State Ex Rel. Mathewson v. Board of Election Commissioners

ROBERTSON, Chief Justice.

This case raises an issue of first impression: Whether Article III, Section 7 of the Missouri Constitution addresses special elections to fill vacancies that occur after an apportionment plan is filed but prior to the first general election in a specific district. The circuit court ruled that Article III, Section 7 controlled such special elections. We reverse and, entering the order the circuit court should have entered, direct that a writ of prohibition issue. Rule 84.-14.

I.

On November 6, 1990, voters of the 24th senatorial district reelected Edwin Dirck to serve as their Senator for a four-year term expiring January 4, 1995. On May 15, 1992, Senator Dirck resigned. On July 13, 1992, the Governor issued a writ of election to the Board of Election Commissioners of St. Louis County (the “Board”) ordering a special election to be held on September 8, 1992, to fill the remainder of Senator Dirck’s term. The Governor’s writ ordered the election be held in the “new” 24th Senatorial District as defined in the Missouri Senate Apportionment Plan filed with the Secretary of State on December 20, 1991. That writ also ordered the Board to follow the dictates of Section 21.130, RSMo 1986, which explicitly requires the Board to hold the special election in the “old” district, or more precisely, “within the limits composing the county or district at the time of the next preceding general election,” (emphasis added).

Noting the conflict between the express terms of the Governor’s writ and the express directive of Section 21.130, which the Governor had also ordered be followed, re-lators initiated this action for prohibition or, in the alternative, mandamus. They seek an order requiring the Board to hold the special election in the “old” district. To avoid the plain mandate of the statute in this case, the Board challenges the constitutionality of Section 21.130, citing an irreconcilable conflict between that statute and Article III, Section 7 of the Missouri Constitution. The Circuit Court of St. Louis County denied the relators’ writ, found Section 21.130 unconstitutional, and ordered the election to proceed in the “new” district.

II.

Before we proceed to the merits of this case, we are compelled to address the standing of the relators. Standing is akin to jurisdiction over the subject matter, in limine. State ex rel. Schneider v. Stewart, 575 S.W.2d 904, 909 (Mo.App.1978). As such, the question of a party’s standing can be raised at any time, even sua sponte by this Court.

Relators in this case do not all present a common interest. Quite properly their petition classifies their interests into two groups: the “Elector Relators” whose claim is founded on their status as residents of the “old” senatorial district but not the “new,” and Senator James Mathewson in his official capacity as President Pro Tempore of the Missouri Senate, who claims to represent “the special interest” of the Missouri Senate. The relators’ petition describes this “special interest” as the duty of the Senate to exercise its authority as “the sole judge of the qualifications, election and returns of its own members.” Mo. Const. Art. Ill, § 18, but see, State ex rel. Carrington v. Human, 544 S.W.2d 538, 539-40 (Mo. banc 1976) (Art. Ill, § 18 does not preclude judicial resolution of issues arising prior to the general election).

The first group, the “Elector Rela-tors”, clearly have standing to challenge the Board’s actions. If the election is held in the “new” district, they will be denied the opportunity to participate in choosing an interim replacement for the senator they *635elected less than two years ago. This is the type of direct, personal stake in the outcome of the action that confers standing. State ex rel. Williams v. Mauer, 722 S.W.2d 296, 298 (Mo. banc 1986).

The standing of Senator Mathewson, however, is another matter. This Court has steadfastly refused to expand its jurisdiction to include the issuance of advisory opinions. State ex rel. Williams v. Marsh, 626 S.W.2d 223, 227 (Mo. banc 1982). In large part, this refusal to tread outside real controversies is a recognition that persons who do not pose present, real, live, and personal (as opposed to official) claims of right under the law do not give the Court the honed development of facts and legal argument that are the hallmark of real controversies.

Senator Mathewson, speaking only in his official capacity, presents no personal stake in the outcome of this case. At best, he can argue that the Senate may be required to exercise its authority under the constitution to judge the “qualifications, election and returns” of an election yet to take place. This is not the present, real, live, and personal stake in the outcome of the litigation that grants him the standing necessary to become a party in this case. Marsh, 626 S.W.2d at 227 (“If a party’s interests are unaffected by resolution of an issue he has no standing to raise it.”). Because neither Senator Mathewson (nor the Senate) has standing in this case, he is dismissed as a party to this action.

III.

