* NOTE: — Majority opinion by GRAVES, J., and separate opinion by ELDER, J., filed December 3, 1921; motion for rehearing filed December 6th; motion overruled December 7th; dissenting opinion by DAVID E. BLAIR, J., filed December 8th; dissenting opinion by HIGBEE, J., filed December 9th; concurring opinion, in response, by JAMES T. BLAIR, C.J., filed December 16, 1921.
Original case in mandamus. The relator, according to both petition and return, is duly qualified to be elected as a member of the proposed and approaching constitutional convention. He has been duly nominated for such delegate by the Democratic party as a candidate for such place by the Democrats of the 25th State Senatorial District of the State, as such district has existed from 1901 up until the present Governor, Attorney-General, and Secretary of State, since the adjournment of the last regular session of the Missouri General Assembly (session beginning in January, 1921) subdivided the State into 34 State Senatorial Districts. The return attacks the legality of the redistricting in 1901, but does not attack the one of 1891. The 25th State Senatorial District was the same, both under the action taken in 1891 and that of 1901. By both actions the 25th State Senatorial District was made up of the counties of Franklin, Gasconade and St. Louis. In fact, the counties of Franklin, Gasconade and St. Louis
were placed in the 25th Senatorial District by the Constitution of 1875, and remained there until 1881, when Franklin was cut out, and Jefferson inserted. [Mo. Constitution (1875), Art. IV. sec. 11.] In 1891 the constitutional district was re-established and has since remained until the action in 1921.
By the action of the present Governor, Secretary of State and Attorney-General, on April 16, 1921, the 25th State Senatorial District was so made as to include only the counties of Dunklin, Mississippi, New Madrid, Pemiscot and Scott. If this apportionment and redistricting is valid, the relator is not even a resident of such district. He lives in the County of St. Louis, in the old 25th District. After receiving his nomination from the 25th District Democrats, as such district has existed since 1891, he offered to file his certificate of nomination with Hon. Charles U. Becker, the present Secretary of State and respondent herein, who refused to file the same. For such action no personal or official blame can attach to the action of this officer. The legality or illegality of the redistricting in 1921 was a court question, and by his act he properly left it to a court decision. The pleadings bespeak the utmost fairness of distinguished counsel upon both sides. They have sheared the case of all rubbish, so that the questions of decision are few and simple. They are: (1) were the present three state officials above mentioned authorized or empowered to redistrict the State in 1921 under the Constitution as it now stands; (2) if they were so authorized and empowered, have they followed the mandate of the Constitution in so doing; and, as contended by respondent, (3) was the action taken in 1901 (in redistricting the State) pursuant to the constitutional mandate? Other details can best be considered in the opinion.
I. Simplicity and candor should mark every statement in this case. This, because of the settings which surround it. The real picture should not be dimmed
by mere abstruse statements or unwarrantedImportant assertions. The case is of too much importance forOriginal such things. The law, and the law only, shouldProceeding: prevail. That law should be stated with suchThings directness and simplicity that he who runs may read,Considered. and, in addition, could understand. The responsibility rests upon the court, and not upon counsel, who have, with marked ability, presented their views of the case. The case practically involves the whole organic law of the State, under the suggestion made in some of the briefs. This has occasioned a reading and several re-readings of the historic document of 1875. This has been a work of pleasure, as well as of profit to the writer. If, therefore, we step beyond the argued points of briefs upon either side, we will be pardoned. The argued points are limited, but the side suggestions are varied. But be that as it may, this is an original case in this court, and it calls for all the legal information possessed by either court or counsel. So much in advance of the opinion.
