State ex rel. Halliburton v. Roach

ON MOTION TO DISMISS.

FOX, C. J.

On July 11, 1910, Mr. Walter S. Dickey, through his attorneys, asked leave to file-a motion to dismiss this proceeding. This leave, was granted, and the motion to dismiss was, in accordance with the directions of this court, duly filed by the clerk.

We have given to this motion, as well as the suggestions in support of it, our most careful consideration. In our opinion this court has jurisdiction of this proceeding.

Counsel for Mr. Dickey urge," first, that this is a collusive or moot case and is not founded upon any real or existing controversy between the relator, John W. Halliburton, and the respondent, Cornelius Roach. It is sufficient upon that proposition to say that Mr. Halliburton is a citizen of this State and a qualified voter, and notwithstanding he may not have signed the petitions as presented by Mr. Dickey to the Secretary of State, yet as a citizen and a voter he has as much interest and the same right- to institute this proceeding as any citizen who may have signed such petitions. As to this proceeding being a moot case there is nothing upon the face of the proceeding to indicate such fact, and the motion that alleges that it is a moot case has not been sworn to by either Mr. Dickey or *422 Ms counsel. But aside from all tMs it is perfectly manifest that this is a live proceeding — one of vital importance to the people of this State, and should he determined as speedily as possible. If under the Constitution and laws of this State, the petition should he filed and the question of the amendment to the Constitution dividing the State into senatorial districts he submitted to the vote of the people of Missouri at the nest general election, then this court, upon the hearing of this cause, will unhesitatingly so declare. On the other hand it necessarily follows that if under the Constitution and laws of this State there is no authority for submitting such constitutional amendment, this court will so announce such conclusion.

Second. As heretofore indicated, in our opinion the relator, Mr. Halliburton, in this proceeding, being a qualified voter, has such an interest as a citizen of this State as to authorize him to maintain this cause.

Third. Under the Constitution of this State, article 6, section 3, this court has original jurisdiction in mandamus proceedings to compel administrative State officers to perform administrative and ministerial acts, and the mere fact that the statute (Laws 1909, pages 554 to 564), provides for an application by any citizen to the Cole County Circuit Court, falls far short of depriving this court of the jurisdiction conferred upon it by the Constitution of this State. In fact it was unnecessary for the Legislature to make the provision that any citizen might maintain a suit by mandamus in the Cole County Circuit Court, for the reason that that could he done in the absence of any statute; the Secretary of State residing here, the Cole County Circuit Court would have jurisdiction of a proceeding of that character.

Entertaining these views the motion will be overruled ; however this being a question of such vital importance we most cheerfully give our consent to counsel for Mr. Dickey to file briefs and make oral argument *423 in this proceeding at 9 o’clock a. m. Oh Tuesday, the 19th of July.

Gantt, Burgess, Woodson and Graves, JJ., concur; Valliant and Lamm, JJ., absent.

ON MERITS.

FOX, C. J.

This is an original proceeding in this court in which it is sought by the relator, John W. Halliburton, to have this court issue its peremptory writ of mandamus against the Secretary of State, the_ respondent, compelling him to file certain petitions presented to him, submitting an amendment to the Constitution at the next general election in this State.

The petition alleges that the relator, John W. Halliburton, is a resident taxpaying citizen of Jasper county and a qualified voter in the present Twenty-Eighth Senatorial District of Missouri; and that respondent, Cornelius Roach, is the Secretary of State of the State of Missouri. It is also alleged in the petition that on July 7, 1910, Walter S. Dickey and Rush C. Lake presented a large number of petitions for a proposed amendment to the Constitution, to be voted upon at the next general election, in pursuance of the present initiative amendment to the Constitution. It is alleged in the petition that there was the necessary number of petitioners from filie various portions of the State to authorize the filing of the petitions.

