State ex rel. v. Hitchcock.

That under the terms of said section it then became the duty of the Governor, Secretary of State and the Attorney-General to redistrict it, as therein provided; and on April 18, 1911, they regularly convened in the City of Jefferson for that purpose and took up the matter of redistricting the State into senatorial districts.

This body, composed of the Governor, Secretary of State and the Attorney-General, whose duty it was to apportion the State into Senatorial districts, will hereafter be styled the "Miniature Legislature," for two reasons: first, for the sake of brevity; and, second, because they in fact constitute a legislative body for the purposes there mentioned.

That the districting of the State into legislative, senatorial, congressional and judicial districts is the exercise of legislative authority, cannot be successfully questioned. All of the authorities so hold, and it has been the uniform.practice in this and all other states, in so far as I have been able to ascertain; that, too, has been the procedure with the United States Government. That authority is akin to, and flows from the same power and authority that fixes the boundary line of the State, and subdivides the State into counties, etc.

Not only that, but the very same section of the Constitution which authorizes and empowers the Legislature proper to apportion and redistrict the State into senatorial districts, also provides for and empowers this body of three State officials to redistrict it in case the General Assembly neglects or fails to do so.

That being true, and both deriving their authority from the same source, and performing precisely the same duties, it must stand to reason, that if the labors of the General Assembly are legislative, then the work of this body must also be legislative in character.

State ex rel. v. Hitchcock.

We call the one an act of the General Assembly, the other the statement of the Miniature Legislature.

These views also find support in the cases of State ex rel. v. Patterson, 229 Mo. 373, 1. c. 382, 383, 386, 387, 388, 391 to 396; and State ex rel. v. Roach, 230 Mo. 408, 1. c. 428, 431, 433, 434, 435, 438, 439.

In the former case, in speaking of the power of the county and circuit courts to divide their counties into representative and senatorial districts, GRAVES, J., on page 288, used this language: "Neither court can act until the Legislature acts by way of an apportionment bill. Of course, as to the senatorial districts, if the Legislature fails to apportion, the apportionment may be made by other officers mentioned in section 7 of article 4 of the Constitution, which action upon their part stands in lieu of legislative action and would authorize tht circuit court in particular counties to subdivide the counties into senatorial districts. But in either event, the circuit court must act at a time when it appears that the county is entitled to more than one senator."

And in State ex rel. v. Roach, supra, in speaking of section 7 of article 4 of the State Constitution, Fox, J., on page 428, says: "It is now the settled law of this State that the senatorial districts have been divided and their boundaries specifically defined in accordance with the provisions of the Constitution last above cited, and the people of this State fully recognized the validity of such law, and in the election of their senators conformed to its provisions."

The Governor being unable to agree to the plans of apportionment as proposed and agreed to by the Secretary of State and the Attorney-General, though being present, refused to vote for or against those plans, or otherwise participate therein, for the reasons stated in the return. Thereupon the Secretary of State and the Attorney-General agreed to the apportionment set forth in the alternative writ of mandamus. They

State ex rel. v. Hitchcock.

then filed in the office of the Secretary of State a full statement of the apportionment so made by them, duly authenticated; but the Governor refused to sign said statement, or to promulgate it as is provided for by said section 7 of the Constitution, for the reason that the apportionment or redistricting was arbitrarily and unequally done, and otherwise in violation of the Constitution of the State.

The propositions thus presented involve the construction of certain portions of sections 5, 6, 7, 9, 10 and 11 of article 4 of the Constitution, relating to the apportionment of State senators.

The material parts thereof are as follows:

"Sec. 5. The Senate shall consist of thirty-four members, to be chosen by the qualified voters of their respective districts for four years. For the election of senators the State shall be divided into convenient districts, as nearly equal in population as may be, the same to be ascertained by the last decennial census taken by the United States.

"Sec. 6. When any county shall be entitled to more than one senator, the circuit court shall cause such county 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 such county may be entitled; and in each of these one senator, who shall be a resident of such district, shall be elected by the qualified voters thereof.

"Sec. 7. Senators and representatives shall be chosen according to the rule of apportionment established in this Constitution, until the next decennial census by the United States shall have been taken, and the result thereof as to this State ascertained, when the apportionment shall be revised and adjusted on the basis of that census, and every ten years thereafter upon the basis of the United States census; or if such census be not taken, or is delayed, then on the basis

State ex rel. v. Hitchcock.

of a State census; such apportionment to be made at the first session of the General Assembly after each such census; Provided, that if at any time, or from any cause, the General Assembly shall fail or refuse to district the State for senators, as required in this section, it shall be the duty of the Governor, Secretary of State and Attorney-General, within thirty days after the adjournment of the General Assembly on which such duty devolved, to perform said duty, and to file 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; said statement to be signed by them, and attested by the Great Seal of the State, and upon the proclamation of the Governor, the same shall be as binding and effectual as if done by the General Assembly.

"Sec. 9. Senatorial and representative districts may be altered from time to time, as public convenience may require. When any senatorial district shall be composed of two or more counties, they shall be contiguous; such districts to be as compact as may be, and in the formation of the same no county shall be I divided.

"Sec. 10. The first election of senators and representatives, under this Constitution, shall be held at the general election in the year one thousand eight hundred and seventy-six, when the whole number of representatives, and the senators from the districts having odd numbers, who shall compose the first class, shall be chosen; and in one thousand eight hundred and seventy-eight the senators from the districts having even numbers, who shall compose the second class, and so on at each succeeding general election, half the senators provided for by this Constitution shall be chosen.

"Sec. 11. Until the State shall be divided into senatorial districts, in accordance with the provisions

State ex rel. v. Hitchcock.

of this article, said districts shall be constituted and numbered as follows:" etc.

Counsel for relator contends that when the Miniature Legislature apportioned or redistricted the State into senatorial districts in pursuance to the mandate of the constitutional provisions previously mentioned, and filed in the office of the Secretary of State a duly authenticated statement thereof, said statement became as effective as if it had been done by the Legislature itself, and that the statement so filed became an act of legislation, or statutory in character; that under said section 6 of the Constitution it is just as much the duty of the judges of the circuit court of the city of St. Louis to subdivide the city into six senatorial districts, as if the redistricting of the State had originally been made by an act of the General Assembly instead of by the statement of the Miniature Legislature; and that for all intents and purposes the statement of the latter was and is just as binding as would have been the act of the former; and that mandamus is the proper procedure to compel said judges to perform that duty.

The following among other authorities are cited and relied upon to support this contention: State ex rel. v. Higgins, 125 Mo. 364, 1. c. 366-8; State ex rel. v. Patterson, 229 Mo. 364-369; State ex rel. v. Patterson, 229 Mo. 373; People ex rel. Baird v. Supervisors, 138 N. Y. 95, 115; State ex rel. v. Smith, 105 Mo. 6, 9; State ex rel. v. Field, 107 Mo. 445; State ex rel. v. Jones, 155 Mo. 576; State ex rel. v. Smith, 172 Mo. 446, 459; State ex rel. v. Broaddus, 207 Mo. 107, 121-2; State ex rel. v. Turner, 210 Mo. 77; State ex rel. v. Neville, 157 Mo. 386; State ex rel. v. McCammon, 111 Mo. App. 626; and many others.

Counsel for respondents, generally speaking, do not controvert the correctness of the legal propositions stated in the contention of counsel for the opposition, but concede the law to be, as an abstract legal proposition, as it is there stated by counsel for