State ex rel. Barrett v. Hitchcock | Cases | Westlaw

The writ is as follows (formal parts omitted):

This is an original proceeding by mandamus, instituted in this court by the relator, seeking to compel the respondents, the judges of the circuit court of the city of St. Louis, to apportion or redistrict said city into six senatorial districts, as required to be done under certain conditions by section 7 of article 4 of the Constitution of 1875. A petition for an alternative writ of mandamus was filed, and, after due consideration, it was ordered to issue; and it was made returnable January 2, 1912. The writ was issued and duly served; and upon the return day the respondents filed their return. Upon the incoming of the return, the relator filed a motion for judgment on the pleadings; and it will therefore be necessary for a proper understanding of the case to set out the alternative writ, the return, and the motion for judgment.

*41 “Your petitioner, Jesse W. Barrett, relator herein, respectfully represents that he is a citizen, resident, and taxpayer of the city of St. Louis, Missouri, and is a qualified elector in the Fifth precinct of the Twenty-Eighth ward of said city, and in the Thirty-Second senatorial district of Missouri; and that respondents George C. Hitchcock, J. Hugo Grimm, Daniel D. Fisher, Hugo Muench, George H. Shields, William B. Homer, Charles C. Allen, William M. Kinsey, James E. Withrow, Eugene McQuillin, Leo S. Rassieur, and Wilson A. Taylor, are the duly elected, qualified, and acting judges constituting the circuit court, city of St. Louis, Missouri.

“Your petitioner respectfully represents that in the year 1910 there was taken the thirteenth decennial census of the United States, and the result thereof as to the state of Missouri was ascertained and made public on September 30, 1910, according to which the state of Missouri has a population of 3,293,335, and the city of St. Louis a population of 687,029; that the next session of the General Assembly was duly held in the city of Jefferson, as is duly provided by law; that, under the provisions of section 7 of article 4 of the Constitution of Missouri, it became the duty of said Forty-Sixth General Assembly to revise and adjust the apportionment of the state of Missouri for senators on the basis of such census, but the said Forty-Sixth General Assembly failed to district the state for senators, as required in said section, and adjourned on March 20, 1911, and under the terms of said section it then became the duty of the Governor, Secretary of State, and Attorney General, within 30 days thereafter, to perform the said duty; that on April 18, 1911, the Governor, Secretary of State, and Attorney General met for this purpose, and, in pursuance of said section of the Constitution, the Secretary of State and the Attorney General apportioned the state for senators and filed in the office of the Secretary of State a full statement of the districts formed by them, including the names of the counties embraced in each district and the numbers thereof, which statement was signed by the Secretary of State and the Attorney General, was attested by the great seal of the state, and reads as follows:

“‘Statement of Apportionment of Senatorial Districts.

“‘April 18, 1911.

“‘This is to certify that on Tuesday, April 18, 1911, under the provisions of section 7, article 4, of the Constitution of the state of Missouri (the Legislature of the state of Missouri in its session next after the decennial census, 1910, of the United States, had been taken and the result thereof as to this state ascertained, being the regular session of the Forty-Sixth General Assembly, having failed to apportion and district the state into Senatorial districts), Herbert S. *42 Hadley, Governor of the state of Missouri, Cornelius Roach, Secretary of State of the state of Missouri, and Elliot W. Major, Attorney General of the state of Missouri, having had the matter under consideration, did district the state of Missouri for senators and divide said state into thirty-four senatorial districts, as follows: SY “‘First district: The counties of Atchison, Gentry, Nodaway, and Worth.

“‘Second district: The county of Buchanan.

“‘Third district: The counties of Andrew, Clay, Clinton, De Kalb, Holt, and Platte.

“‘Fourth district: The counties of Grundy, Harrison, Mercer, and Putnam.

“‘Fifth, Seventh, and Nineteenth districts: The county of Jackson.

“‘Sixth district: The counties of Chariton, Linn, Livingston, and Sullivan.

“‘Eighth district: The counties of Caldwell, Carroll, Daviess, and Ray.

“‘Ninth district: The counties of Macon, Marion, Randolph, and Shelby.

“‘Tenth district: The counties of Adair, Clark, Knox, Lewis, Schuyler, and Scotland.

“‘Eleventh district: The counties of Lincoln, Pike, Ralls, and St. Charles.

“‘Twelfth district: The counties of Boone, Callaway, Cole, Miller, and Osage.

“‘Thirteenth district: The counties of Audrain, Gasconade, Monroe, Montgomery, and Warren.

“‘Fourteenth district: The counties of Camden, Cooper, Howard, Moniteau, Morgan, and Saline.

