The leading, if not the sole, question in this case is: Was the power specially delegated to the Governor, Secretary of State and Attorney-General by Section 7 of Article IV of the Constitution, repealed by Section 57 thereof, the Initiative and Referendum, adopted in 1908?
In the brief and printed argument by relator's distinguished counsel, it was broadly contended that Section 57, by necessary implication, repealed Section 1 of Article IV, by which the legislative power of the State, "subject to thePetitioner's limitations herein contained, shall be vested in aPosition. Senate and House of Representatives to be styled The General Assembly of the State of Missouri," as also Section 7 of that article, and that by Section 57 the people reinvested the General Assembly with all legislative authority, subject only to the power reserved by the people to propose legislation and amendments, and to approve or reject at the polls any act of the legislative assembly.
At the oral argument and in their reply brief, however, this contention was abandoned, because it was seen that it resulted in the abrogation of all the restrictions of the Constitution on the legislative authority of the General Assembly. The argument proved too much. Much stress was also laid on the supposed distinction between the word "power" in Section 1, and the word "authority" in Section 57. It was contended that the distinction was vital in the consideration of the question, but as these words are used interchangeably in Section 57, it must be conceded that the difference in meaning of these words as used in our Constitution is more fanciful than real. So the controversy on the part *Page 614 of the relator at the oral argument rested on the contention that Section 57, by necessary implication, repealed the special power delegated to the three state officers to redistrict the State senatorially on the failure of the General Assembly to perform that legislative duty.
In the majority opinion it is said that the legislative intent of the framers of the amendment was, "to gather together and lodge in one legislative forum all legislative power or authority. If this was the intent and purpose ofOne Legislative the amendment, then it gathered to theForum. 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 were 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 *Page 615 the amendment, then it conflicts with the proviso, or last clause of Section 7 of Article IV."
The learned judge does not inform us how he knows what the framers of Section 57 thought or intended, or "that their purpose was to gather together and lodge in one legislative forum all legislative power," or, as elsewhere expressed in the 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 destroy the reservations and restrictions of the document that they were amending."
We disclaim any knowledge in the premises other than can be gained by reading and interpreting the amendment in the light of the time-honored and time-tested rules of construction, which, it was admitted at the argument, were the same as inConstruction. the construction of statutes. "In the main, the general principles governing the construction of statutes apply also to the construction of constitutions." [12 C.J. 699, sec. 42.]
Section 1 of Article IV reads: "The legislative power, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives, to be styled `the General Assembly of the State of Missouri.'" If it was thought necessary to insert the limitation clause in this section, and if Section 57 gathers up all the legislative power of the State and centralizes it in the General Assembly, why did not the framers of the amendment preserve therein these essential limitations? Why leave such vital restrictions to be supplied by the extra-hazardous chance of judicial construction? In other words, if Section 57 was intended as a substitute for Section 1 of Article IV, why did not the framers thereof write therein "subject to the limitations herein contained?"
Now the simple truth is that Section 57 no more repeals Section 1 or the proviso of Section 7 of Article IV, *Page 616 then the Sermon on the Mount abrogates the Ten Commandments. Indeed, the Master gave a new interpretation to the Commandments. Envy of another's goods is larceny; lust is adultery; hatred is murder. Still, the Law, written by God's finger on the Tables of Stone, remains the Gibraltar of Civilization.
It is believed that if this action on the part of the state officials were not pregnant with political consequences, there would be no shade of difference of opinion among lawyers in the solution of this question. But, when politicalPolitical questions get into court, as they inevitably must, itQuestions. must be confessed that we are likely to be unconsciously influenced by our political predilections. This was conspicuously demonstrated by the deliverance of the Electoral Commission in the famous controversy over the great stake at issue in the Hayes-Tilden election contest.
