Opinion
Nos. 43107 and 43108.
March 26, 1952.
Original actions in prohibition against the Board of Election Commissioners of St. Louis County attacking the validity of an ordinance enacted by the county council redistricting the state senatorial districts in St. Louis County. The acts of respondents in carrying out the provisions of the ordinance are ministerial and not judicial, so prohibition is not the proper remedy. And the Supreme Court does not have original jurisdiction to render a declaratory judgment as to the validity of the redistricting. The preliminary rule in prohibition is discharged.
1. ELECTIONS: Officers: Redistricting St. Louis County: Legislative Function. The redistricting of St. Louis County into senatorial districts is a legislative function.
2. PROHIBITION: Officers: Prohibition Limited to Judicial Acts. Prohibition may be exercised against public officers where the act sought to be prohibited is judicial in its nature, but not where it is ministerial.
3. PROHIBITION: Officers: Elections: Redistricting St. Louis County: Board of Election Commissioners Performing Ministerial Acts: Prohibition Not Proper Remedy. The Board of Election Commissioners of St. Louis County was performing ministerial and not judicial acts in carrying out the provisions of a redistricting ordinance enacted by the county council. In obeying such ordinance said Board was not determining its validity. Prohibition does not lie to prevent an officer or board from obeying an invalid statute, ordinance or order.
4. ACTIONS: Courts: Elections: Declaratory Judgment Act: Redistricting St. Louis County: Supreme Court Without Original Jurisdiction. The Supreme Court does not have original jurisdiction in an action for a declaratory judgment as to the illegality of senatorial redistricting in St. Louis County.
PRELIMINARY RULE DISCHARGED.
Luther Ely Smith, Jr., Harold C. Hanke and Victor B. Harris for relators in Case No. 43107.
(1) Resolution 27 of the County Council under which respondents propose to conduct the elections in St. Louis County is invalid on its face because redistricting is legislative in character and cannot be adopted by a resolution. St. Louis County Charter, Art. III, Secs. 8, 15, 16, 17, 22, 23; McQuillin, Municipal Corporations (3d Ed. 1949), secs. 15.02, 21.13; State ex rel. Carroll v. Becker, 329 Mo. 501, 45 S.W.2d 533, affirmed 285 U.S. 380, 52 S.Ct. 402; Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397; State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40; Cascadin v. City of Waterloo, 106 Iowa 673, 77 N.W. 333. (2) Ordinance 159 which Resolution 27 purports to replace is likewise invalid on its face because it disenfranchises a part of St. Louis County. (3) Respondents are the only proper defendants because it is their duty to carry out the redistricting plan. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40; State ex rel. Carroll v. Becker, 329 Mo. 501, 45 S.W.2d 533, affirmed 285 U.S. 380, 52 S.Ct. 402; State ex rel. Preisler v. Woodward, 340 Mo. 906, 105 S.W.2d 912. (4) The redistricting of St. Louis County is subject to judicial review. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40; Brown v. Sanders, 166 S.E. 105; Attorney General v. Secretary of the Commonwealth, 27 N.E. 265; Matter of Sherrill v. O'Brien, 188 N.Y. 185, 81 N.E. 124. (5) The county council based the apportionment on a factor not mentioned in the Constitution, namely, the rural or urban character of the population, and disregarded the constitutional requirement of compactness. Art. III, Sec. 8. Constitution of Missouri; Matter of Sherrill v. O'Brien, 188 N.Y. 185, 81 N.E. 124; In re Livingston, 160 N.Y.S. 462, 96 Misc. 341; In re Timmerman, 100 N.Y.S. 57. 51 Misc. 192; State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40. (6) The Fifteenth District does not meet the constitutional requirement of contiguousness. Art. III, Sec. 8, Constitution of Missouri; Matter of Sherrill v. O'Brien, 188 N.Y. 185, 81 N.E. 124; State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40. (7) If the county council fails to enact a constitutional ordinance redistricting the county prior to April 29, 1952, senators will have to be nominated and elected by the electorate of the county at large. Art. III, Secs. 5 and 7, Constitution of Missouri; Sec. 22.030, R.S. 1949.
Peter T. Barrett and Wm. J. Becker for relators in Case No. 43108.
