Power v. Robertson

93 So. 769 | Miss. | 1922

Lead Opinion

Ethridge, J.,

delivered the opinion of the court.

On the 5th day of August, 1922, certain citizens, called sponsors, filed in the office of the secretary of state an assembled petition, consisting of numerous separate petitions, under chapter 159, Laws of 1916, known as the Initiative and Referendum Amendment, which petitions purport on their face to contain the signatures of more than seven thousand five hundred qualified electors of the state of Mississippi, asking for an election to initiate under said amendment a measure proposing a change in the compensation of the state revenue agent. On the 7th day of September, 1922, Stokes V. Robertson, as such state revenue agent, and as a taxpayer and a qualified elector of the state of Mississippi, filed with the said secretary of state his formal sworn petition and protest against the submission of the said proposed law to a vote at said election, challenging the sufficiency and legality of the said petition upon many grounds, charging that the said petition and every part thereof is illegal, void, and of no effect, and that the requirements of the law as to the initiation were not complied with in the proposing, circulating, and signing of said petition; that the petitions were circulated throughout the state of Mississippi, and were assembled and filed with the said secretary of state by certain persons as sponsors; that the entire petitions are fraudulent and void, and that each of the said petitions is likewise fraudulent and void, and that the persons circulating them, called the “sponsors” hereinafter, knew at the time they filed the petition that they contained the names that were not the signatures of qualified electors, and that they knew that many of the names on said petitions were forgeries ; and that one of the said sponsors has admitted that many of the names contained on the petitions were forgeries, yet he presented the same as petitions containing only genuine signatures of qualified electors.

It is also charged that other sponsors had similar knowledge aud were guilty of similar practices, and yet that such sponsors filed affidavits which do not state the truth, and it is charged that each of the petitions and each affidavit thereto was false and untrue, in this: That no inquiry or investigation whatever was made as to whether or not the proposed signers were qualified electors, and in fact many of the purported signers were not in fact qualified electors; that in many instances the petitions were not signed in the presence of the sponsors as required by law, and that many of the names of the petitioners were signed not in the presence of the sponsors, but that petitions were left in many instances on counters in drug stores and other places of business, were circulated through proxies and offices where they were not permitted to go themselves, and passed from hand to hand in public gatherings, where many people who were present were not only not qualified electors, but some of whom were not residents of the state of Mississippi; that many signatures on each and every petition were forged, and the circulators of said petitions knew of such forgeries, and the said sponsors had positive knowledge that said petitions as a whole contained many names of persons who were not qualified electors, and had knowledge that many names were forged and not genuine signatures of said petitioners; that some of the names signed to said petitions were names of corporations; that the said sponsors falsely and fraudulently obtained signatures by falsely and fraudulently representing to the signers thereof that the proposed law was passed by an overwhelming majority of the legislature, but reached the governor’s office too late to require him to return' the same with his approval or disapproval, and that the governor had pigeonholed the said bill until the legislature assembled in 1924; that the sponsors knew of the falsity of this statement, and without such false representations the requisite number of signatures to call an election could not have been obtained; that it was falsely represented by some of the circulators of said petitions to those whom they solicited to sign that the revenue agent favored the proposed statute, which representations they well knew were false and untrue, but on account of such representations the signatures of many persons were obtained; that many of the signers signed two or more of such petitions circulated in separate parts, and that their names appeared on two or more such petitions, making it appear that such person was more than one qualified elector; that the petitions filed do not contain the required number of qualified electors, and are fraudulent and void, both as a whole and as a separate part.

It is further charged that the circulators of said petitions fraudulently represented the amount of the compensation received by the said revenue agent, and that they knew, when making such representations, that the revenue agent paid out of the moneys received by him large expenses to deputies, agents, and attorneys, and had to make many investigations, costing large sums of money, from which he received no recovery or compensation, and had to pay the entire expenses of running the office, as well as the traveling expenses of various officers and others employed by him throughout the state. It is further charged that of the genuine signatures of qualified electors to the said petitions more than enough have requested the secretary of state to withdraw their names from such petitions to reduce the number of genuine signatures thereon below seven thousand five hundred, if in truth and in fact said petitions had ever contained seven thousand five hundred qualified electors, which upon information and belief is denied.

It is further charged that chapter 159, Laws of 1916, under which the initiative petitions were filed, was not legally submitted to and not legally adopted by tbe people of Mississippi as an amendment to the state constitution, and that the said amendment did not receive a majority of the qualified electors voting, and was not legally adopted by the people, and was not a proper part of the state constitution, inserted in the constitution by the legislature of 1916 in violation of section 273 of the constitution. It is further charged that, if said amendment is a part of the constitution, it is crude, uncertain, vague, and not self-executing, and that it is necessary for the legislature to enact laws providing a proper machinery for the execution of said provision, especially some definite mode in which the sufficiency of the petitions may be contested. It is further charged: That section 273 of the constitution of Mississippi is violated by the alleged Referendum Amendment, in that it provides that, if more than one amendment shall be submitted at one time, they shall be submitted in such manner and form that the people may vote for or against each amendment separately, and that the alleged amendment inserted by the legislature of 1916 contains, among other things, the following:

“The word ‘measure’ as used herein means any law, bill, resolution, constitutional amendment, or any other legislative measure. All elections on general, local and special measures referred to the people of the state shall be held at the general state or congressional elections, except when the legislature shall order a special election: Any measure submitted to the people, as herein provided, shall take effect and become law when approved by a majority of the votes cast thereon, and not otherwise.”

That this provision has the effect to amend or modify the provisions of section 273 of the state constitution, which requires a measure to receive a majority of all votes cast in the election, whether such electors vote upon the constitutional amendment or not.

