV, reserved to themselves power things by to the acts and do which were delegated Assembly. Constitution Acts General Assembly the General could do because of con- exceptions, stitutional limitations, restrictions or or be- grants power cause of constitutional of such to other agencies, people themselves did not reserve to them- selves do. give
This is the construction that will a reason- meaning able doing to Section 57, Article without IV, parts including violence to other' tion 7, Article which the Sec- Constitution, existing and to laws
IV, State, slightest reflection the exercise of common surely sense will show were not intended the framers of the amendment to be affected it. So construed there is no conflict between 57, Section Article IV, and accept Section 7, Article relator’s is exceptions, IV. To contention to strike down all limitations, restrictions and grants and to treat withdrawn all constitutional legislative authority agencies Legis- other than the prior legislative delegation power lature, and all made the General itself. majority opinion reached the conclusion that the initiative-and-referendum amendment the restrictions not affect did legislative
upon power imposed by Constitution to hold that such unthinkable Re str ictions. its effect. In the name single exception why not? To admit either reason, grant destroy very of reservation or of foun opinion majority people dation which the rests. The power, legislative, judi are the source of all executive, They previously legislative power cial. had vested the pf Assembly, subject certain limitations. If Section Article IV, restrictions restored people themselves, merged people were all restrictions when again bestowing legis so and, restored, Legislature, power upon the did lative not bestow only by right people limited and restricted Yol. Laslily Beeker. ex rel. pass to initiate and refer enactments and agree
laws? I that it is unthinkable such was adopting people in Article IV. intent of the amend But can such conclusion he if such avoided, how resumption ment be construed as a legislative power? of all majority stand How can *36 complete resumption? assuming A reason without such construction of the able amendment
sought accomplished by was a people such amendment require approval power by the reservation of to Assembly, passed by of all acts themselves General power except to in the and the amendment, as stated pass Assembly itself laws that the General initiate and might passed, previous amend that time and to. to powers by The and duties direct action. the Constitution by Legislature Constitution, as fixed of the exception, limita
were disturbed. Restrictions legislative power grants legislative power tions on provided in the not affected. Constitution elsewhere were Assembly having failed to divide the General at first session after districts its into senatorial State population ascertained from been State had by only time it authorized census, having per- been act so, to do Constitution by provisions Article 7, IV, formed under days thirty designated after within state officials Assembly adjournment the General of the session of Assembly duty the General devolved, which power deprived of constitutional was thereafter people only having re- and the State, redistrict subsequent a themselves served to premises, possess
Assembly'might power without were by the initiative. the State to redistrict this court the case State the view of was
Such many decided months 408, 230 Mo. Halliburton, ex rel. v. adopted. sought It was IV, Article
after Section petitioning required by number acting legal the initiative under voters, The Halliburton case. to sub- of the Constitution, amendment SUPREME COURT OF MISSOURI, Lastly v. Beeker. by purported to the mit initiative voters a amendment redistricting the Constitution Senators. compel Secretary Mandamus was invoked to the then petitions file the initiative he had State to which refused petitions file. court while said held de proposal nominated the constitutional amendment, sought effect character and that it legislative. a section of the Constitution amend ap character and its terms limited in duration and plication enactment reason of the a dead consti redistricting 1881; tutional of the State into districts in legislation that such Section Article contravened IV, gave of the Constitution redistrict Assembly the State to the General its first at session population after the of the State had been determined of the United decennial census on fail States, designated ure of the General act, quote majority from the state officials. I written portion quoted Chief Justice or referred Fox, opinion, beginning page majority *37 the at 431, as follows:
“Manifestly before senatorial districts can be the suggested pro- divided the manner as in the so-called posed constitutional Article 4 7 of amendment, Section of the Constitution of this must be amended State and changed people so as to initiative, the authorize, the polls at the to divide the senatorial districts. Section pro- 7 of Article 4 of Constitution, the addition viding the senatorial divided, how districts shall be ex- provides apportionment pressly the shall re- that be adjusted upon every years the ten basis of the vised and United or if taken, States or census, such.census be ap- delayed, on such census; then basis of a State the portionment to be the first session made at Clearly each census. will not be after might seriously contended that the senatorial-districts changed suggested by in the the be and manner altered without so-called amendment to the Constitution first submitting people an amendment to the State Vol. Laslily v. Becker.
State ex 4 of the Constitution, 7 of Article Section provides pressly districts shall di the he how senatorial again the can he we anomalous If this done have vided. upon day
proposition the the of we a election pro (Section 4) Article in full force, Constitution representative viding and districts the senatorial how single change in con and without a divided, shall he single suggestion provision, as to dif or a a stitutional representa dividing of senatorial ferent method and hy any vote under without districts, tive the change making any constitutional initiative provision, an or return of such ab vote, canvass right to of divide solute exercise into sena Manifestly, districts. stated, torial heretofore change right districts as to alter and senatorial proposed suggested this amend so-called constitutional possibly until ivas attach ascertained ment could Constitution this 7 Article had such amendment was' been amended proper adopted return canvass and ratified poioer exercise the votes. In other words, the alter divide senatorial dis the initiative to cannot enactment have the tricts force dislodging poioer vested the Con effect of providing stitution under Section 7 Article pow apportionment districts. senatorial Before the senatorial er alter districts can divide appropriate there must an exercised amendment dislodging poioer Constitution so divide and present under such districts Constitution alter (Italics ours.) laws State.” page J., 444, concurred at Graves, hy written Chief Fox in Justice the Halliburton case, *38 fully “I concur in said, Fox, and J., C. has hy points in this case. made him- written are un argument in in the hut answerable, briefs another point was raised which I have well defined views.” proceeds then the case from he to discuss And another angle, which furnished an additional reason for con- MISSOURI, SUPREME COURT OF v. Becker.
earring disposition by in the the case made Chief Jus- Fox. tice appear right
It would of the people legislate by ques- the initiative on the redistricting tion of the State for had been .senators adversely in decided a manner in the clear-cut Hallibur- ton That case. conclusion that can be drawn notwithstanding from that the fact that the case, initia- petitions presented tive what was called a constitu- clearly tional amendment. This court ruled that legislative amendment was in and because of character, subject proper such character a legislation, because violative of Section 7, Article IV, proceeding questioning of the Constitution. In a right by of the to redistrict initiative, point. squarely ease would be adoption
To show further that the effect power designated 57, Section on IY, Article state officialsto redistrict the be senators was fore this court Halliburton and that case, squarely by issue was decided this court in I case, quote Attorney-General from the brief of the signed present by Halliburton which our learn case, Attorney-General, ed Chief then Justice, assistant concurring case, counsel Halliburton and now majority opinion, quotation is taken from 230 c. l. is as Mo. follows:
“The to redistrict the State into senatorial Article 4 is, districts of the Constitution, delegated specifically exclusively Legislature, act, of its failure to certain and, event officialsthere- very its nature, named. is in well as the ex- press yet powerj Constitution, terms being specifically is, which, still was, delegated, any authority cannot be exercised other and this condition named, than that was, is, changed, adoption modified affected ’’ amendment. initiative-and-referendum *39 1921. Lashly State ex rel. v. Becker. Brown,
The late John Kennish and late John 0. great of whom with both afterwards served the State of honor and court, distinction as members of were apparent- in It counsel for relator the Halliburton case. adop-
ly jurists never those eminent occurred tion from the IV, of Section Article withdrawn had designated State, state officialsthe redistrict the joined-in right defending this court the before people IV, Article amend Section 11, temporary defining senatorial Constitution, section preparation prompted districts. reasons looking filing petitions amendment need to such that these eminent be discussed but fact here, jurists evidently thought ob- could districts tain a fair division of the State into senatorial at a time when Section a constitutional amendment, proclaimed adopted, Article been 57, in IV, had worthy be- of consideration on the
force, fore us. squarely the case de-
The issue was raised and controlling. and the on such issue decision cided distinguished at successfully from cannot be case clearly ap- bar. It should not be overruled without it pears fundamentally in over- unsound. It is effect to be majority opinion, although majority ruled .the expressions entirely as to the silent harmony with the con- case which are out Halliburton majority opinion. reached clusions unfortunately present-case will
The decision in the response suspicion being written bear the judicial necessity political first-aid
demands political which relator the unfortunate dilemma party themselves; because now find and his associates For this reason, election results the disastrous of the Halliburton case can now unless unsoundness certainty approaching a clearness shown be followed. The demonstration, should mathematical ignores opinion practically majority it. .Considerations weight necessity political bear should feather’s SUPREME MISSOURI, COURT OF v. Becker. in the scales. should reason- Our be based decisions on ing inescapable suspicion so conclusive, so as to avoid the weighed. that such considerations were so In State ex rel. Barrett v. Mo. 433, *40 Hitchcock, question the ly of the effect of the initiative direct was not proceeding
