Opinion
No. 43124.
March 26, 1952.
The facts and holding of the opinion are adequately summarized in the headnote.
PROHIBITION: Officers: Elections: Actions: Courts: Redistricting of Representative Districts in St. Louis County: Prohibition Not Proper Remedy: Declaratory Judgment Act: No Original Jurisdiction of Supreme Court. Prohibition will not lie against the Board of Election Commissioners of St. Louis County to prevent them from complying with the provisions of an ordinance of the county council redistricting the state representative districts in St. Louis County. And the Supreme Court does not have original jurisdiction to render a declaratory judgment against the validity of said redistricting.
PRELIMINARY RULE DISCHARGED.
Peter T. Barrett and Wm. J. Becker for relators.
(1) Prohibition is an appropriate remedy to prevent Election Commissioners of St. Louis County from printing on a ballot names of candidates for state representatives. State ex rel. Bates v. Remmers, 30 S.W.2d 609, 325 Mo. 1175; State ex rel. Goldman v. Hiller, 278 S.W. 708; State ex rel. Hollman v. McElhinney, 315 Mo. 731, 286 S.W. 951; State ex rel. Stone v. Thomas, 159 S.W.2d 600. (2) A redistricting that is not contiguous, compact and as nearly equal in population as may be, is unconstitutional and void. State ex rel. v. Hitchcock, 241 Mo. 433. (3) The act of the county council in redistricting and changing the boundaries of representative districts is a judicial act which could be prevented by prohibition. State ex rel. Stone v. Thomas, Board of Election Commissioners, 159 S.W.2d 600. (4) Compact means dense — pressed together; districts should be formed so that the territory shall be pressed together — close — near to a common center. Must not only touch each other, but must be closely united territorially. State ex rel. v. Hitchcock, 241 Mo. 433. (5) After each taking of the census of the United States, the Secretary of State shall certify to the County Courts and the City of St. Louis the number of representatives to be elected in the respective counties. Art. III, sec. 2. (6) Section 3, Article III, provides that when any county is entitled to more than one representative, the county court and in the City of St. Louis, the Board of Election Commissioners shall divide the county into districts of contiguous territory as compact and nearly equal in population as may be, in each of which one representative shall be elected. (7) Counties having more than 85,000 in population may adopt a charter for their own government. Sec. 8, art. 6. The county charter adopted by the voters of St. Louis County grants to the county council all the powers and duties of the county court. Secs. 18-a to 18-I, inclusive. (8) Section 113.010-113.420, Revised Statutes of Missouri, 1949, provides that in counties of 200,000 to 450,000 all the powers and duties of the county clerk and county courts and Board of Election Commissioners, pertaining to primaries, elections and election contests shall be thereafter vested in the Board of Election Commissioners and said county courts shall deliver all books, ballots, ballot boxes, tally sheets and all papers pertaining to elections to said Board of Election Commissioners. (9) Courts have the authority to inquire into the redistricting of a state into legislative, senatorial, congressional and judicial districts. State ex rel. Barrett v. Hitchcock, 241 Mo. 433. (10) In prohibition, the courts have jurisdiction to inquire into the matter of conducting an election. It is a judicial function. State ex rel. Goldman v. Hiller, 278 S.W. 709; State ex rel. Stone v. Thomas, 159 S.W.2d 600. (11) Courts have jurisdiction to entertain an action and pass upon the validity of acts pertaining to state representative districts and declare them invalid for infringement upon the constitution for failure of the apportionment body to observe non-discretionary limitations placed by the constitution upon their authority in the formation of such districts. State ex rel. Barrett v. Hitchcock, 241 Mo. 433. (12) In counties which are entitled to more than one state representative, the county court (county council) after certification by the Secretary of State, shall certify to the Secretary of State a complete statement of their representative districts established by them, into compact and contiguous territory, corresponding to the number of representatives to which said county is entitled and in population as nearly equal as may be, in each of which the qualified voters shall elect one representative who shall be a resident of said district. Sec. 22.050, R.S. 1949.
Robert Mass, John J. McAtee, C.W. Detjen and Herbert C. Funke for respondents.
