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Tate v. Brown

Supreme Court of Missouri
Jun 15, 1934
335 Mo. 484 (Mo. 1934)

Opinion

June 15, 1934.

INITIATIVE AND REFERENDUM: Appeals. Under Section 10705, Revised Statutes 1929, either party to a proceeding in the circuit court, by mandamus to compel the Secretary of State to accept and file petitions for the initiative or the referendum of a bill, may appeal to the Supreme Court from the judgment of the circuit court.

Where such appeal was not taken within ten days after the decision of the circuit court was rendered nor at the term at which it was rendered, it was not taken in time.

A motion for a new trial was not necessary for review of such action of the circuit court and therefore did not carry the case beyond the judgment term to allow an appeal at a subsequent term.

Appeal from Cole Circuit Court. — Hon. Nike G. Sevier, Judge.

APPEAL DISMISSED.

Gus O. Nations for appellant.

(1) The petition filed in the Cole County Circuit Court stated a cause of action under Section 10705, and it was the duty of the circuit court to exercise the jurisdiction vested in it by said section of law, and to that end to issue the alternative writ prayed for. Sec. 10705, R.S. 1929; Constitution, Art. IV, Sec. 57; State ex rel. v. Mo. Pac. Ry., 114 Mo. 813, 21 S.W. 814; State v. Knight, 26 S.W.2d 1011; State ex rel. v. Sevier, 62 S.W.2d 895; Moses on Mandamus, pp. 201, 202. (2) The circuit court had no right to refuse mandamus. "Mandamus is a civil remedy provided by law in certain cases from which it necessarily follows that it is as much error to refuse it when warranted by all the facts and circumstances as it would be to refuse a lawful remedy for any other infracted legal right. Such a refusal in either case would be an abuse of judicial power and discretion." State ex rel. City of Marshall v. Hackmann, 274 Mo. 551, 203 S.W. 961; State v. Knight, 26 S.W.2d 1011. (3) The Secretary of State has no right to reject a referendum petition for any reason other than an insufficiency which is apparent on the petition's face. "Where referendum petitions have prima facie enough signers and enough congressional districts are represented, the Secretary of State must file the petitions and leave to the courts the determination of questions of hermetic illegality." State ex rel. v. Carter, 257 Mo. 52, 165 S.W. 773; State ex rel. v. Becker, 240 S.W. 229; Kaesser v. Becker, 295 Mo. 93, 243 S.W. 346. (4) Refusal of the circuit court to issue the alternative writ and dismissal of the cause was a refusal to exercise jurisdiction given the court by Section 10705, and such action was a denial of petitioner's constitutional and statutory right. Sec. 10705, R.S. 1929; Constitution, Art. IV, Sec. 57; State ex rel. City of Marshall v. Hackmann, 274 Mo. 551; State v. Knight, 26 S.W.2d 1011. (5) House Bill No. 23, having no real or substantial relation to the immediate preservation of the public peace, health or safety, is subject to the referendum, and the effect of the Legislature to prevent a referendum by attaching to it an emergency clause is an invasion of the right of the people secured by the Constitution, and it is the duty of the courts to so adjudge and thereby give effect to the Constitution. Constitution, Art. IV, Sec. 57; State ex rel. v. Sullivan, 283 Mo. 546, 224 S.W. 333; State ex rel. v. Becker, 289 Mo. 660, 233 S.W. 641; Fahey v. Hackmann, 291 Mo. 351, 237 S.W. 752; State ex rel. v. Linville, 300 S.W. 1068; State ex rel. v. Thompson, 19 S.W.2d 647; Hollowell v. Schuyler County, 18 S.W.2d 498; Hunleth v. Leahy, 146 Mo. 408, 48 S.W. 459; State v. Hoshaw, 98 Mo. 358; Tracy v. Iron Works Co., 104 Mo. 193; Miller v. Power Co., 133 Mo. 205; State ex rel. v. Sevier, 62 S.W.2d 895. (6) The emergency clause attached to House Bill No. 23 is not a declaration of the existence of any emergency recognized by the Constitution. Constitution, Art. IV, Sec. 57; State ex rel. v. Sullivan, 283 Mo. 546, 224 S.W. 333; State ex rel. v. Becker, 289 Mo. 660, 233 S.W. 656; State ex rel. v. Linville, 300 S.W. 1068; State ex rel. v. Thompson, 19 S.W.2d 647; Hollowell v. Schuyler County, 18 S.W.2d 498; State ex rel. v. Sevier, 62 S.W.2d 895.

