155 Mo. 486 | Mo. | 1900
This is an original proceeding in this court, its object being to compel the city auditor to audit a certain bill of expenses incurred by relators as the board of election commissioners in and about the performance of their official duties in their capacity as such commissioners.
The return of the city auditor giving reasons for refusing to audit the bill in question, states in substance that the law under which such election commissioners were appointed and are acting, is constitutionally invalid for that in the course of its passage such proceedings were had as violated the Constitution of this State in several particulars.
The objections thus raised to the constitutional validity of the litigated act will now be discussed. That act is known as House Bill No. 760, and entitled: “An Act to provide for the registration of voters in cities now having or which hereafter may have three hundred thousand inhabitants or more; to provide for the creation of a board of election commissioners, provide for its appointment and define its duties; to govern elections in such cities, defining offenses and providing penalties therefor, and to prescribe rules and regulations governing registration and elections therein, and to repeal all acts and parts of acts in conflict or inconsistent herewith.” [Laws 1899, p. 179.]
Section 37 of article 4 of the Constitution declares that: “No bill shall become a law until the same shall have been signed by the presiding officer of each of the two houses in open session; and before such officer shall affix his signature to any bill, he shall suspend all other business, declare that such bill will now be read, and that, if no objections be made, he will sign the same to the end that- it may become a law. The bill shall then be read at length, and if no objection's be made, he
Commenting on that portion of the organic law, when it first came under review and within four years after the adoption of the Constitution, this court said: “We are convinced that the initial clause of the section that 'no bill shall become a law until the same shall have been signed by the presiding officer of each of the two houses in open session,’ is mandatory, though it is quite evident that the mandate of the Constitution would be obeyed, so far ‘as concerns proper authentication of the bill, when it receives the signature of the respective presiding officers in open session. But we do not regard the other clauses of the section under review as mandatory; for it is to be observed that those clauses do not declare that 'no bill shall become a law,’ if the presiding officers or the members fail to perform the duties which the residue
“If it be said that this construction leaves it optional with the Legislature whether they shall comply with the explicit commands of the other clauses of the section, the obvious reply is, that confidence must be reposed somewhere; that the very nature of republican government demands and presupposes it; that if the trust thus reposed is not well founded; that if integrity is not to be found among the legislative representatives. of the people, it would be but an easy matter by a simulated observance of constitutional forms in the registry of falsehoods upon the journals, to evade and defeat the most rigid provisions of the organic law that the wit of man is capable to devise.
“As no objection or protest is ‘noted upon the journal’ of either branch of the General Assembly, the only natural and reasonable conclusion for us to reach is that benign conclusion of the law itself, sanctioned by the wisdom of ages, which presumes in favor' of right, and not in favor of wrong. Similar presumptions are daily indulged in respecting judicial
Mead’s case received the unanimous approval of the members of this court, and was approvingly followed in State ex rel. v. Field, 119 Mo. 593.
Under these rulings it must be held that in the absence of a protest, as already indicated, pointing out in what particulars the Constitution has been violated during the passage of the bill, that it will be presumed the Legislature was not remiss in its duty in that regard, although the journals'may have failed affirmatively to record the performance of such duty. This presumption forecloses any investigation as to what occurred during the progress of the bill either as to the occurrence of any substitution, omission or insertion, while ón its passage, unless it be the failure to conform to some .mandatory requirement of the Constitution like that pointed out in Mead’s case, when discussing the initial clause of section 37 supra, which fails to make entry on the journal of the recital of obedience to srach mandatory requirement. But, it is obvious that these constitutional provisions which were designed to set forth the
In -this case, however, a protest was entered; it is on the point that the act mentioned is invalid, because it is a local and special law and no notice, etc., was published nor recited in the act, and that therefore, it violates section 54 of article 4 of the Constitution. If the charge thus made1 in the protest holds, then the law must be deemed invalid.
