This is an original proceeding in mandamus by relator, Baylis T. Gordon, to compel the Secretary of State to receive and file in his office relator's written declaration of his intention to become a candidate in the primary election to be held August 2, 1932, for the office of State Senator from the Third senatorial district of Missouri, composed of the counties of Clay, Platte, Clinton, Dekalb, Andrew and Holt, as made and promulgated August 6, 1901, and as set forth in Section 11269, Revised Statutes 1929, and to certify relator's name as such candidate to the county clerk of each county in said district. Respondent refuses to receive and file relator's declaration, on two grounds, as disclosed by his return to our alternative writ: First, that there no longer exists in this State a senatorial district composed of the counties of Clay, Platte, Clinton, Dekalb, Andrew and Holt, that the districting Act of 1901 has been superseded by an act of the Governor, Secretary of State and Attorney-General, promulgated July 14, 1931, redistricting the State pursuant to Section 7, Article IV of the Constitution, — this notwithstanding that this court had previously ruled that the power to redistrict the State had been withdrawn from the officers just named by an amendment of the Constitution; and, second, that the districting Act of 1901, even if valid at the time of its promulgation, has become unconstitutional through the lapse of time.
I. The first contention calls for a reconsideration of the ruling in State ex rel. Lashly v. Becker, 290 Mo. 560. Three sections of Article IV of the Constitution are directly involved:
"Section 1. The legislative power, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives, to be styled `The General Assembly of the State of Missouri.'"
"Section 7. Senators and Representatives shall be chosen according to the rule of apportionment established in this Constitution, until the next decennial census by the United States shall have been taken, and the result thereof as to this State ascertained, when the apportionment shall be revised and adjusted on the basis of that census, and every ten years thereafter upon the basis of the United States census; . . . such apportionment to be made at the first session of the General Assembly after each such census: Provided, That if at any time, or from any cause, the General Assembly shall fail or refuse to district the State for Senators, as required in this section, it shall be the duty of the Governor, Secretary of State and Attorney-General, within thirty days after the adjournment of the General Assembly on which such duty devolved, to perform said duty, and to file in the office of the Secretary of State a full statement of the districts formed by them, including the names of the counties embraced in each district, and the numbers thereof; said statement to be signed by them, and attested by the Great Seal of the State, and upon the proclamation of the Governor, the same shall be as binding and effectual as if done by the General Assembly."
"Section 57. The legislative authority of the State shall be vested in a legislative assembly, consisting of a senate and house of representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. . . . Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. . . ."
Sections 1 and 7 are part of the Constitution as originally adopted in 1875. Section 57 is commonly known as the initiative and referendum amendment and was adopted in 1908. In the Lashly case it was ruled that upon the adoption of the initiative and referendum amendment the proviso of Section 7 was by necessary implication repealed. Will that ruling bear the scrutiny of a re-examination? That is the question respondent propounds to us.
All the sovereign power of this State, except the portion delegated to the general government, rests with the people of the State. They may at their pleasure grant or withhold such power, or having granted it to the agencies which they have set up for their own government, they may withdraw all or any part of it, through the medium of their organic law. By Section 1 above they granted the legislative power to the General Assembly, subject to the limitations contained in the Constitution. The grant would have been no broader had the words, "subject to the limitations herein contained," been
omitted. Because broadly speaking all the parts of state constitutions, following the general grants of powers to certain state agencies which they create, are but limitations upon those powers, directly or indirectly. [Hamilton v. County Court,15 Mo. 13; People v. Draper, 15 N.Y. 532; 1 Cooley's Const. Limitation (8 Ed.) 61.] And so the general grant of the legislative authority of the State found in said Section 57 is likewise subject to all the limitations, express or implied, contained in the Constitution; to hold otherwise would be to affirm that the amendment of 1908 repealed practically the whole of the Constitution as it then stood, which of course is unthinkable.