considered. That inwas mandamus to city the circuit judgesof the compel Hitchcock Case. lay of St. to out senatorial Louis dis city conformity attempted tricts districting the re with Secretary of the in 1911 State the Attorney-General, protest over the the and without proclamation majority of the Governor. The of this alleged-redistricting court held that the act was invalid proclamation without the of the Governor, and because comply the actual division itself did not with man dates of the Constitution, and because the duties of the judges circuit were there character, compel fore this court could not them to act in the premises. apparently never occurred to coun learned respondents urge why for sel to aas reason court not be judges compelled the circuit should to act, away Section Article had taken 57, IV, of the designated thought state officials-to act. If the of such repeal had entered the minds of court or counsel, satisfactory would have been a most and conclusive judges answer to the that the contention circuit should required partisan to It was left act. counsel in this sharpened by case, with wits the bitterness of over whelming polls, amazing defeat at make the dis to covery. discussing majority However, that case opinion, page our learned brother at took 456, Woodson, say: occasion Forty-sixth duly
“That year City held in the 1911, Jefferson but failed apportion or redistrict the State into senatorial dis provided fot tricts as 7 Article 4 of the . Constitution “That under the terms of said section it be- then duty Secretary Governor, came of State Yol. v. Becker. Attorney-General pro- redistrict it, as therein April regularly on
vided and; convened in purpose City up of Jefferson for that and took redistricting matter of the State into senatorial dis- tricts.” application to the
In addition rules of con- adjudicated to and the struction referred cases dis- right have the take into we cussed, consideration the given consequences meaning of a construction where the general amendment is doubtful. As a rule courts nothing consequences do of their de- meaning being but amendment cisions; entirely people clear, whether not.the such amendment construction intended contended consequences place is not reference out of for, people adopting real was the intent of show what presumed because the cannot amendment, *41 consequences or intended undesirable to have disastrous amendment. the' effect of such Perhaps resulting the least the difficulties of will be disadvantages by people suffered of the the having State years, outgrown possibly for endure, sena apportionment Politically of 1901. torial unfair and disregard of
made utter the mandates beginning, due to the Constitution Disastrous Consequences tendency dwelling, city the marked it has unrepresentative years unfair and become more have passed. opinion majority Even if the is decisive State, right people by to redistrict of the placed can initiative reliance be on adherence to the any it is difficult to see re cases, decision districting future how polls. be carried at bill can altogether probable that the reason the
It is Gen- eral redistrict here- has failed to Legislature too tofore is numerous even because body agreement territory to an as to come The included the several senatorial districts. motives always arrangement proponents given any are of the subject political suspicion private to be fortunes Mo. —39 MISSOURI, SUPREME COURT OF y. Beeker. special
promoted or interests to subserved, people larger tbe the number of to be satisfied arrangement given any agree the less the likelihood of . agreement ment Such likelihood would be lessened point vanishing almost to the if the voters of the entire arrangement. pass given any people on State had to The suspect country probably the cities would given representation, were too much and vice This versa. may explain
attitude of the failure General As past power, sembly in the to exercise its and such attitude likely plan would more than redistricting defeat of senatorial popular submitted to vote. consequences
But far the most serious to be con- majority sidered because of the conclusion reached grants on effect its restrictions legislative authority made the Constitution itself delegations legislative authority by the General Assembly. holding majority opinion is that grants legislative power all withdrawn from all agencies, except Legislature people and the them- following language selves, and is evidenced from majority opinion: ‘‘ legislative authority sole idea was to centralize given single in a so forum, 'ref- - rights erendum and initiative would be preserved. They thoughtful people did nor do intend, they utterly destroy think that intended, the res- they ervations and restrictions of the document that amending. purpose were said, As their was to center legislative power authority (as we have defined supra) single legislative in one forum, so that *42 could invoke either the referendum or the initiative. Assembly.
That forum made the General ex- This legislative power authority cludes from other inde- pendent government, branches or officers of the thing grant before is a us constitutional of powers to three executive officers.” majority compelled were toso hold in order grant reach the conclusion that the of constitutional n
Yol. y. Beeker. designated or alternative conditional to the state redistrict officials to State was withdrawn. If exceptions recognized, be then force of the reason- destroyed. ing immediately holding opin- Bnt in so opinion ion too and if the much, holds followed npon confusing onr visits State most and disastrous con- sequences.
Following legitimate the decision its conclusion, statutory delegation what of becomes constitutional and legislative powers special to cities, school districts levying road legis districts in taxes ? What becomes of powers upon, lative bestowed the Constitution delegated by municipalities Assembly the General to, enabling pass them to ordinances on multitude of sub jects provided special general for in their charters, police including itself? If Constitution changed grants legislative power directly itself provided for therein what withdrawn, becomes of delegations legislative authority made the General prior Assembly initiative-and-referendum amend ment? Assembly, the creature of greater Constitution, Is the General Clearly
than the Constitution itself? powers not. All be held also must been such given single “in a forum, centralized so that ref people rights erendum and initiative would be preserved,” majority opinion. ruled hope delegations powers
Let us subsequent adoption escaped amendment have the disastrous conse- quences reasoning opinion, because as to people right them the erendum exercise the ref- have had having powers to exercise
and, it, failed may regarded far-reaching safe from the effects of the decision. conceding majority that the has
However, legislative, powers soundly ruled have been cen- given single forum, “in a that the tralized refer- so rights pre- initiative would be endum and very serious whether served,”.it is a Gener- *43 MISSOURI, COURT OF SUPREME Laslily ex Beeker. rol. v. adoption Assembly, al of Section Article 57, since legis delegate any possessed power to IV, has been could whatever, lative duties because the referendum delegated legislative apply to the such exercise of legislative powers powers. If becomes of the so, what delegated since of the first and classes cities second powers Serv 1908? becomes of of the Public What public utility to ice Commission fix reasonable rates for legislative are in character. service? These What acts legislative powers of the numerous other becomes and commissions created since 1908? boards Already reports resulting of the confusion from reaching ruling our made in case are ears. Under this city redistricting has six act St. Louis eight. apportionment the 1921 This and under senators rearrangement of districts, the senatorial caused precincts. change in the election Some wards new precincts in two are different sena- of the new election apprehension great out torial districts laid changes necessary cannot be made before is felt that the delegates to the Constitutional the election of Conven- Jackson the same situation exists Doubtless tion. assigned
County, additional to two senators pay price be a fearful indeed the 1921 act. It will endanger opinion majority tois if the effect of itself. Convention 'Constitutional examples. further
I enumerate Carried will not majority opinion startling logical conclusion, its revolutionary effect. As is said the ma its of the effect jority of Section on the legislative power, on “If this restrictions on IV, Article restriction, one withdrew all, withdrew amendment say that such was the intent of unthinkable it is say grants legislative people.” I And so designated power, state but to officials, boards districts, commissions, counties, school cities, pre amendment withdrew one that if bodies, other power, grant all. existing It withdrew subsequent power delegate destroyed may Yol. Becker. say unthinkable duties. *44 e . peopl of the the intent sufficiently ordinary im endowed with mind is yes, appalling’,
agination con disastrous, to visualize fol that will sequences established institutions our the rule announced. adherence low vto leading, (dissenting). if not the J. HIGBEE, —The power specially question in is: Was the this case
sole, delegated Secretary At of State Governor, to the and torney-General by of the Consti Article IY Section 7 repealed by and thereof, Section Initiative tution, adopted in 1908? Referendum, argument printed by relator’s dis
In and the brief broadly tinguished it was that Sec contended counsel, necessary implication, repealed 1 of Section tion 57, power legislative IV, Article “ subject limitations here to the State, of the Petitioner's Position. in a shall be vested Senate contained, styled Representatives As House of to be The General ’’ sembly’ of Section 7 of Missouri, the State of also people that reinvested article, and that Section authority, Assembly legislative sub the General with all ject propose power to the reserved reject approve legislation amendments, assembly. legislative polls any at the of the act reply argument how- and in their brief,
At the oral because it abandoned, this contention was was seen ever, abrogation all the restrictions resulted legislative authority on the of the Constitution argument Assembly. proved much. too supposed distinction also on the stress laid Much “power” Section word 1, the word between “authority” that the It was contended 57! Section ques- vital the consideration distinction interchangeably in but these words used tion, the difference it must conceded meaning in our used Constitution of these words as part controversy on the real. than So more fanciful SUPREME COURT OP MISSOURI, v. Becker. argument of the relator at the oral on the con rested by necessary implication, tention that Section re pealed delegated special power to the three state senatorially officers to redistrict the State on fail perform legislative ure of the General duty
. legislative majority In the it is said that the .gather intent of the framets of the amendment “to was, together lodge legislative legis in one forum all authority.
lative If was the purpose of amendment, then One Legislative Forum. gathered con forum the grant
ditional to those three ex legislative authority ecutive officers. The of the State *45 legislative authority existing includes all at time. legislative authority legis If given were vested (including Assembly lative forum the General and the Governor) legislative authority of these ex three gathered ecutive officers unto the fathers was and must naught legislative authority’ be defining. held. ‘The needs no legislative authority. is in substance all All legislative light authority, must be construed legislative the reservations and restrictions action.
