State v. Banks

454 S.W.2d 498, 1970 Mo. LEXIS 1005

Opinions

MORGAN, Judge.

In this original proceeding, the Attorney General of Missouri, herein referred to as the petitioner, filed an information in the nature of quo warranto seeking a judgment of this court that J. B. “Jet” Banks, respondent, be ousted from the office of State Representative for the 54th Legislative District of Missouri. In addition to filing his return, respondent filed a motion to dismiss the information on the basis that this court lacked jurisdiction of the subject matter. The motion was ordered taken with the case, and a special commissioner was appointed to hear evidence and report his findings and conclusions. His report has now been filed.

Factually, it is agreed that respondent at the General Election held November 5, 1968, was a candidate for the State House of Representatives from the 54th Legislative District, was certified by the Secretary of State as having been elected, was given the oath of office and is presently serving as the legislator for said district. It was further stipulated that said district was located wholly within the City of St. Louis, and that 1615 Bredell Avenue is located in Richmond Heights, Missouri. Petitioner alleges that respondent has resided at the latter address, which is located within the 40th Legislative District, for many years and has never resided in the district from which he was elected. After an evidentiary hearing, the commissioner reached the same conclusion.

Initially, we must consider respondent’s challenge to the jurisdiction of this court. This contention is premised on those constitutional provisions (Constitution of Missouri 1945) which provide that each house of the General Assembly shall be the sole judge of the qualifications of its own members. Relevant constitutional sections are, in part, as follows:

Art. Ill, Sec. 4. Qualifications of representatives. — Each representative shall be twenty-four years of age, and next before the day of his election shall have been a qualified voter for two years and a resident of the county or district which he is chosen to represent for one year,

Art. Ill, Sec. 13. Vacation of office by removal of residence — If any senator or representative remove his residence from the district or county for which he was elected, his office shall thereby be vacated.

Art. Ill, Sec. 18. * * * jurisdiction to determine membership * * *. — Each house shall appoint its own officers; shall be sole judge of the qualifications, election and returns of its own members; * * * with the concurrence of two-thirds of all members elect, may expel a member; * * .

This court does have jurisdiction by virtue of Art. V, Sec. 4, V.A.M.S., which provides, “The supreme court * * * may issue and determine original remedial writs.” The case as submitted calls for construction of the constitution which requires the performance of perhaps our most important function. In so doing, we must resolve whether or not a justiciable issue is presented. In this task, we have the added guidance of the recent decision of the Supreme Court of the United States in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed. 2d 663. Therein, it was determined that the “political question doctrine” might make non-justiciable those cases wherein there was found, 1. c. 217, 82 S.Ct. 1. c. 710, “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a' court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” The court also concluded that a political question could result if it were found that any one of the factors listed was inextricably present.

As is obvious by Art. Ill, Sec. 18, of the Constitution of Missouri, the people of this state have specifically made a “textually demonstrable constitutional commitment” to its house of representatives power to be the “sole judge” of the qualifications of. its own members. That fact is not debatable. The scope of this constitutionally delegated power recently has been not only recognized but more precisely defined by the Supreme Court in Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235, and Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491. Bond considered exercise of the power by the legislative department of a state and Powell the exercise of a similar power by the house of representatives of Congress. In each case, while considering a question of “exclusion” of a potential member and not the power of “expulsion,” the court -held that the power, so delegated, was limited to a determination by the legislative body of whether or not that person challenged met those standards constitutionally established. The constitution of this state, Art. Ill, Sec. 4, provides that age, qualification as a voter and residency are to be standing qualifications, and as such, both by historical precedent and the recent articulations of the Supreme Court, necessarily come within the scope of the power so delegated. Such a conclusion is not indicative of a reluctance of this court to accept its responsibility as the ultimate interpreter of the constitution, but to the contrary, it is evidence of this court’s appreciation of its duty to interpret the constitution as it was written by and for the citizens of this state. We have the duty and obligation to protect the right of the legislative department, as we would also the executive branch, to exercise those powers specifically delegated to it in the same manner we would a similar challenge to the powers of the judiciary. Refusal to do as much would constitute an encroachment upon the legislature by this court and do violence to that' separation of powers so fundamentally vital to our form of government. Art. II, Sec. 1, Constitution of Missouri, 1945. “For any one of the three equal and co-ordinate branches of government to police or supervise the operations of the others strikes at the very heart and core of the entire structure.” Am.Jur. 2d, Constitutional Law, Sec. 213. Although now specifically incorporated in the constitution of the federal government and the many states, the power of a legislative body to judge the qualifications of its own members is of ancient origin. “The history of the doctrine reveals that it was established in the constitutional law of England in the year of 1586, during the reign of Queen Elizabeth.” Lucas v. McAfee, 217 Ind. 534, 29 N.E.2d 403, 405. Although fully convinced of the correctness of our decision, we could not deny taking some solace in the fact that no case has been cited, nor has our research revealed any, in which any court has ever ruled otherwise. Hiss v. Bartlett, 69 Mass. 468, 473, 63 Am.Dec. 768 ; State ex rel. Acker v. Reeves, 229 Ind. 126, 95 N.E.2d 838; French v. State Senate, 146 Cal. 604, 80 P. 1031; State ex rel. Ford v. Cutts, 53 Mont. 300, 163 P. 470; Rainey v. Taylor, 166 Ga. 476, 143 S.E. 383; Reif v. Barrett, 355 Ill. 104, 188 N.E. 889; Lessard v. Snell, 155 Or. 293, 63 P.2d 893; Bowling v. Weakley, 181 Md. 496, 30 A.2d 791; Preisler v. Doherty, 364 Mo. 596, 265 S.W.2d 404. It has not been alleged that respondent has changed his residence since he was originally found qualified, and we express no view on the provisions for “expulsion” or for forfeiture found in Art. Ill, Sec. 13.

