In view of the importance of this case, I have thought it not unbecoming to state my individual views thereon, although somewhat hurriedly expressed. No other opinion being before me at the time of the preparation hereof, nothing said herein is intended as a comment upon or answer to anything contained in any opinion which may be filed by any of my associates.
I. The primary issue in this proceeding involves the construction to be placed upon two of the provisions *Page 593 of our Constitution. Learned counsel for relator, in their original brief, contend that so much of Section 7 of Article IV of the Constitution as vests power to district the State for Senators in the Governor, the Secretary of StateConstruction. and the Attorney-General is repealed by Section 57 of said Article IV, and that the redistricting made by the said officials under date of April 16, 1921, is void. Section 7 of Article IV is as follows:
"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; or if such census be not taken, or is delayed, then on the basis of a State 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."
That portion of Section 57 which is pertinent hereto is 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 *Page 594 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."
In support of their contention counsel argue substantially thus: That by the Constitution adopted in 1875 the people "made full disposition of all the legislative power of the State, reserving none whatever to themselves, except, of course, the power to amend the Constitution or to write a new one;" that in the Constitution as originally adopted it was provided by Section 1 of Article IV that, "The legislative power, subject to thelimitations herein contained, shall be vested in a Senate and House of Representatives, to be styled `The General Assembly of the State of Missouri'" (Italics ours); that one of the limitations mentioned in Section 1 was embodied in Section 7, being that portion hereinbefore set out, giving the Governor, Secretary of State and Attorney-General, in a certain contingency, the power to district the State for Senators; that in 1908 the people "had become dissatisfied with this arrangement and desired to change it," and adopted an amendment to the Constitution, being Section 57 of Article IV, partly hereinbefore set forth; that by Section 57 all of the legislative power of the State was disposed of and vested in a Senate and House of Representatives, with but one reservation, to-wit, the power of the people themselves "to propose laws and amendments and to enact or reject the same at the polls, independent of the legislative assembly;" that such disposition of all of the legislative power left no part of it elsewhere; and that accordingly the former limitation in favor of the Governor, Secretary of State and Attorney General, being in irreconcilable conflict with Section 57, was in effect thereby stricken out and the Governor and his associates "shorn of all legislative authority theretofore vested in them."
To have followed this reasoning to its logical conclusion, the inevitable result reached would have been *Page 595 that Section 57 also struck out of the Constitution all of the limitations on the authority of the Legislature, such as the prohibitions against enacting any law impairing the freedom of speech or the obligation of contracts, against permitting money to be drawn from the treasury except in pursuance of regular appropriations made by law, against giving or loaning the credit of the State, against contracting debts except in certain instances, against granting public money, against subscribing for stock on behalf of the State, against the enactment of the thirty-three special and local laws inhibited by Section 53 of Article IV, and against the exercise of the taxing power contrary to the restrictions prescribed by Article X, together with the many other restraints imposed by the Constitution, all comprehended by the words "the limitations herein contained," appearing in Section 1.
The utter fallacy of this startling reasoning must have become apparent to counsel for relator for, upon oral argument, they abandoned the theory thus initially advanced, and bottomed relator's case upon an attenuated hair line distinction between the meaning of legislative "power," as used in Section 1 of Article IV, and legislative "authority" as used in Section 57 of Article IV. (Italics ours.) In their reply brief they endeavor to differentiate between power and authority (which in our judgment are used in the Constitution as equivalent terms), substantially thus: That all legislative power is originally in the people; that by the Constitution only so much power was bestowed upon the State as the people saw fit to bestow; that the power not bestowed either remains in the people or is held in abeyance; that the legislative power bestowed upon the State is the "measure and extent" of the legislative authority of the State; that when by Section 1 of Article IV the "legislative power, subject to the limitations herein contained," was vested in a Senate and House of Representatives, all of thepower of the people was so vested; that under Section 7 of Article IV, embracing one of the limitations contemplated by Section 1, the Governor and his associates, *Page 596 as a part of the State, thus become empowered to act in the contingency named; that when Section 57 of Article IV was adopted, said section made a re-assignment of the legislativeauthority of the State, which had theretofore been vested in the Senate and House of Representatives, exclusively, except such as was reserved to the people themselves; and that, accordingly, the Governor and his associates have neither powernor authority to redistrict the State for Senators. If this conclusion be true, then, when the people by Section 57 resumed all of the legislative authority originally given to the General Assembly and the Governor and his associates and re-vested the same in the General Assembly alone, Section 57 superseded not only the limitation embraced in Section 7 but allof the limitations contemplated by Section 1 as well, being the numerous limitations adverted to by us supra. Palpably, therefore, relator is driven back to his abandoned theory, which is so revolutionary and so contrary to the principles of constitutional construction as to require but slight reflection to compel us to decide adversely thereto.
The real sum and substance of what relator urges is that so much of Section 7 as is relevant hereto was repealed by Section 57 by implication, and this in the face of the cardinal rules of both constitutional and statutory construction, that repeal by implication is not favored, that to establish a repeal the two provisions in question must be plainly and irreconcilably repugnant to each other, and that if, by any reasonable construction, both provisions can be construed together, both will be sustained.