“‘Fifteenth district: The counties of Johnson, Lafayette, and Pettis.

“‘Sixteenth district: The counties of Bates, Benton, Cass, Hickory, and Henry.

“‘Seventeenth district: The counties of Barton, Cedar, Dade, St. Clair, and Vernon.

“‘Eighteenth district: The counties of Christian, Greene, Stone, and Taney.

“‘Twentieth district: The county of Jasper.

“‘Twenty-First district: The counties of Dallas, Douglas, Laclede, Ozark, Polk, Webster, and Wright.

“‘Twenty-Second district: The counties of Barry, Lawrence, McDonald, and Newton.

“‘Twenty-Third district: The counties of Butler, Carter, Dunklin, Ripley, and Wayne.

“‘Twenty-Fourth district: The counties of Dent, Howell, Oregon, Shannon, and Texas.

“‘Twenty-Fifth district: The counties of Cape Girardeau, Mississippi, New Madrid, Pemiscot, and Scott.

“‘Twenty-Sixth district: The counties of Bollinger, Madison, Perry, St. Francois, Ste. Genevieve, and Stoddard.

“‘Twenty-Seventh district: The counties of Franklin and St. Louis.

“‘Twenty-Eighth district: The counties of Crawford, Iron, Jefferson, Maries, Phelps, Pulaski, Reynolds, and Washington.

“‘Twenty-Ninth, Thirtieth, Thirty-First, Thirty-Second, Thirty-Third, and Thirty-Fourth districts: The city of St. Louis.

“‘The said state of Missouri was districted for senators and divided into said thirty-four senatorial districts by the vote of Cornelius Roach, Secretary of State, and Elliot Major, Attorney General; the Governor, Herbert S. Hadley, being present and refusing to vote, and also refusing to sign this instrument, districting the said state for senators. The same is therefore signed by said Cornelius Roach, Secretary of State, and said Elliot W. Major, Attorney General; they constituting a working majority of those executive officers empowered, under section 7, article 4, of the Constitution of the state of Missouri, to perform the duty herein discharged.

“‘Done at the city of Jefferson, state of Missouri, the eighteenth day of April, in the year of our Lord one thousand nine hundred and eleven.”

“Your petitioner further respectfully represents that, according to the said apportionment, the city of St. Louis, is entitled to six senators; and under the provisions of section 6 of article 4 of the state Constitution the duty is now imposed upon the circuit court, city of St. Louis, to cause the city to be subdivided into districts of compact and contiguous territory, and of population as nearly equal as may be, corresponding in number with the senators to which the city is entitled under said apportionment.

“Your petitioner further respectfully represents that the last subdivision of the city of St. Louis into senatorial districts was made by the circuit court, city of St. Louis, on November 6, 1901, under which the city was subdivided into six districts, numbered from 29 to 34, inclusive; that since said date the population of the Twenty-Ninth district has increased from 95,161 to 152,348, that of the Thirtieth district has decreased from 94,176 to 88,238, that of the Thirty-First district has decreased from 100,929 to 60,568, that of the Thirty-Second district has increased from 95,569 to 131,780, that of the Thirty-Third district has decreased from 94,771 to 90,393, and that of the Thirty-Fourth district has increased from 94,732 to 163,702, so that there are now great inequalities in the population of the several senatorial districts of the city, and there is great need of a new subdivision of the city into districts as nearly equal in population as may be, so as to give to your petitioner, and each of the residents of the several districts, his and their constitutional right to equality of representation in the state Senate.

“Your petitioner further respectfully represents that on November 29, 1911, he filed in the circuit court, city of St. Louis, a petition, respectfully demanding that that court proceed to perform the duty imposed upon *43 it by section 6 of article 4 of the state Constitution, and subdivide the city of St. Louis, under the said apportionment of 1911, into six districts of compact and contiguous territory, as nearly equal in population as may be, as is provided by law; that on December 1, 1911, he appeared before the said judges of said circuit court, in general term assembled, and presented his said petition; and that on December 9, 1911, the said judges of said circuit court, in general term assembled, ordered that the said statement of the districts be for naught held, and refused to perform the said duty, on the ground that the apportionment contained in the said statement was unconstitutional, void, and ineffectual, and imposed no duty upon the said court.

“Your petitioner further respectfully represents that without the aid of this court, through its writ of mandamus, he has no remedy in the premises.