toAs and reservations intent of the restrictions, preserve framers their' intent to them, was but it is clear that as legislation legis so concentrate to or give supervise lative acts, as them them either or the referendum initiative. This was very reason for the amendment. All concede, and if not, the cases and the Constitution so that the hold, re legislative districting of the State is a act. If the fram thought they ers of the had not amendment had legislative gathered authority power, into one bunch all or they placed and in one channel so that could review might they if same, dissatisfied, extended both thought, They they the referendum initiative. legislative authority’ place ‘the intended sucia position to enable them to review referendum all legislative character. If acts of a the intent of 290.] Vol. (cid:127) Lastly
State ex rel. v. Beeker. proviso, or last then it conflicts with the amendment, ” clause of Section IV. 7 of Article judge knows how he learned does not inform us thought or intended, what the framers of Section 57 together purpose lodge gather “that their was to legislative power,” legislative as'else- or, one forum all expressed opinion, sole was to where in the “the idea authority given centralize in a rights single initiative forum that referendum and so people preserved. They intend, would be did they thoughtful intended, nor destroy do think the reservations restrictions of docu- amending.” ment that were knowledge premises other
We disclaim by reading interpreting gained than can be light time- amendment in the of the time-honored and construction, which, it a tested rules of t Construction. d m i argument, m at were same ted general main, “In the construction of statutes. principles governing apply construction of statutes [12 C. J. 699, of constitutions.” also the construction sec. “The Article
Section 1 of IV reads: subject power, contained, herein shall to the limitations Representatives, -in Senate and House of be vested styled of Mis ‘the ” necessary thought the limi to insert it was If souri.’ *46 gathers up 57 if Section this section, clause in tation and centralizes it of the State General'Assembly, why not the framers of did preserve limitations'? these essential therein amendment supplied by Why restrictions to vital leave judicial construction? In other chance of extra-hazardous intended as substitute if Section words, why framers thereof did the. IV, 1 Article Section “subject limitations herein con therein write ’’ tained f simple truth is that 57 no more re- Section Now proviso IV, of Article peals 1 or the of Section MISSOURI, SUPREME COURT OF ' Lastly State Beeker. abrogates
then the on Sermon the Mount the Ten Com- gave interpreta- mandments. Indeed, Master newa goods Envy tion to the Commandments. of another’s larceny; adultery; is. lust is Still, hatred is murder. by finger written God’s Law, Stone, the Tables of on
remains the Gibraltar of Civilization. part believed that if this action on the pregnant political officials were not
state quences, conse opinion there would be no shade of difference of among lawyers question. in the solution of this political questions get But, when- into court, Political Questions. they inevitably it must be must, confessed likely unconsciously we are by polit to be influenced our predilections. conspicuously ical This was demon by strated the deliverance of the Electoral Commission great controversy in the famous over the stake at issue Hayes-Tilden election contest. Happily, however, the identical in this case directly expressly involved and decided this against political court relator’s contention when con party
siderations and
control of the State
Senate
were
involved.
In the Halli
The Halliburton case.
Secretary
burton
“Manifestly before senatorial districts can be suggested pro divided manner as the so-called posed constitutional amendment, Section 7 of Article IV of the Constitution of State must be amended changed so authorize, initiative, the polls at the to divide the . senatorial districts. power by
In other words, exercise initiative by legislative to alter and.divide the senatorial districts dislodging enactment cannot have the force effect vested under Constitution Section 7 *47 1921. Yol. . Lastly Beeker.
State apportionment providing for the of IV, Article senatorial power to Before the alter and divide the districts. sena- ap- can be there torial districts exercised must he an propriate dislodging amendment to the Constitution such to so divide alter districts under the present and laws of State.” on Constitution this And page learned Justice said: 438 the Chief applicable subject they to this words,
“In other petitions the full text of the include amend must to be made as ment desired Section 7 of changing of this 4 of Article the Constitution plan redistricting, altering the method the sena delegating and instead districts, torial Assembly, evént its the General failure duty designated perform to certain That officials. through divided enacted districts shall be a Imo providing the division
the initiative and referendum having districts. After amended the such senatorial way perfectly then manner Constitution in this through propose initiative, constitu clear to dealing act but amendment, tional dividing defining
subject boundaries in this senatorial districts State.” separate opinion, say- Judge in a concurred Geaves fully part:
ing all that C. Fox, concur in has J., “I points him made are un- case. The written this In court held luords, other answerable.” senatorially redistrict could including IV, Article until initiative Section proviso recognizing
proviso, amended; said thus it is'held that the three Now was still a live.measure. preroga- their constitutional
state tive cannot exercise officers repealed by because l. 241 Mo. c. Hitchcock, In rel. v. State ex delivering Judge the court, said Woonson, part: very same section of the but the that, “Not Legis- -empowers the authorizes and Constitution which proper apportion lature redistrict in- the State SUPREME COURT MISSOURI, OF *48 Laslily
State ex rel. v. Beeker. provides empowers to senatorial also for districts, body three this state officials to redistrict it in case Assembly neglects the General fails to do so. being deriving authority
“That true, both their precisely performing from the source, same the same if must stand duties, reason, to labors legislative, Assembly General then the work this legislative body must also be in character. Assembly, call the
“We one an act of the General Legislature. the other the statement Miniature 1‘ support also find These views cases of State ex rel. v. 229 Mo. l. c. Patterson, 373, 382, 383, 386, 387, 391 388, 396; State rel. v. 230 Roach, Mo. 408, l. c. 428, 433, 439.” 431, 434, 438,
In ex rel. in Patterson, State an Mo. 373, Judge down handed June said 21, 1910, Graves part: in “Of course, as to senatorial if districts, Legislature apportionment apportion, fails to may other made mentioned in officers Section 7 Article IV of Constitution.” Attorney-
In the last case the then Assistant cited, General, now Chief Justice this in court, his brief ‘‘ expressly for the said: The State, Constitution directs Legislature, IV, in Section 7 of Article redistrict every provides years, for ten senators for the con- tingency part in the event of the failure ’ ’ Legislature.
Political were not considerations involved judgments judges the eminent who then adorned this bench. I am content conclusions with their and believe they preclude argument. speak judgments further Those controversy and foreclose further on this themselves ipsa question. loquitur ap If the maxim res be not plicable, respected. the doctrine of he stare decisis should integra, were If, however, be res there could special provision one Here is but answer. Section empowering the three to act case officers state should fail to redistrict the State senatorially. specially delegated authority Was re TEEM, OCTOBEE Yol. 290.] Lashly v. Becker.
State ex reí. pealed implication by Section 57? counsel, Relator’s redistricting admit that brief, tbeir legislature” cannot be “miniature referred refer contained in “because ’’ ‘ assembly. applies only act of “any legisla i;ead act of amendment does assembly.” “any but act tion,” officials the three state framers of the amendment knew legislate; is, redistrict had the contingency mentioned Sec *49 and tion villages that towns cities, also knew 7; Intendment Construction. power enact had the ordinances regulations. express language police of the and right of to exercise the amendment confines the the assembly;” “acts thus referendum to recognizing operation excluding the from its and specially delegated proviso in well 7, Section as as the municipalities legislate. powers the Did of powers up gather of the Public
57 the the towns cities, and Service Commission as as well Legislature powers villages as a vest the and those single people may control forum, so the exercise legislation the referendum? over class Corpus quote 707, section “The Juris, 12 55: from
We every legal presumption and that each intendment been inserted has for some in a written constitution clause purpose, instrument con- must be useful therefore ascertain intent both its strued as a whole order part. purpose meaning general of each and also arid possible, pro- as therefore, far follows, that, as each harmonize with all so vision must construed yet largest giving with a measure of others, view.to provision every that shall be and efféct to each and force as a with a instrument consistent construction provisions whole. Different re- amendments, sections, lating subject, together to the same construed must be light read other.” each
In Rosencrans v. 165 near States, 257, United U. S. speaking foot of for the court, Justice Brewer, MISSOURI,
620 COURT OF SUPREME Laslily Beeker. Congress expressly where has “In words, said: other legis express given legislated respect matter that to a subsequent legis in the absence control, lation must by any equally express, is not overthrown lation implications to b'e in such mere found inferences subsequent legislation." Rodgers at foot of 185 States, U. S. In v. United again page “It canon of said: 87, Justice Brewer general in its statutory statute, that a later construction prior special expressly repealing a stat- terms and not special provisions ordinarily ivill ute, affect are where there words, other In statute. such earlier general— special and the later earlier statutes, two enough include general broad the terms special the one is provided fact that matter —the presumption special general the other creates a exception remaining special an is to be considered as general general, understood will expressly repeal special, named, repealing unless a manifestly general provisions or unless special.” inconsistent those have been of construction
These established canons fully recognized Folk Louis, In v. St. this court. Cyc. quoted approvingly
Mo. from we 116, 136, *50 dealing (IV), statute there one as follows: “Where is comprehensive subject general terms and a in with subject part dealing in a the same more another a with together way read two should be minute definite the possible, giving if with view to effect harmonized, a policy; legislative to the to consistent but extent a special any necessary repugnancy will them, the between prevail general special the over the statute. Where stat regarded exception ute it will be as an later, to, is qualification prior general one; and where of, general special will re later, act be construed as repealed maining exception unless it is terms, an to its by necessary express implication.” words or Cyc. (III), In 36 clear rule is stated: “Where this repugnant are conflict two acts with, to, Vol. ex rel. Beeker. y. being expression passed, latest one last other, the
eacli although govern, must it contains will, repealing But is not sufficient to establish clause. no subsequent repeal covers or even some, that the law prior provided for since it statute, the cases all, auxiliary. merely may cumulative, or affirmative, or be plain, unavoidable, acts there must be the two Between repugnancy, and even'then the old irreconcilable by implication pro repealed to ex tanto, law by any repugnancy. If both reason can, acts tent of together, both will construction, be construed able repugnant each other Tioo statutes sustained. are subject. they relate to the Furthermore unless same repeal necessary implication to the the ob is jects they same. statutes be are not, the tioo If although may statutes will both stand, refer recognized subject.” rules These same wellknown 430; ex rel. 94 Mo. Faulhaber, Manker v. many other cases. Mo.
