Scott v. Kirkpatrick , 513 S.W.2d 442 ( 1974 )

Per Curiam:

This is a declaratory judgment action involving the question of whether the signers of an initiative petition proposing an amendment to the state constitution are required to be registered voters. The trial court held they are not. We hold they are, and reverse.

Theodore G. Scott, et al. (plaintiffs), residents and interested persons, allege in their petition that they seek to circulate and secure signatures of legal voters on an initiative petition proposing an amendment to the state constitution which would increase the revenue of the state conservation commission; that the secretary of state (defendant) has informed them that he will, on advice of counsel, refuse to accept for filing or to certify for inclusion on a ballot any proposition for amendment of the constitution proposed by initiative unless the number of signatures required by law on the petition are the signatures of registered voters; that defendant has stated that § 27¹ of Act 139 ² of the first regular session of the 77th General Assembly requires that he take this position and he will continue to do so. Defendant admits these allegations, but states that he does not rely solely on § 27.

Plaintiffs further allege, and they contend on this appeal: (1) that correctly construed, the language of § 27, supra,³ “does not prohibit ‘legal voters’ who are nonregistered from * * * signing and being counted in the total of signatures required by law on initiative * * * petitions,” but permits those not registered to sign and their signatures to be counted in the total number required for such petitions; (2) that if defendant’s interpretation is correct, then § 27 is unconstitutional, because (a) it would be in violation of Article III, §§ 49 and 50 of the constitution⁴ authorizing “legal voters” to sign such petitions; and (b) it would be in violation of Article III, § 23, requiring that no bill contain more than one subject clearly expressed in its title; (3) that any law providing that registered voters only may sign initiative petitions would be and is unconstitutional, because it is in violation of Article III, §§ 49 and 50; and (4) that the trial court correctly ruled that Act 139 does “ * * * not prescribe or purport to prescribe whether the signers of initiative * * * petitions must be registered voters.”

The prayer of plaintiffs’ petition was that the court by its judgment declare (1) that the correct construction of § 27 of Act 139 is that “voter” means either registered voter or legal voter, or, failing in that, that § 27 be declared unconstitutional; (2) that signers of initiative petitions need not be registered voters; (3) that legal voters may sign initiative petitions; and (4) that defendant be directed to certify for inclusion on a ballot a proposition for amendment of the constitution where the required number of signatures presented on an initiative petition are those of legal or registered voters or both.

Defendant admits that he will refuse to certify for inclusion on a ballot an initiative proposition to amend the constitution unless the number of signatures required by law on the petition be those of registered voters. He denies the conclusions of plaintiffs’ petition and, praying for a judgment in his favor, asserts in his answer, and he contends on this appeal, that the effect of Act 139, interpreted and considered in context with applicable provisions of the constitution and other statutes, is to provide that the signatures of registered voters only may be counted in determining whether an initiative petition has the number of signatures required by law.

We have the view, as did the trial court, that § 27 of Act 139 has no application to, and therefore could have no influence upon the decision of, the question presented in this case. Hence, it would serve no purpose to construe that section. It necessarily follows that we may not consider the attack made upon its constitutionality. However, we do not agree that State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S. W. 327 (banc 1920) followed and relied upon by the trial court, and heavily relied upon by plaintiffs in their brief and argument, controls our decision. Other sections of the statutes implementing applicable sections of the constitution lead logically to the conclusion we have reached, particularly § 126.151, RSMo Supp.1971, which provides who may sign initiative and referendum petitions.

Article VIII, § 2,⁵ of the constitution states the general qualifications of voters as follows: “ * * * citizens of the United States * * * over the age of twenty-one ⁶ who have resided in this state one year, and in the county, city or town sixty days next preceding the election at which they offer to vote * *

Article VIII, § 5, of the constitution states that “[registration of voters may be provided for by law.” As indicated, Act 139 (§§ 114.011 through 114.146 and § 1.-035, RSMo Supp. 1973, V.A.M.S.) and the statutes applicable to registration in cities and counties having a board of election commissioners⁷ provide for the registration of voters and implement this article and section of the constitution.

Article III, §§ 49 through 53, of the constitution provide for the initiative and referendum. Section 50 provides, insofar as pertinent to this case, that “[initiative petitions proposing amendments to the constitution shall be signed by eight percent of the legal voters in each of two-thirds of the congressional districts in the state ‡ * ⅜ ”

Chapter 126, RSMo 1969; V.A.M.S., implements the initiative and referendum sections of Article III. Section 126.011(2), RSMo Supp.1971, V.A.M.S., defines “qualified voter” as “one who is qualified to vote under the provisions of section 111.021, RSMo [1969, as amended V.A.M.S.].”