(1) After each decennial census of the United States, the Governor shall appoint a commission to apportion the state into 34 Senatorial Districts and said commission shall file a full statement of the number of districts. Sec. 7, Art. 3 Constitution of Missouri. (2) In any county entitled to more than one senator, the county court . . . shall divide the county into districts of contiguous territory, as compact and nearly equal in population as may be, in each of which one senator shall be elected. Sec. 8, Art. 3, Mo. Constitution. (3) Sections 113.010-113.420 provide for the creation of a Board of Election Commissioners in counties of not less than 200,000 and not more than 450,000; that all the powers and duties then vested in and required of county clerks and county courts and Board of Canvassers pertaining to nominations, primaries, elections and election contests in such counties shall be thereafter vested and be required of and be performed by said Board of Election Commissioners. Secs. 113.010-113.420, R.S. 1949. (4) Counties having more than a population of 85,000 inhabitants may frame and adopt a charter for their own government. Art. 6, Secs. 18a-18, Mo. Constitution. (5) St. Louis County Council in conformity with the Constitution of Missouri and the powers vested in it by the charter, the council shall have, by ordinance, all the powers to exercise all powers of legislation now or hereafter conferred, upon counties by the Constitution, laws and its charter and to determine and make provisions for any matter of county government not otherwise provided therein. Sec. 22 and subsec. 24 of Art. 3, Charter of St. Louis County, Missouri. (6) The act of districting the state or a subdivision thereof into congressional, senatorial or legislative districts is the exercise of legislative authority. State ex rel. Barrett v. Hitchcock, 241 Mo. 433. (7) The legislative authority of the St. Louis County Council provides that such authority shall be exercised by ordinance. Sec. 22, Art. 3, Charter of St. Louis County. (8) The St. Louis County Council is "a body corporate and politic," that is, it has now become a municipal corporation. Constitution of Missouri 1945, Sec. 18 a-1, inclusive, Art. 6. (9) Ordinances enacted by the county council, a municipal corporation, cannot be amended, repealed or suspended by resolution. People ex rel. Raymond v. Latham, 67 N.E. 408, 203 Ill. 4; Young v. City of St. Louis, 47 Mo. 492, 2 McQuillin, Municipal Corporations 2d, sec. 867, pp. 867 and 868; Consumer Power Co. v. Krause, 89 F.2d 565; City of Saginaw v. Consumer Power Co., 182 N.W. 145, 211 Mich. 460; Chicago I. L. Ry. Co. v. Town of Salem, 76 N.E. 631. (10) The courts have authority to inquire into the districting of a State into legislative, senatorial, congressional and judicial districts. State ex rel. Barrett v. Hitchcock, 241 Mo. 433. (11) The courts have authority to inquire, in the exercising of a writ of prohibition, into the matter of conducting an election. It is a judicial function. State ex rel. Golman v. Hiller, 278 S.W. 708, 709; State ex rel. Stone v. Thomas, 159 S.W.2d 600. (12) The courts have jurisdiction to entertain an action and pass upon the validity of acts pertaining to the State Senatorial Districts and to declare them invalid for infringement upon the Constitution or 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. (13) Prohibition is the appropriate remedy to prevent Election Commissioners of St. Louis County from printing on the ballot names of candidates for State Senator under an illegal ordinance or resolution. 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. Holman v. McElhinney, 315 Mo. 731, 286 S.W. 951; State ex rel. Stone v. Thomas, 349 Mo. 22, 159 S.W.2d 600. (14) 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. 422. (15) Compact means dense — pressed together, districts should be formed so that the territory is 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. (16) In counties which are entitled to more than one senator, the county court shall on or before March 1st following certification by the Secretary of State certify to the Secretary of State a complete statement of the Senatorial Districts established by them, and if they fail to comply with said requirement, the number of senators in such districts to be elected at the next election shall be nominated and elected by the electorate from the state at large: provided the person so nominated and elected shall reside in the city or county entitled to such senators. Sec. 22.030, R.S. 1949. (17) In the event that the resolution adopted by the St. Louis County Council on March 1, 1952, should be considered as an ordinance, the said resolution cannot be held to be valid for the reason that all ordinances of the county council shall be read once in open session, and without unanimous consent of all members, no final vote can be taken thereon until the expiration of at least fourteen days from the date that such ordinance was first introduced. Sec. 15, Art. 3, Charter of St. Louis County.
Robert Mass, John J. McAtee, C.W. Detjen and Herbert C. Funke for respondents in Case No. 43107.