Roy McKittrick, Attorney-General, and John W. Hoffman, Jr., Assistant Attorney-General, for respondent.

(1) The appeal herein should be dismissed because the abstract of record filed by appellant is so defective that it does not present anything to this court for review. Harding v. Bedoll, 202 Mo. 630. (2) The circuit court having jurisdiction of mandamus proceeding has authority to determine whether petition states facts sufficient to authorize issuance of alternative writ. State ex rel. Tate v. Sevier, 68 S.W.2d 50. (3) House Bill No. 23, having a real and substantial relation to the immediate preservation of the public peace, health and safety, is not subject to the referendum. State v. Bixman, 162 Mo. 27; Austin v. State, 10 Mo. 593; State ex rel. Troll v. Hudson, 78 Mo. 302; State ex rel. v. Westhues, 283 Mo. 546; State ex rel. Lashly v. Becker, 290 Mo. 560; State v. Smith, 133 N.E. 461; State ex rel. Goodman v. Stewart, 57 Mont. 167. (4) The emergency clause attached to House Bill No. 23 is a lawful declaration of the existence of an emergency recognized by the Constitution of the State of Missouri. State ex rel. Pollock v. Becker, 289 Mo. 707; State ex rel. Troll v. Hudson, 78 Mo. 302; Cooley on Constitutional Limitations (4 Ed.) 727.

H.P. Lauf, Joseph T. Davis and Allen C. Orrick for Missouri Brewers Association, amicus curiae.

(1) Appeals in mandamus suits are allowed only if authorized by statute. Appellant cannot maintain this appeal because it was not taken within ten days after the circuit court dismissed the suit as provided by Section 10705, Revised Statutes 1929. 38 C.J. 940; State ex rel. v. Burton, 283 Mo. 41; State ex rel. v. Sutterfield, 54 Mo. 391; Sec. 10705, R.S. 1929. (2) Both the Constitution and the statutes of the State of Missouri require that referendum petitions be signed by five per cent (5%) of the legal voters in each of at least two-thirds of the congressional districts of the State. Constitution of Mo. Art. IV, Sec. 57; Sec. 10703, R.S. 1929. (3) Under the reapportionment act of Congress of June 18, 1929, the number of representatives in Congress from Missouri was reduced from sixteen (16) to thirteen (13), and from June 18, 1929, to July 24, 1933, when the law creating new congressional districts became effective, there were no congressional districts in the State of Missouri. U.S. Code, Title 2, par. 2 (a); Laws 1933, p. 249; State ex rel. Carroll v. Becker, 329 Mo. 507; Carroll v. Becker, 285 U.S. 380. (4) When the referendum petitions were presented by appellant to the Secretary of State on July 21, 1933, there were no congressional districts in Missouri, and the circuit court properly took judicial notice of the fact that the allegation in appellant's petition herein that he tendered to the Secretary of State "a petition bearing the signatures of more than five per cent (5%) of the legal voters in each of two-thirds of the congressional districts in the State of Missouri" could not be true, and properly dismissed the suit on its own motion. (5) The circuit court properly refused to issue the alternative writ because the petition failed to show that the referendum petitions had been signed and verified as required by law. 49 C.J. 583. (6) The emergency clause attached to House Bill No. 23 was valid and the Secretary of State therefore had the right to reject referendum petitions, even if such petitions had complied in all respects with the statutes relating thereto. Art. IV, Sec. 57, Mo. Const.; State ex rel. Boatmen's Bank v. Sewer District, 327 Mo. 603. (7) The provision of the Missouri Constitution excepting certain laws from the referendum includes laws enacted under those phases of the police power which are emergent, and House Bill No. 23 having been passed in the exercise of an emergent phase of the police power was properly excepted from the referendum by the passage of the emergency clause thereto. State ex rel. v. Sullivan, 283 Mo. 591; State ex rel. v. Becker, 289 Mo. 686. (8) In deciding upon the emergent character of laws the Legislature has the right to take into consideration all matters of common knowledge, and it is for the courts to determine whether, in the light of the facts known both to the Legislature and to the courts, the action in question was, in fact, an exercise of an emergent phase of the police power. State ex rel. Pollock v. Becker, 289 Mo. 684.