The initiative petitions as filed by Walter S. Dickey and Rush C. Lake, in part are as follows:

“To the Honorable Cornelius Roach, Secretary of the State of Missouri:

“We, the undersigned, citizens and legal voters of the State of Missouri, and county of —— --, respectfully demand that the following proposed amendment to the Constitution of Missouri, shall 'be submitted to the legal voters of the State of Missouri, for their approval or rejection, at the regular general election to be held on the 8th day of November, A. D. *424 1910, and each for himself says: I have personally signed this petition; I am a legal voter of the State of Missouri and of the county of-- — ; my residence and postoffice are correctly written after my name.” (Here follow signatures).

The proposed amendment, leaving out the description and boundaries of the proposed new senatorial districts sought to he created thereby, reads:

' “Proposed Amendment to the Constitution of Missouri.

“To he submitted to the legal voters of the State of Missouri for their approval or rejection at the regular general election to he held on the Tuesday next following the first Monday in November, A. D. 1910, providing for striking out and annulling section 11 of article 4 of the Constitution of Missouri, and enacting and adopting a new section, to he known as section 11 of article 4, which is in words and figures as follows:

‘‘ Section 11, Article 4. The senatorial districts of the State shall hereafter he constituted and numbered as follows:......

“This division of the State into senatorial districts shall continue until the United States census of 1920 shall have been taken and the result thereof as to this State ascertained, when the districts shall, by a law enacted by the people or passed by the General Assembly, he revised and adjusted on the basis of that census, and every ten years thereafter, upon the basis of the United States census, the districts shall he revised and adjusted by a law enacted by the people or passed by the General Assembly.”

By appropriate averments it is charged in the petition by the relator that the petitions as presented by Mr. Dickey and Mr. Lake, as herein indicated, were presented to the Secretary of State with the request that they be filed in accordance with the statute authorizing the filing, and that the Secretary of State refused to file the same.

*425 This court, upon the petition as presented hy the relator, issued its alternative writ of mandamus returnable on the 19th day of July, 1910. In the interim between the issuance of the alternative writ and the return day of such writ Mr. Walter ,S. Dickey, through his counsel, asked leave to file a motion to dismiss this proceeding. This motion, upon the direction of the court, was filed by the clerk, and, after due consideration, was overruled, for the reasons as indicated in the opinion filed, which is officially reported in connection with this opinion.

Respondent, Cornelius Roach,” through the Attorney-General, has filed a return to the alternative writ-awarded by this court, in which return numerous grounds are assigned in support of the action of the Secretary of State why said petitions by the initiative tendered by Mr. Dickey and Mr.-Lake should not be filed. We do not deem it essential to encumber this statement hy setting out in detail the different reasons assigned by the respondent in support of his action in declining to file the petitions. The grounds assigned in the return of the respondent will be given such' attention during the course of the opinion as their importance demands and merits.

Upon the invitation of the relator, and with the consent given by this court, counsel for Messrs. Dickey and Lake have joined with the relator in the presentation of the questions involved in this proceeding, and •have filed a motion for judgment upon the pleadings.

This sufficiently indicates the nature and character of this controversy to enable us to determine the legal propositions disclosed by the record before us.

OPINION.

The record before us in this proceeding instituted by the relator discloses two controlling propositions which are submitted-to us for consideration.

*426 First: ■ Were the petitions as presented to the respondent, Secretary of State, legally sufficient to authorize the submission to the voters of this State of an amendment to or change in the organic law (the Constitution) of this State? Or, in other words, do the petitions embrace in fact a demand for the submission of a constitutional amendment within the contemplation and purview of the initiative amendment adopted in this State in November, 1908, as well as the legislation approved June 12, 1909, providing for' the carrying out of such initiative amendment to the Constitution?

Second: Under the provisions of the initiative amendment to the Constitution and the legislation enacted by the General Assembly of this State, approved June 12, 1909, can the respondent, the Secretary of State, if the subject-matter as embraced in the petitions does not fall within the purview of the initiative and referendum amendment to the Constitution, as well as the legislation enacted for the purpose of carrying out the provisions of such constitutional amendment, decline to accept and file the petitions as presented by Messrs. Dickey and Lake? In other words, has the Secretary of State a discretion where the subject-matter of the petitions is foreign to what was contemplated by the initiative and referendum amendment to decline to file such petitions?

