State Ex Rel. Gordon v. Becker , 329 Mo. 1053 ( 1932 )

I do not agree with the reason employed or the conclusion reached in the principal opinion. I, therefore, respectfully dissent therefrom and concur in the able dissenting opinion written by Chief Justice ATWOOD.

The question in the case is whether or not Section 57 of Article IV of the Constitution repealed the proviso contained in Section 7 of the same Article which makes it the mandatory duty of the Governor, Secretary of State and Attorney-General to district the State senatorially in event the General Assembly fails or refuses to do so at the time specified in said Section 7. The determination of this question involves a consideration of Sections 1, 7 and 57 of Article IV of the Constitution.

The principal opinion is bottomed on the ruling in State ex rel. Lashly v. Becker, 290 Mo. 560, 235 S.W. 1017. The opinion in the Lashly case and the principal opinion in this case both hold that Section 57 of Article IV not only does not repeal any of the limitations contained in the Constitution, but on the contrary is subject to all limitations contained therein, whether express or implied. This being true, if the proviso contained in Section 7 is a limitation on the legislative power granted to the General Assembly by Section 1, it is not repealed by Section 57. Section 57 is the initiative and referendum amendment to the Constitution and was adopted in 1908. Speaking of this amendment in the Lashly case, supra, we said:

". . . there is no evident intent to be drawn from the amendment of 1908, which would justify the conclusion that it was the purpose of the people to so tear asunder the previous organic law, as to withdraw any restriction upon legislative authority or power. If this amendment withdrew one restriction, it withdrew all, and it is unthinkable to say that such was the intent of the people."

Speaking to this question, the principal opinion in this case says:

"And so the general grant of the legislative authority of the State found in said Section 57 is likewise subject to all the limitations, express or implied, contained in the Constitution; to hold otherwise would be to affirm that the amendment of 1908 repealed practically the whole of the Constitution as it then stood, which of course is unthinkable."

Section 1 of Article IV of the Constitution reads as follows:

"The legislative power, subject to the limitations hereincontained, shall be vested in a Senate and House of Representatives, to be styled, `The General Assembly of the State of Missouri.'" (Italics ours.)

By the express terms of this section the people granted to the General Assembly all the legislative power of the State, which includes the power to apportion the State into districts for the election of senators because that is a legislative act. But this power was granted to the General Assembly subject to all limitations contained in other provisions of the Constitution. If Section 1 stood alone the General Assembly would have exclusive and unlimited power to apportion the State into senatorial districts at any time or in any manner it might see fit. But this section must be read in connection with Section 7 of Article IV which deals with the subject of districting the State for the election of senators.

Reading Sections 1 and 7 together, which we must do, the conclusion is irresistible that the provision contained in Section 7 which commands the designated state officers to redistrict the State in event the General Assembly fails or refuses to do so at the time specified in said section, is a clear limitation on the legislative power granted to the General Assembly by Section 1.

Section 1 grants to the General Assembly all legislative power of the State, subject to the limitations contained in the Constitution. Absent some limitation on this unqualified grant of power, no agency other than the General Assembly would have power to redistrict the State. Turning to Section 7 we find that it commands the General Assembly to redistrict the State at its first session following each decennial census, and provides that if at any time or from any cause the General Assembly fails or refuses to perform that duty, it shall be performed by the three designated state officials, within thirty days after the adjournment of the General Assembly. I apprehend no one would contend that the General Assembly has power to redistrict the State during the period of time in which the designated state officers have exclusive authority to do so. The reasonable construction of Sections 1 and 7, when read together, is that the General Assembly is vested with all power to redistrict the State, provided it does so at the time specified in Section 7, but in event it fails or refuses to perform that duty within the time specified, the power to redistrict is taken from it and lodged with the three designated state officials, at least for the period of time specified in said Section 7. There is no dispute about the fact that section one, standing alone, vests in the General Assembly all legislative power. The principal opinion in this case so holds. The power to redistrict the State is legislative and is therefore included in the power granted to the General Assembly by this section. If taking the power to redistrict the State from the General Assembly and lodging it with another agency for a limited time at least, as is done by Section 7, does not limit the legislative power granted to the General Assembly by Section 1, I am at a loss to understand what effect it does have on the original grant of power. In my judgment the taking away or suspension of a part of the legislative power granted to the General Assembly by Section 1 amounts to a limitation on the legislative power originally granted.

The principal opinion says the proviso contained in Section 7 is a grant of legislative power. This is begging the question. The issue in this case is whether or not Section 7 is a limitation on the legislative power vested in the General Assembly by Section 1. If it is, the fact that it may also grant legislative power to some other agency, cuts no figure in the case. It must be remembered that Section 1 grants to the General Assembly all legislative power including the power to redistrict the State. The necessary effect of that part of Section 7 which grants to the three designated state officers power to redistrict the State, is to withdraw such power from the General Assembly for a limited time at least. We say this because such power could not at one and the same time be vested in the General Assembly and in the other agency to which Section 7 grants it. The withdrawal of the power to redistrict the State from the General Assembly is a limitation upon its legislative power to the extent of the power withdrawn.

This case may be summed up in a few words. Section 1 grants all legislative power to the General Assembly. Section 7 limits that grant by vesting a part of the legislative power in the designated state officials under the conditions specified in said Section 7. No other conclusion can be reached unless we are willing to say that the legislative power granted to the General Assembly by Section 1 is now as full, complete and unlimited as it would have been had the proviso in Section 7 not been enacted. There is no escape from the conclusion that taking from the General Assembly a part of the legislative authority originally granted to it and depositing it elsewhere, amounts to a limitation on the original grant of authority. You cannot subtract a part from the whole and leave the whole undiminished or without limitation.

It is my judgment that the proviso contained in Section 7 authorizing the designated state officers to redistrict the State in event the General Assembly fails or refuses to do so, is a limitation on the legislative power vested in the General Assembly by Section 1, and being a limitation, on legislative authority, it is not repealed by Section 57. A holding that Section 57 repeals this limitation, amounts to a holding that all limitations contained in the Constitution are repealed.

I cannot lend my concurrence to an opinion which, in my judgment, invalidates all limitations on legislative authority contained in the Constitution, and denies to the citizens of Missouri a right guaranteed to them by the Constitution.

The alternative writ heretofore issued should be quashed.Atwood, C.J., and Henwood, J., concur.