Happily, however, the identical question in this case was directly involved and expressly decided by this court against relator's contention when political considerations and party control of the State Senate were not involved.The Halliburton In the Halliburton case, 230 Mo. 408, theCase. Secretary of State refused to file petitions for the enactment by the initiative of a measure which this court held was a legislative act to redistrict the State senatorially. A mandamus was asked to compel the Secretary of State to file them. Fox, C.J., delivering the opinion of the court, said in part, at page 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 IV 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 *Page 617 Article IV, 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." And on page 438 the learned Chief Justice said:
"In other words, as applicable to this subject they must include in the petitions the full text of the amendment that is desired to be made as to Section 7 of Article 4 of the Constitution of this State changing and altering the method and plan of redistricting the senatorial districts, and instead of delegating the power to the General Assembly, and in the eventof its failure to perform the duty to certain designatedofficials. That such districts shall be divided by a law enactedthrough the initiative and referendum providing for the divisionof such senatorial districts. After having amended the Constitution in this manner then the way is perfectly clear to propose through the initiative, not a constitutional amendment, but a legislative act dealing with the subject of dividing and defining the boundaries of the senatorial districts in this State."
Judge GRAVES concurred in a separate opinion, saying in part: "I fully concur in all that Fox, C.J., has written in this case. The points made by him are unanswerable." In other words, thiscourt held that the people could not redistrict the Statesenatorially by the initiative until Section 7 of Article IV,including the proviso, was amended; thus recognizing that said proviso was still a live measure. Now it is held that the threestate officers cannot exercise their constitutional prerogativebecause it is repealed by Section 57.
In State ex rel. v. Hitchcock, 241 Mo. 433, l.c. 457, Judge WOODSON, delivering the opinion of the court, said in part:
"Not only that, but the very same section of the Constitution which authorizes and empowers the Legislature proper to apportion and redistrict the State into *Page 618 senatorial districts, also provides for and empowers this body of three state officials to redistrict it in case the General Assembly neglects or fails to do so.
"That being true, and both deriving their authority from the same source, and performing precisely the same duties, it must stand to reason, that if the labors of the General Assembly are legislative, then the work of this body must also be legislative in character.
"We call the one an act of the General Assembly, the other the statement of the Miniature Legislature.
"These views also find support in the cases of State ex rel. v. Patterson, 229 Mo. 373, l.c. 382, 383, 386, 387, 388, 391 to 396; and State ex rel. v. Roach, 230 Mo. 408, l.c. 428, 431, 433, 434, 435, 438, 439."
In State ex rel. v. Patterson, 229 Mo. 373, in an opinion handed down June 21, 1910, Judge GRAVES said in part: "Of course, as to the senatorial districts, if the Legislature fails to apportion, the apportionment may be made by other officers mentioned in Section 7 of Article IV of the Constitution."
In the case last cited, the then Assistant Attorney-General, now Chief Justice of this court, in his brief for the State, said: "The Constitution expressly directs the Legislature, in Section 7 of Article IV, to redistrict for senators every ten years, and provides for the contingency in the event of the failure upon the part of the Legislature."
Political considerations were not involved in the judgments of the eminent judges who then adorned this bench. I am content with their conclusions and believe they preclude further argument. Those judgments speak for themselves and foreclose further controversy on this question. If the maxim res ipsa loquitur be not applicable, the doctrine of stare decisis should be respected. If, however, this question were res integra, there could be but one answer. Here is a special provision in Section 7, empowering the three state officers to act in case the General Assembly should fail to redistrict the State senatorially. Was that specially delegated authority repealed *Page 619 by implication by Section 57? Relator's counsel, in their brief, admit that a redistricting of the State by the "miniature legislature" cannot be referred to the people "because the power to refer contained in Section 57 applies only to `any act of the legislative assembly."
The amendment does not read "any act of legislation," but "any act of the legislative assembly." The framers of the amendment knew the three state officials had the power to legislate; that is, to redistrict the State in the contingency mentioned in Section 7; they also knew that cities, towns andIntendment. villages had the power to enact ordinances andConstruction: police regulations. The express language of the amendment confines the right to exercise the power of the referendum to "acts of the legislative assembly;" thus recognizing and excluding from its operation the power specially delegated by the proviso in Section 7, as well as the powers of municipalities to legislate. Did Section 57 gather up all the legislative powers of the Public Service Commission as well as of the cities, towns and villages and vest those powers in the Legislature as a single forum, so that the people may exercise control over that class of legislation by the referendum?