These are the propositions with which this court is confronted. The questions presented are purely questions of law and the rules applicable to the interpretation of constitutional and statutory provisions should not and will not be extended or relaxed for the purpose of reaching a conclusion either making the writ peremptory or absolutely denying it; but the correct solution of the important propositions which are presented for our consideration must be sought alone by the fair, impartial and reasonable interpretation of the initiative provisions of the Constitution and the *427 legislation duly passed by the General Assembly in reference to carrying ont its provisions.

I.

Directing onr attention to the first proposition in reference to the nature and character of the petitions as presented to the Secretary of State for acceptance and filing by Messrs. Dickey and Lake, and as to whether or not, upon the face of such petitions, an amendment to the Constitution of this State is sought to be voted upon by the people at the next general election, it is well to keep in mind the initiative and referendum provision of the Constitution adopted by the people in 1908, as well as the legislation passed by the General Assembly by an act approved June 12, 1909, providing for the carrying out of the provisions of such initiative amendment.

Again, in the correct solution of this proposition the Constitution and law of this State as it exists now must not be overlooked, for the reason that it is the changing of the Constitution and law as it now exists applicable to the division of this State into senatorial districts that was uppermost in the minds of those-who presented for acceptance and filing the petitions to the respondent.

Section 7 of Article 4 of the Constitution, which is now in force, provides:- “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 of a State census; such apportionment to be made at the first session of the General Assembly after each such census: Provided, that if *428 at any time, or from any canse, 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.”

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.

This leads to the inquiry as to the course to be pursued in order to change the manner and method of dividing the senatorial districts of this State. Directing our attention to the initiative amendment to the Constitution adopted at the election held November 3, 1908, we find that the people of this State ratified an amendment to the Constitution which provided a different method by which amendments to the Constitution might be voted upon and by which laws might be enacted. This amendment to the Constitution substantially provides that the legislative authority of the State shall be vested in a legislative assembly, consisting of a Senate and House of Representatives, but the people reserve to themselves power to propose any' measure, either laws or amendments to the Constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and *429 the power was also reserved to the people to approve or reject at the polls any act of the legislative assembly. This amendment also provided for a certain per cent of the legal voters in each of at least two-thirds of the congressional districts in the State to sign petitions for the submission of amendments to the Constitution or laws that were desired to be enacted. It will be observed that this constitutional amendment expressly required that the petitions should include the full text of the measure so proposed. In other words, the initiative amendment adopted in 1908 requires that if an amendment to the Constitution is desired the full text of that amendment shall be embraced in the petition; or if a law is to be enacted by the initiative the full text of the measure shall also be incorporated in the petition. It will also be observed that the initiative amendment to the Constitution of 1908 expressly provides that “this section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure.” In other words, if by the initiative a law was adopted by a vote of the people, this would not prevent any member of the Legislature from introducing a measure and having it passed, if he could secure the sufficient number of votes, to repeal such law and enact certain other measures in substitution for those repealed.

This brings us to the consideration of the petitions as presented for acceptance and filing to the Secretary of State. While these petitions are named and called a “proposed amendment to the Constitution of Missouri,” yet we take it that the allegations of the petitions and what is shown upon the face of them must finally determine their nature and character, that is, whether or not it is in fact an amendment to the Constitution or is purely a legislative act. The petitions in substance suggest a proposed amendment to the Constitution of Missouri “to be submitted to the legal voters of the State of Missouri for their approval or rejection, *430 at the regular general election to be held on Tuesday next following the first Monday in November, A. D. 1910, providing for striking out and annulling section 11 of article 4 of the Constitution of Missouri, and enacting and adopting a new section, to be' known as section 11 of article 4, which is in words and figures as follows:” Then follows the new section of the Constitution, styled section 11 of article 4, that “the senatorial districts of this State shall hereafter be constituted and numbered as follows:” Following this is a designation of the counties which shall constitute the new division of the senatorial districts, and following this the proposed constitutional amendment says that “this division of the State into senatorial districts shall continue until the United States census of 1920 shall have been taken and the result thereof as to this State ascertained, when the districts shall, by a law enacted by the people, or passed by the Genera] Assembly, be revised and adjusted on the basis of that census, and every ten years thereafter upon the basis of the United States census, the districts shall be revised and adjusted by a law enacted by the people or passed by the General Assembly.”