Schramm, 272 squarely in face, amendment If look we this light construction, rules cannot fail to of these we already purposes. 1 of Article IV had ita see legislative power clothed ‘‘ ’’ subject already herein It limitations contained. authority legislate. ample the mischief
had What trifling sought remedied the amendment? say adopted because this amendment was Governor, distrusted Sec vested Attorney-General
retary State and the redistrict Legislature senatorially failed the State to event duty. perform It is re true that this decennial districting the three had officials been done so state party except to maintain control of the Senate, in case earthquake. political complaints of It is true that also justly partisan grossly were made on these account every nothing measures, but one knows had to do *51 adoption long with the of the amendment, because the party any time dominant would have never consented to SUPREME, OF MISSOURI, COURT Lashly v. Beeker. ex rel.
State strangle-hold might relax its on State measure Senate. adopted reformatory had been Ore measure
This gon our where, informed, so far as I am states, and other redistricting peculiar the' did obtain. mode of adoption initiative referendum in In fact, and in other countries states the Union various larger people measure The desired a due to other causes. legisla general legislation. complaint corrupt subject influences
tures were lobbies by corporations. [See and were domineered criticism Warrensburg Standard-Herald of June 19, 1903, Shepherd, in State Mo. ex rel. 205, 209, which imposed They $500.] this court fine enacted vicious legislation pass and failed to laws demanded people. paraphrase language To Book of Com “they Prayer, things they mon have done those which ought things done, have left undone those ” they knowledge common should have done. It is that the desired to correct these evils, so amend legislation their constitutions could initiate reject Legislature. vicious enactments of the prefixed The title submitting to the resolution amendment, Section reads: “Joint and concurrent submitting qualified resolution to voters of Missouri an amendment concerning to the Constitution thereof p. Initiative [Laws Referendum.” legislative authority amendment reads: “The legislative shall assembly, be vested ain consist- ing of a senate and of representatives, house peo- but ple reserve propose themselves laws and amendments to the reject constitution, to enact or polls, independent same at as- sembly, and also option reserve at their own approve reject polls at act of the assembly,” etc. theory
On what is the broad claim made that the framers of the gather amendment intended that it should *52 623 TEEM, OCTOBEE Yol. Lashly v. Beeker. reí.
State legislative together all the resume lodge power that of One Legislative Forum. Power legislative that How forum? is in one clearly purpose ex must assumption That be deduced? inevitably implied necessarily
pressed be or must language the con amendment, 'otherwise from the' the amendment If, however, be tention will disallowed. majority opin accomplished claimed in the the revolution repealed it of Article and with IV, then it Section ion, words, cleaned the restrictions; it other went all the Legislature au with unbridled slate and re-invested the right thority legislate, reserving to the to look in vain But we the initiative and referendum. purpose or intent. for such
the amendment Legislature Keeping in mind the fact that “subject legislate, already vested with herein it is manifest contained,” limitations authority legislative legislative is
clause “the assembly” merely vested in 1 of affirmative Section Article repugnant IV of the It is not to nor in- Constitution. already Legis- in the
consistent with vested so merely enactment, but affirmative thereof. This lature, being delegated special power general and later than the Secretary Attorney-Gen- Governor, of State and Legislature eral Section to act event the failed special power to redistrict the State, remains unaf- quoted Cyc. 1073, fected. As heretofore from 36 it is not repeal subsequent sufficient to law establish provided or all, even some, covers of the cases may
prior merely statute, since affirmative, or cumu- auodliary. Between the two there acts must lative, repugnancy, plain, unavoidable and irreconcilable by implication repealed old law is even then the pro repugnancy. to the extent of the If tanto, both acts by any construction, reasonable be construed to- can, gether, both will Two be sustained. statutes are not repugnant they each other relate to the unless same subject. implication necessary Furthermore OF MISSOURI, SUPREME COURT Lastly ex reí. v. Beeker. objects repeal statutes be that the the tivo aof although will stand, both statutes
same. they not, If subject.” may to the same refer authority phrase, is vested in “the merely introductory pre- assembly,” liminary profess repeal follows; it does not what legis- IV, of Article then to reinvest *53 assembly legislative power. pur- The clear lative expressed pose people words, is in the “but the reserve power propose to themselves and to laws to amendments reject Constitution and to the same the the enact at polls, independent legislative assembly, of the and also power option, approve reject reserve at their own to any polls legislative assembly.” at the act of the Here purpose object the clear de- is amendment body clared title, but the of the amend- ment. If look we at the mischief to be remedied, the spirit, purpose reason and of the amendment, it is all plain. many years We know there had been com- plaints legislatures generally the failure of to enact laws people, demanded the enactment of vic- legislation. says, ious popular As relator there was dis- being trust. Such the mischief to be remedied, purpose being remedy the amendment evil, is obvious repugnant that it cannot be considered to the power specially delegated three state officials as provided in Section 7.
But there another vice in relator’s contention. special power, delegated, This so 'is not affected special later remaining act; “the will be construed as an exception “plain, to its terms.” is no There repugnancy,” unavoidable and irreconcilable Special Later repealed by and even then the law old im Act. plication only pro tanto to the extent of re pugnancy. by any “If both can, acts reasonable con together, they, struction, be construed will be sustained. repugnant Two statutes they are unless relate to the subject.
same necessary impli Furthermore, Vol. y. Laslily Becker. ex rel. objects repeal two statutes of a cation tog stand will not, both statutes If
the same. subject.” although they To refer the same ether, contention would revolutionize concede relator’s long-established canons of construction. suggestion If further this head: Section 57
One on gathers legislative power up lodges Legislature, act can so that referendum, under reconsidered majority opinion, then becomes what held Commission? What also be- Public Service corporations municipal to enact comes of the peace regulations police health, for the ordinances safety of inhabitants? What becomes of the their legis- powers large granted to enact cities charter our proviso IV, Article lation? Like the powers gathered to their fathers.” these “have all been majority Perhaps may we better understand opinion, running, canons of all the as it counter does, emergencies present), (except like construction *54 political by referring to earlier a few of our decisions pre- partisan bias cases. Shackled as arewe judges judice, humiliating even confess that highest politics. divorce law our courts are unable to they great emergencies, the In have heard small, cry not disobedient to Macedonian been have call. McKay 608, 5, decided March
In 154 Mo. Minner, v. judge plaintiff as election the defendant’s 1900, contested county counted for of were Certain ballots court. the name indorsed the defendant on which were Poli judges only election. of or initials one Decisions. tical. wag Judge de Sherwood, ckajged. No fraud although
livering opinion, ballots were that held they deposited counted. not could ballot boxes be 15, 1900, March In Hehl Mo. decided Guion, 76, plaintiff defendant for of the the election contested counted cast and office of Ballots were constable. initials of indoi'sed
the defendant on which were 290 Mo—40 MISSOURI, SUPREME OF. COURT
State ex rel. v. Beeker. only judges. charged. one of No tlie election was fraud Judge opinion delivered of the court. Valliant Syllabus say 3 reads: “The does not that law ballots judges on which two election written their names pencil or in ink initials or indelible shall not counted. only says go shall not into the ballot box. rejection, genuine therefore, a ballot on ’
judges appear, or initials do the initials on which judge appears, judges’ one or on which the initials pencil are written with erasable instead of ink in pencil, delible error.” plaintiff McKinney,
In Rollins v. 157 Mo. contested the election of defendant to the office of imprinted constable. The defendant’s name was eighteen stamp Republican rubber on tickets. This court declared those should not for the ballots be counted . defendant plaintiff Bradley
In v. Cox, 271 Mo. contested judge Springfield the election defendant as Appeals. Court of regularly nominated Plaintiff was printed for the office his should have been on name all the tickets. Democratic The name Arch A. John distinguished County, jurist son, of Greene some oversight, printed was on all the tickets in Democratic County Judge Bradley’s, party Maries instead of Bradley’s Judge candidate for the office. name was not on ticket. The written court was T. declaring J. that now Chief court, Justice this Blair, Judge the 1311 tickets on which the name of John printed Judge Bradley, son was should be counted for and he declared not clear elected. It is whether principle regards equity result was reached on the done which intended to done, on *55 principle always presumed other that are Democrats evidently straight. vote their ticket court had some difficulty reaching in the were novel result. issues embarrassing, 'very important and bit a but it was that party Judges the candidate declared elected. should be Bond, WoonsoN and Walker, dissented. 627 TEEM, OCTOBEE
Yol. Laslily rel. v. Becker. ex
State
opinions
reading
superficial
tire
in tírese and
A
of
might
they
one to
that
in-
are
cases
lead
conclude
other
consider that in each
But when we
consistent.
instance
Eepublican
to he
ousted—the end
attained —we
the
was'
they
harmonious. On
same
see at once that
principle
majority
at bar
the case
har-
and Patterson
Halliburton,
Hitchcock
monizes with
political
unexpected
an
cases. So
of
face
also,
ruling
majority
exigency,
rel.
of
ex
adopting
that
327,
224
Westhues v.