In 'support of this theory of the law’s invalidity, it is asserted by respondent’s counsel that:
“The -Nesbit law is a special act, for the reason that it is not uniform in its operation upon a class of cities or communities having 300,000 inhabitants or more; and separates cities not within counties in important particulars from, those that are within counties. Thus, it is enacted, see. 46, Laws 1899, p.' 196: ‘In all cities not within counties such election commissioners, etc., shall be paid by the city,’ etc., etc., The Constitution primarily makes no such distinction, but requires the Legislature to provide for the registration of voters in all cities and counties of more than 100,0.00 inhabitants. This is the fundamental class.
“The Nesbit act, we think, unconstitutionally provides for registration ‘in all cities of this State now having or which hereafter may have three hundred thousand inhabitants or more.’
“When such law has within it provisions that develop the intent to fasten it on a part of a class only, it will be decided illegal and void; and this is done when a particular city of the class 100,000 inhabitants or more, is required to pay a different proportion of liability because of its separation from a county. [State ex rel. v. Herrmann, 75 Mo.*498 340; State ex rel. v. Jackson Co. Court, 89 Mo. 237; Murane v. St. Louis, 123 Mo. 479.]
“The 'Nesbit act (section 3) makes provision for the vacation of the offices of election commissioners in cities now having 300,000 population; it makes no provision for the vacation of such offices in cities which shall hereafter reach 300,000 population; in this it does not provide for future conditions, but applies solely to present ones; the exact test, applied to the notary law by this court in’the ITerrmann case, 75 Mo. 340, on which that law was held unconstitutional, because special. The provision is, ‘Said board of election commissioners shall perform all the duties and take the place of the present board of election commissioners of such cities immediately after this act becomes a law. The offices and board of election commissioners as now constituted and existing in such cities to which this act applies are hereby abolished, and the commissions of such election commissioners hereby revoked.’ That is, no provision is made to extend the act to cities hereafter acquiring 300,000 population.”
And section 5 of article 8 of the Constitution is quoted, which reads as follows: “The General Assembly shall provide by law, for the registration of all voters in cities and counties having a population of more than 100,000 inhabitants, and may provide for such registration in cities having a population exceeding 25,000 inhabitants and not exceeding 100,000, but not otherwise.”
Under this provision of the Constitution it was entirely competent to enact the law now under consideration; because by that section of the organic law power is expressly bestowed on the Legislature and they are commanded to “provide by law for the registration of all voters in cities and counties having a poptdation of more than one hundred thousand inhabitants;” and the power being granted, all means necessary to its effectuation went with it as incidents, and
And the Legislature had the right to require cities, not within counties, to pay for election expenses. If they had not such right, then it would follow that such expenses could not be paid at all, as under the general law such expenses are to be defrayed by the respective counties. Besides, under the statute respecting the construing of laws, it is declared that “whenever the word county” is used, “the same shall be construed to include the city of St. Louis,” etc. [Section 6570, R. S. 1889.]
Moreover, in State v. Board of Education, 141 Mo. loc. cit. 50, this court held that, “The Legislature has control over the revenues of the city as over that of the county and State,
It is further urged in opposition to the Nesbit law, that section 3 of that act “makes provision for the vacation of the offices of election commissioners in cities now having; 300,000 population; it makes no provision for the vacation of such offices in cities which should hereafter reach 300,000 population; in this it does not provide for future conditions but applies solely to present ones; the exact test, applied to the notary law by this court' in the Herrmann case, 75 Mo. 340, on which that law was held unconstitutional, because special.” There is this answer to this contention: in the first place section 1 of the statute treats of “cities of this State now having or which hereafter may have three hundred thousand inhabitants or more;” and the title of the act applies only to such cities. In such circumstances the character of the act is stamped upon it by its first section; it was unnecessary therefore to mention or repeat in each or in any succeeding section cities which might thereafter have a population of 300,000 inhabitants or more. The law would imply this, and whatsoever the law will imply is as much part and parcel of a legislative enactment as though in terms inserted therein. [State ex rel. v. Board of Equalization, 108 Mo. 235; State ex rel. v. Walbridge, 119 Mo. loc. cit. 395; Coonce v. Munday, 3 Mo. 374; Han. & St. Jo. R. R. Co. v. Marion Co., 36 Mo. 294; Sutherland Stat. Constr., sec. 334.]