That this proposed constitutional amendment is but a purely legislative enactment, in our opinion, is too plain for argument, and will only require a moment’s consideration to convince’ the most skeptical upon that subject. In the first place these petitions contain the remarkable provision “providing for striking out and annulling section 11 of article 4 of the Constitution of Missouri.” It is but common knowledge that section 11 of article 4 of the Constitution of Missouri was self-terminating and has had no existence since the year 1881. It was embraced in the Constitution, as is well known, for a temporary purpose, and its existence was limited until appropriate provisions could be made for the organization of the State into proper senatorial districts. Then follows what is *431 termed a proposed constitutional amendment, which, consists of a mere division of the State into senatorial districts in a different method from that existing under the Constitution and laws of this State. In other words, it is sought by the petitions, as presented to the Secretary of State, to enact a law dividing the senatorial districts in a different way from that in which they are divided under the present existing law. Not one word is suggested in the petitions as to any change or amendment to section 7 of article 4 of the Constitution of this State, which fully provides how the senatorial districts shall be divided; hence we have, if the contentions of learned counsel presenting this case for the relator are maintained, the anomalous proposition that while the power to divide the senatorial districts in this State is lodged in section 7 of article 4 of the Constitution, yet by a purely legislative enactment such power as is lodged iu the constitutional provision might be taken away by a legislative enactment providing for the exercise of power, and absolutely dividing this State into districts without any change whatever or amendment to the constitutional provision.

Manifestly -before the senatorial districts can be divided in the manner as suggested in the so-called proposed constitutional amendment, section 7 of article 4 of the Constitution of this State must be amended and so changed as to authorize, by the initiative, the people at the polls to divide the senatorial districts. Section 7 of article 4 of the Constitution, in addition to providing how the senatorial districts shall be divided, expressly provides that the apportionment shall be revised and adjusted every ten years upon the basis of th$ United States census, or if such census be not taken, or is delayed, then on the basis of a State census; such apportionment to be made at the first session of the General Assembly after each such census. Clearly it will not be seriously contended that the senatorial districts might be altered and changed in the manner *432 suggested by the so-called amendment to the Constitution without first submitting to the people of the State an amendment to section 7 of article 4 of the Constitution. which expressly provides how the senatorial districts shall be divided. If this can be done we again have the anomalous proposition that upon the day of the election we have a Constitution (section 7, article 4) in full force, providing how the senatorial and representative districts shall be divided, and without a single change in the constitutional provision, or a single suggestion as to a different method of dividing the senatorial and representative districts, and without any vote by the people under the initiative making any change in the constitutional provision, or any canvass or return of such vote, an absolute exercise of the right to divide the State into senatorial districts. Manifestly, as heretofore stated, 'the right to alter and change the senatorial districts as suggested in this so-called proposed constitutional amendment could not possibly attach until it was ascertained that section 7 of article 4 of the Constitution of this State had been amended and that such amendment was ratified or adopted upon a proper canvass and return of the votes. In other words, the exercise of the power by the initiative to alter and divide the senatorial districts by a legislative enactment cannot have the force and effect of dislodging the power vested by the Constitution under section 7 of article 4, providing for the apportionment of senatorial districts. Before the power to alter and divide the senatorial districts can be exercised there must be an appropriate amendment to the Constitution dislodging the power to so divide and alter such districts under the present Constitution and laws of this ¿State.