The challenger filed his challenge with the secretary of state, and also filed an identical challenge in the circuit court of Hinds county, praying for a hearing and for a contest of the sufficiency of the petition to require the submission of the proposed measure to the people of the state for a vote at the general election. The secretary of state set a day and notified all parties interested — that is, the sponsors of the petitions and the revenue agent — of a day when he would hear the said parties concerning said matter. At the time and place fixed Stokes V. Robertson, state revenue agent, with his attorneys, appeared and offered to produce proof of the allegations contained in his challenge, and also offered and presented counted petitions containing the names of persons on the original initiative petitions, requesting the secretary of state to withdraw their names from such petitions. The secretary of' state submitted to the attorney-gen eral the question as to whether he had. power to hear and determine the facts with reference to the sufficiency of the petitions, or whether his duties under the said Initiative Amendment confined him to what appeared on the face of the petition, and also whether he had a right to strike from said petition such signatures of different electors made in the same handwriting and appearing to be forgeries on the face of the petition. The attorney-general advised the secretary of state that he had no power to determine the questions of fact involved, and that he had no power to strike from the petitions the names of persons appearing to be written in the same handwriting and appearing to be palpable forgeries. He also advised the secretary of state that he did not have the power to permit the withdrawal of signatures from the petition after it was filed, and that his duties are merely ministerial, and that he was limited to and bound by the petitions as they appeared upon their face, and if they contained the names of the requisite numbers and were supported by the required affidavit that it was his duty to order an election in accordance with the Initiative Amendment. The secretary of state thereupon declined to hear proof touching the said matter, and in accordance with the attorney-general’s opinion issued his proclamation ordering the election.

The same day a petition for certiorari was filed in the circuit court, and a writ of certiorari was issued by the circuit judge, commanding the secretary of state to appear before the circuit court and to bring the entire record of proceedings before the secretary of state before the circuit court for review. The secretary of state, in accordance with the writ, produced the record of proceedings before him, and the sponsors of the petition were also summoned to appear as parties to . such proceedings. The sponsors and the secretary of state appeared before the circuit court, and demurred separately to the proceedings on many grounds, among others challenging the right of the appellee to institute the proceedings, and challenging the jurisdiction of the circuit court to hear and determine the controversies. It will not be necessary to set out the several grounds of the demurrer. There was also a motion to quash the writ of certiorari, and a motion to vacate the writ of supersedeas granted, all of which demurrers were overruled, and the motions were overruled and denied. The court thereupon allowed the appellants leave to plead further, but they declined so to do, and final judgment was entered, prohibiting the secretary of state from ordering the election, and vacating his proclamation made calling said election on such petition. An appeal was prayed for and allowed, but allowed without supersedeas.

Chapter 15®, Laws of 1916, known as the Initiative Amendment, reads as follows:

“Sec. 33. The legislative authority of the state shall be vested in a legislature which shall consist of a Senate and a House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws, resolutions and amendments to the Constitution, and to enact or reject the same at the polls independent of the legislature; and also reserve the power, at their own option, to approve or reject at the polls any act, item, section or any part of any act or measure passed by tbe legislature.

“1. Tbe first power reserved by tbe people is tbe initiative, and not more than seven thousand five hundred qualified electors shall be required to propose any measure by initiative petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the secretary of state not less than three months before the election at which they are to be voted upon.-

“2. The second power reserved by the people is the referendum, and it may be ordered either by a petition signed by the required number of qualified voters or by the legislature, as other bills are enacted. Not more than six thousand qualified voters may be required to sign and make valid referendum petition. Thé filing of a referendum petition against one or more items, sections or parts of any measure shall not delay the remainder from becoming operative. Referendum petitions against méasures passed by the legislature shall be filed with the secretary of state not later than ninety days after the final adjournment of the session of the legislature at which such measures were passed, except when adjournment shall be taken temporarily for a longer period than ninety days, in which case such petition shall be filed not later than ninety days after such temporary adjournment. All measures referred to a vote of the people by referendum petitions shall remain in abeyance until such vote is taken.

“3. If it shall be necessary for the immediate preservation of the public peace, health or safety, then a measure shall become effective without delay; such necessity shall be stated in one section, and if, upon a yea and nay vote, three-fourths of those voting in each house shall vote in favor of the measure going into immediate operation, such measure shall become operative at once. It shall be necessary to state in such section the facts constituting such emergency: Provided, that an emergency shall not be declared on any franchise or special privilege or act creating any vested right or interest, or alienating any property of the state. If a referendum petition is filed against such emergency measure; such measure shall be a law until it is voted upon by the people, and if it is then rejected by a majority of the voters voting thereon, it shall be thereby repealed.

“4. The word ‘measure’ as used herein means any law, bill, resolution, constitutional amendment, or any other legislative measure. All elections on general, local and special measures referred to the people of the state shall be held at the general state or congressional elections, except when the legislature shall order a special election. Any measure submitted to the people, as herein provided, shall take effect and become law when approved by a majority of the votes cast thereon, and not otherwise. Such measure shall be in operation on and after the thirtieth day after the election at which it is approved. The veto power of the governor shall not extend to measures initiated by or referred to the people. If conflicting measures submitted to the people shall be approved by a majority of the votes severally cast for and against the same, the one having the highest number of affirmative votes shall thereby become law. No measure enacted by a vote of the people shall be amended or repealed by the legislature except by yea and nay votes, upon roll call, of three-fourths of the members of each house voting thereon. Qualified electors only shall be counted upon petitions. Petitions may be circulated and presented in parts, but each part of any petition shall have attached thereto the affidavit of the person circulating the same, that all the signatures thereon were made in the presence of the affiant and that to the best of affiant’s knowledge and belief each signature is genuine, and that the person signing is a qualified elector, and no other affidavit or verification shall be required. The sufficiency of all petitions shall be decided by the secretary of state. In the event that the sufficiency of the petition is challenged, the question shall be tried at once, in term time or in vacation, and such cause shall be a preference cause over all other causes. If the secretary of state shall decide any petition to be insufficient, he shall, without delay, notify the sponsors of the petition and permit at least thirty days for correction or amendment. In the event of legal proceedings in any court to prevent giving effect to any petition upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition. This section shall not be construed to deprive any member of the legislature of the right to introduce any bill. The style of all hills initiated by petition shall be: ‘Be it enacted by the people of the state of ■Mississippi.’ In submitting the measures, the secretary of state and all other officials shall be guided by the general election laws until additional legislation may be provided therefor, but no legislation shall be enacted to impair or hamper the exercise of the rights herein reserved to the people.”