(1) Failure to file a brief is fatal and the cause will be considered as abandoned. Rules of the Supreme Court, 1.13, 1.15; Sec. 512.150, R.S. 1949; Thompson's Estate v. Martin, 133 S.W.2d 677. (2) Relators are guilty of such laches in the filing of this action (from November until March) that the cause cannot be maintained in any event. Crawford v. Metropolitan, 167 S.W.2d 915; 50 C.J., Prohibition, p. 700, sec. 104; State ex rel. v. Ramacciotti, 193 S.W.2d 617.
Prohibition. This action was originally filed here and presents for ruling a related question to that presented in cause No. 43107, State of Missouri at the Relation of Wulfing, et al., v. Mooney, et al., and also in cause No. 43108, State of Missouri at the Relation of Dunne, et al. v. Mooney, et al., each of which just above styled and numbered cases are today decided concurrently herewith. In those two cases the basic facts concern the division (or re-districting) of St. Louis County into three state senatorial districts.
In the instant case, however, the basic facts concern the division (or re-districting) of St. Louis County, under the provisions of Sections 2 and 3 of Article III of the Constitution of 1945, into nine representative districts, for the election of representatives therefrom to the House of Representatives of the General Assembly. St. Louis County has heretofore had only seven representative districts.
After the report of the 1950 census, in compliance with said Sec. 3 of Article III, the Secretary of State of the State of Missouri certified to the county council of St. Louis County (which said council under the special charter of said St. Louis County exercises all the powers and performs all the functions of a county court) that under said 1950 census said county should elect nine representatives at the 1952 election.
Pursuant to Sec. 3, of Article III of the Constitution, when any county is entitled to elect more than one representative the county court (and under the instant circumstances the county council) is under the duty to "divide the county into districts of contiguous territory, as compact and nearly equal in population as may be, in each of which one representative shall be elected." On November 21, 1951, the county council of St. Louis county adopted and enacted its Ordinance No. 119, which purported to divide said St. Louis County into nine representative districts for the election of representatives therefrom to the House of Representatives of the General Assembly. The members of the county council are not parties here.
Respondents John E. Mooney, Lynn Meyer, George Heege and Edward E. Heil are the members of the Board of Election Commissioners of said St. Louis County, Missouri. Under Sections 113.010 to 113.420 RSMo 1949. V.A.M.S. it is the duty of that Board to receive declarations for nominations as members of the House of Representatives from the various representative districts of said county, and to conduct elections in said county, and particularly a primary election on August 5, 1952 and a general election on November 4, 1952. Respondents' return admits they will receive and accept declarations for nominations for state representative from any and all of said nine districts so purported to be established by said Ordinance No. 119, and will conduct the above noted primary election and general election for representative in the General Assembly in said county.
Relators, as citizens, residents, taxpayers, and voters in said county, allege and contend respondents have no jurisdiction to conduct the above noted primary election and general election for the offices of State Representative in said county in accordance with the above mentioned nine alleged or purported representative districts, and that respondents have no jurisdiction to receive declarations for nomination from said nine purported districts, because said Ordinance [728] 119 is unconstitutional and void, in that said districts are (1) not contiguous territory and (2) not as compact and nearly equal in population as may be.
It is conceded by the parties that the redistricting of St. Louis County into representative districts, as provided in Article III of our Constitution is a legislative function. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40. And relators contend that "conducting an election", printing the names of candidates for state representatives upon the ballot, appointing judges and clerks of election, canvassing and certifying the result, etc., and receiving declarations for nominations from the representative districts are "a judicial function", and that prohibition in this case is the only and the appropriate remedy. Respondents' return admits they intend to receive said declarations of candidacy and conduct said elections, but they contend that their functions in accepting any declarations for nomination and in conducting the above noted elections are "purely ministerial", that prohibition will not lie in these circumstances, and that therefore our preliminary writ was improvidently issued.
Whether prohibition is the proper remedy to determine these issues is clearly governed by what we have said and ruled in our opinion in causes No. 43107 and 43108, more fully styled in the first paragraph of this opinion, and today decided concurrently herewith.
Based upon the reasoning and conclusions set forth in our opinion in the above referred to causes numbered 43107 and 43108, we rule in this case that under the facts here of record prohibition is not the proper remedy to determine whether the nine purported representative districts instantly in issue comply with Sec. 3 of Article III of our Constitution of 1945. For reasons appearing in our opinion in causes numbered 43107 and 43108, we cannot grant the prayer of the instant petition for a declaratory judgment.
It therefore follows that our preliminary rule in prohibition, heretofore issued herein, must be discharged. It is so ordered. All concur.