The line of demarkation between a constitutional amendment and a purely legislative act is well defined. That eminent author, Mr. Story, in his 1st volume, section 339', thus gives expression to his views as to the meaning of a Constitution.’ It is there said : “A Con *433 stitution is in fact a fundamental law or basis of government.....It is a rule, as contradistinguished from a temporary or sudden order; permanent, uniform, and universal.” The Supreme Court of the United States, in Ware v. Hylton, 3 Dall. 199, used this language: “A constitution of a State is a fundamental law of a State.” Constitutional provisions and amendments to the Constitution relate to the fundamental law and certain fixed first principles upon which government is founded. Constitutions are commonly called the organic law of a State. The purpose of constitutional provisions and amendments to the Constitution is to prescribe the permanent framework and a uniform system of government, and to assign to the different departments thereof their respective powers and duties.

In Livermore v. Waite, 102 Cal. l. c. 118, the meaning of the term “constitution” was clearly pointed out, and it was there said: “The very term ‘constitution’ implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a' like permanent and abiding nature.”

The distinction between constitutional provisions and legislative acts is distinctly and clearly recognized by the initiative and referendum amendment to the ■ Constitution, for it is there that we find express provisions for the proposal and adoption of legislative measures as well as amendments to the Constitution. The distinction between legislative acts and constitutional provisions or amendments to the Constitution is clearly emphasized when we consider their force and effect after being adopted through the initiative, as provided by the Constitution. A legislative act, as distinguished from a constitutional amendment which *434 is adopted through the initiative, has only the force and effect of a statute enacted by the Legislature, and is subject to and may be repealed by the lawmalring power — the Legislature; but when an amendment to the Constitution is adopted by the same method, that is, through, the initiative, its force and effect is entirely of a different nature and character for the reason that it is not subject to and cannot be repealed by the Legislature. A constitutional provision or amendment applicable to redistricting the senatorial districts of this State simply points out a plan or method for such redistricting, and prescribes permanent rules and principles for carrying out such method or plan. On-the other hand, the matter of actually redistricting is a subject of a very temporary character. It is well known that population forms the basis of fixing the boundaries of senatorial districts, and these districts must be altered and changed in harmony with the changes that are constantly going on in population, and it was never contemplated under our present constitutional scheme to incorporate as a part of the permanent and fundamental law of the State a provision which must of necessity demand frequent alterations and changes. The petitions themselves as presented to the respondent clearly indicate that the so-called constitutional amendment is nothing more nor less than a temporary legislative act. After pointing out the respective counties that shall constitute the senatorial districts, it expressly avers that “this division of the State into senatorial districts shall continue until the United States census of 1920 shall have been taken and the result thereof as to this State ascertained.” Following this is an express allegation that after the result of the United States census of 1920 shall have been ascertained, the districts as divided under this so-called constitutional amendment shall, “by a law enacted by the people, or passed by -the General Assembly, be revised and adjusted on the *435 basis of that census, and every ten years thereafter, upon the basis of the United States census, the districts shall be revised and adjusted by a law enacted by the people or passed by the General Assembly.”

Manifestly these allegations mark this so-called constitutional amendment as purely a legislative act. The life of this so-called constitutional amendment is limited to a comparatively short period, that is to say, until 1920, and then the power to revise and adjust the districts on the basis of the United States census of 1920 is again restored to the Legislature or the people under the initiative amendment. In'other words, the constitutional provision now in force, section 7, of article 4, delegating the power to divide and define the senatorial districts by this so-called proposed constitutional amendment, is completely repealed and annulled without the faintest suggestion- or intimation in this so-called proposed amendment that the present Constitution, now in full force, is to be amended in any way or repealed or annulled. This clearly indicates the temporary character of the measure proposed, as well as its purpose to get rid of the present constitutional provision by the enactment of a law, called a constitutional amendment. This cannot be done without a compliance with the initiative amendment which expressly requires the full text of the amendment to the Constitution to be included in the petition. "We, therefore, repeat that the petitions in this case do not propose, within the purview- of the Constitution and laws of this State, an amendment to the Constitution.