The burden of persuasion on the issue of a statute’s validity falls squarely on the party challenging that statute. Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822, 828-29 (Mo. banc 1991). Thus, it is the Board who must overcome the presumption of validity by showing Section 21.130 “clearly and undoubtedly contravenes the constitution.” Id. at 828. Unless such a conflict can be shown, the judgment of the legislature must stand.

The Board’s challenge to Section 21.130 rests on Article III, Section 7, of the Missouri Constitution. Section 7 provides that once a plan of reapportionment has been properly filed, “[thereafter senators shall be elected according to such districts until a reapportionment is made as herein provided.” The Board reads this section to say that reapportioned (“new”) districts must be used in every election following the adoption of the reapportionment plan. They argue that this is the clear and unambiguous meaning of Section 7. Because Section 21.130 requires a different result, the Board concludes, there is an irreconcilable conflict between the constitution and the statute.

Contrary to the Board’s contentions, we believe Article III, Section 7 is ambiguous on this issue. The question of ambiguity cannot be viewed in the abstract. A particular word or phrase in any writing is ambiguous only with reference to some specific issue. The specific issue in this case is whether the language of Article III, Section 7 addresses special elections to fill vacancies that occur after an apportionment plan is filed but prior to the next general election in a specific district. On this issue Section 7 is ambiguous.

In construing individual sections, the constitution must be read as a whole, considering other sections that may shed light on the provision in question. State v. Toberman, 363 Mo. 245, 250 S.W.2d 701, 705 (1952). As companion references in the constitution make clear, the term “shall be elected,” as used in Section 7, refers only to general elections. Sections 7, 9 and 10 of Article III deal with the issue of decennial reapportionments. Section 7 twice employs the phrase “senators shall be elected” in stating when reapportionment first goes into effect. The very next time the phrase “shall be elected” occurs in the Constitution is in Article III, Section 11. That section requires that senators “shall be elected” in two classes at alternating general elections. Obviously, Section 11 does not preclude filling of vacancies in the interim. Rather, the use of the phrase “shall be elected” in Section 11 is intended to refer only to general elections, and not to special elections.

Similarly, in Section 5, of Article III, the next preceding use of the word “elected,” the constitution states that members of the *636senate shall be elected for terms of four years. Special elections to fill vacancies, by their nature, elect senators to shorter terms. Thus, the use of the word “elected” in Section 5 is intended to refer only to general elections, and not to special elections.

In Rathjen v. Reorganized School District R-II, 365 Mo. 518, 284 S.W.2d 516, 525 (1955), this Court said “[i]n the absence of a contrary intention the same meaning attaches, or is presumed to attach, to a given word or phrase repeated in a constitution, wherever it occurs therein.” We believe, therefore, that when Section 7 of Article III states that senators “shall be elected,” that section, as well, refers only to general elections, and not to special elections.

Where the Constitution intends to encompass special elections, it addresses the issue of vacancy or vacancies specifically. See Article III, Section 14 (governor shall issue writs of election to fill vacancies in either house) and Article III, Section 46(a) (legislature has extraordinary powers to assume by legislation the office of anyone incapacitated by an enemy attack on the United States provided that special elections are held as soon as possible to fill such vacancy).

Accordingly, we find that Article III, Section 7, cannot fairly be read to extend to the situation of special elections to fill vacancies that occur after an apportionment plan is filed but prior to the first general election in a specific district. The constitution is, therefore, silent on the issue of which districts to use in such elections and, where the constitution is silent, the legislature may properly address the issue. State ex inf. Danforth v. Merrell, 530 S.W.2d 209, 213 (Mo. banc 1975).

We hold that Article III, Section 7 of the Missouri Constitution does not govern special elections to fill vacancies that occur after an apportionment plan is filed but prior to the first general election in a specific district. Because the Board has failed to carry its burden to establish a “clear and undoubted” conflict between Section 21.130 and the constitution, and because constitutional silence provides no basis to refuse to give effect to the statutory procedure governing special elections, the judgment of the circuit court is reversed.

IV.

A writ of prohibition, which is hereby made absolute, is issued. Respondents are prohibited from conducting a special election to fill the vacancy using the “new” 24th senatorial district.

COVINGTON and BENTON, JJ., concur. PRICE J., concurs in result in separate opinion filed. GAERTNER, Special Justice, concurs in opinion of PRICE, J. HOLSTEIN, J., dissents in separate opinion filed. THOMAS, J., concurs in Part II of opinion of ROBERTSON, C.J., and concurs in dissenting opinion of HOLSTEIN, J.