We quote from 12 Corpus Juris, 707, section 55: "The presumption and legal intendment is that each and every clause in a written constitution has been inserted for some useful purpose, and therefore the instrument must be construed as a whole in order to ascertain both its intent and general purpose and also the meaning of each part. It follows, therefore, that, as far as possible, each provision must be construed so as to harmonize with all the others, yet with a view to giving the largest measure of force and effect to each and every provision that shall be consistent with a construction of the instrument as a whole. Different sections, amendments, or provisions relating to the same subject, must be construed together and read in the light of each other."
In Rosencrans v. United States, 165 U.S. 257, near the foot of 262, Justice BREWER, speaking for the court, *Page 620 said: "In other words, where Congress has expressly legislated in respect to a given matter that express legislation must control, in the absence of subsequent legislation equally express, and isnot overthrown by any mere inferences or implications to be foundin such subsequent legislation."
In Rodgers v. United States, 185 U.S. 83, at foot of page 87, Justice BREWER again said: "It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily notaffect the special provisions of such earlier statute. In other words, where there are two statutes, the earlier special and the later general — the terms of the general broad enough to include the matter provided for in the special — the fact that the one is special and the other general creates a presumption that thespecial is to be considered as remaining an exception to thegeneral, and the general will not be understood as repealing the special, unless a repeal is expressly named, or unless the provisions of the general are manifestly inconsistent with those of the special."
These established canons of construction have been fully recognized by this court. In Folk v. St. Louis, 250 Mo. 116, 136, we quoted approvingly from 36 Cyc. 1151 (IV), as follows: "Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy between them, the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to, or qualification of, the prior general one; and where the general act is later, thespecial will be construed as remaining an exception to itsterms, unless it is repealed in express words or by necessary implication."
In 36 Cyc. 1073 (III), this clear rule is stated: "Where two legislative acts are repugnant to, or in conflict with, *Page 621 each other, the one last passed, being the latest expression of the legislative will, must govern, although it contains no repealing clause. But it is not sufficient to establish such repeal that the subsequent law covers some, or even all, of the cases provided for by the prior statute, since it may be merelyaffirmative, or cumulative, or auxiliary. Between the two acts there must be plain, unavoidable, and irreconcilable repugnancy, and even then the old law is repealed by implication only protanto, to the extent of the repugnancy. If both acts can, by any reasonable construction, be construed together, both will be sustained. Two statutes are not repugnant to each other unlessthey relate to the same subject. Furthermore it is necessary tothe implication of a repeal that the objects of the two statutesbe the same. If they are not, both statutes will stand, althoughthey may refer to the same subject." These well known rules are recognized in Manker v. Faulhaber, 94 Mo. 430; State ex rel. v. Schramm, 272 Mo. 541, 564, and many other cases.
If we look this amendment squarely in the face, in the light of these rules of construction, we cannot fail to see its purposes. Section 1 of Article IV had already clothed the General Assembly with all legislative power "subject to the limitations herein contained." It already had ample authority to legislate. What was the mischief sought to be remedied by the amendment? It is trifling to say that this amendment was adopted because the people distrusted the power vested in the Governor, Secretary of State and the Attorney-General to redistrict the State senatorially in the event the Legislature failed to perform that duty. It is true that this decennial redistricting by the three state officials had been done so as to maintain party control of the Senate, except in case of a political earthquake. It is also true that complaints were justly made on account of these grossly partisan measures, but every one knows this had nothing to do with the adoption of the amendment, because the long-time dominant party would never have consented to any *Page 622 measure that might relax its strangle-hold on the State Senate.