One of the limitations upon the legislative power with which said Section 1 invests the General Assembly is found in Section 5 of Article IV and said Section 7. The former provides that the State shall be divided into (34) convenient districts, as nearly equal in population as may be, the same to be ascertained by the last decennial census taken by the United States; the latter that the appointionment for senators shall be revised and adjusted every ten years upon the basis of the United States census, "such apportionment to be made at the first session of the General Assembly after each such census." Under these sections (prior to the adoption of the Amendment of 1908) the General Assembly was required to make the apportionment in the manner and at the time prescribed; if it failed to do so, its power in the premises was at an end. [See State ex rel. v. Patterson, 229 Mo. 364, 373.] Following these limitations upon the legislative power conferred upon the General Assembly, there was a grant over; if that body failed to make apportionment at its first session after a census, the Governor, Secretary of State and Attorney-General were given the power to perform that act. Said Section 7 therefore contained both a limitation on legislative power and a grant of legislative power. (That the grant itself may be regarded as operating indirectly as a limitation is unimportant.) Its essential character was not affected because cast in the form of a proviso. "The word (provided) may be used in the conjunctive sense and precede an independent out-and-out grant of power." [ATWOOD, J., in Castilo v. Commission, 312 Mo. 244, 269.] It was clearly so used in said Section 7. It thus appears that the Constitution as originally adopted invested the General Assembly with the power to redistrict the State senatorially, subject to clearly defined limitations; it also by said Section 7 conferred upon the three state officers the specific power to redistrict, but to be exercised by them only in the contingency that the General Assembly failed at the time prescribed to exercise the power given it for that purpose.
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This is an original proceeding in mandamus by relator, Baylis T. Gordon, to compel the Secretary of State to receive and file in his office relator's written declaration of his intention to become a candidate in the primary election to be held August 2, 1932, for the office of State Senator from the Third senatorial district of Missouri, composed of the counties of Clay, Platte, Clinton, Dekalb, Andrew and Holt, as made and promulgated August 6, 1901, and as set forth in Section 11269, Revised Statutes 1929, and to certify relator's name as such candidate to the county clerk of each county in said district. Respondent refuses to receive and file relator's declaration, on two grounds, as disclosed by his return to our alternative writ: First, that there no longer exists in this State a senatorial district composed of the counties of Clay, Platte, Clinton, Dekalb, Andrew and Holt, that the districting Act of 1901 has been superseded by an act of the Governor, Secretary of State and Attorney-General, promulgated July 14, 1931, redistricting the State pursuant to Section 7, Article IV of the Constitution, — this notwithstanding that this court had previously ruled that the power to redistrict the State had been withdrawn from the officers just named by an amendment of the Constitution; and, second, that the districting Act of 1901, even if valid at the time of its promulgation, has become unconstitutional through the lapse of time.
I. The first contention calls for a reconsideration of the ruling in State ex rel. Lashly v. Becker, 290 Mo. 560. Three sections of Article IV of the Constitution are directly involved:
"Section 1. The legislative power, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives, to be styled `The General Assembly of the State of Missouri.'"
"Section 7. Senators and Representatives shall be chosen according to the rule of apportionment established in this Constitution, until the next decennial census by the United States shall have been taken, and the result thereof as to this State ascertained, when the apportionment shall be revised and adjusted on the basis of that census, and every ten years thereafter upon the basis of the United States census; . . . such apportionment to be made at the first session of the General Assembly after each such census: Provided, That if at any time, or from any cause, the General Assembly shall fail or refuse to district the State for Senators, as required in this section, it shall be the duty of the Governor, Secretary of State and Attorney-General, within thirty days after the adjournment of the General Assembly on which such duty devolved, to perform said duty, and to file in the office of the Secretary of State a full statement of the districts formed by them, including the names of the counties embraced in each district, and the numbers thereof; said statement to be signed by them, and attested by the Great Seal of the State, and upon the proclamation of the Governor, the same shall be as binding and effectual as if done by the General Assembly."
"Section 57. The legislative authority of the State shall be vested in a legislative assembly, consisting of a senate and house of representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. . . . Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. . . ."
Sections 1 and 7 are part of the Constitution as originally adopted in 1875. Section 57 is commonly known as the initiative and referendum amendment and was adopted in 1908. In the Lashly case it was ruled that upon the adoption of the initiative and referendum amendment the proviso of Section 7 was by necessary implication repealed. Will that ruling bear the scrutiny of a re-examination? That is the question respondent propounds to us.
All the sovereign power of this State, except the portion delegated to the general government, rests with the people of the State. They may at their pleasure grant or withhold such power, or having granted it to the agencies which they have set up for their own government, they may withdraw all or any part of it, through the medium of their organic law. By Section 1 above they granted the legislative power to the General Assembly, subject to the limitations contained in the Constitution. The grant would have been no broader had the words, "subject to the limitations herein contained," been
omitted. Because broadly speaking all the parts of state constitutions, following the general grants of powers to certain state agencies which they create, are but limitations upon those powers, directly or indirectly. [Hamilton v. County Court,15 Mo. 13; People v. Draper, 15 N.Y. 532; 1 Cooley's Const. Limitation (8 Ed.) 61.] And so the general grant of the legislative authority of the State found in said Section 57 is likewise subject to all the limitations, express or implied, contained in the Constitution; to hold otherwise would be to affirm that the amendment of 1908 repealed practically the whole of the Constitution as it then stood, which of course is unthinkable.