S. W.
Sullivan,
the Constitution we also
of Article IV of
Supreme
adopted
Oregon
of the
Court of
the construction
Legislature
of the
that
to the effect’that the declaration
provisions
“necessary for the immediate
of an act are
safety,”
preservation
peace,
public
health or
of the
question solely
Legislature
conclusive on the
for the
in the
of State
recent case
ex
courts,
overruled
Pollock
In v. prohibited opening boxes we ballots comparison ballots the list examination face of case, an election contest the voters plain provisions rendered those Constitution, just provisions nugatory, the ma- Constitution nugatory proviso jority opinion in Section renders This court thus be- of Article IY Constitution. repeaters, refuge city ahd crooks, came for election judges returns. falsified election and clerks who Montgomery Montgomery Mo. Dormer, In the office Circuit election Dormer to contested the elected a ma- latter Clerk. The returns showed the preliminary proof jority after of one. In the court, trial persons, non-resi- thirteen were number, certain judges testify permitted, election the court dents, persons they, cast had ballots seen objected It was had all for Dormer. voted alleged persons non-residents had to be that if the so privileged being were fraudulent, their voted, ballots, objection that, they That were the best evidence. *56 SUPREME MISSOURI, COURT OF Lashly State ex v. rel. Becker. being Republican,
was overruled Dormer, a appeal, judgment, ousted. On this court affirmed tbe 16; saying, page authority at “Tbe court bad no to open order clerk to tbe ballots and ascertain bow report these thirteen men bad voted and the same to tbe authority require neither tbe court, did .court to bring tbe inspection clerk to tbe ballots into court for exposure.”
In Gantt 238 Mo. Brown, 560, tbe shoe was on Judge contesting other foot. election of Gautt Judge Judge Supreme to the officeof Court. Browh great seeing light, This court, ruled the Constitu prohibit inspection tion did not the examination, comparison of the with the list voters ballots when charged by fraud was a Democratic candidate, and over Spencer Referring ruled the and Dormer cases. Sec page Judge tion 3 of Article 8 at Constitution, said: Geaves “By secrecy this section the bar of is raised ex- press required judicial proceedings. By terms when required keep election officers are secret the may vote of the but it in such time he re- voter, as quired expose judicial proceeding. the course of a required judicial proceeding ain tell When voter has voted how public officer disclose must to the say public ear of the ballot. the secret We ear, justice public because courts forums, take no proceedings. part in star-chamber If the election officer must the contents of the ballot, disclose he must under provision, this constitutional what then becomes Spencer so much ballot discussed secret case? exposed
With its contents terms the Constitu- paper securely tion have but faded locked in the we Montgomery box.by Spencer supra.” cases, ballot charged redistricting It is relator state, not in officers was accordance the three respect requirements of the Constitution four of complaint, districts, those but this havi g n Fair Districts. ignored in no foundation the ma- fact, Yol. 290.] v. Becker.
jority opinion. “When senatorial district shall be composed they shall of two or more he con- counties, compact tinguous; may be and such districts to bo as county formation of no shall be divided.” the same *57 virtually [Sec. Art. The relator confesses IY.] thirty eomplaint justly no made of these can be toas districts. appor-
It will be the State cannot be admitted garment like a A tioned into districts checker-board. leaving piece
cannot be cub a of cloth without out of carving are sure remnants. in out 34 there districts, So, irregular shape, is not rec- to be some of tangular as State- may be subdivided and each counties popu- nearly may be must have as the same district as.
lation. respect interpret
The in must itself. this Constitution By 11 of Article State was divided into IY, Barton, of Vernon, senatorial districts. counties composed Jasper, Newton and Sixteenth McDonald being compact convenient, District. It is neither nor extending length, one-third or more counties fivé length along border. Here of the State its western requirements interpretation of Sec a concrete at war IY. Constitution is of Article Unless tion 9 compact as convenient district was with this itself, organic required the circumstances and as as the law complaint permit. approaching No instance this would gravity relator. is made majority raised, however, No compact- opinion, could be, fairness, nor indeed apportioned contiguity of districts ness argument At- At the learned officials. three state ap- prior challenged comparison torney-General distinguished reply, portionment. one the relator’s In redistricting for senatorial the State counsel said political always game. purposes has been a is and ruling in case seemed con- the Halliburton Judge therein there had concurred when clusive. Graves political ’in horizon de- no storm clouds were MISSOURI, OF SUPREME COURT Laslily
'State v. Beelier. arguments
dared of Fox, that the C. were unanswer J., able. If overrule that and other face we now cases political exigency, may polit of a said that the game simply ical to this transferred court? The premises adopt majority opinion can we considered, hope respect to merit the confidence and of our people? Of course this court has arbitrari ly solemnly protest override but Constitution, I against wrong. apparent this monstrous itWhen rulings politi our are tossed about like footballTo meet exigencies, justly public contempt. cal we shall merit ago
Nearly twenty years court, many good lawyers, brought grave reproach upon it- reversing outright judgment self in rendered favor Oglesby against Railway of Rube the Missouri Pacific Company per- in the sum of $15,000' serious and injuries serving manent sustained him while that com- *58 pany as a brakeman. The action of this court was severe- ly especially by Shepherd, proprietor Mr. criticised, newspaper published Warrensburg, at Mr. where Oglesby lived. In the exercise of what he deemed 'his privilege speech, published constitutional of free he an criticising public the article court and other officials. thoughtful
Many men the believed criticisms were de- especially people Warrensburg, the served, who raised imposed by fine the this court and extended $500 Mr.
Shepherd reception public city. on his return was a more severe condemnation of This this court than published Shepherd. delivering criticism Mr. In the imposing Judge of the court fine Mar- (177 269) Mo. said: shall “The courts of this State have been conservative forbearing They and to a fault. extreme, have concerning lawyers overlooked remarks their from acts laymen, improper pale and that were and outside of the preferring, possible, if law, attribute offense laymen, the zeal of counsel or the excitement of the in- disappointment hopes personal cident to _ and ambi- They feelings tions. been considerate and TERM, 1921. 290.] Vol. Becker.
State ex rel. v. many have, times, abstained from others, character of language, trying strong provocation, under the use of proper deciding it was But do cases. And so. liberty,
protection safety property char- life, society, proper peace of administration of acter, justice, perpetuity of our institutions and even imperatively every government, form of demand stranger, newspaper layman, lawyer, citizen, man, one, proper respect, friend shall treat courts foe, or impair respect attempt degrade or them, shall not people, people,, destroy them. the faith polluted temples justice become are'not When the pure government kept free foundations of clean, itself threatened. The undermined and the institution people abusing their their have no fear of courts respect.” contempt punish inor other Very “butter no “Fine words,” however, true. pure kept
parsnips.” Temple should Justice should be wife, like Caesar’s clean; and, reproach, suspicion. above above but
‘‘ gie giftie us wad some Power us!