Obviously in determining the nature and character of the measure proposed in the petitions presented to the respondent we must look to the subject-matter with which they deal. The mere calling it an amendment to the Constitution, unless the subject-matter verifies the correctness of that name, is not binding either upon the respondent or upon this court. As heretofore indicated, a mere play upon words and the providing for *436 the striking ont and annulling of section 11 of article 4 of the Constitution of Missouri, a section of the Constitution that has had no life or vitality for over a quarter of a century, cannot have the force and effect of making the proposal a constitutional amendment.

As heretofore stated, section 11 of article 4 was inserted in the Constitution of. 1875 for purely a temporary purpose. It was inserted to meet a temporary necessity and provide a temporary arrangement until the legislative measure provided by the Constitution could be placed in operation and make provision for the accomplishment of the purpose especially assigned to it upon the subject of forming the senatorial districts. The fact that section 11 of article 4 was placed in the Constitution of 1875 for a temporary purpose and that such purpose was clearly indicated by the makers of the Constitution,- emphasizes the view that the makers of the Constitution fully recognized the legislative nature of the act of redistricting which from necessity had to be incorporated in the Constitution. The life of this legislative section was limited to the time when legislative action could be taken in pursuance of a plan and method for dividing the senatorial districts in pursuance of a permanent provision of the Constitution which is in force at the present time.

The rules and principles applicable to the submission of constitutional amendments to the voters of .this State are applicable alike to amendments proposed to the Constitution under the initiative and referendum amendment or amendments to the Constitution proposed by the General Assembly of this State. Whichever course is pursued in submitting the amendment it must in fact be an amendment to the Constitution. If submitted through the initiative, manifestly that provision contained in the initiative and referendum amendment that “the petition shall include the full text of the measure so proposed,” must be complied with. In other words, if it is truly an *437 amendment to the Constitution the full test of the amendment and what provision of the Constitution it undertakes to amend must be embraced in the petition. If submitted by the General Assembly manifestly the resolution submitting a constitutional amendment must embrace the full test of the amendment sought to be adopted.

As heretofore stated we have in force at the present time, section 7 of article 4 of the Constitution of this State prescribing the plan and method of redistricting the senatorial districts. If the contentions of learned counsel associated with the relator in this proceeding are to be maintained then the result of the proposed constitutional amendment must be to- repeal section 7 of article 4 of the Constitution of this State, as well as dislodge the power delegated by such provision of the Constitution to the General Assembly to make the division of senatorial districts in this State. This manifestly is the purpose sought, yet we have what is denominated a constitutional amendment that makes no reference whatever to any change or alteration in the provision of the. Constitution which is in force now and which specifically treats of the subject with which the so-called proposed constitutional amendment deals. If this is the purpose, and beyond dispute it is, then in our opinion it must logically follow that the so-called proposed constitutional amendment is not an amendment to the Constitution within the purview of the provisions of the initiative and referendum provision of the Constitution, and deals with a subject that is entirely foreign to the subject of an amendment to the provision of the Constitution which treats of the matter of dividing the senatorial districts in this State.

If the petitioners or those presenting the petitions to tbe respondent desire to change the method of redistricting this State into senatorial districts under and through the provisions of the initiative and refer *438 endura amendment to the Constitution, the course to he pursued is plainly marked by the initiative provision— as provided.by the initiative provision, they must include in such petitions the full text of the measure so proposed. In other words, as applicable to this subject, they must include in the petitions the full text of the amendment that is desired to be made as to section 7 of article 4 of the Constitution of this State changing and altering the method and plan of redistricting the senatorial districts, and instead of delegating the power to the General Assembly, and in the event of its failure to perform the duty to certain designated officials, .that such districts shall be divided by a law enacted through the initiative and referendum providing for the division of such senatorial districts. After having amended the Constitution in this manner then the way is perfectly clear to propose through the initiative, not a constitutional amendment, but a legislative act dealing with the subject of dividing and defining the boundaries of the senatorial districts in this State. This course, which is clearly contemplated by the initiative and referendum amendment, was not pursued in the petitions presented to the respondent, but instead of including in their petitions the full text of a constitutional amendment, as heretofore indicated, there are presented to the respondent petitions denominating the subject a proposed constitutional amendment, which, in our opinion, is nothing more nor less than an effort to enact a purely legislative act providing for the exercise of a power which is otherwise delegated under the Constitution and laws of this State. As heretofore stated, the measure proposed is entirely foreign to an amendment to the Constitution which deals with the subject embraced in the petitions presented. The initiative and referendum amendment to the Constitution speaks of laws and amendments to the Constitution. Manifestly those terms are used in their plain and ordinary sense, and- in our opinion the *439 petitioners have no right to undertake to put in the Constitution, which is regarded as the organic and permanent law of the State, mere legislative acts providing for the exercise of certain powers.