We next consider the petitioner’s arguments that: (1) “The equal protection clause of the Fourteenth Amendment is violated when the State fails to apply its qualifications for legislative representation uniformly on behalf of all residents of the State,” and, (2) “Abridgment of the equal protection clause makes this case justiciable and overrides the provisions of the state constitution establishing each house of the legislature as judge of the qualifications of its members.” Obviously, the generalization expressed in Point (2) is well taken, as this court recognizes that when a federal constitutional right conflicts with a state constitutional provision, it is our duty to enforce the former by virtue of the supremacy clause. Art. VI, United States Constitution. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810,91 L.Ed. 967; Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5. However, this duty comes into play only when it becomes apparent there has been, in fact, a denial of some federally protected right.

Petitioner concedes that there is no judicial precedent on the specific issue submitted. However, argument is made that residency is a critical aspect of representative government, and that quality of representation is “dependent on the person so elected sharing a community of interest with an understanding of the problems of his constituents.” From this premise, it is asserted that residents of the 54th Legislative District are being denied this benefit and thus are deprived of the equal protection of the laws. By analogy, petitioner relies on Baker v. Carr, supra, and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. Each of which involved legislative apportionment and held that the equal protection clause had been violated by continuing legislative inaction shown by failure to reapportion districts to conform to the one-man one-vote principle. Inaction was found to be an unavailing answer when there was an affirmative duty to act. However, in the instant case, “inaction” has neither been alleged nor proven. From the record before this court, there is no showing that the legislative body neglected its constitutional duty and failed to act in the premises. In view of respondent having been given the oath of office, absent a charge to the contrary, we must assume that his qualifications were resolved in compliance with the constitutional mandate. In other words, the information as filed does not charge an “invidious” discrimination by inaction, but suggests, by implication only, that the legislature reached an erroneous conclusion in the case of respondent. Neither is it alleged that such a decision, even if in error, was the result of an arbitrary or discriminatory failure to apply uniform standards; nor is there any contention or suggestion that facts known to petitioner were available or have been called to the attention of the legislature, that it might reconsider its decision if it were found to be ill founded. By these comments, we do not infer the result herein reached would be different, but they are made for the purpose of pointing up the absence of an important factor distinguishing this case from Baker and Reynolds, supra. For in each, the fact a legislative body evidenced continuing inaction and showed no willingness to assume its obligation was found to be further justification for a court to assume jurisdiction.

Further, we are not inclined to accept the analogy suggested in view of the declarations to the contrary in two recent opinions of the Supreme Court. Justice Douglas, while concurrring in Baker v. Carr, supra, 369 U.S. l. c. 246, 82 S.Ct. l. c. 725 said, “Where the Constitution assigns a particular function wholly and indivisibly to another department, the federal judiciary does not intervene,” and later in Powell v. McCormack, supra, 395 U.S. l. c. 552, 89 S.Ct. l. c. 1980, “Contests may arise over whether an elected official meets the ‘qualifications’ of the Constitution, in which event the House is the sole judge.” We further add, that the instant case is also distinguishable, from those cited, by virtue of the fact the deprivation, if any, was self created and is subject to remedy by the same process that created it.

Even though it be assumed that the legislature has erred in this isolated instance (respondent is one of 163 members), we respect the desire of the members thereof to act conscientiously. “The legislative function, except as limited by state or national constitutions, is equal and not subordinate to the judicial function, and the legislature is the ultimate guardian of the liberties and welfare of the people in quite as great a degree as the courts.” 16 C.J.S. Constitutional Law § 106, p. 491.

Finding the information fails to state a justiciable cause of action, respondent’s motion to dismiss is sustained. Costs are assessed against petitioner.

HENLEY, C. J., and DONNELLY and HOLMAN, JJ„ concur. FINCH, J., and FRED L. HOWARD, Sp. J., concur in result in separate concurring opinions filed. SEILER, J., dissents in separate dissenting opinion filed.