This reformatory measure had been adopted in Oregon and other states, where, so far as I am informed, our peculiar mode of redistricting the State did not obtain. In fact, the adoption of the initiative and referendum in various states of the Union and in other countries was due to other causes. The people desired a larger measure in general legislation. The complaint was that legislatures were subject to the influences of corrupt lobbies and were domineered by corporations. [See the criticism of the Warrensburg Standard-Herald of June 19, 1903, in State ex rel. v. Shepherd, 177 Mo. 205, 209, for which this court imposed a fine of $500.] They enacted vicious legislation and failed to pass laws demanded by the people. To paraphrase the language of the Book of Common Prayer, "they have done those things which they ought not to have done, and have left undone those things which they should have done." It is common knowledge that the people desired to correct these evils, to so amend their constitutions that they could initiate legislation and reject vicious enactments of the Legislature.
The title prefixed to the resolution submitting the amendment, Section 57, reads: "Joint and concurrent resolution submitting to the qualified voters of Missouri an amendment to the Constitution thereof concerning the Initiative and Referendum." [Laws 1907, p. 452.]
The amendment reads: "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," etc.
On what theory is the broad claim made that the framers of the amendment intended that it should gather *Page 623 together and resume all the legislative power ofOne Legislative the State and lodge that power in oneForum. legislative forum? How is that assumption deduced? That purpose must be clearly expressed or must be necessarily and inevitably implied from the language of the amendment, otherwise the contention will be disallowed. If, however, the amendment accomplished the revolution claimed in the majority opinion, then it repealed Section 1 of Article IV, and with it went all the restrictions; in other words, it cleaned the slate and re-invested the Legislature with unbridled authority to legislate, reserving to the people the right of the initiative and referendum. But we look in vain in the amendment for such purpose or intent.
Keeping in mind the fact that the Legislature was already vested with power to legislate, "subject to the limitations herein contained," it is manifest that the clause "the legislative authority is vested in a legislative assembly" is merely affirmative of Section 1 of Article IV of the Constitution. It is not repugnant to nor inconsistent with the power already so vested in the Legislature, but merely affirmative thereof. This enactment, being general and later than the special power delegated to the Governor, Secretary of State and Attorney-General by Section 7, to act in the event the Legislature failed to redistrict the State, that special power remains unaffected. As heretofore quoted from 36 Cyc. 1073, it is not sufficient to establish such repeal that the subsequent law covers some, or even all, of the cases provided for by the prior statute, since it may be merely affirmative, or cumulative, orauxiliary. Between the two acts there must be plain, unavoidable and irreconcilable repugnancy, and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy. If both acts can, by any reasonable construction, be construed together, both will be sustained. Two statutes are not repugnant to each other unless they relate to the same subject.Furthermore it is necessary to the implication *Page 624 of a repeal that the objects of the two statutes be the same. Ifthey are not, both statutes will stand, although they may referto the same subject."
The phrase, "the legislative authority is vested in a legislative assembly," is merely introductory or preliminary to what follows; it does not profess to repeal Section 1 of Article IV, and then to reinvest the legislative assembly with legislative power. The clear purpose is expressed in the words, "but the people reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the reserve power at their own option, to approve or reject at the polls any act of the legislative assembly." Here the clear purpose and object of the amendment is declared not only in the title, but in the body of the amendment. If we look at the mischief to be remedied, the spirit, reason and purpose of the amendment, it is all plain. We know there had been for many years complaints of the failure of legislatures generally to enact laws demanded by the people, and the enactment of vicious legislation. As relator says, there was popular distrust. Such being the mischief to be remedied, and the purpose of the amendment being to remedy that evil, it is obvious that it cannot be considered as repugnant to the power specially delegated to the three state officials as provided in Section 7.
