Preisler v. Secretary of State of Missouri, 341 F. Supp. 1158 (W.D. Mo. 1972)

US District Court for the Western District of Missouri - 341 F. Supp. 1158 (W.D. Mo. 1972)
June 6, 1972

341 F. Supp. 1158 (1972)

Paul W. PREISLER et al., Plaintiffs,
v.
SECRETARY OF STATE OF MISSOURI et al., Defendants.

Civ. A. No. 1716.

United States District Court, W. D. Missouri, C. D.

February 22, 1972.

As Amended February 23, 1972 and June 6, 1972.

*1159 Paul W. Preisler, St. Louis, Mo., and Irving Achtenberg, Achtenberg, Sandler & Balkin, for plaintiffs.

Gene E. Voights, and Charles B. Blackmar, Ass't Att'y Gens., for the State of Missouri, for defendants.

J. Anthony Dill, St. Louis, Mo., Harold L. Volkmer, Hannibal, Missouri, for amici curiae.

James Millan, Bowling Green, Mo., for The Honorable William L. Hungate, U. S. Representative and Hon. Bill D. Burlison, U. S. Representative.

Edward Welch, Welch and Wheadon, East St. Louis, Ill., for The Hon. William L. Clay, U. S. Representative.

Before GIBSON, Circuit Judge, BECKER, Chief District Judge, and WANGELIN, District Judge.

 
FINDINGS OF FACT CONCLUSIONS OF LAW AND JUDGMENT ADOPTING JUDICIAL PLAN FOR CONGRESSIONAL DISTRICTS

PER CURIAM:

This is an equitable action filed on July 6, 1971, by nine citizens[1] of the *1160 United States and of the State of Missouri against the Governor, the Secretary of State and the Attorney General of Missouri, in their official capacities.

The plaintiffs seek (1) a judgment declaring the 1969 Missouri statutes dividing the State of Missouri into ten Congressional districts to be unconstitutional, (2) an injunction restraining the defendant Secretary of State from authorizing and permitting electoral processes including future primary and general elections for Congress of the United States from the districts established by the 1969 Act and (3) a judicial redistricting of the State of Missouri into ten constitutional Congressional districts for the preliminary election processes and for the primary and general elections beginning in 1972. (The injunction sought presumably would continue until the General Assembly of Missouri enacts a constitutionally permissible plan of Congressional redistricting.)

The District Judge before whom the action was pending determined the necessity for convening a Three-Judge Court as required by § 2281, Title 28, United States Code, and requested that the Chief Judge of the United States Court of Appeals for the Eighth Circuit convene this court pursuant to § 2284, Title 28, U.S.C. On August 12, 1971, in response to this request the Honorable M. C. Matthes, Chief Judge of the United States Court of Appeals for the Eighth Circuit convened this Three-Judge Court.

Venue and jurisdiction to hear and determine this action on the merits exists under § 1391(b), § 1343(3), § 2201, Title 28, U.S.C., and under § 1983 and § 1988, Title 42, U.S.C.

In April 1969, the Supreme Court of the United States affirmed a district court decision holding the 1967 Missouri Congressional Redistricting Act unconstitutional. Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519. Following this decision the Missouri General Assembly in 1969 enacted the Congressional Redistricting Act under attack in this action. Section 128.204 to Section 128.306, inclusive, Chapter 128 RSMo. In 1970 Congressional elections were held under this 1969 Act.

When the results of the 1970 decennial census became available it was readily apparent that the districts created by the 1969 Act had become constitutionally impermissible in 1971. See Congressional District Data, Districts of the 92d Congress, Missouri, CDD-92-93, June 1971 (a United States Department of Commerce Publication). The facts underlying this conclusion have been verified as a result of the pretrial and trial proceedings herein. Because of population growth and shifts between 1960 and 1970 the disparities between Congressional districts in Missouri, and the variations from the ideal are illustrated by the following uncontroverted tabulation from the currently available 1970 census figures:

 
       Number of Congressional Seats:             10
       Total Population:                   4,677,399
       Ideal Population for Each
         Congressional District:             467,740
       Actual Population for Each
       District Created by 1969 Act:
                              Actual Population
                                     Per                   Variation
   District                      1970 Census               from Ideal
   First                            377,097                  -90,643
   Second                           508,745                  +41,005
   Third                            376,211                  -91,529
   Fourth                           527,990                  +60,250
   Fifth                            379,619                  -88,121
   Sixth                            462,024                  - 5,716
   Seventh                          481,313                  +13,573
   Eighth                           604,525                 +136,785
   Ninth                            551,132                  +83,392
   Tenth                            408,743                  -58,997

None of the minor corrections in the preliminary 1970 census data substantially affects these figures.