Mandamus. The Fifty-seventh General Assembly enacted, and the Governor approved House Bill 23 (Laws 1933, p. 256, Mo. Stat. Ann., sec. 13139a et seq., p. 4166). Thereafter and within the time provided by statute, appellant tendered to the Secretary of State for filing a petition asking that House Bill 23 be referred to the people for their adoption or rejection at the election to be held on November 6, 1934, as provided by the initiative and referendum provisions of the Constitution and statutes of the State. The Secretary of State refused to accept or file the petition so tendered.

Thereafter, on July 26, 1933, appellant filed a petition in the Circuit Court of Cole County praying said court to issue its alternative writ of mandamus commanding the Secretary of State to receive and file said referendum petition or show cause why he should not do so.

On July 29, 1933, during the May, 1933, term of said court, the court by order made and entered of record refused to issue an alternative writ and dismissed the petition. Thereafter, on August 2, 1933, during the May, 1933, term of said court, appellant filed a motion for new trial, and the cause was continued on said motion to the February, 1934, term of said court. Thereafter, on February 5, 1934, and during the February, 1934, term of said court, said motion for new trial was overruled. Thereafter, on February 15, 1934, and during the February, 1934, term of said court, on application of appellant, an appeal was granted to this court.

An appeal in this character of a case is provided for by Section 10705, Revised Statutes 1929. The pertinent part of that section reads as follows:

"If the Secretary of State shall refuse to accept and file any petitions for the initiative or for the referendum, any citizen may apply, within ten days after such refusal, to the circuit court for a writ of mandamus to compel him to do so. . . . All such suits shall be advanced on the court docket and heard and decided by the court as quickly as possible. Either party may appeal to the Supreme Court within ten days after a decision is rendered."

It is not necessary in this case to determine whether the statute providing that either party may appeal within ten days after a decision is rendered, is merely directory or mandatory. Under either view the appeal was not taken in time. A reference to the statement of facts will show that the appeal was not taken within ten days after the decision was rendered. Neither was it taken at the same term at which the decision was rendered. This being true, the appeal was not taken in time unless the motion for new trial carried the case over from the judgment term to the subsequent February, 1934, term at which the appeal was granted.

Upon an inspection of the petition for the writ, the court by order entered of record refused to issue an alternative writ and dismissed the petition. A refusal to issue an alternative writ is a holding that the petition did not state facts sufficient to authorize the issuance of the writ. Otherwise stated, it is a holding that the petition did not state facts sufficient to constitute a cause of action. A motion for new trial was not necessary to a review of such action on the part of the trial court. [State ex rel. v. Burton, 283 Mo. 41, 222 S.W. 844, and cases cited.] Where a motion for new trial is not necessary to a review of the alleged errors of the trial court, it is a useless piece of paper, it performs no function whatever, and for that reason the continuance of a cause on such a motion does not carry the case beyond the judgment term. [State ex rel. May Department Stores Co. v. Haid, 327 Mo. 567, 38 S.W.2d 44.] Such is the situation in this case.

For the reasons stated, the attempted appeal herein should be dismissed. It is so ordered. All concur.


Summaries of

Tate v. Brown

Supreme Court of Missouri
Jun 15, 1934
335 Mo. 484 (Mo. 1934)
Case details for

Tate v. Brown

Case Details

Full title:P.A. TATE, Appellant, v. DWIGHT H. BROWN, Secretary of State

Court:Supreme Court of Missouri

Date published: Jun 15, 1934

Citations

335 Mo. 484 (Mo. 1934)
73 S.W.2d 404

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