Carrollv.Becker

U.S.Apr 11, 1932
285 U.S. 380 (1932)
CERTIORARI TO THE SUPREME COURT OF MISSOURI.

No. 805.

Argued March 24, 1932. Decided April 11, 1932.

Decided upon the authority of Smiley v. Holm, ante, p. 355. 328 Mo. ___; 45 S.W.2d 533, affirmed.

CERTIORARI to review a judgment quashing an alternative writ of mandamus.

Messrs. Edward F. Colladay
and Hyman G. Stein for petitioner.

Whatever the term "legislature" meant to the framers of the Constitution when it was adopted it still means. 1 Cooley's Const. Lim., p. 123.

When the Constitution was agreed upon, eleven of the original States had adopted constitutions in which the word "legislature" or its equivalent was defined, but not in any one of them was the Governor included as a part of the legislature.

The framers must have intended to provide for the uniform operation of the instrument among all of the original States. The carrying out of such intention necessarily required that the word "legislature" should mean the same in each State, and this required the exclusion from that term of the Governor.

As was pointed out in Hawke v. Smith, 253 U.S. 221, a "legislature" at the time the Constitution was framed was the representative body which made the laws of the people, and the term is often used in the Constitution with this evident meaning.

If the word "legislature" as used in Art. V does not mean the law-making power, then we submit that it does not mean the law-making power when it is used in Art I, § 4.

The Act of August 8, 1911, 37 Stat. 13, has expired by its own limitations. The legislature, in re-districting the State, acted exclusively under Art. I, § 4, of the Constitution.

The clause "by the method used in the last preceding apportionment," in the 1929 Act, related only to the arithmetical method of computation. The Act of 1911, has been repealed by the repealing clause (§ 21) of the Act of 1929.

Mr. Ray Weightman, Assistant Attorney General of Missouri, with whom Messrs. Stratton Shartel, Attorney General, and L. Cunningham were on the brief, for respondent.


The State of Missouri, under the reapportionment of representatives in Congress (Act of June 18, 1929, c. 28, 46 Stat. 21, 26) is entitled to thirteen representatives in place of sixteen as theretofore. The petitioner brought this proceeding to obtain a writ of mandamus to compel the Secretary of State of Missouri to file a declaration of the petitioner's candidacy for the office of representative in Congress in one of the congressional districts alleged to have been created by a bill passed by the House of Representatives and the Senate of Missouri in April 1931. An alternative writ was issued, and respondent, Secretary of State, alleged in his return that the bill in question had been vetoed by the Governor and hence had not become a valid law of the State. The Supreme Court of the State, in the view that Article I, section 4, of the Federal Constitution, provided for the enactment of laws, upheld the action of the Secretary of State and quashed the alternative writ. The court also decided that "since the number of representatives for Missouri has been reduced the former districts no longer exist and representatives must be elected at large." 45 S.W.2d 533. A writ of certiorari was granted by this Court.

The questions are substantially the same as those which were presented in Smiley v. Holm, decided this day, ante, p. 355, and the judgment is affirmed.

Judgment affirmed.

MR. JUSTICE CARDOZO took no part in the consideration or decision of this case.