(1) The County Council proceeded according to constitutional, statutory and County Charter provisions in dividing St. Louis County into three (3) Senatorial Districts by order or resolution. Mo. Constitution, Art. III, Sec. 8; Sec. 22.030, R.S. 1949; Mo. Constitution, Art. VI, Sec. 18(c): Sec. 23, St. Louis County Charter; Art. III, Sec. 6, St. Louis County Charter; Art. III, Sec. 1, St. Louis County Charter. (2) Prohibition is a preventive and not a corrective remedy, to be used with great caution and forbearance. Use of Conran v. Duncan, 333 Mo. 673, 63 S.W.2d 135; State ex rel. v. Connor, 219 S.W.2d 867; Sec. 530.010, R.S. 1949; State ex rel. v. Burkhartt, 87 Mo. 533; State ex rel. v. Bruce, 227 Mo. App. 631, 55 S.W.2d 733; Myers v. Arnold, 347 Mo. 431, 147 S.W.2d 644; State ex rel. v. Skinker, 341 Mo. 28, 106 S.W.2d 409. (3) Prohibition is available only for the purpose of keeping inferior tribunals within the scope of their jurisdiction, and is not available to control ministerial or legislative functions. (A) Prohibition is not available for the purpose of collateral attack upon fully consummated proceedings of the council. Bash v. Truman, 335 Mo. 1077, 75 S.W.2d 840; State ex rel. v. Klene, 276 Mo. 206, 207 S.W. 196; State ex rel. v. Mitchell, 230 S.W.2d 116; State ex rel. v. Burney, 324 Mo. 363, 23 S.W.2d 117; State ex rel. v. Seehorn, 208 S.W.2d 789; State ex rel. v. Nangle, 227 S.W.2d 655. (4) The respondents perform purely ministerial duties in accepting filings of candidates in Senatorial Districts established by the County Council, if such candidates have the qualifications provided by law, and prohibition will not lie against respondents for the purpose of attacking an act of the County Council. Kalbfell v. Wood, 196 Mo. 675, 97 S.W. 230; State ex rel. v. Peters, 94 S.W.2d 930; State ex rel. v. Davis, 119 S.W.2d 844; Bash v. Truman, supra; State ex rel. v. Goodier, 195 Mo. 551, 93 S.W. 928; State ex rel. v. Johnson, 234 Mo. 338, 137 S.W. 595; State ex rel. Bates v. Remmers, 325 Mo. 1175, 30 S.W.2d 609, 115 A.L.R. 25. (5) Prohibition will not lie when other sufficient remedies are available. State ex rel. v. Stobie, 194 Mo. 14, 92 S.W. 191; State ex rel. v. Skinker, 341 Mo. 28, 106 S.W.2d 409. (6) The Senatorial Districts established by Resolution No. 27 of the St. Louis County Council conformed to constitutional and statutory requirements. Mo. Constitution, Art. III; Sec. 22.030, R.S. 1949; State ex rel. v. Ramacciotti, 193 S.W.2d 617; State ex rel. v. Hitchcock, 146 S.W. 40; People ex rel. v. Thompson, 40 N.E. 307; Denny v. State, 42 N.E. 929; People ex rel. v. Carlock, 65 N.E. 109. (7) Section 22.030, R.S. 1949, is unconstitutional to the extent that it attempts to require the election of Senators at large in the State of Missouri if a county entitled to more than one senator fails to redistrict within the time provided by law. Mo. Constitution, Art. III.
Robert Mass, John J. McAtee, C.W. Detjen, and Herbert C. Funke for respondents in Case No. 43108.