We are unwilling to give our assent to the contention that these petitions should have been accepted and filed, whether or not they were applicable to a subject or a matter contemplated by the initiative and referendum.

II.

This brings us to the consideration of the second proposition, that is, can the respondent, the Secretary of State, under the provisions of the initiative amendment to the Constitution and the legislation enacted by the G-eneral Assembly of this State, approved June 12, 1909, if the subject-matter as embraced in the petitions does not fall within the purview of the initiative and referendum amendment to the Constitution, as well as the legislation enacted for the purpose of carrying out the provisions of such constitutional amendment, decline to accept and file the petitions as presented by Messrs. Dickey and Lake? In other words, has the Secretary of State a discretion, where the subject-matter of the petitions is foreign to what was contemplated by the initiative and referendum amendment, to decline to file such petitions?

Directing our attention to this proposition, it is sufficient to say that we have fully indicated our views in the first paragraph of this opinion that the petitions as presented to the respondent, Secretary of State, for acceptance and filing, by Mr. Walter S. Dickey, were not in fact the presentation of a petition by and through the initiative amendment to the Constitution of a proposed amendment to the Constitution, and that such petitions under the guise of presenting a constitutional amendment in fact simply presented a legislative act. Hence, in our opinion, the petitions pre *440 sented to the respondent for acceptance and filing did not present a constitutional amendment within the purview of and as contemplated by the initiative and referendum amendment to the Constitution. In other words, the petitions are not legally sufficient for the reason, not only that the subject dealt with in the petitions is not the proposal of a constitutional amendment, but for the further reason that the petitions do not include, as is expressly provided in the initiative and referendum amendment, the full text of any measure which can be construed to be an amendment to the Constitution dealing with the subject of dividing this State into senatorial districts, and in our opinion the respondent was not authorized to file such petitions, and his action finds full support in the reasons herein indicated, and upon the additional ground that the proposed measure is entirely foreign to a constitutional amendment dealing with the subject of dividing this State into senatorial districts.

Our, conclusions upon this proposition, to which we have heretofore given expression, are not based upon the idea that has been suggested in this proceeding that the Secretary of State can pass upon-the constitutionality' or unconstitutionality of certain legislation, but upon the broad ground that the measure as proposed is in fact and in truth not a constitutional amendment and the full text of a proposed measure which can in any way be construed to be a constitutional amendment is not, as expressly provided by the initiative and referendum amendment, embraced or included in the petitions as presented to the respondent. That the legal sufficiency of the petitions as presented to the Secretary of State is under the supervision of the courts dealing with the subject is fully recognized by the provisions of section 4 of the Act of the General Assembly concerning the filing of petitions, approved June'12, 1909. This section provides: “If the Secretary of State shall refuse to accept and file *441 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. If it shall be decided by the court that such petition is legally sufficient, the Secretary of State shall then file it, with a certified copy of the judgment attached thereto, as of the dale on which it was originally offered for filing in his office. On showing that any petition filed is not legally sufficient, the court may enjoin the Secretary of State and all other officers from certifying or printing on the official ballot for the ensuing election the ballot title and numbers of such measure. 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. The circuit court of Cole county shall have jurisdiction in all such eases.” [Laws 1909', p. 556.]