II. We need not debate the character of the act performed by the three state officers. It is legislative in character, pure and simple. Section 7 of Article IV of the Constitution so classifies it, because this section first grants theLegislative power to the General Assembly. Upon its failure toAct. act, it grants the same power to three officials, who, but for this grant of power, would possess no legislative duties or functions. This court has so ruled. [State ex rel. Barrett v. Hitchcock, 241 Mo. 433.] All three opinions in that case so rule. Counsel for respondent here have undertaken to press argumentative excerpts from the views of VALLIANT, C.J., and GRAVES, J., in that case in support of his claims here. Suffice it to say that when those opinions are carefully read it will be discovered that they rule but one single question. VALLIANT, C.J., at the very outset carefully worded the question for solution, and the question solved
by the two concurring opinions. At page 511 of 241 Missouri Report he said:
"The question on the threshold is, has this court jurisdiction of the case stated in the pleadings? Counsel for respondents in their brief say: `This is a proceeding by mandamus to test the validity of an apportionment of the State into senatorial districts contained in a certain statement of the districts filed in the office of the Secretary of State on April 18, 1911.' That is doubtless the purpose of the suit, but if this court has no jurisdiction of the case it cannot pronounce judgment on the point in dispute and therefore anything that we might say on the subject would be simply the opinion of individuals."
Later these two opinions announce the reason that we had no jurisdiction. The reason was that the circuit judges sought to be mandamused were acting in a legislative capacity and not in a judicial capacity; that this court had no power to act in such a case. The writer, following the views of VALLIANT, C.J., used this language:
"The legislative function cannot be regulated by judicial action. We cannot compel legislative bodies to act, nor can we enjoin them from acting. This is a subject-matter beyond the jurisdiction and power of this court. When we are asked to either mandamus or enjoin a legislative body, the only reply we can make, is, that, under the Constitution, the subject-matter is beyond our jurisdiction. That is what should be done in this case and what is done by both opinions. Then why discuss a lot of questions in a case over which we have no jurisdiction? Why say the case is one over which we have no jurisdiction, and yet proceed to pass upon the alleged merits? Such discussion decides nothing, because it is mere obiter. Especially should it not be done in this case, where the parties in actual interest have never been heard in this court."
Whilst all opinions agreed that we had no jurisdiction to mandamus the judges of St. Louis, because
they were acting in a legislative capacity, it is clear that the two separate concurrences went no further than to simply rule upon our jurisdiction. The majority opinion, concurred in by five eminent jurists, including the writer of the opinion, and LAMM, KENNISH, FERRIS and BROWN, JJ., went much further, and passed upon the merits of the case. So far as we know, that is the last announcement upon the matter, although we, personally, expressed no opinion upon that matter, and have none to express now, in the view which we have reached.
III. In addition to State ex rel. Barrett v. Hitchcock,241 Mo. 433, we are cited to State ex rel. Halliburton v. Roach,230 Mo. 408. The question in that case is not the question in this case. No suggestion was made in that case as to the fact ofStare Section 57 (Initiative and Referendum) modifyingDecisis. legislative power or authority. In that case the petitions were for redistricting the State through a constitutional amendment. The real questions involved are tersely stated by Fox, C.J., on page 426, thus:
"First: Were the petitions as presented to the respondent, Secretary of State, legally sufficient to authorize the submission to the voters of this State of an amendment to or change in the organic law (the Constitution) of this State? Or, in other words, do the petitions embrace in fact a demand for the submission of a constitutional amendment within the contemplation and purview of the initiative amendment adopted in this State in November, 1908, as well as the legislation approved June 12, 1909, providing for the carrying out of such initiative amendment to the Constitution?
"Second: Under the provisions of the initiative amendment to the Constitution and the legislation enacted by the General Assembly of this State, approved June 12, 1909, can the respondent, the Secretary of State, if the subject-matter as embraced in the petition does not fall within the purview of the initiative and referendum amendment to the Constitution, as well as the legislation
enacted for the purpose of carrying out the provisions of such constitutional amendment, decline to accept and file the petitions as presented by Messrs. Dickey and Lake? In other words, has the Secretary of State a discretion where the subject-matter of the petitions is foreign to what was contemplated by the initiative and referendum amendment to decline to file such petitions?