(1) The County Council proceeded according to constitutional, statutory and County Charter provisions in dividing St. Louis County into three (3) Senatorial Districts by order or resolution. Mo. Constitution, Art. III, Sec. 8; Sec. 22.030, R.S. 1949; Mo. Constitution, Art. VI, Sec. 18(c); Sec. 23, St. Louis County Charter; Art. III, Sec. 6, St. Louis County Charter; Art. III, Sec. 1, St. Louis County Charter. (2) Prohibition against the Election Commissioners of St. Louis County to prevent filing of senatorial candidates will not lie to correct alleged errors of the County Council in establishing Senatorial Districts. Prohibition is a preventive and not a corrective remedy. Use of Conran v. Duncan, 333 Mo. 673, 63 S.W.2d 135; State ex rel. v. Connor, 219 S.W.2d 867; Sec. 530.010, R.S. 1949; State ex rel. v. Burkhartt, 87 Mo. 533; State ex rel. v. Bruce, 227 Mo. App. 631, 55 S.W.2d 733; Myers v. Arnold, 347 Mo. 431, 147 S.W.2d 644; State ex rel. v. Skinker, 341 Mo. 28, 106 S.W.2d 409. (3) Prohibition is available only for the purpose of keeping inferior tribunals within the scope of their jurisdiction and is not available to control ministerial or legislative functions, nor as a collateral attack upon fully concluded proceedings of a County Council. Bash v. Truman, 335 Mo. 1077, 75 S.W.2d 840; State ex rel. v. Klene, 276 Mo. 206, 207 S.W. 196; State ex rel. v. Mitchell, 230 S.W.2d 116; State ex rel. v. Burney, 324 Mo. 636, 23 S.W.2d 117; State ex rel. v. Seehorn, 208 S.W.2d 789; State ex rel. v. Nangle, 227 S.W.2d 655. (4) The respondents perform purely ministerial duties in accepting filings of candidates in senatorial districts established by the County Council, if such candidates have the qualifications provided by law, and prohibition will not lie against respondents for the purpose of attacking an act of the County Council. Kalbfell v. Wood, 196 Mo. 675, 97 S.W. 230; State ex rel. v. Peters, 94 S.W.2d 930; State ex rel. v. Davis, 119 S.W.2d 844; Bash v. Truman, supra; State ex rel. v. Goodier, 195 Mo. 551, 93 S.W. 928; State ex rel. v. Johnson, 234 Mo. 338, 137 S.W. 595; State ex rel. Bates v. Remmers, 325 Mo. 1175, 30 S.W.2d 609, 115 A.L.R. 25. (5) Prohibition will not lie when other sufficient remedies are available. State ex rel. v. Stobie, 194 Mo. 14, 92 S.W. 191; State ex rel. v. Skinker, 341 Mo. 28, 106 S.W.2d 409. (6) The senatorial districts established by Resolution No. 27 of the St. Louis County Council conformed to constitutional and statutory requirements. Constitution of Mo., Art. III; Sec. 22.030, R.S. 1949; State ex rel. v. Ramacciotti, 193 S.W.2d 617; State ex rel. v. Hitchcock, 146 S.W. 40; People ex rel. v. Thompson, 40 N.E. 307; Denny v. State, 42 N.E. 929; People ex rel. v. Carlock, 65 N.E. 109. (7) Section 22.030, R.S. 1949, is unconstitutional to the extent that it attempts to require the election of Senators at large in the State of Missouri if a county entitled to more than one Senator fails to redistrict within the time provided by law. Mo. Constitution, Art. III.
These cases are original actions in prohibition filed in this court. They were consolidated for the purpose of argument. The issues in these cases are almost identical and can be decided in one opinion.
Following the report of the 1950 decennial census of the United States to the President, the Governor appointed a commission of five Democrats and five Republicans to reapportion the 34 senatorial districts of the state, pursuant to section 7, article III of our 1945 Constitution. Acting under sections 5 and 7 of that article, this commission apportioned three senatorial districts to St. Louis County. Previously St. Louis County had only two senators.
When a county is entitled to more than one senator, then under section 8, article III of our Constitution it is the duty of the county court to "divide the county into districts of contiguous territory, as compact and nearly equal in population as may be, in each of which one senator shall be elected." However, St. Louis County is now governed by a special charter, pursuant to section 18 of article VI of our Constitution, and under this charter the county council exercises all the powers of a county court. On February 9, 1952 the county council enacted Ordinance No. 159, dividing the county into three senatorial districts. Thereafter the county council discovered that a township had been omitted from the redistricting plan set up by that ordinance and on March 1, 1952 it adopted Resolution No. 27 which divided St. Louis County into three senatorial districts, substantially the same as those provided for in Ordinance No. 159, the only difference being that the excluded township was included in the 13th senatorial district.
The respondents are members of the board of election commissioners of St. Louis County. Under sections 113.010-113.420, RSMo 1949, it is the board's duty to receive declarations for nomination for senator from the senatorial districts in St. Louis County and to conduct primary and general elections.
The respondents admit they will receive declarations for nomination for state senator from the three senatorial districts set forth in Resolution No. 27 and will conduct senatorial elections thereunder.
Relators contend that these respondents are without jurisdiction to receive declarations for nomination from the districts as laid out by Resolution No. 27 and to conduct senatorial elections pursuant to this resolution because (1) the districts are not contiguous territory, are not as compact and nearly equal in population as may be and, therefore, violate section 8, article III of [724] our Constitution; and (2) under the county charter these districts should have been laid out by ordinance and not by a resolution of the county council.
Is prohibition the proper remedy to determine these issues?