It does not furnish a satisfactory answer to this proposition to say that the term “legal sufficiency” of the petition, as embraced in section 4, above quoted, is to be limited alone to the sufficiency of the number of signers to the petitions and their qualifications to sign; its legal sufficiency must be determined by the entire petition. In fact it is manifest that the initiative and referendum amendment expressly requires that the full text of the measure shall be included in the petition, with the view that the signers of the petition may have full knowledge of what they are signing and that the Secretary of State upon the presentation of the petition may determine whether or not the measure embraced in the petition is such a measure as falls within the purview of and.is contemplated by the initiative and referendum amendment. The provisions of section 4 can only be construed as meaning what the plain terms of the statute indicate. The statute itself in no way undertakes to limit the application *442 of the term “legal sufficiency,” and the statute making no limitations that term must he applied in harmony with the fully recognized rule of determining the sufficiency of an instrument — that is, in determining its sufficiency the entire instrument must he looked to.

We have implicit confidence in the intelligence of the people of this State and are unable to reach the conclusion that, when they adopted the initiative and referendum amendment in 1908 as a part of the organic law of this State, they contemplated that petitions might be presented upon any and all subjects regardless of whether or not they fall within the class of subjects contemplated by the initiative amendment, such as in fact would constitute constitutional amendments and laws desired to be enacted through the initiative and referendum.

There is no controversy in this proceeding as to the validity of the initiative and referendum amendment to the Constitution, but we are unwilling to say that the office of Secretary of State shall be made the dumping ground of petitions of every nature and character which in fact do not fall within the purview of the initiative amendment; nor was it ever contemplated by the people that such petitions should be filed when such amendment to the Constitution was adopted and ratified.

As stated in the first paragraph of this opinión it will not answer satisfactorily the requirements of the law to merely name a proposition a constitutional amendment. Its nature and character must be determined by the subject-matter with which the petition deals.

We are of the opinion,- as is expressly stated by the statute, that the legal sufficiency of the petitions presented are matters subject to review by the courts having jurisdiction of the questions. It was conceded in oral argument by learned counsel presenting this *443 case upon the part of the relator that the opinion of this court in which it was announced that under the Constitution this court had jurisdiction of mandamus proceedings of this character, was correct, therefore we take it that this court might rightfully assume jurisdiction of the matters involved in this proceeding and determine the propositions presented for onr consideration.

In reaching the conclusions upon the propositions as discussed in the first and second paragraphs of this opinion we are not unmindful of the authorities to which our attention has been directed hy learned counsel for relator. We have carefully considered all of the citations, hut limiting this opinion within reasonable hounds prevents giving expression to our full review of the authorities cited.’ It is sufficient to say that, after a full and careful consideration of all the authorities cited hy learned counsel which in any way tend to support their contentions, the constitutional provisions and the laws with which the court in the cases •cited were dealing, clearly distinguish them from the case at bar; therefore, they furnish no support to the contentions so earnestly urged hy the learned counsel upon the propositions involving the interpretation of the initiative and referendum amendment to the Constitution of this State and the Act of the G-oneral Assembly approved June 12, 1909, which was passed in aid of carrying out the provisions of the initiative and referendum amendment. A careful analysis of the authorities cited by counsel for relator clearly demonstrate that they are entirely dissimilar to the propositions with which we are confronted.

If hy calling a measure in a petition filed with the Secretary of State a proposal for a constitutional amendment, regardless of whether or not the subject-matter proposed is entirely foreign to the subject of an amendment to the Constitution, is all that is required to deprive the Secretary of State of the authority of de *444 dining to file sneli a petition, then we confess that at this advanced age of our civilization and with the experience of three-quarters of a century in the administration of the government of this State we have truly reached an extremely novel and most remarkable position in the administration of the affairs of this great commonwealth.

"We have given expression to our views upon the two leading and controlling propositions disclosed by the record in this proceeding, which results in the conclusion that the respondent, for the reasons herein indicated, properly declined to file the petitions as presented by Mr. Dickey, and that the peremptory writ of mandamus should be denied and the alternative writ quashed, and it is so ordered.

Gantt and Burgess, JJ., concur; Graves, J., concurs in separate opinion; Lamm, J., dissents; Woodson, J., dissents in separate opinion; Valliant, J., absent.