"These are the propositions with which this court is confronted."
The question is thus answered by the learned Chief Justice:
"As heretofore stated, the measure proposed is entirely foreign to an amendment to the Constitution which deals with the subject embraced in the petitions presented. The initiative-and-referendum amendments to the Constitution speaks of laws and amendments to the Constitution. Manifestly those terms are used in their plain and ordinary sense, and in our opinion the petitioners have no right to undertake to put in the Constitution, which is regarded as the organic and permanent law of the State, mere legislative acts providing for the exercise of certain powers."
In other words, the majority holding was that the proposed amendment to the Constitution was not in effect organic law, but a legislative act, and should not be submitted under the false cognomen of an amendment. Whilst the Constitution of 1875 fixed senatorial districts, it is evident that they made them for only temporary purposes, and fixed it as a legislative act and duty thereafter. [Sec. 5, Art. IV, Const. 1875.]
It should further be considered that it is a doubtful question as to whether or not State ex rel. Halliburton v. Roach, supra, has any further binding effect in Missouri. See State ex rel. Stokes v. Roach, 190 S.W. l.c. 279, first column, wherein the majority opinion pointed out the vice of the opinion in Halliburton's case. The present writer combatted this overruling of the Halliburton case, with all the vigor he possessed, but the two opinions and their concurrences will have to speak for themselves. It
at least leaves the Halliburton case as questionable authority. But if an authority, what was written therein did not discuss or have in view the question presented in the present case. Courts usually discuss the questions raised by counsel, without reference to questions which might have been raised. Until raised and passed upon they do not rise to the position of staredecisis, now urged by the learned Attorney-General. All the cases he cites as stare decisis upon the same plane. So too, on the theory of stare decisis upon the question here involved, no authority can be drawn from the case of State ex rel. v. Patterson, 229 Mo. 373. Read the case. The fact is that the question now before the court is a new one not heretofore urged to or considered by this court, and must be so treated. We discuss these cases purely in the view of stare decisis. Upon that, nor upon any other principle, can it he said that they shed light upon the question now urged here for the first time.
IV. The vital question which we have in mind, and which we desire to discuss, is whether or not the amendment of 1908 so conflicts with that portion of Section 7 of Article IV of the original Constitution, which confers conditionallyConstruction. legislative power or authority upon the three named executive officers, as to render the former provision nugatory. A few rules of construction are not inappropriate here. "A clause in a constitutional amendment will prevail over a provision of the original instrument inconsistent with the amendment, for an amendment to the Constitution becomes a part of the fundamental law, and its operation and effect cannot be limited or controlled by previous constitutions or laws that may be in conflict with it." [12 C.J. p. 709; Hardage v. Grant, 106 Ark. l.c. 509.] We applied this rule in the Westhues case, 283 Mo. 547, 224 S.W. l.c. 334, and held that the original Constitution had been modified by Section 57. A fair interpretation of the language used, having in view the fundamental purpose to ascertain and give effect to the intent of the framers
of the instrument, including the amendments if such there have been, is a rule of construction. The construction should not be technical, nor should it be liberal or strict, but should be a fair interpretation having in full view the intent of the framers of the organic law. [12 C.J. 700.]