In the second place it is insisted that the Nesbit law violates section 7 of article 9 of the Constitution, by the formation of a new class of cities within the first class, and is therefore in violation of that section of the Constitution just mentioned, which limits the number of such classes to four,
Answering this objection on a former occasion it was said in the dissenting opinion in St. Louis v. Dorr, 145 Mo. loc. cit. 499: “The Constitution has made no exceptions to its general grant of power to the Legislature, and the courts without judicial usurpation can make none. But it is urged that if you admit the power of the Legislature by general law to amend the charter of the city of St. Louis, you thereby change the classification of ‘the cities of this State as provided for in section 7 of article 9 of the Constitution. But it is enough to say of such section that it has nothing whatever to do with the city of St. Louis, since that city is by the Constitution singled out and segregated from all other cities in this State, by express mention by name, as well as by peculiar and special provisions, shared by no other city. That section has no more to do with the city of St. Louis, than has section 16 of the same article, which confessedly has no application to that city — and no more has section 17.”
But this theory respecting our Constitution fell upon deaf ears, and was not regarded as worthy a moment’s consideration. Subsequently, however, Nansas City v. Stegmiller, came up here for adjudication (151 Mo. loc. cit. 204), whereupon it was said: “Again, we think it is plain that the framers of the Constitution ex vi termini excluded from its legislative classification the city of St. Louis, which is expressly authorized to adopt its own scheme and charter, and all such cities as it authorized by section 16, article 9, to frame and adopt their own charters. These cities constitute two constitutional classes distinct from those chartered and classified by the Legislature. It follows that the
With this interpretation of the Constitution the members of this court then present in Banc, agreed; but no mention was made of Murnane’s case, nor that it was overruled or in any manner questioned, nor of the fact that the dissenting opinion aforesaid had first advanced the same theory as that finally adopted in Stegmiller’s case, supra.
Afterwards, Stegmiller’s case was followed in State ex rel. Hawes v. Mason (153 Mo. loc. cit. 52), in Banc, where it was said: “So much of the argument indulged in to demonstrate that the act under consideration is a special and not a general law, is inapplicable to legislation of this character. 'St. Louis is organized directly under the Constitution. It is not in either of the four classes of cities which have been defined by the Legislature under the Constitution. It would have been entirely appropriate for the Legislature to have designated St. Louis by name instead of referring to it as a city of over three hundred thousand inhabitants,” and in this opinion all the members of this court then present incontinently concurred; but the case in 123 Mo. 479 was passed sub silentio, without as much as a nod of recognition.
Under these rulings, Murnane’s case, in so far as concerns the classification idea as applied to the city of St. Louis, must be regarded as no longer authoritative.
Passing now to other sections of article 4 of the Constitution said to have been violated in the 'passage of the Nesbit law: We look at section 25 which provides that: “No law shall be passed except by bill, -and no bill shall be so amended in its passage through either house as to change its original purpose.” This purpose means the general purpose of the bill, not the mere details through which and by
The Nesbit law is also assailed on the ground of violating section 31, of the same article, which declares: “No bill shall become a law, unless on its final passage the- vote to be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal, -and a majority of the members elected to each house be recorded thereon as voting in its favor.” In Mead’s case, supra, this section was held to be mandatory. Looking into .the evidence offered by respondent his exhibit “D,” at page 1106, containing the entries of the journal of the House of Representatives of' Thursday, April 20, 1899, shows that House bill No. 760,. which is the‘bill in question, was, on motion of Mr. Nesbit,. taken up for third reading and passage. The bill was read a third time and then passed by a vote of 75 members, with 53 voting in opposition thereto, 3 members absent, 4 members absent with leave, and 4 members reported sick. We will take judicial notice that the House of Representatives is composed of 140 members; this being the case, it is obvious that House bill No. 760, the name by which the bill was known and identified, received the requisite constitutional majority.
