State ex rel. Davis v. Ramacciotti | Cases | Westlaw

The first assignment in relator's petition is that House Bill No. 556, passed by the 63d General Assembly and effective February 9, 1946, Mo.R.S.A. §§ 12894.1, 12894.2, is unconstitutional. That Act is a statute in enforcement of Secs. 5, 7 and 8, Art. III, Const.Mo.1945, supra. Said Sec. 7 provides that if any Senatorial Apportionment Commission appointed decennially by the Governor to redistrict the whole state *618 senatorially shall fail to do so within six months, as directed therein, then the senators to be elected at the next election shall be elected from the state at large. Said Sec. 8 provides that in the City of St. Louis ‘the body authorized to establish election precincts' (this being the board of election commissioners) shall lay out such senatorial districts as have been allotted to the city (the number is 7 in this instance) by the Senatorial Apportionment Commission in the state-wide redistricting. But Sec. 8, unlike Sec. 7, does not provide what shall be done if the election board fails to lay out the 7 city senatorial districts.

Nevertheless, Sec. 2 of House Bill 556, supra, provides that if the election board does not lay out and certify to the Secretary of State on or before March 1, the city districts to be established by it, then the number of senators in such districts to be elected at the next election shall be nominated and elected from the State at large. Relator maintains this provision is unconstitutional and void because Sec. 8 contains no such penalizing clause; and the one in Sec. 7 operates only when the Senatorial Apportionment Commission fails to act in redistricting the whole state. In other words, relator applies to Sec. 7 the maxim expressio unius est exclusio alterius.

The next assignments in relator's petition are that the respondent members of the board of election commissioners intentionally, arbitrarily, capriciously and grossly abused their discretion in that they: (1) did not make the seven city senatorial districts established by them as nearly equal in population as may be; (2) or as compact as may be; (3) and failed to divide or split up wards and precincts of the city and place portions thereof in different districts in order to distribute the population and territory of the city more evenly among them; (4) and furthermore they did split up and divide the heavy negro population concentrated in five contiguous wards and spread it through the seven senatorial districts so that the negroes were deprived of the opportunity to exert the ‘group influence’ in at least some one senatorial district.

All this territory though spacious in area is not given over to residence uses. The result is that compactness and equality in area do not go along with equality in population. It is evident that a determination of the question whether these seven senatorial districts have been laid out in such an irregular way as to constitute an arbitrary abuse of discretion and a violation of the constitutional requirement of contiguousness and compactness—a determination of that question, we say, would require careful investigation of all the facts, and the hearing of evidence or a stipulation as to the facts.

The districts were certified to the Secretary of State on February 18, two months and ten days before the time for filing declarations of candidacy will expire on April 30. But this suit was not filed here until March 26, over five weeks after the facts were known. It allows only a month and four days for the taking of testimony, briefing, argument if any, and the writing of an opinion, or at least a determination of the issue. The time is too short. In the circumstances we think we should not issue a provisional rule in prohibition interfering with the regular processes of nomination and election in the city senatorial districts to be filled this year.

Relator's suggestions in support of his application refer to the redistricting as ‘a race gerrymander’ and says it was intentional; and rely on decisions dealing with gerrymanders against a political party. He says there is no difference in principle here. The Attorney General asserts there is no force in this argument, and we agree. Relator might contend with even more force that his race had been discriminated against if the heavy negro majority in the five contiguous wards mentioned had been confined in one new senatorial district. Then he probably would be maintaining that if that race vote influence had been distributed in senatorial districts which were close as between the two dominant political parties, it could have been exercised so as to control the nomination and election of senators in several districts instead of one. What the negro has been objecting to is discrimination against his race whereby he is denied the same political and other privileges that are enjoyed by others. But here the color factor was disregarded and he was treated the same as any other voter. The negro vote in St. Louis is only slightly more than one-eighth of the total vote. As regards party alignment it is divided between the two dominant parties. There is no merit in the contention.

Prohibition being a discretionary remedy, the writ is denied in view of the facts and for the reasons heretofore stated.