Some authors, however, urge a rather liberal construction. [Black on Interpretation of Laws, secs. 7 to 11 inclusive; 1 Story, sec. 412; 6 R.C.L. sec. 44.] They all agree that the intent of the framers is the corner stone for the construction. In this case it matters not just which view of the rule you take. If the amendment of 1908, on any given subject, conflicts with portions of the instrument as it stood before the amendment, those portions must fall in obedience to the later expressions found in the amendment. We found that there was conflict as between the amendment and Section 36 of Article IV, and that such conflict practically wiped out the power of the Legislature over emergency clauses. [State ex rel. v. Sullivan, 283 Mo. 547, 224 S.W. l.c. 334.] So too Section 1 of Article XV, which reads: "This Constitution may be amended and revised only in pursuance of the provisions of this chapter." The amendmentLegislative authorizes a constitutional amendment by theAction: initiative, and this modifies Section 1, and theRestrictions. whole of Article XV. It wiped out the word "only." No sort of sophistry can hide the two conflicts mentioned, supra. The conflict between the proviso, or last clause of Section 7 of Article IV, and the amendment of 1908, in our judgment is just as clear as we shall try to demonstrate in the succeeding paragraphs, having in mind the divers thoughts and rules of constitutional and statutory construction. If the conflict is apparent rules of construction can lend little or no aid. We shall simply point out the conflict, and declare that the intent of the amendment of 1908 must prevail, because the last expression of the people upon the same subject. The subject is the grant of legislative power, not restrictions upon legislative action. Much is said in the briefs about restrictions
upon legislative action, which counsel contend would be wiped out if the contention of relator prevail. The idea is far fetched. The amendment was not dealing with restrictions upon the right, power or authority of the General Assembly. It deals with the course of legislation, rather than the subject-matter of legislation. It so deals with the course of legislation as to make the people the ultimate arbiters, either by referendum or by the initiative. It therefore was intended to cover both acts of commission and omission upon the part of the legislative body. We shall not discuss the shades of difference between "legislative power" and "legislative authority." In Article IV of the original Oregon Constitution they used the terms, "The legislativeauthority of the state shall be vested in a legislative assembly," etc. [Oregon General Laws by Deady in 1864.] When they adopted the initiative and referendum later, they used the same words as used in the original constitution of 1857. We borrowed the amendment of 1908, from Oregon, or some state which copied from Oregon, and hence the use of the word "authority" instead of power. Oregon used it as an equivalent term. The power or the authority of the General Assembly to act, is what power or authority is left, after the reservations and restrictions as declared by the people through the organic law. There is nothing upon the face of this amendment to indicate an intention of the framers to wipe out all restrictions or reservations in our Constitution. They will be found in Articles II, IV, X and XII, and perhaps elsewhere. Those in Article II (our Bill of Rights) are really declarations of things necessary to a republican form of government, and are borrowed largely from the Federal Constitution. They are really reservation of rights in the people, and a withdrawal of such subjects from legislative action. Only in this limited sense can they be called restrictions upon legislative power or authority. They are in fact reservations of rights, over which there was no grant of power to the legislative department. But there are numerous restrictions in the other sections
named, in which the law making body is met with the injunction, "Thou shall not," and two of such (Sections 14 and 15) are found in Article II. These are restrictions in the true sense of the term. But be this as it may, there is no evident intent to be drawn from the amendment of 1908 which would justify the conclusion that it was the purpose of the people to so tear asunder the previous organic law, as to withdraw any restriction upon legislative authority or power. If this amendment withdrew one restriction, it withdrew all, and it is unthinkable to say that such was the intent of the people. On the contrary they were undertaking to secure the rights of referendum and initiative upon all legislative subjects. Things reserved to the people, and restricted by the people, were not legislative subjects. They were undertaking to so fix the grants of legislative power or authority as to subject all legislative action to the referendum and the initiative. The best way to do this was to place the legislative power, as then recognized, in a single forum, and reserve the right to refer, if this forum acted, or to initiate, if it did not act. The then legislative power was limited by reservations and restrictions, and they were dealing with it as it then existed, and not otherwise. So that reservations and restrictions drop out of the case. [Kadderly v. Portland, 44 Orc. 146; State ex rel. v. Richardson, 48 Ore. l.c. 319.]
