Scott v. Kirkpatrick

SEILER, Judge

(dissenting).

I respectfully dissent.

I submit the majority opinion violates the cardinal rule that constitutional provisions relating to initiative and referendum are to be given a liberal construction to effectuate the policy adopted by the people — namely, that they solemnly reserve unto themselves the power to initiate laws and constitutional amendments. See State ex rel. Voss v. Davis, 418 S.W.2d 163 (Mo. 1967). The majority opinion operates to limit the right of initiative or referendum, to make it more difficult to launch either one, because now a signer must not only be a qualified voter, he must also register in order to sign.

There is nothing in our constitution which so provides. The requirement that the signer of an initiative petition be a legal voter has been the same ever since the initiative and referendum were added to the 1875 constitution in 1908 and then carried forward in the 1945 constitution. In the history of the state there have been many elections where initiative or referendum propositions were submitted. Everyone knows that thousands of the signatures on the petitions which proposed those measures were signatures of voters who were not registered, because many parts of Missouri did not have registration until recently. The same constitutional provisions were in force then as are in force today. All the constitution required was that the signers be “legal voters.” Now we are saying that although the constitution still reads “legal voters”, the language suddenly has become “registered voters.”

Surprisingly, the per curiam opinion avoids any discussion of the meaning of the words “legal voter” as adopted by the people and appearing in the constitutional provisions on initiative and referendum, Art. Ill, Sec. 50. The per curiam deals with the question as though the constitution used the words “qualified voter” in prescribing who can sign an initiative petition.

When the voters adopted the 1945 Constitution, the law then was that a signer of an initiative petition need not be a registered voter — only a legal voter. This court so held in State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S.W. 327 (banc 1920), which the per curiam recognizes it must overrule in order to arrive at the result it does. The Westhues decision spe*446cifically said that the words “legal voters” as used in the Missouri Constitution pertaining to signers of initiative petitions did not mean registered voters, 224 S.W. 1 c. 340. Overruling the Westhues decision in 1974 does not change the fact that when the people adopted our present constitution in 1945, with Art. Ill, Sec. 50 containing the words “legal voter” as the only requirement to sign an initiative petition, they were presumed to be aware this court had already stated that “legal voter” did not mean “registered voter”, so far as signing an initiative petition is concerned. “The rule is firmly settled that the adoption in a later Constitution of the words and context of another, which had been construed by a court of last resort, is presumed (in the absence of a contrary intention) to have been done to give the adopted words their adjudicated meaning . . . ”, Lud-low-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339, 205 S.W. 196, 199 (banc 1918); Rathjen v. Reorganized School District R-11, 365 Mo. 518, 284 S.W.2d 516 (banc 1955). This rule is recognized in the other decision handed down this same day, State ex rel. Socialist Workers’ Party of Missouri v. Kirkpatrick, Mo., 513 S.W.2d 346 where the court says that when the legislature adopted in 1969 a law using the words “qualified voters”, it was presumed to have been aware of a decision of this court almost one hundred years ago in 1878, Woodson v. Brassfield, 67 Mo. 331, defining the term “qualified voter.”

As said, the per curiam avoids all this by saying nothing about the meaning of the words “legal voter” as they appear in the constitutional provisions dealing with the initiative, although it is our responsibility and ours alone to construe our constitution.

The per curiam also fails to meet the point that historically and politically registration has nothing to do with initiative and referendum. Registration is a type of police regulation dealing with what a citizen must do in order to vote in an election. “ . . . The primary purpose of registration laws is to prevent fraudulent abuse of the franchise, by providing in advance of elections an authentic list of the qualified voters . . . ” State ex rel. Hay v. Flynn, 235 Mo.App. 1003, 147 S.W. 2d 210, 211 (1941); Dysart v. City of St. Louis, 321 Mo. 514, 11 S.W.2d 1045, 1050 (banc 1928). “ . . . The purpose of registration statutes is to protect the purity of the ballot box by ascertaining before the vote is cast whether such person possesses the qualifications to vote, and by preventing impersonation thereafter at the polls.” 25 Am.Jur.2d Elections, Sec. 95, p. 784. . There is no election before us. No one is voting by signing the initiative petition under consideration. The signing of an initiative petition pertains to getting the proposition up for a vote. It does not involve voting in any way. There is no guarantee, or requirement, that a signer of an initiative petition will vote one way or the other or even vote at all in the subsequent election held on the measure proposed.

Respondents contend there are many abuses and forgeries in the initiative and referendum process, which can be corrected only by making registration applicable to petition signing qualifications. Perhaps so, but these are policy and political arguments and considerations, to be addressed not to us but to the people of the state to induce them to amend the constitution if they desire to make such a change. This court should not take upon itself the power of amending the constitutional provisions on initiative and referendum by construing into them the requirement of registration (or saying that the legislature can do so by statute) 1 and *447thereby impair and restrict the right which the people have reserved unto themselves to initiate laws and constitutional amendments.2

Further, as a result of today’s decision, the constitutional provision as to who can sign an initiative petition will be amended every time the legislature changes the laws on registration. So long as statewide registration prevails, “legal voters” means “registered voters”. At any time statewide registration does not prevail, “legal voters” does not mean “registered voters”. In my opinion, the constitutional provision on who can sign an initiative petition is not subject to being changed this way.

Art VIII, Sec. 2 prescribes the qualifications for voters. All that is required is to be of a certain age and meet certain residence requirements. Registration does not and cannot add to or detract from these constitutional qualifications. Art. Ill, Sec. SO gives “legal voters” the constitutional right to sign initiative petitions. That constitutional right to petition which accrues to one who meets the age and residence voting requirements of the constitution should not continue to exist or disappear depending on what the legislature chooses from time to time to do about registration.

. The per curiam reasons that Sec. 126.151, R.S.Supp.1971 means that in order to sign an initiative petition, the person must be a qualified voter and must also, at the time the petition is presented to him, be legally entitled to vote on the measure it proposes, hence, he must also be a registered voter in order to sign. This approach, however, overlooks the fact that initiative petitions are, of necessity, circulated months before the *447election at which the proposed measure, if it gets on the ballot, will be voted on. There is no way the person can vote on the measure at the time the petition is presented to him. Whether or not he is legally entitled to vote on the measure will depend on what his status is at the time of the election. So I have difficulty in reading Sec. 126.151 as requiring registration as of the time of signing the petition.

This view is strengthened by the remainder of Sec. 126.151, which sets forth penalties for those who sign an initiative petition illegally. It penalizes upon conviction, among others, a person “who is not at the time of signing the same a qualified voter of the state.” It says nothing about having to be registered to sign or being legally entitled to vote on the proposed measure in order to sign. This supports the view that the legislature did not intend registration as a requirement for signing. In fact, if the per curiam is correct, all those persons who signed the initiative petitions before us who were not registered voters at the time would be guilty of violation of See. 126.151 and subject to up to two years imprisonment in the penitentiary. This extreme result demonstrates the illogic of the conclusion drawn in the per curiam.

. It should be noted that the constitutional language of Art. Ill, Sec. 53, prescribing the basis for the compilation of the number of signatures required for an initiative or referendum petition, uses non-registered as well as registered voters. The measuring rod is a percentage of the total vote for governor at the last general election. That would be the 1972 election in the case before us and no one would contend that voters living in areas where registration was not required did not vote in that election. Tims, the seeretax-y of state must use a figure which includes non-registered as well as x-egistered votex-s in determining whether there are sufficient signatures on the present petitions. This is not consistent with the view that only registered voters can sign a petition.