State Ex Rel. Lashly v. Becker

I am unable to concur in the majority opinion and will state my reasons as briefly as I can.

The vital question in the case is the effect on Section 7, Article IV, of our Constitution of the adoption of Section 57, Article IV, known as the initiative-and-referendum amendment. Relator in brief and argument vigorously attacked theEffect of senatorial redistricting act of 1921, performed by theAmendment Governor, Attorney-General and Secretary of State, onof 1908. the ground that it is not a fair apportionment and violated the mandates of the Constitution as to compactness, convenience and equality of population. But when compared with the redistricting for senators done in 1881, 1891, 1901 and the attempted apportionment of 1911, and even with the model fixed by the Constitution of 1875 itself, the redistricting of 1921 is shown to excel them all on every basis of comparison, and only those blinded by partisanship or self interest will seriously contend that the 1921 redistricting does not come as nearly to complying with the requirements of the Constitution as it is possible to do.

In holding that Section 7, Article IV, of the Constitution has been repealed in so far as it provides for the performance of the duty of redistricting the State by the designated state officials, the majority opinion violates theConstruction. universally recognized rules of statutory and constitutional construction that all parts of a law or constitution, including amendments, must be read together; that when two constructions of a particular provision are possible, and one is in harmony with and the other repugnant to another provision dealing with the same subject, that construction which is *Page 601 in harmony with the other provision must be adopted; that the presumption is against repeal by implication and such repeal is not favored. If Section, 7, Article IV, has been repealed by the adoption of Section 57, Article IV, in 1908, it is by implication and the presumption is against such repeal.

Every student of recent history and of the progress of the science of government knows that the reason for the adoption of the initiative-and-referendum amendments to the constitutions of the several states was the distrust of and thePurpose of dissatisfaction with the legislature in the characterAmendment. of its enactments in respect to the ordinary subjects of legislation, and in the lack of responsiveness of such bodies to the popular demand for the enactment of desired legislation. It cannot be seriously contended that the failure of our General Assembly to exercise its power to redistrict the State, thereby leaving the duty to be performed by the named state officials, played the slightest part in the demand for the initiative. The expressed purpose of the amendment was to provide for the initiative and referendum. Nothing was said in the title of the resolution submitting such amendment about "relocating" the legislative power. [Laws 1907, p. 452.]

Observing the great rules of construction referred to, no difficulty appears in leaving Section 7, Article IV, intact and construing Section 57, Article IV, as merely a declaration by the people that they reserve to themselves the power by use of the referendum to pass upon the laws enacted by theConstruction. General Assembly within its ordinary powers as fixed by the Constitution at the time of the adoption of the amendment, and by means of the initiative to propose and pass laws such as the General Assembly might itself pass. The initiative amendment not having in express terms referred to Section 7, Article IV, it is our duty to construe the whole Constitution, including the amendment, in such a way as to preserve Section 7, Article IV, intact, if it can be done. In other words, by the adoption of Section *Page 602 57, Article IV, the people simply reserved to themselves the power to do the acts and things which were by the Constitution delegated to the General Assembly. Acts which the General Assembly could not do because of constitutional limitations, restrictions or exceptions, or because of constitutional grants of such power to other agencies, the people themselves did not reserve to themselves to do.

This is the only construction that will give a reasonable meaning to Section 57, Article IV, without doing violence to other parts of the Constitution, including Section 7, Article IV, and to existing laws of the State, which the slightest reflection and the exercise of common sense will show were surely not intended by the framers of the amendment to be affected by it. So construed there is no conflict between Section 57, Article IV, and Section 7, Article IV. To accept relator's contention is to strike down all limitations, restrictions and exceptions, and to treat as withdrawn all constitutional grants of legislative authority to agencies other than the Legislature, and all prior delegation of legislative power made by the General Assembly itself.

The majority opinion reached the conclusion that the initiative-and-referendum amendment did not affect the restrictions upon legislative power imposed by the Constitution and that it is unthinkable to hold that such wasRestrictions. its effect. In the name of reason, why not? To admit a single exception either of reservation or of grant is to destroy the very foundation upon which the majority opinion rests. The people are the source of all power, legislative, executive, judicial. They had previously vested the legislative power of the State in the General Assembly, subject to certain restrictions and limitations. If Section 57, Article IV, restored all legislative power to the people themselves, were not all restrictions merged in the people when such power was so restored, and, in again bestowing legislative power upon the Legislature, did they not bestow it limited and restricted only by the right of the people *Page 603 to refer legislative enactments and to initiate and pass laws? I agree that it is unthinkable that such was the intent of the people in adopting Section 57, Article IV. But how can such conclusion be avoided, if such amendment be construed as a resumption by the people of all legislative power? How can the majority opinion stand without assuming such complete resumption? A reasonable construction of the amendment is that all the people sought and accomplished by such amendment was a reservation of power to require approval by the people themselves of all acts passed by the General Assembly, except as stated in the amendment, and the power to initiate and pass laws that the General Assembly itself previous to that time might have passed, and to amend the Constitution by direct action. The powers and duties of the Legislature as fixed by the Constitution, with this exception, were not disturbed. Restrictions and limitations on legislative power and grants of legislative power provided elsewhere in the Constitution were not affected.

