State Ex Rel. Pollock v. Becker

233 S.W. 641, 289 Mo. 660, 1921 Mo. LEXIS 42

• Court: Supreme Court of Missouri
• Decided: August 1, 1921
• Status: Published

Opinions

WOODSON, J.

This is an original proceeding by mandamus instituted in this court by the relator against the respondent, the Secretary of State, seeking to compel him to accept and file four certain referendum petitions, hereinafter to be more fully described, so that the laws mentioned in the petitions may be placed upon the ballots at the next general election of the State for confirmation or rejection by the voters of the State.

The pleadings in the case fully and clearly present the legal, proposition presented to this court for determination and for that reason I shall here present them in full. They are as follows:

PETITION.

“This action was brought in the name of the State of Missouri at the relation of John H. Pollock against Charles U. Becker, Secretary of State. The petition, which was filed in this court on the 18th day of June, 1921, alleges that the relator is a resident and citizen of Kansas City, Jackson County, Missouri, and a legal voter and qualified elector in said city, county and State, and at the November election in 1918 was elected justice of the peace within and for Kaw Township in said county and State for a term of four years, and that the respondent Becker is now the duly elected and acting Secretary of State of the State of Missouri; tliat the 51st General Assembly convened at Jefferson City, January 1, 1921, and adjourned sine die on March 21, 1921, and passed, among others, Senate Bill No. 4, entitled, ‘An Act to amend Section 2688 of the Revised Statutes of Missouri, 1919, relating to Justices of the Peace, abolishing the offices of Justices of the Peace, elected in dis tricts and certain townships and providing for the transfer of business pending before such Justices;’ and Senate Bill No. 5, entitled, ‘An Act repealing Article 9 including Sections 2923 to 2943 inclusive, Chapter 22 of the Revised Statutes of Missouri, 1919, entitled “Justices and constables in townships of two hundred thousand and less than four hundred thousand” — and making a new article in lieu thereof;’ and Senator Bill No. 6 entitled, ‘An Act to amend Section 2689 of the Revised Statutes of Missouri, 1919, relating to Justices of the Peace;’ and Senate Bill No. 7, entitled, ‘An Act amending Section 2143 of the Revised Statutes of Missouri, 1919, relating to constables, abolishing the office of constable in districts, in certain townships, and providing for constables in such townships; ’ that all four of said bills have a common interest and pertain to the same subject and affect the same parties, that is, said bills abolish the offices of eight justices of the peace and all constables and clerks in Kaw Township, Jackson County, Missouri; Senate Bill No. 4 provides that on the 1st day of July, 1921, the offices of the justices of the peace elected or appointed in districts in all municipal townships containing a city of one hundred thousand inhabitants and less than three' hundred thousand inhabitants and the office of clerks to such justices shall be abolished and all jurisdiction and powers vested in such justices of the peace are vested in other justices of the peace provided for in said bill; Senate Bill No. 5 provides for the election of five justices of the peace in such township at the general election in 1922, and provides that until such election the Governor shall appoint and confer jurisdiction upon such new justices of the peace to make certain rules, etc.; Senate Bill No. 6 provides for the appointment of other justices of the peace by the County Court of Jackson County; Senate Bill No. 7 abolishes all of the constables holding office after the first day of July, 1921 in said Kaw Township, Jackson County, Missouri, and provides for the election of new constables at the general election in 1922 and authorizes the Governor to appoint until such general election.

“The petition of relator further alleges that all of said hills were approved hy the Governor of Missouri on the 11th day of March, 1921, and that on the 18th day of June, 1921, and within ninety days after the adjournment of the Fifty-first General Assembly, the relator presented to the Secretary of State in the presence of the Governor, 1538 legal referendum petitions containing the total of 65,248 names of legal voters and qualified electors of the State of Missouri, which petitions were legally signed by more than five per cent of the legal voters and qualified electors in mbre than two-thirds of the Congressional districts of the State of Missouri, asking for a referendum on all four of said Senate Bills in order that the people might at the general election in 1922 vote for the appproval or rejection of said measures; that said Secretary of State, wholly disregarding his duties and without any legal right or authority, refused to accept, receive and file said referendum petitions against said bills and assigned as his sole and only reason for such refusal that said bills were not referable, because each of the bills contained among other provisions the following language:

“ ‘This enactment is hereby declared to be necessary for the immediate preservation of the public peace, health and safety within the meaning of Section 57, Article 4, of the Constitution of Missouri.’

“The petition further alleges that it is not true that said bills, or either of them, are necessary for the immediate preservation of the public peace, health or safety within the meaning of Section 57 of Article 4 of the Constitution of Missouri, but that said bills are purely local in their character and pertain to Jackson County, Missouri, only, and that such statements contained in said bills are false and untrue and that such an attempt on the part of the Legislature to prevent said bills from being referred to the people is unconstitutional and void and in violation of Section 57 of Article 4 of the Constitution of Missouri, and that such action on the part of the Secretary of State was and is arbitrary and*unfair; that by the refusal of the respondent to accept, receive and file such referendum petitions, the relator and all other citizens of Missouri have suffered and will suffer irreparable wrong and injury and the people of the State will be denied their constitutional right to vote for the approval or rejection of said measures and will be entirely without redress of said wrongs, without the interposition and interference of this court oy its writ of mandamus.