On the basis of these 1970 census population figures, we conclude, without disagreement by any formal party, amicus curiae or any other interested person, that the 1969 Missouri Congressional Redistricting Act, supra, is unconstitutional and that no present or future Congressional preliminary election processes or primary or general elections may be held thereunder.

*1161 In early recognition of this inevitable conclusion the 76th General Assembly of Missouri at its regular session in 1971 considered legislation calculated to create in time for the 1972 elections ten new constitutionally permissible Congressional districts. Until November 22, 1971, we refrained from further judicial action with the hope that the Missouri General Assembly would be called into special session and would cause to be enacted into law, in time for the 1972 election processes a constitutionally permissible Congressional redistricting plan.

On November 22, 1971, we held a plenary evidentiary hearing to secure a basic record for action on the merits of this case when a decision was required. To give the Missouri General Assembly further time to act, action herein was stayed until January 31, 1972, when final hearings herein were held and the cause submitted. Unfortunately, no new Missouri Congressional Redistricting Act has been enacted into law as of mid-February 1972, the latest practicable time for legislative action. Now most formal and interested parties agree that we must render a decision in this case on the basis of the pretrial and trial.

So left with no alternative, reluctantly we proceed to establish by judicial action a constitutionally permissible Congressional redistricting plan for Missouri under which future primary and general elections for Congressional seats must be held until there is enacted into law by the General Assembly of Missouri a constitutionally permissible Congressional redistricting act. In doing so we will give effect as far as is practicable and legal to what we believe to be the will of the majority of the people of Missouri, as far as it can be discerned.

The federal law requires, and we willingly follow the federal standard that Article I, § 2 of the Constitution of the United States requires that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's". This rule was enunciated in Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481, and further defined in Kirkpatrick v. Preisler, supra.

In addition to this federal standard, Section 45 of Article III of the Missouri Constitution, V.A.M.S., requires that the Congressional districts "... be composed of contiguous territory as compact and as nearly equal in population as may be." In devising a judicial plan of Congressional redistricting we respect and follow this state standard, as a matter of law and comity.

Some evidence of the will of the people of Missouri in some respects is found in the alignment of Congressional districts in the now obsolete 1969 Missouri Congressional Redistricting Act. To the extent practicable we give consideration to the salvageable portions of that Act.

Imperfect and to some extent inconsistent indicia of the will of the people of Missouri and their elected representatives are found in the two 1971 Congressional redistricting bills, each of which was passed by one branch of the Missouri General Assembly. Neither bill passed both branches of the Missouri General Assembly. The Missouri House of Representatives passed House Committee Substitute for Senate Committee Substitute for Senate Bill No. 370 containing a plan of Congressional redistricting. The Missouri Senate passed Senate Committee Substitute for Senate Bill No. 370 containing a substantially different plan. Neither bill passed both branches of the Missouri General Assembly, which remain in disagreement up to the present time.

Giving consideration to all factors and arguments advanced by the parties and amici curiae we have decided to establish the attached judicially devised constitutionally permissible plan for creating ten new Congressional districts from which the ten members of the United States House of Representatives from Missouri shall be elected in 1972 and in subsequent years unless and until there *1162 shall be timely enacted a new constitutionally permissible Missouri Congressional Redistricting Act. The judicial plan is appended hereto marked "Exhibit A" and made a part as if fully set out herein in words and figures.

In this plan an effort has been made to avoid splitting counties except where necessary. Furthermore an effort has been given to retaining counties in present districts as far as practicable and legally permissible. Compactness of districts, in the degree required by state law, has been achieved.