We will first deal with the right of the appellee to institute proceedings challenging the sufficiency and validity of the petition. To reach a satisfactory conclusion it will be necessary to consider what was the intention of the legislature in submitting the amendment and the voters in voting thereon with reference to what should be done ordering an election. To initiate a measure there shall be not more than seven thousand five hundred qualified electors to propose such measure and such petition or proposal shall include the full text of the measure proposed to be enacted. The word “measure” as used means any law, bill, resolution, constitutional amendment, or any other legislative measure. Qualified electors only shall be counted upon the petition. Petitions may be circulated and presented in parts but each part in a petition shall have attached thereto the affidavit of the person circulating the same that all of the signatures thereon were made in the presence of the affiant, and that to the best of affiant’s knowledge and belief each signature is genuine, and that the person, signing is a qualified elector. The sufficiency of all petitions shall be decided by the secretary of state. In the event that the sufficiency of the petition is challenged, the question shall be tried at once in term time or in vacation, and such cause shall be a preference cause over all other causes. If the secretary of state shall decide any petition to be insufficient, he shall without delay notify the sponsors of the petition and permit at least thirty days for correction or amendment. In the event of legal proceedings in any court to prevent giving effect to any petition upon any grounds the burden of proof shall be upon the person or persons attacking the validity of a petition. Generally constitutional provisions are mandatory, and it is evident that both the legislature in proposing and the people in approving the proposed amendment intended that the petition should be signed only by qualified electors signed with their personal signatures and that the sufficiency of the petition as a matter of substance as well as form should be determined in advance of the election by the secretary of state.

In our opinion it was intended to confer upon the secretary of state the power to hear evidence and decide facts. He proceeds upon inquiry and determines facts and in our judgment is an inferior tribunal having quy®.s*i-judicial powers. The amendment clearly contemplates that the sufficiency of the petition may be challenged. It recognizes the rights of both the proponents of the measure and of the opponents of the measure. It recognizes the right of either a person or a number of persons to attack the validity of the petition. It recognizes the rights of the sponsors of the petition to amend or correct the petition in the event it is held to be insufficient. The amendment recognizing the right of a person or persons to institute proceedings of challenge, to whom does it confer the right to challenge? In our opinion any qualified elector has a right to question the sufficiency and validity of the petition. The initiative proceeding, reserving the legislative power in the people, makes each elector, if the amendment is valid, a part of the legislative machinery, and with rights as such in the enactment and proposal of legislation. The people who oppose the measure in our opinion have equal rights with those who favor the measure. This is a more reasonable construction, as well as a more just one, than it would be to hold that a part of the electorate would have a right to propose a measure which the other part did not have a right to oppose. It is said that rights of this kind are political rights and are not subject to adjudication in the courts; that the courts .have no right to entertain jurisdiction to test any question affecting the power to make laws, but can' only deal with the finished product, and if there is no right in court or in any tribunal fixed by law to determine and enforce a right that no party affected is a competent party authorized to raise the question. We think, in dealing with the subject, that a distinction must be drawn between elections ordered by law at fixed times and places, or an election ordered by the legislature without conditions precedent, and those elections that can only be held when certain conditions have come into .existence.

This court in many analogous cases has held that, when conditions are prescribed as a condition to the holding of an election, the determination of the precedent facts is a judicial or q-M cm-judicial proceeding, and that the persons interested may contest such determination of the precedent facts. In Ferguson v. Monroe County, 71 Miss. 524, 14 So. 81, it was held that, in determining whether a petition for a local option election is signed by the requisite number of the qualified electors in the county, the registration books are not conclusive or even prima-facie evidence that the persons registered are qualified voters; that, in order to ascertain whether the petition is signed by the necessary number of voters, the board of supervisors should take the registration books as showing all possible qualified voters, and that théy should reject from the petition those who are not registered, and those who, if registered, have not the other requisite qualifications of voters; and also that the board should reject every name on such petition not signed in the handwriting of the petitioner himself or by. his proper mark — the statute in that case providing, as it does here, that the signature of the petitioners should be in their proper handwriting.

In that case Ferguson and other qualified electors and taxpayers of the county appeared before the board and protested in writing against the ordering of the election on the ground that the petition was not signed by the requisite number of electors of the county. They offered to prove that a great many names were not signed by the parties purporting to have signed the same; that some of the signers were dead; that others were not qualified because they had not paid their taxes before February 1st for the two preceding years as required by law. The board refused to go into an investigation of these several matters, and held that it could not go outside of the registration books in determining the number of qualified electors, and refused to disregard the names not' signed by the petitioners themselves, but signed by their authority. The objectors offered evidence to show that several hundred names did not appear on the registration list, and that many names appeared on the petition more than once. The board declined to hear the evidence, but announced that it would investigate for itself and make a comparison of the registration'list, and for itself determine whether there were names repeated. The protestants there, as here, offered and filed a written petition of a number of persons who had signed the petition, asking that their names be taken therefrom and not counted, but the record did not show any action taken by the board in that regard. The facts there offered to be shown, if established, would have'reduced the number of qualified electors on the petition below the required two-thirds. The board ordered the election, and the objectors tendered a bill of exceptions and prosecuted an appeal to the circuit court. The board moved in the circuit court to dismiss the appeal, on the ground that chapter 37, Code of 1892, did not provide for an appeal from the decision of the board ordering an election. On appeal the'supreme court, in a lengthy opinion by Chief Justice Campbell, upheld the right to contest, including the right to appeal, and the right of citizens as such to prosecute an appeal from such cases. The law and the facts of that case are analogous to the proceeding before us.

In Corbett v. Duncan, 63 Miss. 84, and Loeb v. Duncan, 63 Miss. 89, are cases also analogous to the present proceeding. In those cases it was held that the municipal authorities of the town, in deciding that a petition for a liquor license was signed by the requisite number of qualified electors, in granting the license, were acting in a quasi-judicial capacity, and that, as there was no appeal provided by the statute from their decision (as is the case here), certiorari would be awarded by the circuit court to one of the voters of the town to review and revise their action.