One of the limitations upon the legislative power with which said Section 1 invests the General Assembly is found in Section 5 of Article IV and said Section 7. The former provides that the State shall be divided into (34) convenient districts, as nearly equal in population as may be, the same to be ascertained by the last decennial census taken by the United States; the latter that the appointionment for senators shall be revised and adjusted every ten years upon the basis of the United States census, "such apportionment to be made at the first session of the General Assembly after each such census." Under these sections (prior to the adoption of the Amendment of 1908) the General Assembly was required to make the apportionment in the manner and at the time prescribed; if it failed to do so, its power in the premises was at an end. [See State ex rel. v. Patterson, 229 Mo. 364, 373.] Following these limitations upon the legislative power conferred upon the General Assembly, there was a grant over; if that body failed to make apportionment at its first session after a census, the Governor, Secretary of State and Attorney-General were given the power to perform that act. Said Section 7 therefore contained both a limitation on legislative power and a grant of legislative power. (That the grant itself may be regarded as operating indirectly as a limitation is unimportant.) Its essential character was not affected because cast in the form of a proviso. "The word (provided) may be used in the conjunctive sense and precede an independent out-and-out grant of power." [ATWOOD, J., in Castilo v. Commission, 312 Mo. 244, 269.] It was clearly so used in said Section 7. It thus appears that the Constitution as originally adopted invested the General Assembly with the power to redistrict the State senatorially, subject to clearly defined limitations; it also by said Section 7 conferred upon the three state officers the specific power to redistrict, but to be exercised by them only in the contingency that the General Assembly failed at the time prescribed to exercise the power given it for that purpose.
The legislative acts that the people intended to subject to the referendum through their adoption of said Section 57 are next to be considered. The language of the section leaves no doubt about it:
"the people reserve to themselves . . . power at their own option to approve or reject at the polls any act of the legislativeassembly." Nor is there any question as to what is meant by the "legislative assembly:" "A legislative assembly consisting of a senate and house of representatives." Further on in the section it is provided: "Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly whichpassed the bill on which the referendum is demanded." Very clearly the legislative act of a governor, secretary of state and attorney general does not fall within these referendum provisions. It follows that if the proviso of said Section 7 is still alive and subsisting part of the Constitution the act of the three state officers therein named in districting the state senatorially is not subject to the referendum.
Did the people in adopting the Amendment of 1908 intend to make all legislative acts affecting the State as a whole, including the acts making apportionment of the State for the election of senators, subject to the referendum? The language, "The legislative authority of the State shall be vested in a legislative assembly, consisting of a senate and house of representatives" was used for some purpose; it cannot be disposed of by saying that the framers of the amendment blindly copied it from the Constitution of Oregon, wholly disregarding the existing provisions of our own Constitution. A rule of construction which is greatly stressed by respondent is that all and every part of a written constitution must be given effect. Certainly the portion of Section 57 just quoted was not intended to merely repeat or confirm the grant of legislative power contained in said Section 1 — a vain and useless thing. There could reasonably have been but one purpose which it could subserve, namely, to recall all the legislative authority of the State which had theretofore been granted, including both that which had been vested in the General Assembly and that which had been given the three state officers to establish senatorial districts, in order that the whole of the power then to be granted could be made subject to the reservations relating to the initiative and referendum. "The
legislative authority of the State" means all of it: all of it is taken back by the people and then granted, subject to the reservations named, to the General Assembly alone. Manifestly the framers of the Amendment of 1908 intended, as did the people in adopting it, that every vestige of legislative power granted directly by the Constitution itself to agencies of the state government, the exercise of which would affect the State as a whole, should be subject to its initiative and referendum provisions. It is obvious, however, that the legislative power conferred upon various agencies to be used solely for local regulation or local government has not been disturbed by the Amendment. This because the machinery it
provides for submission of legislative acts to the initiative and referendum contemplates that in every instance there will be a vote of the people of the whole State in the exercise of those reserved powers. The authority with which the county courts and the circuit courts have respectively been invested by Sections 3 and 6 of Article IV of the Constitution has not therefore been affected by the Amendment of 1908.