This amendment authorizes the people to initiate laws, yet no court would hold that they could initiate a valid law if such law was opposed to any reservation of power, or restriction of legislative power, contained in the Constitution at the adoption of the amendment. See the Oregon cases supra, both of which were before we adopted our amendment. The framers of the amendment had no such intent, and their intent must clearly appear from the document. If they initiated and voted a law lending the State's credit "to any person, association or corporation" we would have to hold such law void, as violative of Section 45 of Article IV. So throughout the restrictions upon legislative power or authority.
The sole idea was to centralize authority or power in a given and single forum, so that the referendum and initiative rights of the people would be preserved. They did not intend, nor do thoughtful people think, that they intended to utterly destroy the reservations and restrictions of the document that they were amending. As said their purpose was to center all legislative power or authority (as we have defined it supra) in one single legislative forum, so that they could invoke either the referendum or the initiative. That forum they made the general assembly. This excludes legislative power or authority from other independent branches, or officers, of the government, and the thing before us in a constitutional grant of legislative powers to three executive officers.
V. It is further urged that if relator's contention is good, then the amendment of 1908 wipes out the veto power of the Governor. This is not true. [State v. Kline, 50 Oregon, l.c. 431; Oregon v. Tel. Tel. Co., 53 Oregon, l.c. 164.] This, it is said, is a legislative act, by an executive officer, and if the idea was to husband in the General Assembly allGovernor's legislative authority or power then this power wasVeto. swept away from the Governor. The cases are not uniform upon the question as to whether the signing of bills, and the vetoing of bills, is legislative or executive — whether it is a grant of legislative power, or a restriction placed upon legislative power and authority. In some states, where the grant of this power is in that portion of the constitution relating to the executive department, it is ruled that these acts are not legislative but executive, and therefore but another restriction upon legislative action. [State v. Mounts, 36 W. Va. 179.] In our State the power is granted by Sections 12 and 13 of Article V, which refers solely to the executive functions of the government. In many states where this power of the Governor is vested in him by that portion of the state constitution which pertains to the legislative power or
authority, these acts of the Governor are held to be legislative. We do not deem this distinction very material in this case, if we are right in holding that the purpose of the amendment was to confine legislative action to a single forum, so that the people should have the full power of initiative and referendum. That single forum would include all officers whose acts were required either to complete a law or defeat a law. In other words, it would include the Governor, if he be a part of the legislative power, and if not, it is yet preserved by the very amendment itself. In fact, it is preserved, whether the acts be either legislative or executive, in the matter of enacting or defeating laws. Bearing in mind that the pole star of construction is the intent of the framers of a constitution, or of an amendment thereto, let us turn to the amendment itself. In it we find the sentence, "The veto power of the Governor shall not extend to measures referred to the people." This shows the clear intent of the framers. This is a withdrawal of the veto power from the Governor as to all bills referred and voted upon by the people. It, in every reasonable sense, refers not only to measures under the referendum, but to initiated laws. As to them the veto could not be exercised. To illustrate, a law might pass through the usual channel of the General Assembly, and be vetoed. It might then be passed over the veto, and later referred to the people. In such case the veto power was taken away, provided the people voted to sustain the law. If a law was initiated by the people and voted by the people, then the law is enacted. There is no veto power there. [See Oregon cases, supra.] So that it is clear, that by this amendment the framers thereof did not intend or undertake to absolutely destroy the veto power. The fair readings of it, considering the exception incorporated therein, as we have quoted, supra, shows that as to all matters referred to the Governor by the General Assembly his veto power was left intact. If the intent was to destroy the veto power, why the exception quoted, supra? There would be no need for it, and the fact
that it was placed in the amendment is proof positive that the intent was to preserve the veto power, whether it be legislative or executive in character. There could be no stronger evidence of this intent than this clause excepting certain measures from the veto. Such act meant that as to all others the veto was left in force. Whilst this thought is in mind, may we say that this but emphasizes the fact that the intent of this amendment was to so center the law-making power in one forum (including the General Assembly and the Governor) so that all acts from that forum should be subject to either the referendum or the initiative. But of this later. Suffice it to say that the amendment itself destroys respondent's contention as to the veto power of the Governor.