According to figures certified at our request by the System's Specialist, Andrew S. Loebl of the Administrative Services, Division of Budget and Comptroller of the State of Missouri, the 1970 census population figures of the judicially approved Congressional districts are as follows:

 
      Number of Congressional Seats:           10
      Total Population:                 4,677,399
      Ideal Population for Each
        Congressional District:           467,740
      Actual Population for Each
        District Created by 1972
        Judicial Plan:
                                                              Percent
                   Actual Population         Variation       Variation
   District         Per 1970 Census          from Ideal      from Ideal
   First              468,056                   +   316        + .0675%
   Second             468,808                   + 1,068        + .2283%
   Third              467,544                   -   196        - .0419%
   Fourth             466,940                   -   800        - .1711%
   Fifth              467,457                   -   283        - .0605%
   Sixth              469,642                   + 1,902        + .4066%
   Seventh            466,699                   - 1,041        - .2225%
   Eighth             467,532                   -   208        - .0444%
   Ninth              467,990                   +   250        + .0534%
   Tenth              466,731                   - 1,009        - .2157%
      Population deviation from highest
          to lowest populated district is 2943.
      Percent deviation from highest
          to lowest populated district is .6291%.
      Most populated district is District Number 6.
      Least populated district is District Number 7.

The minor variations from the ideal are constitutionally permissible under the Constitution of the United States.

We express our gratitude to the State of Missouri, and in particular to the Division of Budget and Comptroller, and the members of the Missouri General Assembly and others who assisted as amici curiae. In this connection we note that the plan established hereby was devised solely by us, and we accept full responsibility therefor.

For the foregoing reasons, it is hereby

Ordered and adjudged and declared that the 1969 Missouri Congressional Redistricting Act, Section 128.203 to and including Section 128.306 of Chapter 128, RSMo., is unconstitutional. It is further

Ordered and adjudged that the defendant Secretary of State of Missouri be, and he is hereby, permanently enjoined and restrained from holding or permitting any primary or general election or administering any preliminary election processes thereunder. It is further

Ordered and adjudged that Congressional election processes and Congressional primary and general elections in 1972 and thereafter be conducted in and from the Congressional districts established in this judgment and by Exhibit A appended hereto and made a part hereof unless and until the State of Missouri enacts a timely and constitutionally permissible new Congressional Redistricting Act and such new act is timely submitted to and approved by this Court. It is further

Ordered and adjudged that this Court retain jurisdiction to implement, enforce and amend this judgment and to make such other orders and judgments as in the premises shall be meet and just.

 
                       EXHIBIT A
  The 1972 Judicial Congressional Redistricting Plan
    for Missouri is set forth in words and figures.
       CONGRESSIONAL DISTRICT NUMBER 1
St. Louis County (Part)
  Normandy Township                                35,800
  Washington Township                              18,427
  Hadley Township                                  23,025
  Lincoln Township                                 21,850
  Jefferson Township                               31,970
  Clayton Township (Part) Census tracts or
       portions of census tracts within Clayton
       Township as listed:
    Census Tract    2164                            6,544
    Census Tract    2189                            7,266
 