Respondent’s exhibit “C,” showing the entries of the journal of the Senate, affecting the passage of the bill through the Senate, shows that on Saturday, May 20, 1899, House bill
The exhibits offered in evidence by respondent also show that section 37 was complied with in both- houses as to the signing of the bill. The mandatory provisions of section 54 of article 4, having been -complied with, it is wholly immaterial under former rulings, so far as concerns the validity of the law, whether House bill 760, went through the precise course prescribed by other sections of that article of the Constitution or not; as those sections are non-mandatory, and among that •number is section 38 in regard -to the presentation of the bill to the Governor by the clerk, and the failure of the latter to note the fact on the journal. The presumption is in favor of the proper presentation of the bill, and of its timely signature. [State v. Mead, supra.] The same presumption holds as to all the other non-mandatory sections pleaded in respondent’s return.
As to sufficiency of the title of the act ‘this is affirmed by Mead’s Case, supra, State v. Blackstone, 115 Mo. 427; St. Louis v. Weitzel, 130 Mo. 600; State ex rel. v. Slover, 134 Mo. 10; State v. Bockstruck, 136 Mo. 335.
Respondent-also asserts that House bill 760, violates the following clauses of section 53 of article 4 of the Constitution: Because it is a local or special law; 2, regulating the affairs of counties, cities, etc.; 11, for the opening and conducting of elections, or fixing or changing the places of voting; 14, creating offices or prescribing the powers and duties of officers in counties, cities, townships, election or school districts; 32, forbidding the passage of a local or special law, where a general law can be made applicable, and making it a judicial question, etc. All of these objections are answered
The law is general for the further reason that it makes provision for the future; not only for cities now having a population of 300,000 or more, but for such cities which in the future may attain a like population.
Further objections are made to the law on the ground that it is in opposition to section 2, 5, 8, 10 and 12 of article 8, of the Constitution as follows:
“Section 2. Every male citizen of the United States, and every male person of foreign birth, who may have declared his intention to become a citizen of the United States according to law, not less than one year nor more than five years before he offers to vote, who is over the age of twenty-one years, possessing the following qualifications, shall be entitled to vote at all elections by the people: Eirst, He shall have resided in the State one year immediately preceding the election at which he offers to vote. Second, He shall have resided in the county, city or town where he shall offer to vote, at least 60 days immediately preceding the election.”
“Section 5. The General Assembly shall provide, by law, for the registration of all voters in cities and counties having a population of more than 100,000 inhabitants, and may provide for such registration in cities having a population exceeding 25,000 inhabitants, and not exceeding 100,000, but not otherwise.”
“Section 8. No person while kept at any poor house or other asylum, at public expense, nor while confined in any public prison, shall be entitled to vote at any election under the laws of this State.”
“Section 10. The General Assembly may enact laws excluding from the right of voting all persons convicted of*506 felony or other infamous crime, or misdemeanors connected with the exercise of the right of suffrage.”
“Section 12. No person shall be elected or appointed to any office in this State, civil or military, who is not a citizen of the United States, and who shall not have resided in this State one year next preceding his election or appointment.”