In Rogers v. Hahn, 63 Miss. 578, the court held that the municipal authorities of a town should not grant a license, unless the petition contained a majority of all the legal voters, and, if the record failed to show that the petition contained the requisite-majority, that a writ of certiorari would lie in favor of a qualified elector of the town.

In McCreary v. Rhodes, 63 Miss. 308, the court held that where a qualified voter of a city, who appeared before the municipal authorities of the said city some time after the filing of the petition for a license to retail liquor, but before final action thereon, objects to the issuance of said license, he thereby makes himself a party to and becomes connected with the proceedings sufficiently to enable him to secure a writ of certiorari and have the same reviewed. See, also, Deberry v. Holly Springs, 35 Miss. 385; Wilson v. Wallace, 64 Miss. 13, 8 So. 128; Gulf & S. I. R. R. Co. v. Adams, 85 Miss. 772, 38 So. 348; Robinson v. Mhoon, 68 Miss. 712, 9 So. 887; Madison County v. Powell, 75 Miss. 762, 23 So. 425.

In State ex rel. v. Olcott, 62 Or. 277, 125 Pac. 303, it was held that the filing of the petition for a referendum is not a legislative act, but merely a matter preliminary to the legislative act, and hence an investigation' into the sufficiency is not beyond the jurisdiction of the court; that, to constitute a legally sufficient petition, it must be a valid petition, signed by legal voters, and complying substantially with the requirements of law, and, although a petition appears regular on its face, the court may inquire into its legal sufficiency. It was also held that, where referendum petitions contained evidence of forgeries perpetrated either by circulators or with their connivance, the prima-facie case in favor of the genuineness of the petition is overcome.

The appellants cite and rely upon Power, Secretary of State v. Ratliff, 112 Miss. 88, 72 So. 864, Ann. Cas. 1918E, 1146, to support their contention that the court has no jurisdiction to prevent the holding of an election. This case arose upon a bill for injunction to prevent the holding of an election ordered under the same amendment here involved. The court declined to take jurisdiction of the controversy, on the ground that equity had no jurisdiction to enjoin elections or enforce political rights, in which conclusion we concur. The court raised the question of jurisdiction for itself, and declined, to entertain the suit, and dismissed the bill because equity had no jurisdiction. A good deal is said in the opinion upon other features of the question involved, but the only thing that the court decided there was that equity had no jurisdiction in such cases. Quite a different question is presented here, because it is a circuit court whose jurisdiction is invoked, and whose judgment is sought to be reviewed in this case.

Section 156 of the state Constitution reads as follows:

“The circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court, and such appellate jurisdiction as shall be prescribed by law.”

Section 702, Code of 1906 (Hemingway’s Code, section 481), giving the general jurisdiction of the circuit courts, reads as follows:

“The circuit court shall have original jurisdiction in all actions when the principa) of the amount in controversy exceeds two hundred dollars, and of all other actions and causes,' matters and things arising under the constitution and laws of this state which are not exclusively cognizable in some other court, and such appellate jurisdiction as prescribed by law; and such court shall have power to hear and determine all prosecutions in the name of the state for treason, felonies, crimes, and misdemeanors, except such as may be exclusively cognizable before some other court;.and said court shall have all the powers belonging to a court of oyer and terminer and general jail delivery, and may do and perform all other acts properly pertaining to a circuit court of law.”

Section 90, Code of 1906 (Hemingway’s Code, section 72), reads as follows:

“All cases decided by a justice of the peace, whether exercising general or special jurisdiction, may, within six months thereafter, on good cause shown by petition, supported by affidavit, be removed to the circuit court of the county, by writ of certiorari, which shall operate as a supersedeas, the party, in all cases, giving bond, with security, to be approved by the judge or clerk of the circuit court, as in cases of appeal from justices of the peace; and in any cause so removed by certiorari, the court shall be confined to the examination of questions of law arising or appearing on the face of the record and proceedings. In case of an affirmance of the judgment of the justice, the same judgment shall be given as on appeals. In case of a reversal, the circuit court shall enter up such judgment as the justice ought to have entered, if the same be apparent, or may then try the case anew on its merits, and may in proper cases enter judgment on the certiorari or appeal bond, and shall, when justice requires it, award restitution. The clerk of the circuit court, on the issuance of a certiorari, shall issue a summons for the party to be affected thereby; and in case of nonresidents, may make publication for them as in other cases.”

Section 91 Code of 1906 (Hemingway’s Code, section 73), reads as follows: “Like proceedings as provided in the last section may be had to review the judgments of all tribunals inferior to the circuit court, whether an appeal be provided by law from the judgment sought to be reviewed or not.”

It will be seen from a reading of these sections that the circuit court has jurisdiction of all questions cognizable in the courts that have not been exclusively vested in other courts. It is said that the questions here s'ought to be litigated are political and that political questions cannot be litigated in the courts. Almost all of the political rights of the citizens are guaranteed and prescribed by law, either constitutional laW, statute law, or common law. We find the qualifications of electors prescribed by law and that the circuit court entertains suits to enforce those rights. The circuit court entertains suits to settle a great variety of political questions not necessary to be enumerated here. Under the decisions we have already cited in dealing with the right of the appellee to institute suit, the right of the circuit court to entertain the suit is also shown. Many other cases could be cited.

In Western Union Tel. Co. v. Kennedy, 110 Miss. 73, 69 So. 674, it was held that certiorari was the exclusive remedy to review a decision of the railroad commission as railroad assessor of the state, and that if a person neglected to avail himself of the remedy therein provided he could not re-litigate the case under section 533, Code of 1906 (Hemingway’s Code, section 290).

In Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, Ann. Cas. 1914B, 916, it was held that, if the mandatory provisions of the organic law are ignored in amending the Constitution, • it violates the right of all of the people in the state to government regulated by law. It seems to us that the same would be true, where the provisions' of the organic law are violated in proposing initiative legislation.