“Wherefore, your petitioner prays that this court issue its alternative writ of mandamus, requiring and commanding the said George C. Hitchcock, J. Hugo Grimm, Daniel D. Fisher, Hugo Muench, George H. Shields, William B. Homer, Charles C. Allen, William M. Kinsey, James E. Withrow, Eugene McQuillin, Leo S. Rassieur, and Wilson A. Taylor, as judges of the circuit court, city of St. Louis, Missouri, and each of them, without further excuse, refusal, or delay, to proceed to perform the duty imposed upon said circuit court by section 6 of article 4 of the state Constitution, and subdivide the city of St. Louis, under the statement of the senatorial districts filed in the office of the Secretary of State on April 18, 1911, into six districts of compact and contiguous territory as nearly equal in population as may be, as is provided by law, or that the said George C. Hitchcock, J. Hugo Grimm, Daniel D. Fisher, Hugo Muench, George H. Shields, William B. Homer, Charles C. Allen, William M. Kinsey, James E. Withrow, Eugene McQuillin, Leo S. Rassieur, and Wilson A. Taylor, as judges of the circuit court, city of St. Louis, Missouri, appear before this court and show cause on a day certain, to be named in the writ, why they have not so done; and your petitioner further prays that he may have and recover of respondents his costs in this behalf expended, and for such other and further relief as to the court may seem meet and proper in the premises.”

The return of respondents is as follows:

“Now come respondents George C. Hitchcock, J. Hugo Grimm, Daniel D. Fisher, Hugo Muench, George H. Shields, William B. Homer, Charles Claflin Allen, William M. Kinsey, James E. Withrow, Eugene McQuillin, Leo S. Rassieur, and Wilson A. Taylor, as judges of the circuit court, city of St. Louis, Missouri, and for their return to the alternative writ of mandamus, heretofore issued herein, respectfully represent and show as follows:

“That at all the times mentioned in the petition respondents were and still are the duly elected, qualified, and acting judges constituting the circuit court, city of St. Louis, Missouri; that on April 18, 1911, within 30 days after the adjournment of the Forty-Sixth General Assembly of the state of Missouri, which failed to district the state for senators, the Governor, the Secretary of State, and the Attorney General of the state of Missouri met at the city of Jefferson, for the purpose of revising and adjusting the apportionment of the state for senators upon the basis of the United States census of 1910; that the Secretary of State then presented for adoption a statement, dividing the state into senatorial districts, which he and the Attorney General had previously prepared and agreed upon; that the Governor then and there objected to said statement, and to the adoption of the apportionment of the state into senatorial districts therein provided for, on the ground that it was unfair and partisan, and did not comply with the requirements of the Constitution for the reasons hereinafter set forth; that the Secretary of State and Attorney General then refused to consider or approve any plan of apportionment other than the one upon which they had previously agreed, and upon the refusal of the Governor to sign or approve said statement the Secretary of State and Attorney General proceeded to organize the meeting for the purpose of adopting said statement of the districts, and nominated and elected each other chairman and secretary, respectively, of the meeting, the Governor declining to take any part in said organization, on the ground, assigned by him, that the approval or disapproval by the Governor, Secretary of State, and Attorney General of any statement dividing the state into senatorial districts, should be evidenced by the signing or refusal to sign any such statement, and on the further ground, assigned by him, that the Secretary and Attorney General proposed to proceed in an arbitrary manner to adopt the statement of the districts upon which they had previously agreed as aforesaid, and thereupon, over the objection of the Governor, the Secretary of State and the Attorney General adopted the apportionment upon which they had previously agreed as aforesaid, which apportionment is contained and embodied in the statement dividing the state into senatorial districts, signed by the Secretary of State and the Attorney General, and filed in the office of the Secretary of State on April 18, 1911.

“Respondents further respectfully represent and show that the Governor never signed the said statement of the districts, and took no part in the filing thereof, and never performed such official acts in regard there *44 to as to authorize the affixing of the great seal of the state thereto; and that the said statement has never been proclaimed by the Governor; that the numbers of the districts contained in said statement, their population, and that of the several counties composing them, according to the decennial census of the United States of 1910, and the official returns of the votes cast in the respective districts, together with the counties composing them, for the Republican and Democratic candidates for the office of Judge of the Supreme Court at the general election held November 8, 1910, are as follows:

“Respondents further respectfully represent and show that, under the apportionment of the state for senators in 1901, Jackson county was divided into two districts, numbered 5 and 7, and the city of St. Louis was divided into six districts, numbered 29 to 34, inclusive, and that, according to the official returns of the votes cast therein for the office of state senator at the general elections held in November, 1908, and 1910, the Fifth Seventh, Thirty-First, and Thirty-Third districts elected the Democratic candidates, and the Twenty-Ninth, Thirtieth, Thirty-Second, and Thirty-Fourth districts elected the Republican candidates for the office of state senator; that the numbers and shapes of the districts described in the statement filed April 18, 1911, together with the counties composing them, are correctly set forth on the following map of the state of Missouri: TA TABLE