VI. We now reach the question of conflict between the proviso, or last clause of Section 7 of Article IV, and the amendment of 1908. Amendments to constitutions are usually made to either add to or correct previous provisions of the organicSenatorial law. In either case conflicts might arise. If theyDistricts: do arise, the real intent of the framers of theLegislative amendment prevails over the provisions of thePower. original. This rule is so universal, as indicated by the authorities, supra, that we need not add here. We have, supra, pointed out two distinct conflicts, and indicated a third. The purpose now is to point out in plain terms the conflict between the proviso to Section 7 of Article IV, and the amendment of 1908. We shall not mince words, having in previous paragraphs climinated all underbrush so as to preclude camouflaging of thought or views upon the vital question of conflict.
By the amendment of 1908 (which prevails if it conflicts with previous parts of the original organic law) it is said: "The legislative authority of the State shall be vested in a legislative assembly, consisting of a senate and house of representatives." Then follows the reserved rights of the people to refer legislative acts, and to initiate laws. The legislative acts so referred to, include
the approval and veto power of the Governor, as we have indicated above, and as the authorities held. Legislative power or authority as here used must be construed as meaning such as was not reserved or restricted, as we have just discussed. That the framers so meant is clear from what they did, and from the very purpose of the referendum and initiative. Their purpose, and their intent was to gather together and lodge in one legislative forum all legislative power or authority. If this was the intent and purpose of the amendment, then it gathered to the legislative forum the conditional grant of legislative power to those three executive officers. "The legislative authority of the state" includes all legislative authority, existing at the time. If all legislative authority was vested in a given legislative forum (including the General Assembly and the Governor) the legislative authority of these three executive officers was gathered unto the fathers, and must be for naught held. "The legislative authority" needs no defining. It is in substance all legislative authority. All legislative authority must be construed in the light of the reservations and restrictions upon legislative action. As to reservations and restrictions the intent of the framers was to preserve them, but it is as clear that their intent was to so concentrate legislation or legislative acts, as to give them power to supervise them either by the referendum or the initiative. This was the very reason for the amendment. All concede, and if not, the cases and the Constitution so hold, that the redistricting of the State is a legislative act. If the framers of the amendment had not thought that they had gathered into one bunch all legislative authority or power, and placed it in one channel, so that they could review the same, if dissatisfied, they might have extended both the referendum and initiative. They thought, and they intended to place "the legislative authority" in such position as to enable them to review by referendum all acts of a legislative character. If this be the intent of the amendment, then it conflicts with the proviso, or last clause, of Section 7 of Article IV.
To say that this was not the intent of the framers of the amendment and of the people in adopting it would be to say that they had more confidence in these three executive officers than they had in the General Assembly, or even in themselves. This too, in the face of the historical fact that for thirty years or more there was continuous complaints from the people and the press about the manner in which these executive officers performed this legislative function. By use of "the legislative authority" the people meant to so place the legislative function of redistricting the State in a position where they could review it by referendum. But this is not all. They reserve the right to initiate laws, and after the Legislature refused to act (or even before) the people had the right to initiate a law (not a constitutional amendment) redistricting the State. Their power to initiate laws is unrestricted, provided such laws violate no reserved rights or legislative restrictions. As legislators, the people are under the same restrictions as the General Assembly. Whether such initiated laws violate the Constitution is a matter for the courts after the legislative process is over, and the law (the finished products) is presented to the courts. One illustration to demonstrate a conflict in the matter before us. Suppose that after the General Assembly of 1921 had failed to redistrict the State the people by proper petitions had initiated such a law. Suppose further that the initiated law received the required vote, and was thereby adopted. Suppose further that in the interim these three executive officers had made a law redistricting the State. Which would stand? There can be no question that the initiated law would have to be sustained. If so then the very fact that the people have the unrestricted right to initiate laws (within constitutional restrictions) demonstrates that these officers were shorn of legislative authority by this amendment. We have read the Missouri Constitution until in our mental vision (both by day and by night) we can see it as we see the pictures upon the sitting room wall. The best thought we have has been
given to the question involved. The question is a new one in this State, and elsewhere, so far as our diligent research has gone. In no preceding Missouri case has this question been presented or argued by counsel. Isolated language in previous cases is of no value, where the question was not urged. At most such language isobiter, and not stare decisis. We conclude by saying, that, in our judgment there is a fatal conflict between the amendment of 1908, and the proviso or last clause of Section 7 of Article IV. That by reason of such conflict the latter must fall, and the state officers were without power to redistrict.