To see see oursels others mony us free
It wad frae a blunder notion;”
An’ foolish eloquent protest called forth criticism which provoked by action late Maeshalb of our brother private persons in a concerned court of this case Ry. only. Co., Mo. Oglesby Mo. Pac. [See history. Doubtless the remarkable The case had had a unjust; not know. But I do criticism *59 crowning Oglesby elected Mr. rebuke, State, however, case, office. In this a lucrative state if constitution avails State is concerned. What
whole many inference and, mere it can stricken down be partisan politics'? Such a con- in the interest believe, good and sub- be clusion announced when should appeal given that can therefor will stantial reasons be people. understanding our Mere the common sense MISSOURI, OE COURT SUPREME Laslily ex rel. v. Beeker. sophistry theories will not serve and attenuated purpose reproach. from nor save ns part, foregoing of this court is, record political involving feel issues. I cases I read are entitled to this record. have said Missouri aught
nothing nor set down malice. in unldndness, respectfully For dissent from the reasons above stated I maj ority opinion. (concurring). BLAIR, JAMES T. C. J. the—At rehearing time the for motion was and over- considered dissenting opinion J., ruled the had been filed. Elder, opinions dissenting The other been, had main, prepared, but had not been filed. In this situation, view of the remain, brief time would which event, delegates for the nomination of to the Constitutional judges proposed Convention, the who two then subse- quently orally presented legal prop- to file dissents, upon which were ositions their founded. views These were considered motion court, for re- hearing appeared was thereafter overruled. at this subsequently proved proposi- time, and true, be previously ap- tions were peared advanced had given in the case. In leave this, view was for opinion. filing concurring of a Under this leave following suggestions made. opinions dissenting
I. In the filed on December 8th (after respectively rehearing 9th, motion- overruled), position seems to taken that majority under the rule announced it must delegations follow that Legislative municipal corporations of authori Delegation Power: ty to the Public Service' Commission, Municipalities To and Legislative and the are invalid like, and unconsti Agents. tutional ; this result is so disastrous as to show amendment of 1908 intended to majority opinion be construed as the construes it. Attorney-General, and his assistants, whose arguments painstaking,
briefs and in this case disclose a *60 ’
Vol. OCTOBEE Lastly v. Beeker. lawyerlike dispassionate study the of the case questions argument in made did the now it, advance opinions dissenting opinion in of the The mentioned. carefully the does which J., issues, discusses
Elder, rehearing argument. contain an motion The nothing point is contains the Nevertheless, the kind. always en-
now made and the brethren of our views are respectful titled to the most consideration. argument overlooks
It is believed that the referred to origin powers said nature now which are majority opinion. threatened rule .of argument assumption that, for is founded Legislature city with au instance, when the invests á regulation thority pass of matters for the ordinances investing thereby city local it with concern, part “legislative power” in in the sense which those and that when Constitution, are used words city passes part an it exercises a council ordinance power” “legislative Un Constitution. described argument assumption of its less made, falls power true that the own That unless it is is, weia’ht. city part passing ordinances is a
exercised “legislative power” sense, the constitutional the rule cannot be contended it is affected opinion, majority which deals thing question arises no other sense. The whether fact. is one be true true in
assumed to and text-writers. has had attention of courts St. early it in this court discussed Metcalf As as 1847 l. 11 Mo. c. this wise: Louis, delegation explicit power is clear and
“Here appears question. pass The ordinance the ordinance passed approved. regularly have been on face to its subject adopted on this for want If ordinance be void mayor authority, legal the" coun- follow that of cil will pass that the General whatever; and, no ordinance can corpo- impart one no such can seriously cannot contended. We ration. This 3rd. to the 1st Constitution article, referred section SUPREME COURT OF MISSOURI, y. State ex rel. Beeker.
of [of legislative power this which State, declares ‘the that, government] shall be As- vested a General sembly, which shall consist of a Senate a and House Representatives.’ "We can see no conflict between this authority clause and the conferred the General As- sembly mayor on city and the council of Louis. St. grant power pass
The govern- ordinances for the City ment of the of St. Louis, not inconsistent with delegation Constitution and laws not State, is law-making power government delegated Assembly.” , the Constitution to (Italics the General ours). appears
It therefore that this decided sixty-one years about before Section 57 of Article IV adopted, in that 1908, and this then .court held contrary assumption exactly law to be made in the argument being uniformly considered. court This has delegate legis- held that the General cannot its power. uniformly .municipal lative corporations lawfully It has as that held powers
could be invested with the question. holdings now The same are found in the impossible every state. decisions is to harmonize holdings municipalities it these if be true ex- legislative power, part ercise the constitution- legislative delegation. al under ^sense, rule announced in the case is not Metcalf generally recognized. but the law Missouri is Mr.
Cooley pp. (Const. gives 265) Lim., Ed., his views as follows: legislature already been seen that the has can-
“It delegate laws; to make but its fundamental qualified by maxim it so is customs of is, our regard govern- other local maxims race, right Legislature, ab- the entire ment, prohibition, of authorization create towns sence municipal organizations, other inferior con- powers government, local them the and es- fer police regulation pecially of local taxation and usual with unchallenged. always pass corporations, would OCTOBER, 1921.' TEEM, Vol. Beeker.
legislature regarded-as delegating in these cases authority regulation its because the of such local affairs commonly as are left to local and officers 'is not boards belong properly understood to State; when interferes, sometimes'it to restrain must, and control policy the local there should reasons action, of state danger interposition.” of local abuse to warrant ours). (Italics Municipal Corporations
Mr. Dillon work on his (5 Ed.) “Although says: proposition sec. 573, legislature competent of a state is alone to make yet competent laws also true, settled that it is legislature delegate municipal corporations by-laws appro to make ordinances, *62 priate sanctions’ Municipal Corpo-
Mr. in his work McQuillin, on says: 124, sec. “And while-the rule also rations, power to that the make laws 'cannot fundamental be dele- corporations gated, municipal of creation to exercise self-government local has never been held to violate this principle.” quotes McQuillin
Mr. from and cites of a decision Supreme of the Court United Mr. which States Fuller says: principle “It a cardinal Justice Chief system government of that local affairs shall be in our general managed by local authorities, affairs the- authority, while rule hence, is also funda central power delegated, make laws cannot be to mental municipalities exercising self-govern local of the creation upon to trench been held rule. Such ment has never regarded general leg legislation a transfer of as authority pre grant power, rather a to but of islative according municipal regulations, practice, local scribe interposition superior subject, course, [Stoutenburgh necessity.” 129 Hennick, v. cases l. c. U. S. p. Ruling sec. will be Law, Case found
In 19 closely decision last In text follows cited. Corpus (2), pp. sec. 357 rule is 859, 860, Juris, OF MISSOURI, COURT SUPREME Beeker. legislature -may delegate general “In stated: proper corporations, municipal officers of such municipal powers govern- corporations, incident violating otherwise, without whether ment, delegation legislature against a of its the rule ’’ law-making power. Hayes, seq. (cited H. 61 N. l. c. et
In State v. Dillon), approval Mr. is a discussion of with municipal corporations powers origin gives which subject legal a and historical view related to present discloses the considerable the tiquity an laid down doctrine authorities which In those will be are here cited. authorities cited found of the courts. numerous decisions power
The harmonious. authorities are to invest authority municipalities part to enact ordinances ais legislative power in the constitutional sense. Legislature delegate. That cannot municipalities exercise under au , " " general legislative part thority power is not Supreme according to the Court of the States; United belong properly is “not understood the State,” ac Cooley; cording part and is not to Mr. “law making government delegated by power of the the Con Assembly,” according the General stitution to to this construing when own court our Constitution. In view these of this court’s authorities, declaration *63 subject which was of this law State when the the. Constitution of 1875 and 57 Article IV were adopted, necessary drafted it is to conclude that the assumption previously referred to is incorrect and that argument dependent, upon it with it. falls suggestion made
The is' that the also rule may destroy majority the Public Service Com argument, again, power mission. The assumes body power legislative by that in the exercised is con appears stitutional given in This from reasons sense. like those considering municipal corporations. power The Public Service is exercised adminis- Commission TERM, 1921. 290.] Yol. Beeker. v. legislative. passed by The law
trative, and Assembly. administration and Its execution power legislate The to the Commission. confided are power to exercise discretion to what includes authority from is distinct or discretion shall be. law This is the settled doctrine in of a law. execution country. 693, v. 143 U. c. Clark, 694; S. l. [Field Bridge 496; l. c. Stranahan, 192 U. Union v. S. Buttfield 385; 384, 204 U. S. United States States, Co. v. United l. 519, 520; 220 U. c. Beale & 518, v. S. Grimaud, Regulation, Wyman secs. 1403, 1404, on Railroad Rate Springs Saratoga Village Saratoga G., etc., 1408; Com. 144, 145; Y. l. Int. Comm. v. Transit 191 N. c. Co., Legisla rule that the l. The c. U. S. Co., agencies may may constitute administrative ture regulations. fixing empower carry out a law rates Legislature The must make law. administrative nothing This more. board administers the doctrine law— longer questioned, courts and no as we understand power by the It follows that the exercised text-writers. and the boards
Public Commission referred Service power opinions dissenting majority opinion is therefore not affected sense municipal it. It is clear that the to authorize corporations of local concern, to act matters and. the public service commission to establish a public regulating better administration the law serv “legis corporations, parts constituent ice both power” is defined lative as that the Constitution. legislative authority,” in Section 57
words “the as used any them as much include IV, of Article include repeals part power. It no more other powers passed than those under them affects or acts repeals passed part other or affects acts under legislative power existing itas under branch stood of Article IV the time Section our Constitution at adopted. municipalities authorizing to enact or-
State laws establishing are as boards dinances administrative *64 OP MISSOURI, SUPEEME COUET Laslily v. Beeker. subject much may referendum as other laws and proposed readily be initiative. Of course, implied reasoning it is not meant to be of the dis- opinions senting that Section 57 of IV Article would au- large thorize the voters of the State at initiate an ordi- (for instance) city nance for the of Kirksville or to refer large passed to the of the voters State at an ordinance (for instance) by the local city authorities of Joplin. principles
In view established to which ref- authority erence has been made the unbroken line of supporting well their them, as almost axiomatic char- position acter, reached 'conclusion that the we dissenting opinions taken in this connection the two cannot be maintained.. judicial prec
II. In the correct use decision as a things edent at least two be must understood using necessary court so it. It is that the court know question (1) what the is which is then before it for deci (2) question what sion, was decided invoked, precedent. in the decision as a Stare Decisis: Halliburton case. The first can learned from the record pending; must case. second discovered from previous itself. In decision this case the decision precedent. in the Halliburton case is cited as a The dis opinions senting argue earnestly to the conclusion that in that case that the shows now be way. fore us was in that in a decided case certain To necessary reach conclusion it is for those who cham pion language opinion. it to of that construe the In view given meaning of the fact that the to the Halliburton dissenting opinions quite decision in the different from given' majority opinion, to it in an examination applicable interpretation judicial of the law to the precedents proposed, their decisions when use as application an of that law Halliburton decision, place. may not be out of TEBM,