This brings us to the consideration of whether or not the judgment of the circuit court should be affirmed. Much has been said in the argument on the question as to whether the amendment is self-executing, or whether it would take additional legislation to malte the provisions of the amendment effective, and especially with reference to that part of the amendment that provides for making a contest of the validity of the petition a preference suit to be tried at once in term, time or in vacation; it being ably and earnestly argued for the appellant that there is not sufficient machinery in the amendment itself to provide for the contest here sought to be brought about. But it is argued that the part providing for the initiative petition and the ordering of an election is self-executing; that there is no machinery by which the secretary of state can proceed, nor any method provided for him to secure presence of witnesses and documents, swear witnesses, etc., necessary for the determination of questions of fact. It is argued by the appellee that, if the amendment is not self-executing, the election cannot be held at all, and the judgment of the court for this reason must be affirmed. It is also alleged and assigned for error that the said amendment set out in the statement of the case is unconstitutional, and that the case of State ex rel. Howie v. Brantley, 113 Miss. 786, 74 So. 562, Ann. Cas. 1917E, 723, was incorrectly decided, and that there are additional reasons making the submission of the amendment void from those considered in that case.

The construction of the amendment above set out is difficult, and it is difficult to determine under that amendment, standing alone, as it does, without aid of legislation, whether the contention of the appellants is well taken or not. The conclusion we have reached, though upon a reconsideration of this question, leading as it does to the conclusion that the Brantley case, supra, was erroneously decided, and that the initiative amendment conflicts with the Constitution, relieves us from deciding many of the difficult questions presented in the record. When the ■Brantley case was first decided, it was decided, as appears from the per curiam Opinion, that the different judges who concurred therein reached their conclusions on different grounds. The writer hereof participated in that decision and concurred in the conclusion then reached. The court as then constituted was divided upon the several questions there presented in such way as to make it very difficult for a majority to reach the same conclusion upon the same line of reasoning. I then thought that the constitutional amendment had been validly submitted and legally adopted, and that it became a part of the Constitution. I concurred in the view that an amendment was single, instead of double, when there was unity in its ultimate end, and that, viewing section 33 of the Constitution as amended in this light, it dealt with legislation only, even though one feature dealt with statutes, and the other with amendments to the Constitution. I have since given a great deal of thought to this decision and to this amendment.

I have become convinced that the delegation of power to the legislature and the amendment of the Constitution are separate and distinct things. The power to change or amend the Constitution has never been delegated to the legislature. Amendments proposing constitutional changes have never been regarded as bills which must be sent to the Governor for his approval under section 72 of the Constitution. While a Constitution is law, it is not such a law as the legislature may enact. It is something reserved from the legislative power, or rather something that never was delegated in delegating legislative power. The Constitution is the product of the people in their sovereign capacity. It was intended primarily to secure the rights of the people against the encroachments of the legislative branch of the government. It is organic and fundamental, and it is not sufficient to say that, because each involves somewhat the exercise of the legislative power in its promulgation, it is a single subject, within the meaning of section 273 of the Constitution.

The proposed amendment deals with much more than what we considered in the Brantley case, supra. It not only reserves to the people the right to párticipate in legislation, but it involves also a right to amend the Constitution, and without reference to the legislature, and imposes very many restraints upon the legislative power, apart from reserving to the people a power to legislate, and changes very materially many of the other sections of the Constitution. It creates a situation with reference to law heretofore unknown. It not only confers on the people the power to make laws, and to amend laws, and to repeal laws, but it gives to the people, and to a very small per cent, of the people, the right to suspend laws of every kind by the simple expedient of filing a referendum petition within ninety days after the legislature shall have adjourned. It also expressly takes from the governor the power to veto bills, so as to cause their reconsideration, as conferred without stint or limit in section 72 of the Constitution. This materially changes section 72 of the Constitution, as well as sections 33 and 273.

Under the law as it stood before the submission of this amendment, as to statutes in conflict with each other, the first gave way to the last, and the last enactment was the law. Under the proposed amendment it is provided that, if conflicting measures submitted to the people shall be approved by a majority of the votes severally cast for and against the same, the one having the highest number of affirmative votes shall thereby become law. It does not provide that, if these measures are submitted at the same time, the one having the highest vote shall prevail, and it is open to doubt as to whether it could be held by construction to mean this. In other words, it might be held that, to repeal a measure enacted by people through the initiative, it would take a greater vote than the first measure received to accomplish that purpose, even though the last measure received a majority of the votes cast thereon. Again, it is provided that no measure enacted by the people shall be amended or repealed by the legislature, except by yea and nay votes upon a roll call three-fourths of the members of each house voting thereon. This imposes a limitation upon the power of the legislature as such which was not in the Constitution, and makes it practically impossible for the legislature to deal with the law enacted through the initiative. Again, it seems to carry the idea that, when construed as a whole, three-fourths of the legislature — that is, to say three-fourths of each house — could repeal a constitutional provision enacted through the initiative.

Again, the amendment changes the rule with reference to the vote required upon constitutional amendments. Section 273 of the Constitution provides that in case an amendment is submitted it must receive a majority of the votes cast in the election, regardless of whether the voter votes for or against the constitutional measure; whereas, the said amendment provides that when it is approved by a majority of the votes cast thereon it shall be effective. In other words, the new amendment is governed solely by the vote cast for and against the amendment; whereas, the Constitution provides that a majority of all the votes voting in the election shall be required to approve the measure.

There is another phase of the question that calls for consideration, because the amendment, if valid, would render ineffective many of the limitations upon the law-making power contained in other sections of the Constitution. For instance, section 81 of the Constitution provides that the legislature shall never authorize the permanent obstruction of any of the navigable waters of the state, etc. The section, when enacted, prohibited absolutely any law of the kind being enacted; but, if the Initiative Amendment is valid, it would appear that the people,. through the initiative, could enact such a law; that is to say, seven thousand five hundred voters could initiate the proceeding, and a mere majority of those voting for or against the measure could pass it.