However, our disposition of relator's insistance does not depend upon an analysis of the principles of construction, for this court has heretofore in effect ruled upon the point now made, in a case involving facts sufficientlyStare Decisis. analogous to those at bar to be controlling. In State ex rel. Halliburton v. Roach, 230 Mo. 408, a proceeding to have this court issue its peremptory writ of mandamus against the Secretary *Page 597 of State to compel him to file certain petitions presented to him by citizens acting under a right assumed to have been conferred by the initiative and referendum amendment (being Section 57 of Article IV), which petitions submitted an amendment to the Constitution redistricting the State senatorially, it was held that Section 7, notwithstanding the adoption of Section 57, continued to control the matter of altering the senatorial districts of the State, Fox, J., in an opinion fully concurred in by our learned brother GRAVES, said, l.c. 431: "Manifestly before the senatorial districts can be divided in the manner as suggested in the so-called proposed constitutional amendment, Section 7 of Article 4 of the Constitution of this State must be amended and so changed as to authorize, by the initiative, the people at the polls to divide the senatorial districts.: . . In other words, the exercise of the power by the initiative to alter and divide the senatorial districts by a legislative enactment cannot have the force and effect of dislodging the power vested by the Constitution under Section 7 of Article 4, providing for the apportionment of senatorial districts. Before the power to alter and divide the senatorial districts can be exercised there must be an appropriate amendment to the Constitution dislodging the power to so divide and alter such districts under the present Constitution and laws of this State." This ruling was tantamount to holding that Section 57 (the Initiative-and-Referendum Amendment) did not repeal Section 7, but that said sectionremained the sole repository of authority for redistricting theState.
That Section 7 of Article IV is still extant and governing in the matter of a senatorial re-apportionment was further recognized by this court on June 21, 1910, later than the adoption of Section 57, in State ex rel. Major v. Patterson,229 Mo. 373, a certiorari proceeding to quash an order made by the County Court of Jackson County subdividing said county into new legislative districts, wherein it was said by GRAVES, J., l.c. 388; "Of course, as to the senatorial districts, if the Legislature *Page 598 fails to apportion, the apportionment may be made by other officers mentioned in Section 7 of Article 4 of the Constitution, which action upon their part stands in lieu of legislative action." And further, at page 389: "It is clear that as to all senatorial districts save and except those within a single county, the power to fix the lines thereof lies with the Legislature, or in the event of its failure to act, with the Governor, Secretary of State and Attorney-General."
Again, that Section 7 is still controlling in the matter of re-apportioning the State for Senators, was conceded on March 28, 1912, also later than the adoption of Section 57, in State ex rel. Barrett v. Hitchcock, 241 Mo. 433, wherein said section was construed and applied.
These three pronouncements are decisive of the question here presented. It follows, therefore, that unless we are now desirous of departing from the precedent thus established, the contention of relator must be ruled against him.
II. Relator also insists that the "attempt" made by the Governor, Secretary of State and Attorney-General "at redistricting is so unfair as to convenience, equality of population and compactness of territory, as to makeConvenience: it void." The matter of convenience is not stressedCompactness: by relator and we shall not dwell thereon.Population.
The constitutional requirements with respect to senatorial districts are that they shall be "convenient;" that they shall be "as nearly equal in population as may be," and that when composed of two or more counties, "they shall be continguous, such districts to be as compact as may be, and in the formation of the same no county shall be divided." [Secs. 5 and 9, Art. IV.] Under the Constitution the duty imposed upon the Governor and his associates is not that they shall so district the State as to have every district exactly equal in population and perfectlycompact in territory. Exact mathematical precision is not a requirement, and, when it is considered *Page 599 that county lines must be adhered to, unless a county is equitably entitled to more than one senator, and that indivisible counties vary in size, shape and population, it is obvious that such precision cannot be attained. The real duty enjoined upon the officials acting is that they shall lay out the districts so that they are "as nearly equal" in population "as may be," and "as compact" in territory "as may be." Such is the language of the Constitution. And it is by that yardstick that the action taken must be measured. The expression "as nearly as may be" does not mean as nearly as a mathematical process can be followed. It is but a direction addressed to the body charged with the duty prescribed, expressive of the general principles upon which the apportionment shall in good faith be made.
Applying this standard to the districts before us, we are convinced by an examination thereof, that the same, when considered as a whole, as is essential, fairly comply with the constitutional requirements. Having in mind the several separate commands of the Constitution, no argument is required to show that absolute numerical equality in districts cannot be obtained. If county lines cannot be broken, disparity in population is unavoidable. It is also evident that if the requirement as to compactness is to be given effect, there must be a latitude of action in regard to population. Therefore, when but four districts out of thirty-four are attacked as being non-compact, with room for question as to the merit of such attack, and when the average variation in population from the true ratio of equality, as shown by respondent's brief, is but five and four-tenths per cent, we are not prepared to hold that the judgment and discretion of the Governor and his associates was not exercised in a reasonable, practicable manner, and within the contemplation of the Constitution. And, when compared with the districts created in 1901, the validity of which is attacked by respondent in his return filed herein, it is patent that the 1921 districts are infinitely superior, in every respect, in conforming to the constitutional mandate. *Page 600
From what has been said, it follows that relator's insistence as to the invalidity of the 1921 redistricting should be ruled against him.
Entertaining the views herein indicated, I respectfully submit that the writ of mandamus should be denied.