“Respondents further respectfully represent and show that the first and only official knowledge or information which respondents had of the said statement of the senatorial districts was on or about November 1, 1911, when the Secretary of State presented to the clerk of the circuit court, city of St. Louis, a copy of said statement, and when respondents received from the Secretary of State a letter, inclosing a copy of said statement, and stating that the same had been formally filed with the said clerk, that respondents, as a court, might take such action thereon as the Constitution and laws of this state require; that on November 10, 1911, respondents, in general term assembled, made an order to the effect that at 10 o'clock in the morning of Friday, December 1, 1911, a meeting of the general term of the circuit court, city of St. Louis, would be held in Division No. 4 of said court at the courthouse in the city of St. Louis, for the purpose of then and there hearing the views and arguments of all persons desiring to be heard on the question of whether or not the said statement complied with the provisions of the Constitution of the state, so as to require any action by respondents, a copy of which order was sent to the Governor, the Secretary of State, and the Attorney General; that on December 1, 1911, respondents as such judges of the circuit court, city of St. Louis, met in general term, in accordance with the said order, and duly heard the views and arguments of the relator and all other persons desiring to be heard, and, after duly considering the same, on December 9, 1911, made an order to the effect that the circuit court, city of St. Louis, did not consider the attempted apportionment of the state for state senators, contained in the statement of the districts made by the Secretary of State and Attorney General of the state, and filed in the office of the Secretary of State on April 18, 1911, to be in conformity with the Constitution of the state, and did then refuse to subdivide the city of St. Louis into suitable districts thereunder; that the provisions of article 4 of the state Constitution require that the population of the state, which, according to said census, is 3,293,335, should be divided by 34, which is the number of senatorial districts, giving a quotient of 96,862, which is the ratio of equality of representation in the state Senate, and each county of the state having a population in excess of said senatorial ratio is entitled to as many senators as the number of times which the said ratio is contained in its population, and that the apportionment contained in the said statement does not comply with the requirements of article 4 of the state Constitution, in that the city of St. Louis, having a population of 687,029, containing the senatorial ratio seven times, with a remainder of 8,995, is entitled by right, under the Constitution, to seven senators, and is apportioned but six senators in said statement of the districts; that the apportionment contained in the said statement does not comply with the requirements of article 4 of the state Constitution, in that the difference between the population of the largest district (21) and the smallest district (4) is 52,534, in that 20 out of 34 of the districts vary from the senatorial ratio over 10,000 in population, the First and Fourth varying over 25,000, the Eighth varying between 20,000 and 25,000, the Eleventh, Thirtéenth, Twenty-First, Twenty-Sixth, Twenty-Seventh, and Twenty-Ninth to Thirty-Fourth, inclusive, varying between 15,000 and 20,000, and the Sixth, Tenth, Twelfth, Twenty-Third, Twenty-Fourth, and Twenty-Eighth varying between 10,000, and 15,000, in that the 17 largest districts contain 412,229 more people than the 17 smallest districts, in that a large proportion of the districts are not compact in shape, in that the districts which are least compact vary the most in population, and the districts which are the most compact vary the least in population, in that all the districts in Jackson county are odd numbered, in that the said apportionment fails in many respects to comply with the requirements of the Constitution, in that, under the provisions of article 4 of the state Constitution, there was vested in the Governor, Secretary of State, and Attorney General discretion to make the districts as nearly equal in population and as compact as may be, and there was imposed upon them the duty, not only to observe such limitations and requirements, but also to exercise such discretion in a fair and reasonable manner, without regard to party advantage, and having only in mind the purpose of securing compactness in the shape and equality in the population of the several districts, whereas the Secretary of State and the Attorney General, in disregard of their duty, and in disregard of the provisions and limitations of the Constitution, in forming the districts, as shown by the facts aforesaid, wholly, grossly, arbitrarily, capriciously, and for partisan purposes, ignored and did not consider or apply at all the said requirements of the Constitution, and did not fairly, properly, and reasonably exercise the powers and duties imposed upon them.

“Wherefore, respondents respectfully represent that the apportionment contained in the statement of the senatorial districts filed in the office of the Secretary of State on April 18, 1911, has not become binding or effectual, is unconstitutional and void, and imposes no duty upon respondents, as judges of the circuit court, city of St. Louis, to subdivide the city into suitable senatorial districts thereunder. Wherefore, having made a full and complete return, respondents pray to be hence dismissed, with their costs.”

The motion for judgment is predicated upon *48 the general allegation that the return of respondents does not state facts sufficient to constitute a defense to the alternative writ.