Section 5 of that article has already received sufficient discussion showing its mandatory nature; that it confers full power on the legislature to require the municipality to pay the cost of elections held therein, and that such legislation is not special, but general in its nature, and not at war with the classification theory. And it may be further said that the act under review does not at all militate against the constitutional right of any citizen, otherwise eligible, to vote. Registration laws grow’more in favor as the years gO' by, as tending to prevent fraud and thereby preserve the purity of the ballot box. On this topic Judge Cooley observes: “The provision for a registry deprives no> one of his right, but is only la reasonable regulation under which the right may be exercised. Such regulations must always have been within the power of the legislature, unless forbidden. Many resting upon the same principle are always prescribed, and have never been supposed to be open to objection. Although the Constitution provides that all male citizens twen'tyone years of age and upwards shall be entitled tO' vote, it would not be seriously contended that a statute which should require all such citizens to go to the established place for holding the polls, and there deposit their ballots, and not elsewhere, was a violation of the Constitution, because prescribing an additional qualification, namely, the presence of the elector at the polls. All such reasonable regulations of the constitutional right which seems to the legislature important to the preservation of order in elections, to guard against fraud, undue influence, and oppression, and to preserve the purity of the ballot box, are not only within the constitutional power of the
Of the law in question it is said by respondent that it “deprives the citizens of the United States residing in the city of St. Louis of their right to the equal protection of the laws, and imposes on citizens of said city unconstitutional requirements as preliminary to their right to vote and hold office and is null and void.” This assertion is amply answered hy the quotation already made from an eminent author and jurist, and it may be further answered in this way: Section 11 of the controverted -act, in so far as it prescribes the preliminary qualifications as to residence in order to entitle a citizen to vote, is the following:
“Sec. 11. Every male citizen of the United States, and every [male] person of foreign birth who may have declared his intention to become a citizen of the United States according to law, not less than one year nor more than five years before he offers to vote, who is over the age of twenty-one years, who has resided in the State one year next preceding the election at which he offers to vote, and during the last sixty days of the time shall have resided in the city where such election is held and during the last twenty days of that time in the precinct at Which he'offers to vote......shall be entitled to vote at such election, for all officers, state or municipal, made elective by the people, or at other elections held in pursuance of the laws of the State, but shall not vote elsewhere than in the precinct where his name is registered, and whereof he is registered as a resident.”
This section is just the same as section 20 of what is known as the “Filley Act” approved May 31, 1895 (Laws 1895, extra session, p. 5); and with the exception of the bracketed word in section 11 the law was the same in 1889. [Eevised Statutes 1889, sec. 988.]
The law of Ohio is substantially the same on this point as our own statute, as to unmarried men, except that it re
In Kentucky, the statute is in the language of the Constitution of that State, and requires a residence in the State for one year, in the county six months and in the precinct 60 days. [Kentucky Stats. 1894, sec. 1439.]
In Illinois, the language of the statute following that of the State Constitution, requires a residence in the State for one year, in the county 90 days, and in the election district 30 days. [2 Starr. & Curt. Annot. Stats. Ill., p. 1652, sec. 66.]
'In Massachusetts, the constitutional and statutory requisites as to the time of residence prior to voting, are one year in the State, and six months in the town or district, thus differing from similar regulations in Kentucky, only in the fact that in the latter 60 days residence is required in the precinct, so that it will be noted that the preliminary requirements as to the right to vote in this State are not more stringent, at least as to single men who offer to vote, than those in the State of Ohio.
But whether they were or not does not signify , since, as remarked by an author on the subject under discussion, “The power to provide for the orderly exercise of the right of suffrage, which we have seen belongs to the State Legislature, includes the power to enact registry laws, -and to prohibit from voting persons not registered. It is now generally admitted that these laws do not add to the constitutional qualifications of voters, and are therefore mot invalid.” [McCrary on Elections (4 Ed.), sec. 127.]
In Illinois, where the act- required registration to be com
The Constitution of that State requires that “all elections shall he free and equal,” and yet in that ease it was ruled that this declaration “does not necessarily mean that there must be uniformity of regulation in regard thereto in all portions of the State. Certain regulations may he prescribed for the conduct of elections in cities and villages, though they may have no application to the country places.”
It will he found upon examination that -the great current of authority flows in the direction of holding it 'entirely competent for the Legislature to regulate registration 'and the conduct of elections in the manner above indicated; the origin of these rulings being Capen v. Foster, 12 Pick. 485. See, also, State v. Butts, 31 Kan. 537; Weil v. Calhoun, 25 Fed. Rep. 865; In re Polling Lists, 13 R. I. 720; Patterson v. Barlow, 60 Pa. St. 54; Myers v. Moffet, 2 Bartlett’s Elec. Cas.