Again, section 91 oí the Constitution provides that the legislature shall not enact any law for one or more counties not applicable to all of the counties of the state, increasing the uniform charge for the registration of deeds, or regulating costs and charges and fees of officers. This was in fact, and was intended to be, an absolute prohibition upon legislation of this kind; but, if the amendment is adopted and valid, it would appear to be only a limitation upon the legislature itself, and not a prohibition of the law of that kind. Section 92 of the Constitution prohibits the legislature from authorizing the payment of salaries of deceased officers beyond the date of their deaths. Section 93 prohibits the legislature from retiring any officer on pay, or part pay, or making any grant to such officer. Section 94 prohibits the legislature from making any distinction between the rights of men and women to acquire, own, enjoy, and dispose of all kinds of property and to make contracts in reference thereto. Section 96 prohibits the legislature from granting extra compensation, fee, or allowance to any public officer, agent, servant or contractor after service rendered or contract made, nor authorize the payment, or part payment, of any claim under any contract not authorized by law.

Section 97 prohibits the legislature from reviving any remedy which may have become barred by lapse of time or any statute of limitation of the state. Section 179 of the state Constitution provides that the legislature shall never remit a forfeiture of the franchise of any corporation now existing, nor alter nor amend the charter thereof, nor pass any general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter and franchises subject to the provisions of this Constitution, etc. Section 197 of the Constitution forbids the legislature to grant any foreign corporation or association a license to build, operate or, lease any railroad in this state.

There are many other provisions of the Constitution which prohibit the. legislature from doing certain things. These prohibitions were absolute on the law-making power. They deal with a great variety of subjects, and it is manifest that the Initiative Amendment, if held to be valid, will result in amending these several provisions, because it has the effect of entirely changing the effect and meaning of these sections.

It is always a matter of regret that a court feels called upon to change a decision once reached; but official integrity requires a court, when it is fully convinced that its decision is wrong and will result injuriously, to overrule it and decide correctly the proposition put up to it. I am not a believer in overruling decisions, when they are not clearly wrong and hurtful. A Constitution, however, is much more important and sacred than a decision of any court. The people by the Constitution establish a policy for the good of the people themselves. Where a court misconstrues the Constitution or misjudges a case, and its attention is called to it in the proper way, it should make a .correction at the earliest date possible. Beck v. Allen, 58 Miss. 143 et seq.

Since the Brantley decision, this is the first case involving the question which has been presented to this court, attacking the soundness of that decision. Two of the judges dissented in able opinions, and after full consideration of the question involved, mindful of the importance of the case and the decision we announce, we have been compelled. by the forces of reason and conscience to ovei’rule the Brantley case, supra, and declare the chapter known as the Initiative Amendment unconstitutional and void. Nothing in this opinion modifies or affects the case of State ex rel. Collins v. Jones, 106 Miss. 522, 64 So. 241.

The judgment of the court below will therefore be affirmed.

Affirmed.

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Concurrence Opinion

Holden, J.

I concur .generally in the views expressed by the majority opinion, in that the Initiative and Referendum Amendment to the Constitution is void, because it was not properly submitted to the voters as required by section 273 of our Constitution. I maintained this view and expressed it in a dissenting opinion in State ex rel. Howie v. Brantley„ 113 Miss. 821, 74 So. 662, Ann. Cas. 1917E, 723, in the year 1917.

I specially concur in the majority decision, now holding the amendment void, upon the ground that a majority of the qualified electors voting at the election did not vote for it, and therefore, under section 273 of the Constitution, it was never adopted by the people. This view was also expressed in my dissenting opinion in the case of Howie v. Brantley, supra, 113 Miss. 816, 74 So. 662, Ann. Cas. 1917E, 723, and I now refer to it as demonstrating the fact that the amendment was not adopted by a majority of the qualified electors voting at the election, when it was submitted for ratification or rejection, under the Constitution (section 273) and the prior decisions of this court.

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Dissenting Opinion

Smith, C. J.

(dissenting.)

I am of the opinion that the judgment of the court below should be reversed, and the cause, if such it be, should be dismissed.

Among the questions presented for decision by this record are, first, the right of the revenue agent to maintain the action; second, the jurisdiction, ml non of the court below; and, in event the two foregoing questions should be decided in accordance with the appellee’s contention, then, third, is the judgment rendered correct?

The interest which the appellee claims in this controversy, by virtue of which he is entitled to maintain the action is, first, that he is a taxpayer; and, second, that his office will be adversely affected by the proposed law; neither of which, if Power v. Ratliff, 112 Miss. 88, 72 So. 864, Ann. Cas. 1918E, 1146, is to be followed, will avail him for that purpose, for it was there held that neither a taxpayer nor a person whose office will be abolished by the enactment of a proposed law under section 33 of the Constitution can invoke the restraining power of the courts to prevent the holding of an election for the adoption of the law. This holding is in accord with previous decisions of this court, particularly Gibbs v. Green, 54 Miss. 592, and Conner v. Gray, 88 Miss. 489, 41 So. 186, 9 Ann. Cas. 120.

But if Power v. Ratliff, supra, is not to be followed, then the question of the jurisdiction of the court below of a cause of the nature of the one presented by the record arises in determining which we must look to the amendment to section 33 of the Constitution, and, if po such jurisdiction is there conferred, then to other provisions of the Constitution, the statutes and the common law. The amendment to section 33 of the Constitution does not in express terms confer jurisdiction on any court to decide the sufficiency of a petition proposing the enactment of a law under it, and I am of the opinion that no such jurisdiction is conferred by implication.

The amendment to section 33, after providing that “the sufficiency of all petitions shall be decided by the secretary of state” and of what the proof or verification thereof shall consist, provides that — “In the event that the sufficiency of the petition is challenged, the question shall be tried at once, in term time or in vacation, and such cause shall be a preference cause over all other causes. . . . In the event of legal proceedings in any court to prevent giving effect to any petition, upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition.”

This language neither confers jurisdiction nor provides a procedure by which jurisdiction may be exercised. The utmost effect that can be given to it is that, when the sufficiency of the petition is called in question in a court having jurisdiction thereof, the cause shall be given preference over other cases, tried either in term time or vacation, and that the burden of proving the petition’s insufficiency shall be upon the party attacking it. It creates no ■cause of action, nor confers any right, but simply regulates the exercise of a right, or the disposition of a cause of action, that may arise by virtue of some other provision of the Constitution, of a statute, or of the common law.