Yol. OCTOBEB *65 y. Lastly ex Beelter. reí. (Black’s the hornbook One of rules Law of Judicial p. judi- language 49) sec. is: “The a Precedents, of always cial decision is to be construed reference the with particular circumstances case and authority actually under and consideration; points precedent, a law as is limited those of decision, which by by the court, are raised considered record, ’’ necessary to the determination of the case. and Continuing, says: Mr. Black theory very principle is a in the
“This fundamental precedents, repeatedly recog- judicial been and has of by by theoretical nized and asserted as well as courts, judicial by ‘A or rule made text-writers. law of law says Jurisprudence, Camp- (2 Austin decisions,’ Austin, 900), general or ab- nowhere a sec. ‘exists Ed., bell’s peculiarities implicated of form. stract adjudication specific or decision case or cases, applied by order and in tribunals.; which was of correctly import may cir- ascertained, its applied, well it was as the cases to which cumstances genera] propositions decisions, which occur as given The reasons for be observed and considered. must interpreted and accord- must be construed -decision each by were ing the case those reasons which to the facts of authority any general propo- rejecting as elicited, no judge, may but were have been stated sitions which necessary or the case so the facts of not called must then be ascertained The reasons when decision. circumstances with which the detail of from abstracted implicated. Looking particular at case been interpreted arrive at a we abstracted, and so reasons apply
ground uni- principle will decision, law, like statute versally may which, class, to cases process conduct. a rule Without serve guide judicial serve as a decision'can no abstraction, applied the solution subse- or can conduct every features of its own, case quent has For as cases. specific judicial every decision on a is a decision SUPREME' MISSOURI, COURT OP Laslily v.' Becker. judicial case, a decision whole, as a as considered application concrete, can have no another there- ” fore a different case.’ jurisprudence This rule is not of this new State. seq., In State ex rel. v. St. 241 Mo. l. et c. 238 Louis, opinion an written Banc con Lamm, J., and ip. by curred C. J., Valltant, Kennish, Ferris, Brown, Woodson Graves, JJ., found an announce ment of the same doctrine. In that case was said: pronounced
“There ais line of demarcation between what is in an said and what is decided it— arguments, between illustrations references on one *66 judgment side and the rendered on the other. The lan- guage by judge opinion interpreted in used a his light judgment in the in in of the facts issues held and every precisely the concrete case inas other human docu- very ment. ... be a wide and mischievous would departure interpretation from correct canons dis- general language connect from the issues facts given general language apply a case that me- automatically chanically or different facts dif- case; another ferent issues of for the sense must be subject according requires, limited as the take words color their context.” from quotes then from and texts which cases
disclose that the doctrine is ancient universal. Par ticularly approve a in v. did the court decision Lucas quoted 44 l. Commissioners, Ind. c. it at from length. quotation, some The rule can be found frequent together for it. sound reasons This court Lydy, ly approved [Greene has the rule. Co. v. 263 Mo. Clardy, v.
l. c. 256 Mo. l. 91; 322; v. c. Pocoke Skilman 256 Mo. l. c. Bender v. 250 l. Peterson, 518; Mo. Weber, c. v. 249 l. 561; 191.] Lorenzen Mo. c. Railroad, [People Winkler, authorities elsewhere are uniform. v.
9 l. In re 98 l. Larzelere 236; Johnson, 542; c. Cal. c. Cal. l. c. Bon
v. Holcomb v. Starkweather, 100, 101; Mich. Hogan 370; 32 Mich. l. c. v. 200 N. Y. l. c. nell, 8; Board, Wright Nagle, 101 N. Y. l. 112; Crane v. c. v. Bennett, TEEM, Yol. v. Becker. Virginia,
U. S. l. c. v. Wheat. l. c. 796, 797; Cohens 545; City Swan c. v. 400; Fant, 222 Mass. l. Justices, lay 96 S. C. l. c. down other decisions 96.] Numerous proposes same rule. none We .found necessity other. The for the made arises out citations negatived by the fact of senting that the rule to be dis seems opinions conclusion which it in that reach a thought be reached if the existence of rule cannot question apparently of this is conceded. It is view necessary implication dissenting opinions in the and out respect dissenting for brethren views of again no examined. find authorities have been We implied except necessarily denial of the denial rule opinions dissenting in this case. dry The rule must be decision “read ’’ light ques- of its facts and not when the otherwise, own precedent rule tion it constitutes is a arises, whether determining language of means; for the decision what what is decided. discussing
In the the first Halliburton case was in questions formulated for the two which the court langiiage in that case that the was used which decision dissenting opinions relied decisive is now majority That out of opinion case. set easy reference, is restated here: but, *67 presented petitions to the re the as “First: Were spondent, Secretary legally sufficient author State, to the of this of an amend ize the submission voters State (the Constitution) organic change to, in the ment law petitions the em in other do words, this Or, State? a for the submission of a constitu in fact demand brace contemplation purview within the tional amendment adopted this State initiative amendment legislation-approved as the June 1908, as well November, 12, carrying providing initiative the out for the Constitution?” amendment lan- the that an examination of not believed by question, the court formulated
guage thus this when it court, this that lead to the conclusion will itself, SUPREME COURT OF MISSOURI, v. Beeker. thought framed it was it, decide about consider and question the it is An which contended did decide. now examination of the briefs that shows the first contention by respondent proposed made amendment was that the judged by to the was, substance, Constitution its when temporary power legislative in the that character; Legislature people, by and of the initiative, the the not include submit constitutional amendments did power to submit, Constitution, amendments permanent not of and of constitu- matter tional temporary was sort in that essence nature but which was its sense, Respectable in nature. au- support thorities were of this was not cited view. It might a convention include contended constitutional any proposed what it would nor that constitution, might adopted people matter not be when included power constitution. contention that new was limited, was and limited to submit amendments question suggested; The manner briefs deal this respondent length. that contention of was at Another power to into senatorial' redistrict districts delegated Article Con- been Section 7 of IV had people. delegation this bound and that stitution argument redistricting could not be done people by until the dele- amendment constitutional delegation gated power under the resumed; had been department power force of was in having delegated by been itself, the Constitution deprived people, had themselves they provided in the Constitution the dele- what
to do gatee length argued proposition This at do. should any did not cited. It occur authorities and numerous lawyer case or on the bench this last then in the way question any depended argument executive of- three the conditional whether adoption of Section had survived redistrict ficers to gone into That was not Article IV. 57 of reason the case sufficient one connected with argument could af- been on head *68 Vol. TERM, 1921. Laslily Becker. way
fected question. If the decision of that power of these officers not affected was delegation power then it remained re- and the literally mained, If as stated of Article IV. Section 7 destroyed power Section 57 of Article of these IV yet delegation officials, re- except mained unaffected in so far as enabled Section 57 people participate legislation. foundation argument respect, counsel and court, delegation power fact of the constitutional to redistrict, which remained the whether or not same power Section 57 affected conditional the three executive officers. the fact Since
delegated justified argument, remained fact the same whether the or three officials not been had had deprived they power, question of their then the whether deprived had been so had could have no had influence on the decision. This means that the con- now have tended to been decided was not in the Halliburton and, case was not in that A fair course, decided case. light
consideration of that decision, of the rule respectfully first it is submitted, can lead to mentioned, no other conclusion. Paragraph concluding
In I of its in the Hal liburton case the court holds that the to redistrict delegated has been Statfe and could be exercised proposed people in the manner until the constitutional power by repealing had resumed the amendment the dele gation “put and holds that the could not it; regarded organic which is Constitution, as permanent provid State, law of the mere acts ’’ ing powers. certain the exercise of The court adds: give unwilling to our assent to the contention “We accepted petitions these should been and filed, applicable subject were whether contemplated by the initiative and referendum.” matter evidently means same that which counsel last This quoted saying in the brief, case is i. e. that the amendment had no initiative-and-referendum effect *69 MISSOURI, COURT OP SUPREME Laslily v. Beeker. way urged questions upon-the court either on the real two entirely phase on this the case. And this was is pro gave power true. That no amendment the Legislature pose the amendment which a constitutional proposed fact was in no wise could not have and this question power the of the ex affected whether abrogated by amend that ecutive officersremained or was existing, The refer as still ment. court did upon. instances and these are In other remarks seized (General Assembly ap specifically the court named parently delegatee to redistrict. as sole way, [Page 437.] one other If the one is a decision contrary. equally fact is, neither" to the decision way, the reason stated. When is a decision either for applied in the and the facts case the rule first stated questions kept as stated for decision, are in mind and the presented finally as an .briefs and as court, this seems considered, nounced as decided, ought to the not to be misunderstood extent decision pass upon question thought before now it would apply refusing no reason for this court. We see applied and rule burton the same law which is Flalb case determining they decide what decisions to other precedents. upon This rule as stand what matters continu It has received the time. the test of has stood present approvel of court to the unbroken' ous and this approval. its No reason for universal moment. has merely abrogation It is overlooked advanced. applied and the rule is established this
dissents. When argument in the dissents it, tested decision upon other distin cases Halliburton are based with due us, seems to guished majority respect unsound. to their authors, another
Confirmatory view is of the soundness rehearing case in the Halliburton thing. for motion subsequent- signature lawyers of two who able bears quote, ap- court. We of this ly members became opinions dissenting : this case proval, one from Brown, late John and-the C. Kennish late John “The Yol. Beeker. ex rel. great served the State with whom afterwards
both of were of court, members of this honor distinction case.” In the in the Halliburton for relator counsel rehearing in that be found no such case will motion suggested in conception dis- decision as is now after, length discussing at 'the fact, In sents. discretionary power Secretary State, following: contains
motion ground main which the decision of this “The *70 against denying peremptory writ in based court is proposed respondent, that the constitutional amend- legislative and not constitutional'in character; ment is legislative in character cannot that a measure be being guise adopted a constitutional under the amend- consequences . let what . . But us consider ment. construction if the court’s of the initiative-
will follow amendment is to stand. Under that and-referendum legislative in a measure character and a construction respectively in must constitutional character be measure proposed proposed if be either should such, and un- guise it other, would be form or void der the adopted by necessary if even of no vote effect, ’ polls.’’ at the length. argued at An then The matter is examina- to disclose that the' motion fails eminent tion of this represented in the relator Halliburton case counsel who suspieioned it what is now that the court decided had they it Their brief shows not did decide. did insisted question that the was the case, advance discover they they not filed shows did discover the motion court had decided it. Their that the from ability preclude strongly tends inference conceded question it is dis- which, now overlooked that of the corner the head dissents, was covered If conditional case. whether Halliburton redistricting three had executive officers adoption Article 57 of IY was survived the indisputable (and think it case not involved we not) not it not decided could that it then was was SUPREME. COURT OF MISSOURI, y.