In concluding this portion of the opinion it may be well enough to say that in their general features most of the election laws of our neighboring States as well as of our own, appear to be in their general features and design the same, ■to wit: that of preventing fraud and of making it more difficult to defeat the will of the people' as recorded, or as intended to be recorded at the polls.
In Ohio, for instance, the Secretary of State is ex officio “State Supervisor of Elections,” and he appoints four deputy supervisors in each county in the State of different political parties and they, in counties where no registration is done, appoint judges and clerks of each political party for service at
In Illinois, the “Board of Election Commissioners” is appointed by the county court. They serve in every city, village and incorporated town. Such commissioners must be three in number; two of them of the leading political parties. Such commissioners select three electors who are to act as election judges for each precinct, and the two leading political parties are to have one judge each, and one of the clerks, and these numbers vary as to judges and clerks as to the leading political party represented by a minority of all the commissioners. The board of election commissioners appoint a chief clerk, and have other clerical assistants.
In this State under the act in question, the Governor appoints a “Board of Election Commissioners” three in number; this is done by and with the advice and consent of the Senate. One of these commissioners is required to be of the opposite political party to which the Governor belongs. Such commissioners are required to give bond with security in the sum of $10,000 for the faithful performance of their duties. These commissioners appoint and commission one deputy election commissioner who is to be the secretary of the board, and he may employ other clerical assistants if necessary. These commissioners select and choose four electors as judges of election "for each precinct, and two clerks, and “two of said judges and one of said clerks of election shall belong to and be members of the party of opposite polities to the other two judges and clerks.”
In Kentucky, under what is commonly called the “Goebel Laiu,” the General Assembly elects “The State Board of Election Commissioners.” This board appoints a secretary, and for each county in the commonwealth, a board
Respondent further contends that inasmuch as the Nesbit law professedly repeals the act entitled “An Act to create a board of election commissioners,” approved May 31, 1895, and this act is approved June 19, 1899, and what is known as the Cardwell act (Laws 18-99, p. 197), in relation to cities having over one hundred thousand inhabitants, which purports to amend said act 'of 1895, and was -approved also on June 19, 1899, that therefore the repeal of the act aforesaid was not accomplished. In reference to this, it is enough to' say that the Cardwell act is not before us for adjudication; that so far" as concerns the Nesbit act, it does repeal the act of 1895. Whether it be possible to -amend an act, and make it a valid law taking effect on the day its repeal is accomplished by another -act, is not involved in the issues now before us, and any utterance we might make on the subject would be wholly obiter; we shall therefore decline to consider or rule the point.
The premises considered, we award the peremptory writ.
SEPARATE OPINION OF GANTT, O. J., AND RRAOE AND VA1LIANT, JJ.
We concur in the opinion save and except so much thereof as declares Murnane v. St. Louis, 123 Mo. 479, overruled.
In our opinion the Constitution commands the General Assembly to provide a system of registration of voters in all cities having a population of more than one hundred thousand inhabitants, and there is no provision of the organic law requiring the General Assembly to classify cities for that purpose, as there is in providing charters for the various classes of cities, and hence we respectfully submit that the discussion of section 7 of article 9 of the Constitution in this case is not relevant.
We have no doubt whatever that it is entirely competent for the legislature in its wisdom, by general laws, to provide one system for cities having over one hundred thousand inhabitants and less than three hundred thousand, and other regulations for cities having three hundred thousand inhabitants and over.
The people by the Constitution conferred the legislative power upon the General Assembly, subject to the limitations
The classification theory has nothing to do with the case, and the act in this respect violates no article of the Constitution.
The power to regulate elections is a governmental function-and the city of St. Louis is just as much subject to the laws of the State in this regard as any othe-r county or city of the State. The Humane case involved a change of.the charter of the city of St. Louis in respect to a municipal function. The discussion of that case in our opinion is therefore obiter.
With this exception we fully agree in the very able opinion of our learned brother.