One of the contentions of counsel for the appellee seems to be that the amendment to section 33 of the Constitution creates a new cause of action and new jurisdiction, to be known as a challenge of the sufficiency of a petition filed under the amendment, for they style the initial pleading filed by them in the court below as a “challenge,” refer to the appellee therein as the “challenger,” and the allegation therein is that he “comes and challenges,” etc. The word “challenge,” in the amendment, can have no such .signification. It means simply “called in question,” and the amendment must be construed as if it read:

“In event that the sufficiency of the petition is called in question,” etc. •

The provision of section 156 of the Constitution giving to the circuit court “jurisdiction in all matters, civil and criminal, . . . not vested ... in some other court,” and of section 702, Code of 1906 (section 481, Hemingway’s' Code), that it shall have “jurisdiction in all . . . actions and causes, matters and things arising under the Constitution and laws of the state which are not exclusively cognizable in some other court,” created neither a new jurisdiction nor cause of action. It simply provides that such as exist and have not been assigned to some other court shall be cognizable in the circuit court.

The only other statute which could be or is sought to be invoked by the appellee is section 91 Code of 1906 (section 73, Hemingway’s Code), under which the circuit court may “review the judgments of all tribunals inferior to” it by means of a writ of certiorari, which statute will be hereinafter considered.

Coming, now, to the common law, it is undoubtedly true that by virtue thereof the circuit court has jurisdiction to restrain some public officers under some circumstances from exercising a power not conferred on them by law, which jurisdiction it exercises by the issuance of a writ of prohibition. One of the appellee’s counsel stated on the oral argument that in instituting this proceeding counsel for the appellee were in doubt as to the exact nature of' the jurisdiction which the court below could exercise, and consequently tried to frame their pleadings so that a cause of action might be presented under either the common law or writ of certiorari jurisdiction or both, The judgment rendered indicates that the court also entertained a similar doubt, for in some of its features it resembles a judgment in a proceeding for a writ of prohibition, and in others of a review of a judgment of an inferior tribunal on a writ of certiorari.

“The writ of prohibition is an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an inferior tribunal, properly and technically denominated such, or to an inferior ministerial tribunal possessing incidentally judicial powers, and known as a quasi-judicial tribunal or even in extreme cases to a purely ministerial body, commanding it to cease abusing or usurping judicial functions.”

It will not be issued when the tribunal or officer to whom it is sought to be directed had been invested with the jurisdiction exercised, though the order entered by it or him may be erroneous for other reasons, and not when the injury complained of by the person seeking, it can be redressed in another procedure or tribunal. 32 Cyc. 598 et seq.; Clayton v. Heidelberg, 9 Smedes & M. 623; Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518.

Under section 3241, Code of 1906 (section 2543, Hemingway’s Code), the procedure for determining whether or not a writ of prohibition shall issue is that provided by section 3231, Code of 1906 (section 2533, Hemingway’s Code), et seq.; and while the two petitions filed by the appellee in the court below are not in approved and technical form for a writ of prohibition proceeding, it may be, and I shall concede, that under section 729, Code of 1906 (section 512, Hemingway’s Code), the writ should issue, in event it can be gathered from the allegations of the petition that the appellee is entitled thereto.

The ordinary duties of the secretary of state are admittedly purely ministerial, and this court stated in Power v. Ratliff, 112 Miss. at page 94, 72 So. 864, Ann. Cas. 1918E, 1146, that those imposed on him by the amendment to section SB of the Constitution are also ministerial. The judicial power, which the appellee claims is here conferred on the secretary of state, is to determine the-sufficiency of the petition. The power thus conferred is nothing more than he would have had to discharge, had the provision been omitted, and is that which rests upon every ministerial officer, to wit, to determine whether or not the facts exist which require the performance by him of any act; his duty being always not to act unless he is required so to do by the law when applied to existing facts. In order to determine such a question, it is always necessary for a ministerial officer to examine into and determine questions of fact, but in so doing he is exercising neither a judicial nor quasi-judicial power.

Judicial power “is the power of a court to decide and pronounce a judgment and carry it into effect between persons or parties who bring a case before it for decision.” 2 Bouvier’s Law Dictionary, 1740; 11 C. J. 120; Railroad Co. v. Adams, 77 Miss. 776, 25 So. 355; Flournoy v. City of Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468; Board of Supervisors v. Melton, 123 Miss. 615, 86 So. 369. There are no parties to the proceeding by the secretary of state to determine the sufficiency of a petition, and he is required to make no order or judgment therein, but simply to proceed with the ministerial act of submitting the law proposed by the petition to the qualified electors of the state in the manner required by the election laws. Moreover, the power to determine the sufficiency of the petition is expressly conferred on the secretary of state by the amendment to the Constitution here in question, and as herein-before pointed out a writ of prohibition will lie only to restrain the exercise of a power either not conferred at all or in excess of that which is conferred.

Another reason why the restraining power of a circuit court cannot he invoked to prevent the holding' of this election is that this court held, in Power v. Ratliff, 112 Miss. 88, 72 So. 864, Ann Cas. 1918E, 1146, that the courts will not restrain the holding of an election under the provisions of section 33 of the 'Constitution, for the reason that the judicial department of the government should not interfere with the exercise by the political department of purely political powers. It is true that that case arose in the chancery court,-and the one at bar in the circuit court; but the ground on which the decision there turned is equally applicable to a case originating in the circuit court. The holding in that case is in accord with other decisions of this court, particularly in Gibbs v. McIntosh, 78 Miss. 648, 29 So. 465, wherein the court said that: “The trend of judicial thought in this state is that elections of all sorts are not to be interfered with by the courts.”

An examination of the cases referred to by counsel for the appellee, wherein the courts have restrained the holding of an election, other than Simpson County v. Buckley, 81 Miss. 474, 33 So. 650, will disclose that they were cases in which an appeal to the courts was expressly provided by the statute under which they arose, or was held to lie under the general statute regulating appeals to the circuit court from judgments rendered by other tribunals. There can be no merit in the distinction sought to be made between valid and invalid elections, in so far as the question of the court’s jurisdiction is' concerned. The question of the validity vel non of an election can arise only after a court has assumed jurisdiction of the cause in which that question is presented for decision.