But there is another vice in relator's contention. This special power, so delegated, is not affected by the later act; "thespecial will be construed as remaining an exception to its terms." There is no "plain, unavoidable andSpecial irreconcilable repugnancy," and even then the old law isLater repealed by implication only pro tanto to the extent ofAct. the repugnancy. "If both acts can, by any reasonable construction, be construed together, they will be sustained. Two statutes are not repugnant unless they relate tothe same subject. Furthermore, it is necessary to the implication *Page 625 of a repeal that the objects of the two statutes be the same. If they are not, both statutes will stand together, although they refer to the same subject." To concede relator's contention would revolutionize the long-established canons of construction.
One further suggestion on this head: If Section 57 gathers up and lodges all the legislative power of the State in the Legislature, so that any legislative act can be reconsidered by the people under the referendum, as held in the majority opinion, what then becomes of the power of the Public Service Commission? What also becomes of the power of municipal corporations to enact ordinances and police regulations for the health, peace and safety of their inhabitants? What becomes of the charter powers granted to our large cities to enact legislation? Like the proviso to Section 7 of Article IV, these powers "have all been gathered to their fathers."
Perhaps we may better understand the majority opinion, running, as it does, counter to all the canons of construction (except in emergencies like the present), by referring to a few of our earlier decisions and political cases. Shackled as we are with partisan bias and prejudice, it is humiliating to confess that even judges in our highest courts are unable to divorce law and politics. In emergencies, great and small, they have heard the Macedonian cry and have not been disobedient to the call.
In McKay v. Minner, 154 Mo. 608, decided March 5, 1900, plaintiff contested the defendant's election as judge of the county court. Certain ballots were counted for the defendant on which were indorsed the name or initials of only onePolitical of the judges of election. No fraud was charged.Decisions. Judge SHERWOOD, delivering the opinion, held that although the ballots were deposited in the ballot boxes they could not be counted. In Hehl v. Guion, 155 Mo. 76, decided March 15, 1900, the plaintiff contested the election of the defendant for the office of constable. Ballots were cast and counted for the defendant on which were indorsed the initials of *Page 626 only one of the election judges. No fraud was charged. Judge VALLIANT delivered the opinion of the court. Syllabus 3 reads: "The law does not say that ballots on which two election judges have not written their names or initials in ink or indelible pencil shall not be counted. It only says that they shall not go into the ballot box. The rejection, therefore, of a genuine ballot on which the judges' initials do not appear, or on which the initials of only one judge appears, or on which the judges' initials are written with erasable pencil instead of ink or indelible pencil, is error."
In Rollins v. McKinney, 157 Mo. 656, the plaintiff contested the election of the defendant to the office of constable. The defendant's name was imprinted by a rubber stamp on eighteen of the Republican tickets. This court declared those ballots should not be counted for the defendant.
In Bradley v. Cox, 271 Mo. 438, plaintiff contested the election of the defendant as judge of the Springfield Court of Appeals. Plaintiff was regularly nominated for the office and his name should have been printed on all the Democratic tickets. The name of Arch A. Johnson, a distinguished jurist of Greene County, by some oversight, was printed on all the Democratic tickets in Maries County instead of Judge Bradley's, as the party candidate for the office. Judge Bradley's name was not on any ticket. The opinion of the court was written by J.T. BLAIR, now Chief Justice of this court, declaring that the 1311 tickets on which the name of Judge Johnson was printed should be counted for Judge Bradley, and he was declared elected. It is not clear whether this result was reached on the principle that equity regards that as done which was intended to be done, or on the other principle that Democrats are always presumed to vote their ticket straight. The court evidently had some difficulty in reaching the result. The issues were novel and a bit embarrassing, but it was very important that the party candidate should be declared elected. Judges BOND, WOODSON and WALKER, dissented. *Page 627
A superficial reading of the opinions in these and other cases might lead one to conclude that they are inconsistent. But when we consider that in each instance the Republican was ousted — the end to be attained — we see at once that they are all harmonious. On the same principle the majority opinion in the case at bar harmonizes with the Halliburton, Hitchcock and Patterson cases. So also, in the face of an unexpected political exigency, the ruling of the majority in State ex rel. Westhues v. Sullivan,224 S.W. 327, that in adopting Section 57 of Article IV of the Constitution we also adopted the construction of the Supreme Court of Oregon to the effect that the declaration of the Legislature that the provisions of an act are "necessary for the immediate preservation of the public peace, health or safety," is a question solely for the Legislature and conclusive on the courts, was overruled in the recent case of State ex rel. Pollock v. Becker, 289 Mo. 660.