State ex rel. Beeker. have been If decided. contended, involved respondent, counsel court and for but the distin- guished memory counsel for whose we revere relator, reputation thinking lightly whose sound 'is not impugned, presence. be failed discover its Also, we have been unable to find that the has been misun- case by any derstood annotator text-writer. dissenting the, opinions
III. In two of it continues adopted by to' be contended that the rule the court de stroys all restrictions exercise power, argued this, from that the and, construction gives legisla
the court the words “the authority” must tive In incorrect. Legislative Power: substance, the insistence is that Absolute abrogation of these restrictions would and Qualified Exercíse: Restrictions.
lead results it is not reasonable believe could have intended. is conceded, of course, that the court holds restrictions a're argued but it is affected, be this conclusion cannot holding legis maintained the face of “all power” lative meant to included words *71 authority” legislative “the in as the used amendment of respect opinion 1908. With due to of the those who ad arguments opinions, vance these in these we have been escape unable to in the conclusion there is, the two opinions evidence of confusion of mentioned, a different concepts legislative power of of and the treatment of upon power power restrictions of itself and as identical. grant seems that the distinction a obvious between power upon power
of and a restriction exercise the of a approaches simple is so wide that it- demonstration its Supererogation statement. to would seem reach its attempt argue thing climax in an to of a such axiomatic Nothing character. to what is need be added said in previous opinion subject. the court’s on this The real argument upon basis of the the continued insistence men- legislative power, appears tioned the idea as it is of meaning given two dissents filed. last The Yol. Beeker. authority” opinion “legislative to thé words as
court’s appear they Article in Section 57 of is the mean- IV susceptible. ing they reasonably is There of which seem legislative power implies conception which of abso- sovereign. is There another which con- lutism the power might by it which be as the full ceives exercised government of of freemen. branch There the last, which conceives less such a third restrictions deducted constitutional which the good people proper govern- for the furtherance of deem might thought absolutely ment but which essential government. to existence of free Rights of
The view that Bill withholds certain legislation rights may field in of from which citizens operate government like in a ours vindicated history of and our institutions. authorities (7 Ed.) seq.] [Cooley’s p. Lim. Const. 65 et con ception legislative authority in the mind framers adopters 57 Article IV Consti and conception have been that im tution could not plies which legislate we absolute unless convict the forgotten having fundamentals of free Rights. in the Bill of set forth It was dom as are pur protect preserve them. main ordained pose government Constitution is our their our say people, preservation. protection To forgot establishing government, these is to the State point forgot things gave purpose say they which government. It seems establishment of a safe Rights taken that the Bill conclude view dissenting- say majority is correct respect. opinions init intended to contradict cer- were, Constitution, There are, power, its exer- tain restrictions subjects may' limit the which further cise, *72 applied may exerted. From in it and the manner which be power is left after reservations which residue Rights from con- been deducted Bill of appertain power ception legislative as it an would SUPREME COUNT OP MISSOURI, Laslily v. Beelter. these monarch., absolute restrictions make further deduc legislative prohibiting tions means of action or for except bidding prescribed action manner. What legislative power left was the under our Constitu adopted. tion at the time Section 57 was drafted and legislative power other had authority no legislative power no other because exercisable mind, existed then State. It clear that this the section has suggestion legislative no an intent to create new power, power and none then which existed was legislative power It diminished. dealt with the be It then neither to it was. nor added from substracted language puts beyond dispute. it. Its This is what majority opinion power holds. This is the which must and is meant when in the amendment it is said legislative authority that “the of the State shall be argument It etc. seems manifest that vested/’ the words declaring agencies what shall be vested with power legislative destroy upon legislative restrictions depends upon assumption power, legisla that the power authority tive intended to be included in the amendment is not the. itas then could existed and be exercised under our Constitution, ¿11 but included which could have been exercised if the Constitution had contained no restrictions its activities. This is assumption thing argument an is de signed prove. argu This advance method cannot suggested may ment. also that the words of the entirely general. They amendment are name a definite thing and name it If as whole. do include it adopted determining all, what method to be part excepted language general which is ? and all- embracing. exception Any to it must idea of and does stand in direct contradiction words used in the argument amendment. No amount can hide the all- explain language away inclusiveness nor used, plain language thought contradiction between that and the exception it. Nor does the amendment elsewhere exception any suggestion contain an to its terms.
Yol. Lastly v. Becker. ex rel. express adopted purpose for the are Amendments changes. working the business courts is interpreted explain away. They in them to be people purpose which actuated furtherance of the adoption. in their question is remains whether the
The formerly in of7 Article IV invested question legislative power, and executive officers is disposed fully correctly and discussed original opinion. IV. argued
Acts. It is that the amendment confines legislative assembly,and, referendum “acts of the recognizes therefore, excludes it is from its said, operation under executive Sec officials question If the here
tion 7 IV. of Article redistricting referability concerned the Referable argument question, re measure now might be, to would somewhat and, relevant ferred persuasive. question wheth What relevance has officers) (the er the executive of the measure framers authority apparent. premises had act so question is an act of whether measure legislative assembly the same and the whether promulgated by officerswith- measure has been executive separated authority widely out the distinction are so argument. itself obtrudes needs no opinion this, of' Y. In the the writer
prepared every ques convincingly covered J., Graves, very tion deference to the case. It is out of insistence, two earnest continued Con clusion. jast .original ruling dissents filed, slightly response wrong, and that a to new matter questions have some other detailed discussion of more respect proper. thought due de been With expression his member views liberate legal proposition ad re-examined the have court, we expression colleagues given our vanced MISSOURI, SUPREME COURT OF McCoy Bradbury. judgment
our them. ac- views this case expressed in the cords with the intent of the Walker, JJ., Woodson, amendment of 1908. Graves concur. *74 Appellant.
BESSIE BRADBURY, McCOY WALTER One, December 1921. Division Uncertainty: WILL: Doubt and Extrinsic
1. Construction: Omission: When, any uncertainty Evidence. arises as to doubt the tes- explain facts intention, tator’s extraneous admissible regardless language used, ambiguity, of the nature whether patent latent; every it court case entitled to be placed possession of all information available the circum- family testator stances of the estate and when he made his will, may his nearly end court situation as may be, may interpret understand the will testator ap living. he But extrinsic would were such evidence is admissible ascertaining purpose for the testator’s solely from intention language used; it cannot be heard he to show that he' meant thing another, when he said show an one or to intention not ex- will, making nor to pressed in the aid a will which he intended make; not fact cannot be supply make but did heard an language plain omission; gave where the testator specific legacy daughters, six to eaeh of extrinsic evidence cannot be heard to daughter named, for include seventh .a omission an ambiguity. Daughters: Bequest to Six — -: Failure to Mention Seventh: Implied: Necessarily Extrinsic Evidence. testator, being daughters, gave son and seven place father one his home of two forty acres hundred to his wife life my "and after death my go son provided;” said land to as hereinafter the third clause, gave hundred eaeh of daughters he six dollars five another, naming them, seven hundred to but failed to name plaintiff; provided in the fourth clause he the death of his pay legacy wife son "is to an additional my daugh to eaeh of ters or their above named sum four heirs the hundred dollars” he paid legacies and that "when shall several herein (cid:127) charged against the home my farm after termination death, wife’s is to farm, he become the absolute owner of said being the intention charged against there shall be will