*1163
  Gravois Township (Part) Census tracts or
       portions of census tracts within Gravois
       Township as listed:
    Census Tract    2196                            2,034
  Creve Coeur Township (Part) Census tracts
      or portions of census tracts within
      Creve Coeur Township as listed:
    Census Tract    2159                            6,458
    Census Tract    2162                            6,745
St. Louis City (Part) Census tracts or portions
       of census tracts within St. Louis
       City as listed:
    Census Tract    1051                            4,538
    Census Tract    1052                            6,731
    Census Tract    1053                            6,730
    Census Tract    1054                            5,358
    Census Tract    1055                            7,850
    Census Tract    1061                            9,939
    Census Tract    1062                            7,210
    Census Tract    1063                            8,325
    Census Tract    1064                            6,436
    Census Tract    1065                            7,337
    Census Tract    1066                            7,162
    Census Tract    1067                            7,589
    Census Tract    1071                            1,385
    Census Tract    1072                            2,553
    Census Tract    1073                            6,640
    Census Tract    1074                            5,891
    Census Tract    1075                            5,480
    Census Tract    1076                            4,168
    Census Tract    1077                            6,727
    Census Tract    1081                            3,952
    Census Tract    1082                            2,876
    Census Tract    1083                            2,814
    Census Tract    1084                            1,078
    Census Tract    1085                            1,778
    Census Tract    1091                            6,918
    Census Tract    1092                              401
    Census Tract    1093                            3,910
    Census Tract    1094                            2,613
    Census Tract    1095                            3,073
    Census Tract    1101                            7,446
    Census Tract    1102                            7,103
    Census Tract    1103                            7,324
    Census Tract    1104                            6,923
    Census Tract    1105                            6,209
    Census Tract    1111                            9,109
    Census Tract    1112                            7,878
    Census Tract    1113                            6,674
    Census Tract    1114                            7,357
    Census Tract    1115                            5,914
    Census Tract    1121                            7,128
    Census Tract    1122                            6,085
    Census Tract    1123                            6,166
    Census Tract    1124                            5,261
    Census Tract    1192                            5,533
    Census Tract    1201                            4,576
    Census Tract    1202                            3,908
    Census Tract    1203                            7,509
    Census Tract    1212                            6,752
    Census Tract    1213                           11,124
    Census Tract    1214                              984
    Census Tract    1252                            6,080
    Census Tract    1254                            1,350
    Census Tract    1261                            5,707
    Census Tract    1262                            1,347
    Census Tract    1263                            3,897
    Census Tract    1264                            2,280
    Census Tract    1265                            2,851
                                                  468,056
            CONGRESSIONAL DISTRICT NUMBER 2
St. Louis County (Part)
   St. Ferdinand Township                          72,022
   Airport Township                               108,477
   Midland Township                                55,790
   Creve Coeur Township (Part) Except for          47,097
        census tracts or portions of census
        tracts within Creve Coeur Township as
        listed:
    Except (-)
    Census Tract    2159               -6,458
    Census Tract    2162               -6,745
   Clayton Township (Part) Except for census       43,792
        tracts or portions of census tracts
        within Clayton Township as listed:
    Except (-)
    Census Tract    2164               -6,544
    Census Tract    2189               -7,266
  Gravois Township (Part) Except for census        26,391
       tracts or portions of census tracts
       within Gravois Township as listed:
    Except (-)
    Census Tract    2196               -2,034
    Census Tract    2197               -6,878
    Census Tract    2198               -9,052
    Census Tract    2208.01            -7,031
    Census Tract    2208.02            -5,265
    Census Tract    2208.03            -5,670
    Census Tract    2212.01            -  214
Ferguson Township (Part) Census tracts or          24,402
    portions of census tracts within Ferguson
    Township as listed:
    Census Tract    2127                            8,555
    Census Tract    2124                            2,986
    Census Tract    2125                            5,945
    Census Tract    2126                            6,720
    Census Tract    2128 (Part)                       196
    Census Tract    2137 (Part)                         0
Bonhomme Township (Part) Except for
     census tracts or portions of census
     tracts within Bonhomme Township as
     listed:
  Except (-)
    Census Tract    2216               -1,190
    Census Tract    2178.01            -2,032
    Census Tract    2178.02            -7,797
    Census Tract    2178.03           -11,224
                                                  468,808
          CONGRESSIONAL DISTRICT NUMBER 3
St. Louis County (Part)
   Concord Township                                 58,576
   Lemay Township                                   60,559
   Gravois Township (Part) Census tracts
        or portions of census tracts within
        Gravois Township as listed:
    Census Tract    2197                            6,878
    Census Tract    2198                            9,052
    Census Tract    2208.01                         7,031
    Census Tract    2208.02                         5,265
    Census Tract    2208.03                         5,670
    Census Tract    2212.01                           214
 