The General Assembly having failed to divide the State into senatorial districts at its first session after the population of the State had been ascertained from the 1920 census, the only time it is authorized by the Constitution to do so, and that act having been performed under the provisions of Section 7, Article IV, by the designated state officials within thirty days after the adjournment of the session of the General Assembly upon which the duty devolved, the General Assembly was thereafter deprived of constitutional power to redistrict the State, and the people only having reserved to themselves such power as a subsequent General Assembly might possess in the premises, were without power to redistrict the State by the initiative.

Such was the view of this court in the case of State ex rel. v. Halliburton, 230 Mo. 408, decided many months after Section 57, Article IV, was adopted. It was sought by the required number of petitioning legal voters, acting under theThe Halliburton initiative amendment of the Constitution, toCase. submit *Page 604 by initiative to the voters a purported amendment to the Constitution redistricting the State for Senators. Mandamus was invoked to compel the then Secretary of State to file the initiative petitions which he had refused to file. The court held that while said petitions denominated the proposal a constitutional amendment, it was in effect legislative in character and that it sought to amend a section of the Constitution legislative in character and by its terms limited in duration and application and a dead enactment by reason of the constitutional redistricting of the State into districts in 1881; that such legislation contravened Section 7, Article IV, of the Constitution which gave the power to redistrict the State to the General Assembly at its first session after the population of the State had been determined by the decennial census of the United States, or on failure of the General Assembly to act, to the designated state officials. I quote from the majority opinion written by Chief Justice Fox, a portion not quoted or referred to in the majority opinion, beginning at page 431, as follows:

"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. Section 7 of Article 4 of the Constitution, in addition to providing how the senatorial districts shall be divided, expressly provides that the apportionment shall be revised and adjusted every ten years 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. Clearly it will not be seriously contended that the senatorial districts might be altered and changed in the manner suggested by the so-called amendment to the Constitution without first submitting to the people of the State an amendment to *Page 605 Section 7 of Article 4 of the Constitution, which expressly provides how the senatorial districts shall be divided. If this can be done we again have the anomalous proposition that upon the day of the election we have a Constitution (Section 7, Article 4) in full force, providing how the senatorial and representative districts shall be divided, and without a single change in the constitutional provision, or a single suggestion as to a different method of dividing the senatorial and representative districts, and without any vote by the people under the initiative making any change in the constitutional provision, or any canvass or return of such vote, an absolute exercise of the right to divide the State into senatorial districts. Manifestly,as heretofore stated, the right to alter and change thesenatorial districts as suggested in this so-called proposedconstitutional amendment could not possibly attach until it wasascertained that Section 7 of Article 4 of the Constitutionof this State had been amended and that such amendment wasratified or adopted upon a proper canvass and return of thevotes. In other words, the exercise of the power by theinitiative to alter and divide the senatorial districts by alegislative enactment cannot have the force and effect ofdislodging the power vested by the Constitution under Section 7of Article 4, providing for the apportionment of senatorialdistricts. Before the power to alter and divide the senatorialdistricts can be exercised there must be an appropriate amendmentto the Constitution dislodging the power to so divide and altersuch districts under the present Constitution and laws of thisState." (Italics ours.)

GRAVES, J., at page 444, concurred in the opinion written by Chief Justice Fox in the Halliburton case, and said, "I fully concur in all that Fox, C.J., has written in this case. The points made by him are unanswerable, but in the argument and in the briefs another point was raised upon which I have well defined views." And he then proceeds to discuss the case from another angle, which furnished an additional reason for concurring *Page 606 in the disposition of the case made by Chief Justice Fox.

It would appear that the question of the right of the people to legislate by the initiative on the question of redistricting the State for senators had been adversely decided in a clear-cut manner in the Halliburton case. That is the only conclusion that can be drawn from that case, notwithstanding the fact that the initiative petitions presented what was called a constitutional amendment. This court clearly ruled that the amendment was legislative in character, and because of such legislative character was not a proper subject of legislation, because violative of Section 7, Article IV, of the Constitution. In a proceeding questioning the right of the people to redistrict by the initiative, the case would be squarely in point.