In State ex rel. Funkhouser v. Spencer, 164 Mo. 23, we prohibited the opening of the ballots boxes and the examination and comparison of the ballots with the list of the voters in an election contest case, in the face of the plain provisions of the Constitution, and rendered those provisions of the Constitution nugatory, just as the majority opinion renders nugatory the proviso in Section 7 of Article IV of the Constitution. This court thus became a city of refuge for election crooks, repeaters, and for the judges and clerks who falsified election returns.
In Montgomery v. Dormer, 181 Mo. 5, Montgomery contested the election of Dormer to the office of Circuit Clerk. The returns showed the latter elected by a majority of one. In the trial court, after preliminary proof that certain persons, thirteen in number, were non-residents, the court permitted the judges of election to testify that they had seen the ballots cast by such persons and that they had all voted for Dormer. It was objected that if the persons so alleged to be non-residents had voted, their ballots, being fraudulent, were not privileged and that they were the best evidence. That objection *Page 628 was overruled and Dormer, being a Republican, was ousted. On appeal, this court affirmed the judgment, saying, at page 16; "The court had no authority to order the clerk to open the ballots and ascertain how these thirteen men had voted and report the same to the court, neither did the court have authority to require the clerk to bring the ballots into court for inspection and exposure."
In Gantt v. Brown, 238 Mo. 560, the shoe was on the other foot. Judge GANTT was contesting the election of Judge BROWN to the office of Judge of the Supreme Court. This court, seeing a great light, ruled that the Constitution did not prohibit the examination, inspection and comparison of the ballots with the list of voters when fraud was charged by a Democratic candidate, and overruled the Spencer and Dormer cases. Referring to Section 3 of Article 8 of the Constitution, at page 572, Judge GRAVES said:
"By this section the bar of secrecy is raised by express terms when required in judicial proceedings. By it the election officers are required to keep secret the vote of the voter, but only to such time as he may be required to expose it in the course of a judicial proceeding. When required in a judicial proceeding to tell how a voter has voted such officer must disclose to the public ear the secret of the ballot. We say to the public ear, because courts of justice are public forums, and take no part in star-chamber proceedings. If the election officer must disclose the contents of the ballot, as he must under this constitutional provision, what then becomes of the secret ballot so much discussed in the Spencer case? With its contents exposed by the terms of the Constitution we have but the faded paper securely locked in the ballot box by the Spencer and Montgomery cases, supra."
It is charged by the relator that the redistricting by the three state officers was not in accordance with the requirements of the Constitution in respect to four of thoseFair Districts. districts, but this complaint, having no foundation in fact, is ignored in the majority *Page 629 opinion. "When any senatorial district shall be 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." [Sec. 9, Art. IV.] The relator virtually confesses that no complaint can be justly made as to thirty of these districts.
It will be admitted that the State cannot be apportioned into districts like a checker-board. A garment cannot be cut out of a piece of cloth without leaving remnants. So, in carving out 34 districts, there are sure to be some of irregular shape, as the State is not rectangular and counties may not be subdivided and each district must have as nearly as may be the same population.
The Constitution in this respect must interpret itself. By Section 11 of Article IV, the State was divided into senatorial districts. The counties of Vernon, Barton, Jasper, Newton and McDonald composed the Sixteenth District. It is neither compact nor convenient, being five counties in length, extending one-third or more of the length of the State along its western border. Here is a concrete interpretation of the requirements of Section 9 of Article IV. Unless the Constitution is at war with itself, this district was as compact and convenient as the organic law required and as the circumstances would permit. No complaint approaching this instance in gravity is made by relator.