Coming, now, to the jurisdiction of a circuit court under section 91, Code of 1906.(section 73, Hemingway’s Code), which provides that it may review the judgments of inferior tribunals by means of a writ of certiorari, it is clear that no such jurisdiction can be here entertained. That statute provides only for a review by the circuit court of “judgments” rendered in a judicial proceeding and not of mere administrative orders, even though the person or tribunal- making such orders must have investigated and decided questions of fact in so doing. Board of Supervisors v. Melton, 123 Miss. 615, 86 So. 369. And, as hereinbefore pointed out, no judgment in a judicial proceeding is here involved. But if I should be mistaken in this, and the court below had jurisdiction under the statute last referred to, the judgment rendered does not conform to the requirements of section 90, Code of 1906 (section 72, Hemingway’s Code), for the trial of causes removed to the circuit court by the writ of certiorari.

Under this statute a cause is not tried in the circuit court on pleadings there filed, but on the record removed from and made in the inferior court. Board of Supervisors v. Melton, 123 Miss. 615, 86 So. 369. And unless an error appears on the face of that record the inferior court’s judgment should be affirmed. But, if such an error appears, then the judgment that should be rendered by the circuit court is either that which it appears from the face of- the record to be proper, or the cause may be tried anew on its merits. The court below evidently proceeded on the theory that, unless the allegations of the appellee’s petition were denied by a plea or answer, no issue was presented for decision, and that judgment must be rendered for the appellee in accordance with the prayer of his petition, without a trial on the merits:

Conceding, but merely for the sake of the argument, that the secretary of state erred in not hearing the evidence offered by the appellee in support of his objections to the sufficiency of the petition, and that that error appears from the face of the record,.then the court below should have set aside the order made by the secretary of state (if he in fact made any order at all within the meaning of that term), and tried the objections of the appellee to the sufficiency of the petition on their merits, on which trial, under the express language of the Constitution, the burden of proof would have been on the appellee. That the appellant may not have insisted on this course being pursued is wholly immaterial, for the question here is one of power, and not of procedure, and in passing it may not be amiss to say that such an objection by him would, of itself, if sustained, have defeated his purpose in contesting the appellee’s objections to the petition; for any trial thereof on their merits would have in all probability been 'necessarily still in progress when the day for the holding of the election at which the proposed statute was to be submitted arrived.

But my brethren say that no judgment could have been properly rendered permitting the secretary of state to proceed with the election, for the reason that the Initiative and Referendum Amendment to section 33 of the Constitution, which was submitted to and adopted by the qualified electors of the state, is void, because it violates section 273 of the Constitution, under which amendments thereto are submitted to the qualified electors for ratification, in that it contains “more than one amendment” to the Constitution.

In State ex rel. Howie v. Brantley, State Game and Fish Commissioner, 113 Miss. 786, 74 So. 662, Ann. Cas. 1917E, 723, this court passed upon this objection to the amendment, and after, as will appear from an examination into the history of that case, the most careful consideration decided that the amendment was not subject thereto, but is valid, and that Brantley, the state game and fish commissioner, had been legislated out of office by the adoption of a law by the qualified electors of the state under the provisions of the amendment. It is true that two of the judges then composing the court dissented from the conclusion reached in that case; nevertheless the question presented was as effectually decided as though all of the judges had ■concurred therein. I will not reproduce the reasoning by which the majority of the court supported its decision, but will simply again point out, as was there done, that a determination of the question will depend upon whether a Constitution should be given a liberal or a strict and narrow construction.

Whether a Constitution should be construed in the one way or the other has been a much-mooted question in American political and judicial history, but the . tendency of modem thought, both political and judicial, is that such an instrument should be liberally construed, to the end that the will of the people as therein expressed may be carried out. If the court in the Brantley case had adopted a strict and narrow construction, such as my brethren now adopt, the amendment would have been declared' void, and Brantley would have remained in office. But it adopted, as it had the right to do, and which under the rule of stare decisis should be now followed, a liberal construction, under which the amendment was necessarily held to be valid. Whether a Constitution shall be liberally or strictly construed will depend upon the school of thought to which the person who is called on to construe it belongs, and all that can be said with reference to the correctness vel non upon the constmction placed upon the amendment here in question in the Brantley case is that the court could have reached either conclusion as to the validity of the amendment; but it cannot be said that the decision is manifestly wrong — that is, that all' men at first blush would so say— and as I understand the rule of stare decisis a court should adhere to a decision once made, when the questions therein involved afterwards arise, unless the decision is manifestly wrong, has not become fixed in the jurisprudence of the state, involves no rule of property, and is mischievous in its results.

The mischief which will result from following the decision in the Brantley case can only be that the people will have an opportunity to continue to exercise the right to initiate laws themselves and to pass upon those enacted by the legislature. Whether the existence of such a power is to be held as detrimental to the people depends upon what school of thought the person deciding the question belongs; but, if it is, as to wbicb I am not called on to express an opinion, it can be easily surrendered in another election, while, on the other hand, the confusion that will arise by overruling the Brantley case can probably not be remedied. As the matter now stands, no one can say with confidence whether the amendment is a part of the Constitution or not; for, unless the rule of stare decisis is to be followed, the decision here made may also be hereafter overruled.

If the present decision should be adhered to, the fish and game law, which was held in the Brantley case to have been repealed, is and has always been in full force and effect, in so far as the law by which it was said to have been repealed is concerned, and an amendment to section 206 of the Constitution, adopted under the amendment to section 38, after the Brantley case was decided, is void. Under this amendment to section 206 the legislature has appropriated and the administrative department of the state government has spent several millions of dollars, and what protection the statutes under which they acted will now afford these administrative officials may be a serious question.

The rule of stare decisis is probably that feature of the common law which differentiates it from other legal systems, and the growth and symmetry of that system was made possible only by the adherence of the courts to that rule, and. this is peculiarly a case in which it should be followed.