To show further that the effect of the adoption of Section 57, Article IV, on the power of the designated state officials to redistrict the State for senators was before this court in the Halliburton case, and that such issue was squarely decided by this court in that case, I quote from the brief of the Attorney-General in the Halliburton case, which was signed by our present learned Chief Justice, then assistant Attorney-General, and counsel in the Halliburton case, and now concurring in the majority opinion, which quotation is taken from 230 Mo. l.c. 417, and is as follows:

"The power to redistrict the State into senatorial districts is, by Section 7, Article 4 of the Constitution, specifically and exclusively delegated to the Legislature, and, in event of its failure to act, to certain officials therein named. It is in its very nature, as well as by the express terms of the Constitution, a legislative power, yet it was, and is, a power which, being still specifically delegated, cannot be exercised by any authority other than that named, and this condition was, and is, not changed, modified or affected by the adoption of the initiative-and-referendum amendment." *Page 607

The late John Kennish and the late John C. Brown, both of whom afterwards served the State with great honor and distinction as members of this court, were of counsel for relator in the Halliburton case. It apparently never occurred to those eminent jurists that the adoption of Section 57, Article IV, had withdrawn from the designated state officials the power to redistrict the State, and they joined in defending before this court the right of the people to amend Section 11, Article IV, of the Constitution, the section defining temporary senatorial districts. The reasons which prompted the preparation and filing of petitions looking to such amendment need not be discussed here, but the fact that these eminent jurists evidently thought that the people could only obtain a fair division of the State into senatorial districts by a constitutional amendment, at a time when Section 57, Article IV, had been adopted, proclaimed and was in force, is worthy of consideration on the question before us.

The issue was squarely raised and the case was decided on such issue and the decision is controlling. It cannot be successfully distinguished from the case at bar. It should not be overruled without it clearly appears to be fundamentally unsound. It is in effect overruled by the majority opinion, although the majority opinion is entirely silent as to the expressions in the Halliburton case which are out of harmony with the conclusions reached in the majority opinion.

The decision in the present case will unfortunately bear the suspicion of being written in response to the demands of political necessity and as judicial first-aid in the unfortunate political dilemma in which relator and his party associates now find themselves, because of the disastrous election results in 1920. For this reason, unless the unsoundness of the Halliburton case can now be shown with a clearness and certainty approaching a mathematical demonstration, it should be followed. The majority opinion practically ignores it. Considerations of political necessity should not bear a feather's weight *Page 608 in the scales. Our decisions should be based on reasoning so conclusive, so inescapable as to avoid the suspicion that such considerations were so weighed.

In State ex rel. Barrett v. Hitchcock, 241 Mo. 433, the question of the effect of the initiative was not directly considered. That proceeding was in mandamus to compel the circuit judges of the city of St. Louis to lay outThe Hitchcock Case. senatorial districts in that city in conformity with the attempted redistricting of the State in 1911 by the Secretary of State and Attorney-General, over the protest and without the proclamation of the Governor. The majority of this court held that the alleged redistricting act was invalid without the proclamation of the Governor, and because the actual division itself did not comply with the mandates of the Constitution, and because the duties of the circuit judges were legislative in character, and therefore this court could not compel them to act in the premises. It apparently never occurred to learned counsel for respondents or the court to urge as a reason why the circuit judges should not be compelled to act, that Section 57, Article IV, had taken away the power of the designated state officials to act. If the thought of such repeal had entered the minds of court or counsel, it would have been a most satisfactory and conclusive answer to the contention that the circuit judges should be required to act. It was left for partisan counsel in this case, with wits sharpened by the bitterness of overwhelming defeat at the polls, to make the amazing discovery. However, in discussing that case in the majority opinion, our learned brother WOODSON, at page 456, took occasion to say:

"That the Forty-sixth General Assembly was duly held in the City of Jefferson in the year 1911, but it failed to apportion or redistrict the State into senatorial districts as provided for by Section 7 of Article 4 of the Constitution.

"That under the terms of said section it then became the duty of the Governor, Secretary of State and *Page 609 the Attorney-General to redistrict it, as therein provided; and on April 18, 1911, they regularly convened in the City of Jefferson for that purpose and took up the matter of redistricting the State into senatorial districts."

In addition to the application of the rules of construction referred to and the adjudicated cases discussed, we have the right to take into consideration the consequences of a given construction where the meaning of the amendment is doubtful. As a general rule courts have nothing to do with the consequences of their decisions; but the meaning of the amendment being not entirely clear, the question of whether or not the people intended by such amendment a construction contended for, reference to the consequences is not out of place to show what was the real intent of the people in adopting the amendment, because the people cannot be presumed to have intended undesirable or disastrous consequences as the effect of such amendment.

Perhaps the least of the difficulties resulting will be the disadvantages suffered by the people of the State in having to endure, possible for years, the outgrown senatorial apportionment of 1901. Politically unfair and made in utter disregard of the mandates of the Constitution in the beginning, dueDisastrous to the marked tendency to city dwelling, it hasConsequences. become more unfair and unrepresentative as the years have passed. Even if the majority opinion is decisive of the right of the people to redistrict the State by the initiative and reliance can be placed on adherence to the decision in future cases, it is difficult to see how any redistricting bill can be carried at the polls.