VII. Before discussing the question of the redistricting done in 1901 may we be permitted to add one more thought to the matters discussed in the last previous paragraphs? Under the amendment of 1908 all legislation must be (1)Acts of 1901. through the ordinary channel (the General Assembly and Governor), (2) through the acts of the people by the referendum, or (3) through the reserved right to initiate any and all laws that the people desire enacted. In the latter case, as well as in the first, such laws must be within the reservations and restrictions contained in the Constitution. [State ex rel. v. Richardson, 48 Ore. l.c. 319.] This case construed the Oregon initiative-and-referendum amendment, and this construction was in April, 1906. We borrowed the amendment in 1908, or two years after the Supreme Court of Oregon had announced the opinion in Richardson's case. The whole fallacy of respondent's position is that they argue as if the constitutional grant of this legislative power to these three officers was a restriction upon, rather than a grant of, legislative authority. As a grant of legislative power, it was gathered up and placed solely in the General Assembly and the people by the amendment of 1908. You cannot say "the legislative authority of the State shall be vested in a legislative assembly, consisting of a senate and house of representatives," and reserve to the people both the
right to refer and initiate, and yet say that any portion of legislative authority belongs elsewhere. The very language precludes such a conclusion.
In the return it is urged that the redistricting of the State in 1901 was violative of constitutional provisions and void. This and previous redistricting acts have been subjected to the charge of partisanship and unfairness, and even as violative ofLaches. the Constitution, and we have but little doubt that this in a measure influenced the wording of the amendment of 1908, by which the people by reserved rights were placed in position to take the matter in their own hands. But even if it be granted (which we do not do) that the redistricting of 1901 was invalid, it does not help respondent. Should we take up and rule the question in respondent's favor, it would only relegate us to the redistricting of 1891, and by it the 25th Senatorial District is composed of the identical counties as by the Act of 1901. This Act of 1891 stands unchallenged in the pleadings. So, if we concede the invalidity of the Act of 1901, relator would be in the 25th District, composed of the counties which now present his name as their choice as a candidate for delegate to the coming Constitutional Convention. The facts that he lives in a district which has existed in the same form from the 1891 redistricting act, which act is not questioned here, entitles relator to his writ of mandamus, whatever be the status of the Act of 1901 as to senatorial districts.
The petition attacks the act of the three officers in 1921, and none other. It is no defense to this attack to say some other previous acts by other officers were also void. [Adams v. Bosworth, 126 Ky. l.c. 63 and 64; Ragland v. Anderson, 125 Ky. l.c. 161.] With this we might stop. However, the situation is such (there being but short time left to select delegates to the coming Constitutional Convention) we feel that something further should be said as to the redistricting of 1901. This redistricting act has stood unchallenged for more than twenty years. The first court attack appears in the return in
this case. Of course there were mutterings among the people (or some of them) and in the public press, known as state history. In State ex rel. Warson v. Howell, 92 Wn. l.c. 545, the Supreme Court of Washington in discussing their redistricting Act of 1901, said:
"But even if it were concluded that the Act of 1901 was such a departure from the requirements of the Constitution as to disclose a wilful disregard of its provisions, we think it now too late for the relator to raise the question. The act complained of has stood unquestioned for more than fifteen years. Seven legislatures have been elected under it. Laws have been passed which so far affect the rights of the electors that a return to the old districts marked out by the Constitution would result in the utmost confusion, if not chaos, requiring perhaps a session of the Legislature before an election could be held. No court is required, on a complaint made after this lapse of years, to subject the people of the State to the turmoil such a course would cause. This form of legislation is to a great extent political and administrative in its nature, and involves no individual rights other than such as pertain to the electorate as a whole. Persons who conceive that the Legislature has acted in disregard of the mandates of the Constitution must, therefore, act promptly else they will be held to have waived their right to act at all.