*1164
St. Louis City (Part) Census tracts or portions
       of census tracts within St. Louis
       City as listed:
    Census Tract    1011                            4,166
    Census Tract    1012                            4,436
    Census Tract    1013                            5,836
    Census Tract    1014                            4,138
    Census Tract    1015                            4,516
    Census Tract    1016                            1,345
    Census Tract    1017                            4,441
    Census Tract    1017.99                            36
    Census Tract    1021                            3,564
    Census Tract    1022                            8,274
    Census Tract    1023                            2,771
    Census Tract    1024                            3,174
    Census Tract    1025                            2,514
    Census Tract    1031                            4,419
    Census Tract    1032                            4,857
    Census Tract    1033                            1,209
    Census Tract    1034                            2,967
    Census Tract    1035                            1,049
    Census Tract    1036                            2,145
    Census Tract    1037                            3,743
    Census Tract    1041                            4,439
    Census Tract    1042                            5,716
    Census Tract    1043                            2,829
    Census Tract    1044                              668
    Census Tract    1131                            6,256
    Census Tract    1132                            3,079
    Census Tract    1133                            1,178
    Census Tract    1134                            1,420
    Census Tract    1141                           11,028
    Census Tract    1142                            6,534
    Census Tract    1143                            7,620
    Census Tract    1151                            4,612
    Census Tract    1152                            3,804
    Census Tract    1153                            7,177
    Census Tract    1154                            3,999
    Census Tract    1155                            7,447
    Census Tract    1156                            6,368
    Census Tract    1157                            5,021
    Census Tract    1161                            4,083
    Census Tract    1162                            7,011
    Census Tract    1163                            8,597
    Census Tract    1164                            6,519
    Census Tract    1165                            6,230
    Census Tract    1171                            3,052
    Census Tract    1172                           10,877
    Census Tract    1173                            7,283
    Census Tract    1174                            7,554
    Census Tract    1181                            3,815
    Census Tract    1182                            4,757
    Census Tract    1183                              591
    Census Tract    1184                            1,703
    Census Tract    1185                            3,623
    Census Tract    1191                            7,937
    Census Tract    1193                            6,164
    Census Tract    1221                            2,737
    Census Tract    1222                              270
    Census Tract    1224                            7,043
    Census Tract    1231                            8,097
    Census Tract    1232                            4,430
    Census Tract    1233                            6,289
    Census Tract    1234                            5,576
    Census Tract    1235                               50
    Census Tract    1241                            7,528
    Census Tract    1242                            5,715
    Census Tract    1243                            7,522
    Census Tract    1244                              637
    Census Tract    1245                            2,595
    Census Tract    1251                            2,397
    Census Tract    1253                              587
    Census Tract    1211                            4,235
                                                  467,544
                        DISTRICT FOUR
Barton County                                      10,431
Cass County                                        39,448
Bates County                                       15,468
Vernon County                                      19,065
St. Clair County                                    7,667
Henry County                                       18,451
Johnson County                                     34,172
Lafayette County                                   26,626
Saline County                                      24,837
Pettis County                                      34,137
Benton County                                       9,695
Hickory County                                      4,481
Morgan County                                      10,068
Cooper County                                      14,732
Howard County                                      10,561
Jackson County (Part):
   Blue Township                     186,188
   Less Kansas City                  -64,596
                                                  121,592
   Fort Osage Township                              4,193
   Prairie Township                                18,369
   SniABar Township                              15,244
   Van Buren Township                               3,602
   Blue Township (Part) Census tracts or
       portions of census tracts within Blue
       Township as listed:
    Census Tract    107.01                          1,517
  Brooking Township (Part) Census tracts or
      portions of census tracts within Brooking
      Township as listed:
    Census Tract    142                               156
                    143                             2,780
                    144                               824
                    145                                41
                    125.01                          4,192
                    125.02                          3,316
                    125.03                          1,480
                    127.01                          6,559
                    127.02                            594
                    128.02                          2,642
                                                  466,940
         CONGRESSIONAL DISTRICT NUMBER 5
Jackson County (Part)
   Kaw Township                                   276,992
   Blue Township (Part)
      Kansas City City (Part) Except for census    63,079
        tracts or portions of census tracts
        within Kansas City City as listed:
      Except (-)
    Census Tract    107.01             -1,517
  Washington Township                              85,713
  Brooking Township (Part) Except for census       41,673
       tracts or portions of census tracts
       within Brooking Township as listed:
    Except (-)
    Census Tract    142                -  156
    Census Tract    143                -2,780
    Census Tract    144                -  824
    Census Tract    145                -   41
    Census Tract    125.01             -4,192
    Census Tract    125.02             -3,316
    Census Tract    125.03             -1,480
    Census Tract    127.01             -6,559
    Census Tract    127.02             -  594
    Census Tract    128.02             -2,642
                                                  467,457
 