It is altogether probable that the reason the General Assembly has failed to redistrict the State heretofore is because even the Legislature is too numerous a body to come to an agreement as to the territory to be included in the several senatorial districts. The motives of the proponents of any given arrangement are always subject to suspicion of private political fortunes to be *Page 610 promoted or special legislative interests to be subserved, and the larger the number of people to be satisfied by any given arrangement the less the likelihood of agreement. Such likelihood of agreement would be lessened almost to the vanishing point if the voters of the entire State had to pass on any given arrangement. The people in the country probably would suspect that the cities were given too much representation, and viceversa. This attitude may explain the failure of the General Assembly in the past to exercise its power, and such attitude would more than likely defeat any plan of senatorial redistricting submitted to popular vote.

But by far the most serious consequences to be considered because of the conclusion reached in the majority opinion is its effect on restrictions upon and grants of legislative authority made by the Constitution itself and delegations of legislative authority by the General Assembly. The holding of the majority opinion is that all grants of legislative power are withdrawn from all agencies, except the Legislature and the people themselves, and is evidenced by the following language from the majority opinion:

"The sole idea was to centralize legislative 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 is a constitutional grant of legislative powers to three executive officers."

The majority were compelled so to hold in order to reach the conclusion that the constitutional grant of *Page 611 conditional or alternative power to the designated state officials to redistrict the State was withdrawn. If any exceptions be recognized, then the force of the reasoning is immediately destroyed. But in so holding the opinion holds too much, and if the opinion be followed it visits upon our State most confusing and disastrous consequences.

Following the decision to its legitimate conclusion, what becomes of constitutional and statutory delegation of legislative powers to cities, school districts and special road districts in levying taxes? What becomes of legislative powers bestowed by the Constitution upon, or delegated by the General Assembly to, municipalities enabling them to pass ordinances on the multitude of subjects provided for in their general and special charters, including the police power itself? If the Constitution itself is changed and grants of legislative power directly provided for therein are withdrawn, what becomes of delegations of legislative authority made by the General Assembly prior to the initiative-and-referendum amendment? Is the creature of the Constitution, the General Assembly, greater than the Constitution itself? Clearly not. All such powers must be held also to have been centralized "in a given and single forum, so that the referendum and initiative rights of the people would be preserved," as ruled in the majority opinion.

Let us hope that delegations of legislative powers by the General Assembly subsequent to the adoption of of the amendment have escaped the disastrous consequences of the reasoning of the opinion, because as to them the people have had the right to exercise the referendum and, having failed to exercise it, such powers may be regarded as safe from the far-reaching effects of the decision.

However, conceding that the majority opinion has soundly ruled that all legislative powers have been centralized "in a given and single forum, so that the referendum and initiative rights of the people would be preserved," it is a very serious question whether the General *Page 612 Assembly, since the adoption of Section 57. Article IV, has been possessed of power to delegate any legislative duties whatever, because the referendum could not apply to the exercise of such delegated legislative powers. If so, what becomes of the legislative powers of cities of the first and second classes delegated since 1908? What becomes of the powers of the Public Service Commission to fix reasonable rates for public utility service? These acts are legislative in character. What becomes of the legislative powers of the numerous other boards and commissions created since 1908?

Already reports of the confusion resulting from the ruling made in this case are reaching our ears. Under the 1901 redistricting act the city of St. Louis has six senators and under the 1921 apportionment eight. This caused a rearrangement of the senatorial districts, a change in the wards and new election precincts. Some of the new election precincts are in two different senatorial districts as laid out in 1901, and great apprehension is felt that the necessary changes cannot be made before the election of delegates to the Constitutional Convention. Doubtless the same situation exists in Jackson County, to which two additional senators are assigned by the 1921 act. It will indeed be a fearful price to pay if the effect of the majority opinion is to endanger the Constitutional Convention itself.

I will not enumerate further examples. Carried to its logical conclusion, the majority opinion is startling and revolutionary in its effect. As is said in the majority opinion on the question of the effect of Section 57, Article IV, on restrictions on legislative power, "If this amendment withdrew one restriction, it withdrew all, and it is unthinkable to say that such was the intent of the people." And so I say to as grants of legislative power, not only to the designated state officials, but to cities, counties, school districts, commissions, boards and other bodies, that if this amendment withdrew one pre-existing grant of legislative power, it withdrew all. It may have destroyed the subsequent power to delegate *Page 613 legislative duties. It is unthinkable to say that such was the intent of the people.

The ordinary mind is sufficiently endowed with imagination to visualize the disastrous, yes, appalling, consequences to our established institutions that will follow adherence to the rule announced.