No question is raised, however, in the majority opinion, nor indeed could be, as to the fairness, compactness or contiguity of the districts as apportioned by the three state officials. At the argument the learned Attorney-General challenged comparison with any prior apportionment. In reply, one of the relator's distinguished counsel said the redistricting of the State for senatorial purposes is and always has been a political game.
The ruling in the Halliburton case seemed conclusive. Judge GRAVES had concurred therein when there were no storm clouds in the political horizon and declared *Page 630 that the arguments of Fox, C.J., were unanswerable. If we now overrule that and other cases in the face of a political exigency, may it not be said that the political game was simply transferred to this court? The premises considered, can we adopt the majority opinion and hope to merit the confidence and respect of our people? Of course this court has the power to arbitrarily override the Constitution, but I solemnly protest against this monstrous wrong. When it is apparent that our rulings are tossed about like a football to meet political exigencies, we shall justly merit public contempt.
Nearly twenty years ago this court, in the opinion of many good lawyers, brought grave reproach upon itself in reversing outright a judgment rendered in favor of Rube Oglesby against the Missouri Pacific Railway Company in the sum of $15,000 for serious and permanent injuries sustained by him while serving that company as a brakeman. The action of this court was severely criticised, especially by Mr. Shepherd, proprietor of a newspaper published at Warrensburg, where Mr. Ogleshy lived. In the exercise of what he deemed his constitutional privilege of free speech, he published an article criticising the court and other public officials. Many thoughtful men believed the criticisms were deserved, especially the people of Warrensburg, who raised the $500 fine imposed by this court and extended to Mr. Shepherd a public reception on his return to the city. This was a more severe condemnation of this court than the criticism published by Mr. Shepherd. In delivering the opinion of the court imposing the fine Judge MARSHALL (177 Mo. 205, 269) said:
"The courts of this State have been conservative in the extreme, and forbearing to a fault. They have overlooked remarks concerning their acts from lawyers and laymen, that were improper and outside of the pale of the law, preferring, if possible, to attribute the offense to the zeal of counsel or the excitement of the laymen, incident to disappointment of personal hopes and ambitions. They have been considerate of the feelings and *Page 631 character of others, and have, many times, abstained from the use of strong language, under trying provocation, in deciding cases. And it was proper to do so. But the protection and safety of life, liberty, property and character, the peace of society, the proper administration of justice, and even the perpetuity of our institutions and form of government, imperatively demand that every one, lawyer, layman, citizen, stranger, newspaper man, friend or foe, shall treat the courts with proper respect, shall not attempt to degrade them, or impair the respect of the people, or destroy the faith of the people, in them. When the temples of justice become polluted or are not kept pure and clean, the foundations of free government are undermined and the institution itself threatened. The people have no fear of their courts abusing their power to punish for contempt or in any other respect."
Very true. "Fine words," however, "butter no parsnips." The Temple of Justice should be kept pure and clean; and, like Caesar's wife, should be not only above reproach, but above suspicion.
"O wad some Power the giftie gie us To see oursels as others see us! It wad frae mony a blunder free us An' foolish notion;"
The criticism which called forth the eloquent protest of our late brother MARSHALL was provoked by the action of this court in a case that concerned private persons only. [See Oglesby v. Mo. Pac. Ry. Co., 177 Mo. 272.] The case had had a remarkable history. Doubtless the criticism was unjust; I do not know. But the people of this State, as a crowning rebuke, elected Mr. Oglesby to a lucrative state office. In this case, however, the whole State is concerned. What avails a constitution if it can be stricken down by mere inference and, as many believe, in the interest of partisan politics? Such a conclusion should be announced only when good and substantial reasons can be given therefor that will appeal to the common sense and understanding of our people. Mere *Page 632 sophistry and attenuated theories will not serve the purpose nor save us from reproach.
The foregoing is, in part, the record of this court in cases involving political issues. I feel that the people of Missouri are entitled to read this record. I have said nothing in unkindness, nor set down aught in malice. For the reasons above stated I respectfully dissent from the majority opinion.