It is conceded by all parties that the redistricting of St. Louis County into senatorial districts is a legislative function. With this we agree. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40.
Jurisdiction of this court is limited by sections 3 and 4 of article V of our Constitution. Section 3 gives this court exclusive appellate jurisdiction in certain cases, while under section 4 this court has original jurisdiction in remedial writs in exercising superintending control over inferior courts and tribunals.
The preventative power of the writ of prohibition is not limited to the supervision of courts but may, where the action sought to be prohibited is judicial in its nature, be exercised against public officers. It will not lie against judicial officers if the act sought to be prevented is not in itself judicial. State ex rel. United States Fidelity Guaranty Co. v. Harty, Superintendent of Insurance, 276 Mo. 583, 208 S.W. 835. Therefore, if the acts of the respondents in receiving declarations for nomination for state senator from the three senatorial districts established by Resolution No. 27 and the holding of the primary and general elections are judicial, we can control the action of the respondents by our writ; but if these acts are ministerial as contended by respondents, we cannot.
This question was before this court in the case of State ex rel. Missouri and North Arkansas Railroad Co. v. Johnston, Judge, and Roach, Secretary of State, 234 Mo. 338, 137 S.W. 595. That was an action in prohibition to prevent the secretary of state from enforcing a statute which provided that if a railroad company, chartered under the laws of another state and admitted to do business in this state, should remove a suit brought against it to the federal court from the courts of this state, or if the railroad brought a suit in the federal courts against a citizen of this state, the certificate of authority of the railroad company to carry freight and passengers from one point in this state to another point in this state should be forthwith revoked by the secretary of state.
While that case was pending in this court, the Supreme Court of the United States, in the case of Herndon v. Chicago, R.I. P.R.R. Co., 218 U.S. 135, held the act was unconstitutional as it was in conflict with the Constitution of the United States. Yet this court said in ruling that case (the Roach case) supra, 234 Mo. l.c. 347: "The act having been declared unconstitutional it remains now for this court to decide whether at the time of filing the petition herein the relator under the showing made in its petition, was entitled to a writ of prohibition. Unquestionably if the relator's rights were threatened under the pretext of an unconstitutional act it was entitled to judicial protection in some form, but the question is, was it entitled to a writ of prohibition?"
We held in that case that a writ of prohibition will not lie to prohibit the secretary of state from obeying a statute, whether or not it be constitutional.
" Obedience to the plain mandate of a statute by a ministerial officer is in no sense a judicial determination or adjudication on his part that the statute is constitutional; he would have no right to disobey it on the ground that in his opinion it is unconstitutional. To what confusion would it lead if every ministerial officer in the State was endowed with authority, or should assume authority, to pronounce, in advance of any judicial decision, that an act of the General Assembly was unconstitutional and for that reason he would disobey it.
"In State v. Douglass, 50 Mo. 593, l.c. 597, Judge Wagner, speaking for the court, quoted with approval the following from a Connecticut decision: `Every law of the Legislature, however repugnant to the Constitution, has not only the appearance and semblance of authority, but the force of law. It cannot be questioned at the bar of private judgment, and, if thought unconstitutional, resisted; but must be received [725] and obeyed as, to all intents and purposes, law, until questioned in and set aside by the courts.'
"In considering this subject we ought to keep in mind the difference in consequence between the act of a ministerial officer in obeying the mandate of a statute and his act in disobeying it. If he yields obedience to the law it can never be said that he has assumed the judicial function of passing judgment on its validity, but if he refuse to obey it on the ground that in his opinion it is unconstitutional, he lays himself liable to the imputation of assuming a judicial function. There are many duties imposed by various statutes on the Secretary of State which he is daily performing, and it has never been imputed to him that in so doing he has usurped the functions of the courts and adjudged those statutes to be in harmony with the Constitution of the United States and of the State. We have been referred to no case and have seen none where it was charged that in yielding obedience to the law the ministerial officer usurped judicial functions." (Italics ours.) State ex rel. Mo. North Arkansas RR. Co. v. Johnston, supra, 234 Mo. l.c. 351-352.
See also our recent case of State ex rel. Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75, which holds that a public official may not question the constitutionality of a statute unless he is personally affected by the statute. To the same effect is the case of Stribling v. Jolley, 362 Mo. 995, 245 S.W.2d 885.
By their return, these respondents state that they will receive declarations of candidates for nomination for senator from the three districts set out in Resolution No. 27 and that they will conduct all elections held in St. Louis County. In so doing they are following their statutory duty. See sections 113.010-113.420, supra.