It has been suggested that, while the Amendment of 1908 withdraws all legislative power theretofore granted subject to the limitations contained in the Constitution, in order to vest it in the General Assembly alone subject to the same limitation and in addition the reservations concerning the initiative and referendum, yet the limitation that the General Assembly shall district the State senatorially at its first session after each United States census, being a specific limitation upon a specific power, falls with the power to which it alone is applicable. With this limitation eliminated, it would follow that it is the duty of the Legislature, or the people, to redistrict the State for the election of senators (just once and upon the basis of the census) after each United States census, and that such duty is a continuing one which can be discharged only by performance. With these views we are in accord and we would unhesitatingly so hold, if in the decision of this case it was necessary for us to pass judgment on them. There will be no reason for regarding the decision which we are now about to hand down as making impossible a redistricting of the State for the election of senators for another decade and until after the next census.
In this brief discussion it has been assumed that the apportionment of the State into districts for the election of senators is a legislative act, whether done by the General Assembly or by designated state officers. That the performance of that act calls for the exercise of legislative power is no longer open to question. [State ex rel. Carroll v. Becker,45 S.W.2d 533.] Respondent's counsel concede as much.
The constitutional construction suggested in the foregoing is in all essential respects the one announced in State ex rel. Lashly v. Becker, supra. We regard that construction as sound and reaffirm it.
Even if a majority of the present members of this court held views not in accord with the conclusions reached in the Lashly case, we would be loathe to now overturn that decision. It was supposed to have finally settled the construction of a provision of the Constitution which goes to the very frame of the State government. Since its rendition the personnel of the court has completely changed. Shall the stability of so vital a part of the organic law be dependent upon the personal views of the judges who happen to be members of the court at the end of each decade?
"The stability of this fundamental law requires that when the meaning of a constitutional provision has been considered by the court and declared by its decisions, that meaning cannot be afterward considered open to question or further argument. . . . The Constitution does not change with the judges. The court is the same though the judges change, and it will not overturn a deliberate decision upon the constitutional power of the Legislature under which the highest political rights have been held and exercised without question for many years." [Scown v. Czarnecki, 264 Ill. 305, 329-30. See also People v. Alturas County, 6 Idaho, 416.]
It should be further noted that the people of the State have not only acquiesced in the construction of the Constitution effected through the decision in the Lashly case, but have impliedly given it their approval. Among other amendments proposed by the Constitutional Convention of Missouri, 1922-1923, and submitted for adoption at a special election held February 26, 1924, was one which amended said Section 7. It provided:
"Such apportionment shall be made by the Governor, Secretary of State, Attorney-General, State Auditor and State Treasurer, or a majority of them, within sixty days after the result of such census has been ascertained.
"Such officers shall file in the office of the Secretary of State a full statement signed by them or a majority of them containing the districts, their numbers, and the names of the counties in each. Upon the filing of such statement the new districting shall be in full force and effect.
"The acts of such officers shall be ministerial and mandatory and shall not be subject to the referendum and failure to perform shall be cause for impeachment, and neglect or refusal or failure to properly perform within the time herein prescribed shall not discharge such officers of such duty but the same shall continue until fully performed." [Missouri Manual, 1923-1924, p. 523.]
The proposed amendment was overwhelmingly defeated at the polls. The action of the people in rejecting it very clearly indicated that they desired the power to district the State for the election of senators to remain with the Legislature and be subject to the referendum.
II. We do not take this contention of respondent seriously. He argues that within the contemplation of said Section 7 every act making an apportionment of the State for the election of senators expires by limitation at the end of ten years. It is true that it is made the duty of the Legislature to revise and adjust the apportionment every ten years upon the basis of the last United States census, but we find nothing in the language of the section to indicate that if that
duty is not performed the State government comes to an end. If respondent's contention is sound, we have not had a legally constituted senate, and consequently a de jure government, since 1911. In that year both the General Assembly and the three state officers made abortive efforts, but failed, to revise and adjust the apportionment, and the General Assembly has continuously neglected to do so ever since.
Matters relating to equality of representation in the senate, as between the cities and the rural portions of the State, are without influence in the decision of the question involved in this case. Such equality of representation must be worked out through constitutional means. This court may not usurp powers which the people of the State have conferred upon other departments of their government, or reserved to themselves.
A peremptory writ is awarded. White, Gantt and Ellison,JJ., concur; White, J., in a separate opinion.
Atwood, C.J., dissents in a separate opinion in which Frank
and Henwood, JJ., concur; Frank, J., in a separate opinion in which Atwood, C.J., and Henwood, J., concur.