"The argument that, if an act is invalid when passed, the vice continued to live in it as long as it remains on the statutes, and therefore may be annulled at any time, is not sound when attempted to be applied to legislation that is political or administrative in its nature. It may be true the laches cannot give validity to a void act, but when no property right is involved, and the question is purely political and administrative, individuals or parties that have seen the act in operation for years, and the affairs of State carried on under it, without offering objection or making protest, will not be heard at a late day to question its validity. They must act in seasonable time and not delay until the conditions
they have acquiesced in and assented to have become firmly established as a part of the system of government."
In Adams v. Bosworth, 126 Ky. l.c. 65, the court said:
"If the enactment complained of was invalid because it violated the constitutional requirements, the party complaining knew this fact thirteen years before this suit was commenced. Persons who believe that their political rights are injuriously affected by unconstitutional legislation cannot condone the wrong for a long period of years by passively consenting to it, and defer taking action until confusion, if not chaos, would result from the long delay. The courts were open to them in 1893 as well as 1906, and political parties, no more than individuals, can sleep on their rights. When it is sought to vacate enactments involving the life of one of the great co-ordinate departments of the government the public interest and the orderly administration of affairs demand that action should be taken as soon as practicable after the condition objected to becomes known and effective. The argument that, if an act is invalid when passed, the vice continues to live in it as long as it remains on the statutes, and therefore it may be annulled at any time, is not sound when attempted to be applied to the legislation that is political or administrative in its nature. It may be true that laches cannot give validity to a void act; but when no property right is involved, and the question is purely political and administrative, individuals or parties that have seen the act in operation for years, and the affairs of State carried on under it, without offering objection or making protest, will not be heard at a late day to question its validity."
In the case of Matter of Reynolds, 202 N.Y. l.c. 438 it is said:
"After the census of 1905 the Legislature at its session in 1906 passed an apportionment act. [Ch. 431.] The validity of that act was attacked by an application for a mandamus to the Secretary of State to issue the election notices in accordance with the old apportionment
on the ground that the new apportionment was a nullity. This application was denied by the Supreme Court in both branches and the elections of 1906 were held under the apportionment act of that year. On appeal to this court, however, the orders of the Supreme Court were, in April, 1907, reversed and the apportionment under review declared invalid. [Matter of Sherrill v. O'Brien, 188 N.Y. 185.] Thereupon, at an extraordinary session of the Legislature held in that year, the present apportionment was enacted. Under it have been held the general elections of 1907, 1908, 1909 and 1910, during which period the petitioners have taken no steps to have the validity of that apportionment reviewed. There are few things in the world in which stability and order are more requisite than in government. It could not have been the constitutional intent that at any time during the decennial period for which an apportionment is to continue — even up to the last moment — it should be subject to attack."
To like effect is Ragland v. Alexander, 125 Ky. l.c. 161. These authorities seem to be founded upon reason, and if so it is too late to question the Act of 1901, at this time, and we so rule. From it all, we conclude that the alternative writ of mandamus in this case should be made permanent. It is so ordered. James T.Blair, C.J., Woodson and Walker, JJ., concur; Higbee, andD.E. Blair, JJ., dissent in separate opinions to be filed;Elder, J., files separate opinion.