“The prayer of the petition prays this court to issue its writ of mandamus, directing and commanding respondent, as Secretary of State, to forthwith accept, receive and file in his office at Jefferson City, Missouri, all of the said referendum petitions pertaining to said Senate Bills Nos. 4, 5, 6, and 7, and to detach the sheet containing the signatures and affidavits and cause them to be attached to one or more printed copies of the measures so proposed, and to deliver such detached copies of such measures to the relator, and that the respondent be compelled to forthwith transmit to the Attorney-General of the State of Missouri a copy thereof in order that said Attorney-General shall provide and return to the Secretary of State a ballot title for said measures, and that said respondent be compelled to furnish to each of the county clerks of the State of Missouri a certified copy of the ballot title and numbers of the several measures to be voted upon at the coming general election, and for such other relief as may be found necessary and expedient to cause the respondent to do that which in justice and right ought to be done.

“After the filing of the petition in this court, re- , lator and respondent entered into a stipulation agreeing that the petition might stand for the alternative writ; that the respondent have until the 28th day. of June, 1921, within which to plead; that the cause be submitted to the court upon briefs filed by both parties; that relator. have until the 5th day of July, 1921, to file his brief and that respondent have five days thereafter to file his answer brief, and that relator have three days thereafter if desired to file reply brief; and that Senate Bills Nos. 4, 5, 6, and 7, be consolidated in one action and all questions as to joinder be waived.”

ANSWER.

“On'the 28th day of June, 1921, respondent filed his answer to said petition of mandamus and in said answer says:

“Admits that relator is a resident and assessed taxpaying citizen of Kansas-City, Jackson County, Missouri, and is a legal voter and qualified elector in said city, county and state, and was on the second day of November, 1918, elected a justice of the peace within and for Kaw Township, Jackson County, Missouri, for a term of four years; admits that respondent is and has been the Secretary of State of Missouri since the 10th day of January, 1921; admits that Fifty-first General Assembly of Missouri convened at Jefferson City on January 5, 1921, and adjourned sine die on the 21st day of March, 1921, and passed, among other acts, Senate Bills Nos. 4, 5, 6, and 7, with the titles as pleaded; alleges that copies of said Senate Bills Nos. 4, 5, 6, and 7, are attached and marked ‘Exhibits A, B, C and D,’ and made a part thereof; admits that all four of said bills have a community of interest, that is, said bills are similar, affect the same parties, pertain to the same subject, are companion bills, and one is useless without all; admits that all of said bills were approved by the Govenor on the 11th day of March, 1921, and that on the 18th day of June, 1921, in the office of the Secretary of State and in the presence of respondent and the Govenor of Missouri, relator presented as against each of said bills 1538 referendum petitions containing a total of 65,248 names of legal voters and qualified electors of the State of Missouri, which said petitions were legally signed by more than five per cent of the legal voters and qualified electors in each of two-thirds of the Congressional districts, of the State of Missouri as set out in detail in relator’s petition; admits that said petitions were presented in order that said Senate Bills Nos. 4; 5, 6, and 7, might be referred to the people of Missouri for their approval or rejection; admits that at the time said referendum petitions were presented, relator demanded respondent to accept, receive and file said petitions against each of said bills and to detach the sheets containing the signatures and affidavits as alleged in relator’s petition, and demanded that respondent forthwith transmit to the AttorneyGreneral of the State of Missouri a copy thereof in order that he might provide a ballot title for each of said measures, and demanded that respondent furnish to each of the county clerks of the State of Missouri a certified copy of the ballot titles and numbers of the several measures to be voted upon at the coming general election, and demanded that respondent fully comply with Chapter 47 of the Revised Statutes of Missouri 1919, and other laws appertaining to the referendum acts of the Legislature ; and admits that respondent refused to accept, receive and file said referendum petitions against each and all of said bills; denies that in refusing to accept, receive and file said petitions, respondent wholly disregarded his duties as Secretary of State; admits that each of said bills contained among other provisions, the following language:

“ ‘This enactment is hereby declared necessary for the immediate preservation of the public peace, health and safety, within the meaning of Section 57 of Article 4 of the Constitution of Missouri.’

‘Denies that it is not true that said bills, or either of 'them, are necessary for the immediate preservation of the public peace, health and safety within the meaning of Section 57 of Article 4 of the Constitution of Missouri ; denies that said bills, and each of them are purely local in their character and pertain to Jackson County only and do not affect the citizenship of Missouri in any particular; denies that the statement contained in each of said bills is false and untrue, and denies that such statement does not prevent said bills from being referred to the people for their approval or rejection, and.that- the action of. the Legislature in inserting said statements in said bills was unconstitutional and void and in violation of Section 57 of Article 4 of the Constitution of Missouri; and denies that the action of respondent, as Secretary of State, was and is arbitrary, unfair and in violation of Section 57 of Article 4 of the Constitution of Missouri, or with any other provision of the Constitution; denies that by his refusal to accept, receive and file such referendum petitions the relator and other citizens of Missouri have suffered, and will suffer, irreparable wrong and injury and the people of the State be denied any constitutional right whatsoever by reason of his said action; denies each and every allegation contained in relator’s petition and alternative writ of mandamus not herein expressly admitted; further answering, respondent states that he refused, and still refuses, to accept, receive and file the referendum petitions tendered by the relator for the following reasons :

“1. Thát said Senate Bills Nos. 4, 5, 6 and 7, and each of them, contain the following language:

“ ‘This enactment is hereby declared to be necessary for the immediate preservation of the public peace, health and safety, within the meaning of Section 57, of Article 4, of the Constitution of Missouri.’