Section 126.151, supra, in pertinent part, states: “Every person who is a qualified voter of the state of Missouri may sign a petition for the * * * initiative of any measure on which he is legally entitled to vote. * * We have the view that this section of the Chapter of our statutes on Initiative and Referendum states very clearly those who may sign initiative petitions, and that not only does it not offend against, but, on the contrary, properly implements and supports applicable constitutional provisions. Neither it nor the laws requiring registration of qualified voters are subject to the charge that they are unconstitutional on the ground they add to the qualifications a voter must meet.

Simply stated, § 126.151 says that any person may sign an initiative petition who is a qualified voter and who at the time it is presented to him is legally entitled to vote on the measure it proposes.

Who is a qualified voter legally entitled to vote? He is a person who meets both the qualifications prescribed by Article VIII, § 2, and the requirement of §§ 114.011 through 114.146 and the statutes referred to in footnote 7, that he be registered to vote. As stated, with the enactment in 1973 of Act 139, registration of voters is now required statewide and unless a person is registered he is not at any. time legally entitled to vote.⁸

The effect of requiring registration as a condition for permission to vote is to create an additional “qualification” not prescribed by Art. VIII, § 2. It will be said that this requirement will effect an amendment of that article and section by a process not authorized by the constitution. Not so. In the first place, it is not an amendment. In the second, § 5 of the same article of the constitution authorizes provision by law for the registration of voters in which is inherent the authority to require that a person be registered in order to be legally entitled to vote. Hence, the additional “qualification” is authorized by the constitution.

It follows from this that the signature of a person otherwise qualified, but not registered, to vote is not acceptable on an initiative petition proposing an amendment to the constitution, because he is not at the time legally entitled to vote on the measure it proposes. Accordingly, we hold that the signers of an initiative petition are required to be registered voters.

As indicated, we have considered State ex rel. Westhues v. Sullivan, supra. That was an action to enjoin the secretary of state from accepting and filing a petition for referendum of the Workmen’s Compensation Act, and to enjoin the attorney general from preparing a ballot title for that proposition. The extent of the decision of this court was that the action was premature as to both parties and it was ordered to be dismissed for that reason. Recognizing that a new suit might be brought involving other questions urged on that appeal (224 S.W. at 333), including, inter alia, the question posed .in the instant case, the court undertook to answer those questions. In doing so the court observed that signers of a referendum petition need not be registered voters. (224 S.W. at 340-341). We note that the respondents in that case cited what is now § 126.151 (then § 6755, RSMo 1909) in support of a part of point 8 of their brief (283 Mo. at 560, 224 S.W.) that “[i]n places where registration is required by law * * * [it was] intended that none but registered voters should sign initiative * * * petitions.” However, the court did not refer to or discuss this section and we cannot conclude that it considered its effect. To the extent that West-hues is inconsistent with today’s decision, it should not be followed.

The judgment is reversed.

1 . Designated by the Committee on Legislative Research as § 1.035, RSMo Supp.1973, V.A. M.S.

2 . Sections 1 through 26 of the Act have been designated by the Committee on Legislative Research as, respectively, §§ 114.011 through 114.146, RSMo Supp.1973, V.A.M.S.

Act 139, applicable “ * * * in all elections except those in cities and counties having a board of election commissioners,” provides that “[n]o person shall be permitted to vote in any election unless he is duly registered * * ⅜>> rpjjg practical effect of the adoption of this law in 1973 is that Missouri now has statewide registration of voters, because the law has for some time required registration in cities and counties having a board of election commissioners.

3 . “Whenever the word ‘voter’ is used in the laws of this state it shall mean registered voter, or legal voter.”

4 . References to the constitution are to Constitution of Missouri, 1945, as amended, Y.A. M.S.

5 .See also § 111.021, RSMo 1969, Y.A.M.S. Section 111.021 was amended in 1969 (Laws 1969, S.B. 134) to provide the same qualifications for those who may register.

6 . Now age 18 or older as required by the 26th Amendment to the United States Constitution adopted June 30, 1971.

7 . Sections 113.010 through 113.420 (applicable to counties [St. Louis] of 700,000 inhabitants) ; §§ 113.490 through 113.870 (applicable to Jackson county outside Kansas City) ; and Chapters 117 (applicable to cities of 300,000 to 700,000 inhabitants) ; 118 (applicable to cities over 600,000 inhabitants [city of St. Louis]) ; and 119 (applicable to counties [Clay] containing a city over 400,000 inhabitants), RSMo 1969, V.A.M.S.

8 .A very limited exception appears in §§ 111.-031 and 111.041 which provide a method whereby unregistered persons who have resided in this state for more than 30 days and less than one year may vote for presidential and vice-presidential electors but for no other officers.