Under these circumstances these respondents' acts are ministerial and not judicial. Therefore, respondents' acts cannot be controlled by prohibition assuming Resolution No. 27 is unconstitutional because it violates section 8, article III of our Constitution. State ex rel. Mo. North Arkansas R.R. Co. v. Johnston, supra.
Relators rely upon our cases where we have prohibited election boards from doing certain acts. We will review some of them.
In the case of State ex rel. Goldman v. Hiller et al., Election Commissioners, 278 S.W. 708, two members of the election board of Kansas City were threatening to recount the ballots in certain precincts in a city election under the provisions of an act of 1921, but that act had been superseded by a constitutional amendment adopted in 1924. We made our preliminary rule as to recounting the ballots absolute.
In the case of State ex rel. Hollman v. McElhinney et al., Board of Election Commissioners, 315 Mo. 731, 286 S.W. 951, the board of election commissioners in St. Louis County were threatening to recount the votes in certain precincts in a primary election under the 1921 act. We followed the ruling of the Goldman case and issued our peremptory writ.
In the case of State ex rel. Bates v. Remmers et al., Board of Election Commissioners, 325 Mo. 1175, 30 S.W.2d 609, the board was attempting to print the name of Sylvester A. Nangle as a candidate upon the Republican ticket for the nomination for state senator in the 32nd senatorial district, which district was located wholly within the city of St. Louis. Nangle had filed his declaration with the secretary of state of Missouri who certified it to respondents. Section 4830 R.S. 1919 (now section 120.370 RSMo 1949) required the declarations for nomination for state senator to be filed with the election board of St. Louis and not with the secretary of state as that senatorial district was wholly within the city of St. Louis. We ruled the respondents were not complying with the statute and made our rule absolute.
In the case of State ex rel. Stone v. Thomas et al., Board of Election Commissioners, 349 Mo. 22, 159 S.W.2d 600, the election board of Kansas City had changed the boundaries of certain precincts but not the ward, and attempted to place new judges and clerks in the precincts in place of previously [726] appointed judges and clerks whose terms had not expired. The statutes required judges and clerks to live in the wards but not in the precincts and they were appointed for a term of four years. We held the respondents had not complied with the statutes and were acting in a judicial capacity in construing the statutes by giving them the effect of abolishing the offices of the judges and clerks of election held by relators.
In the above cases the election boards in each particular instance were not applying the applicable law to the question they had before them and we issued our writs of prohibition for that reason. On the other hand, in the case at bar the board of election commissioners were complying with the applicable statutes and were therefore acting in a ministerial capacity. Therefore, the above cases do not lend any support to relators' contentions that prohibition is a proper remedy to determine if the questioned senatorial districts comply with section 8, article III of our Constitution.
In the case of State ex rel. Davis v. Ramacciotti et al., Board of Election Commissioners, 193 S.W.2d 617, we denied application for prohibition because prohibition is a discretionary writ. This is one of the rare instances where we stated our reasons for denying an application for an original extraordinary writ. There is an intimation that if the application had been presented earlier we would have issued our preliminary rule, but there is nothing in the opinion that could be construed to mean we would have held that prohibition against the election commissioners is the proper remedy to test the constitutionality of a senatorial redistricting issue. That opinion is of no value in determining the issues before us.
The case of State ex rel. Preisler v. Woodward, 340 Mo. 906, 105 S.W.2d 912, does not aid the relators for the reason that that was a mandamus action.
We hold that prohibition under the facts in this record is not the proper remedy to determine if the three senatorial districts in question comply with section 8 of article III of our Constitution.
The relators contend that the redistricting should have been done by an ordinance of the county council instead of by a resolution of that body. We have already held the respondents, as members of the board of election commissioners of St. Louis County, are a ministerial board.
A ministerial officer or a ministerial board that obeys a statute, an ordinance or a resolution does not thereby determine its validity and prohibition does not lie to prevent the officer or board from obeying an invalid statute, ordinance or order. State ex rel. Mo. North Arkansas R.R. Co. v. Johnston, supra.
In Case No. 43,108 we are also asked in the petition to give a declaratory judgment as to the illegality of the three senatorial districts. We have already shown that this court has original jurisdiction only in the granting of remedial writs. A declaratory action is not a remedial writ and our jurisdiction in such action is appellate only.
It follows from what we have said that our preliminary rule in prohibition should be discharged. It is so ordered. All concur.