“Alleges that by reason of said legislative declaration contained in each of said bills and by reason,of the provisions of Section 57 of Article 4 of the Constitution of Missouri, said bills are not subject to, but are excepted from, the referendum.

“2. That said bills, and each of them, are necessary fo.r the immediate preservation of the public peace, health and safety, and that, therefore, by the provisions of Section 57 of Article 4 of the Constitution of Missouri, said bills are not subject to the referendum; and alleges that, having made return fully to the relator’s petition and the alternative writ of mandamus herein, respondent prays the court that the peremptory writ of mandamus prayed for by relator be denied.” /

REPLY.

“On the 30th day of June, 1921, relator filed his reply to the answer of the respondent as follows:

“Admits that said Senate Bills Nos. 4, 5, 6 and 7, and each of them, contained the following language:

“ ‘This enactment is hereby declared to be necessary for the immediate preservation of the public peace, health and safety within the meaning of Section 57 of Article 4 of the Constitution of Missouri.’

“Denies that by reason of said legislative declaration contained in each of said bills and by reason of the provisions of Section 57 of Article 4 of the Constitution of Missouri, said bills are not subject to, but are excepted from, the referendum; denies that said bills, and each of them, are necessary for the immediate preservation of the public peace, health and safety, and therefore, by the provisions of Section 57 of Article 4 of the Constitution of Missouri, said bills are not subject to the referendum; further alleges that said statement in each of said bills is false and untrue and in violation of Section 57 of- Article 4 of the Constitution of Missouri and that said bills are not excepted from the referendum by reason of said statement; and further alleges that it is not true that said bills, or either of them, are necessary for the immediate preservation of the public peace, health and safety and alleges that said bills are purely local in their character and simply provide for legislating out of office eight justices of the peace arid eight constables in one township (Kaw) in the entire State of Missouri, and that the bills are not in any sense necessary for the immediate preservation of the public peace, health and safety.

“We submit, therefore, that there is simply one question for this court to determine and that is whether or not the adoption by the Legislature of the ‘peace, health and safety clause’ excepts these bills from the referendum. That is; may a Legislature select only one township in the entire State of Missouri and legislate out of office eight justices of the peace and constables who have been elected for a four-year term and authorize the Governor to appoint their successors until the next general election? By stipulation filed and the pleadings, all other questions are eliminated, and the court is called upon to determine the one legal question involved. ’ ’

There is but a single leg’ll proposition presented by this record to this court for determination, and that is, has the Legislature of the State the constitutional authority undér Section 57 of Article .4 of the Constitution to enact a law, and debar the power of the courts of the State from passing upon the question as to whether or not the law is subject to referendum by adding thereto the words: “This enactment is hereby declared to be necessary for the immediate preservation of the public peace, health, and safety, within the meaning of Section 57 of Article 4 of the Constitution of Missouri?” Said section, in so far as here necessary, reads as follows:

“ 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. The first power reserved by the people is the initiative, and not more than eight per cent of the legal voters in each of at least two-thirds of the Congressional districts in the State shall be required to propose any measure by such petition and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety and laws making appropriations for the current expenses of the State government, for the maintenance of the State institutions and for the support of public schools) either by the petitions signed by five per cent of the legal voters in each of at least two-thirds of the Congressional districts in the State, or by the legislative assembly, as other bills are enacted.”

This question has been most elaborately and ably discussed by counsel for the respective parties, and all the authorities bearing upon the question from the various states of the Union have been cited, and after a thorough consideration of the same, I am fully satisfied that the law of the case was, and is, fully and correctly declared bv Craves, J., in the case of State ex rel. v. Sullivan, 283 Mo. 547, 224 S. W. 327, where the same legal proposition was presented to this court for determination that is here presented by this case. I fully concurred in the views as there expressed by Judge Craves, and adopt them as my views of the law of this case. While that opinion was not concurred in by a unanimous opinion of the court, yet there was but one dissent as to the law as there expressed regarding the question here presented; Judges Williamson, Goode, Blair, and Williams concurred as to paragraphs 1, 2, 3, 4, 6 and the lesult of - the Craves opinion, but they expressed no opinion as to Paragraph 5.

For the reasons stated, I am of the opinion that the writ of mandamus should be made permanent. It is so ordered.

James T. Blair, C. J., Graves, Walher and Elder, JJ., concur in separate opinions; Higbee and David E. Blair, JJ., dissent in separate opinions.