*1165
                   DISTRICT SIX
Adair                                              22,472
Atchison County                                     9,240
Nodaway County                                     22,467
Worth County                                        3,359
Harrison County                                    10,257
Mercer County                                       4,910
Holt County                                         6,654
Andrew County                                      11,913
Gentry County                                       8,060
Daviess                                             8,420
Grundy County                                      11,819
Sullivan County                                     7,572
Buchanan County                                    86,915
Clinton County                                     12,462
Caldwell County                                     8,351
Livingston County                                  15,368
Linn County                                        15,125
Platte County                                      32,081
Clay County                                       123,644
Ray County                                         17,599
Carroll County                                     12,565
Chariton County                                    11,084
DeKalb County                                       7,305
                                                  469,642
                   DISTRICT SEVEN
Jasper County                                      79,852
Newton County                                      32,901
McDonald County                                    12,357
Dade County                                         6,850
Lawrence County                                    24,585
Barry County                                       19,597
Polk County                                        15,415
Dallas County                                      10,054
Laclede County                                     19,944
Greene County                                     152,929
Webster County                                     15,562
Wright County                                      13,667
Christian County                                   15,124
Douglas County                                      9,268
Stone County                                        9,921
Taney County                                       13,023
Ozark County                                        6,226
Cedar County                                        9,424
                                                  466,699
                    DISTRICT EIGHT
Howell County                                      23,521
Oregon County                                       9,180
Texas County                                       18,320
Shannon County                                      7,196
Dent County                                        11,457
Pulaski County                                     53,967
Crawford County                                    14,828
Washington County                                  15,086
Franklin County                                    55,116
Gasconade County                                   11,878
Maries County                                       6,851
Miller County                                      15,026
Cole County                                        46,228
Osage County                                       10,994
Boone County                                       80,911
Camden County                                      13,315
Moniteau County                                    10,742
Phelps County                                      29,567
St. Louis County (Part):
   Meramec Township                                11,106
   Bonhomme Township (Part) Census tracts
       or portions of census tracts within
       Bonhomme Township as listed:
    Census Tract    2216                            1,190
    Census Tract    2178.01                         2,032
    Census Tract    2178.02                         7,797
    Census Tract    2178.03                        11,224
                                                  467,532
                      DISTRICT NINE
Callaway County                                    25,950
Putnam County                                       5,916
Macon County                                       15,432
Schuyler County                                     4,665
Scotland County                                     5,499
Clark County                                        8,260
Knox County                                         5,692
Lewis County                                       10,993
Shelby County                                       7,906
Marion County                                      28,121
Randolph County                                    22,434
Monroe County                                       9,542
Ralls County                                        7,764
Audrain County                                     25,362
Pike County                                        16,928
Montgomery County                                  11,000
Lincoln County                                     18,041
St. Charles County                                 92,954
St. Louis County (Part):
   Spanish Lake Township                           40,905
   Florissant Township                             78,551
   Ferguson Township (Part) Except for census      16,376
        tracts or portions of census tracts
        within Ferguson Township as listed:
    Except (-)
    Census Tract    2127               -8,555
    Census Tract    2124               -2,986
    Census Tract    2125               -5,945
    Census Tract    2126               -6,720
    Census Tract    2128 (Part)        -  196
    Census Tract    2137 (Part)        -    0
   Warren County                                    9,699
                                                  467,990
                     DISTRICT TEN
Dunklin County                                     33,742
Pemiscot County                                    26,373
New Madrid County                                  23,420
Mississippi County                                 16,647
Butler County                                      33,529
Ripley County                                       9,803
Stoddard County                                    25,771
Scott County                                       33,250
Carter County                                       3,878
Reynolds County                                     6,106
Wayne County                                        8,546
Bollinger County                                    8,820
Cape Girardeau County                              49,350
Iron County                                         9,259
St. Francois County                                36,818
St. Genevieve County                               12,867
Jefferson County                                  105,248
Perry County                                       14,393
Madison County                                      8,641
                                                  466,731

*1166

*1167

*1168

*1169

WILLIAM H. BECKER, Chief District Judge (specially concurring):

The plan approved by the per curiam opinion and judgment is constitutionally sound and permissible. It also has many meritorious features from a high level political standpoint, even though it obviously will not please everyone. Indeed it is impossible to devise a plan which will please everyone.

My initial proposal was to adopt with minor improvements the plan contained in the House Committee Substitute for Senate Bill No. 370. It was statistically the better of the two plans of the Missouri House and Senate. As a matter of principle this initial proposal would have given life to the best of the two proposals of the Missouri General Assembly. Thereby the representatives of *1170 the people of Missouri would have participated in the formulation of the judicial plan to the fullest extent possible under the circumstances. And the inclusion of this permissible judicial technique would in the future provide a motive for healthy competition between the branches of state legislatures in approaching the ideal in case agreement between the two branches again becomes impossible.

NOTES

[1] One of whom, Paul W. Preisler, Esquire, has since died.