95 So. 691 | Miss. | 1923
Lead Opinion
delivered the opinion of the court.
Section 231 of the Mississippi Constitution of 1890 provides :
“When the terms of the present levee commissioners shall expire, or whenever a vacancy shall occur or be about to occur in either of said boards, the Governor shall make appointments to fill vacancies, subject to the confirmation of the seriate. The terms of office of said commissioners shall remain as provided by law at the adoption of this Constitution; but this provision shall not require the appointment of a commissioner for the Louisville, New Orleans & Texas Railway Company, except in the discretion of the Governor as provided.”
The legislature at its 1920 session submitted to the qualified electors for ratification or rejection a proposed amendment to section 231 of the Constitution so as to make it read as follows:
“Sec. 231. The levee commissioners, except the commissioner for the Louisville, New Orleans & Texas Railroad Company now the Yazoo & Mississippi Valley Railroad Company, shall be elected by the qualified electors of the respective counties or parts of counties from which they*732 may be chosen. The terms of office of said commissioners shall be four years, and they shall be selected in the manner prescribed by law. But nothing in this section shall require the appointment of a commissioner for the Louisville, New Orleans & Texas Railroad Company, except in the discretion of the Governor, as provided.”
This proposed amendment was submitted to the qualified electors of the state at the general election held on the 2d day of November, 1920. The returns of this election were filed in the office of the secretary of state as required by law, and the certificate of the secretary of state shows that the total number of “ votes cast at such election were eighty-two thousand three hundred eighty, that being the highest number of votes cast for any candidate or measure voted for at such election. This certificate of the secretary of state also shows that at such election there was cast for the proposed amendment thirty-three thousand two hundred thirty-eight votes and twenty-six thousand seven hundred ninety-one against it. It thus appears that the proposed amendment received a majority of the qualified electors voting for or against it, but it did not receive a majority of the qualified electors voting at the election. At the 1922 session of the legislature a concurrent resolution attempting to insert the proposed amendment into the Constitution was adopted, this resolution .merely reciting that the proposed amendment had received a majority of the qualified electors voting for or against the same. Pursuant to this supposed . amendment, the •Legislature enacted chapter 166 of the Laws of 1922, entitled :
“An act to fix the term of.the levee commissioners for the Yazoo-Mississippi Delta levee district and the Mississippi levee district; to provide for the nomination of candidates for the office and for the election of the commissioners of said districts; and for the filling of vacancies in such office.”
Acting under the provisions of this statute, an election was held in the Yazoo-Mississippi Delta levee district, and
Thereupon this suit was filed, it being a quo warranto proceeding on behalf of Thomas E. Buford, claimant to the office, against E. Y. Cato, incumbent. The cause was submitted to the court upon documentary evidence and an agreed statement of the facts, and judgment was entered in favor of respondent Cato, and from this judgment this appeal was prosecuted.
The first contention of appellant is that, under section 273 of the Constitution, which provides how amendments thereto may be made, it is sufficient for the ratification of a proposed amendment that it shall appear that, of the entire vote cast for and against it, only a majority thereof were cast in favor of it.
More than twenty years ago, in the case of State v. Powell, 77 Miss. 543, 27 So. 927, 48 L. R. A. 652, this court decided that under section 273 of the Constitution, an amendment to be constitutionally adopted must receive a majority of all the votes cast at the election wherein the amendment is voted upon, and counsel frankly concede that the Powell Case must be overruled if the construction of section 273 for which they contend is sustained.
The provision of section 273 of the Constitution, with reference to the number of votes necessary for the adoption of a constitutional amendment, is as follows:
“If it shall appear that a majority of the qualified electors voting shall have voted for the proposed change, alteration, or amendment, then it shall be inserted by the next succeeding legislature as a part of this Constitution, and not otherwise.”
It is well settled in this state that the- question of whether a proposed constitutional amendment has been
In the case of State v. Powell, supra, it was held that the majority required by section 273 of the Constitution of 1890 for' the adoption of a constitutional amendment must be a majority of all the electors voting at the election, not simply all those voting on the adopton or rejection of the amendment submitted. This construction was followed in the cases of State v. Jones, supra, and State v. Brantley, supra, and for twenty-two years the construction placed upon this section in the Powell Case remained unchallenged, and no effect was made to amend the Constitution so as to modify or change the rule of construction there announced. It is common knowledge that during that period of time many proposed amendments which had received a majority of the votes cast for or against the same, but which had not received the votes of a majority of the electors voting at the election, have been permitted to sleep without any effort on the part of the legislature to insert them in the Constitution. Since the construction placed upon section 273 in the Powell Case, supra, was acquiesced in for this long period of time, and no effort was made to change or modify this construction by submitting a,n amendment to the section, we must presume that the representatives of the people, as well as the people themselves, were satisfied with the construction placed upon it. The fact of this long acquiescence is persuasive, but it would not be controlling if we were convinced that the construction placed upon the section in the Powell Case was erroneous.
The exact contention which is now so ably urged against the soundness of the decision in the Powell Case was pre
It is argued by counsel, however, that if it shall be held that a proposed amendment must receive a majority of the votes cast at an election, then there is no provision in our law whereby the total vote cast at the election may be determined. If such be true, then, as held in State v. Brantley, 113 Miss. 786, 74 So. 662, Ann. Cas. 1917E, 723— “In the absence of a correct certification of the number of electors voting a.t an election at which a constitutional amendment is voted upon, the court must presume that the highest number of votes cast for any officer or measure represented the number of votes cast at the election.”
Counsel next contend that if it shall be held that the proposed amendment to section 231 of the Constitution was not constitutionally adopted, still chapter 166 of the laws of 1922 does not violate any provision of the Constitution and is a valid exercise of legislative power, or, in other words, that section 231 of the Constitution is not a limitation on the power of the legislature to provide for the election of levee commissioners and to provide a method of filling vacancies in such offices, but is simply a temporary expedient for the filling of these offices by appointment by the Governor, until such time as the legislature shall see fit to provide another method of selection.
Affirmed.
Concurrence Opinion
(specially concurring).
I concur in the conclusion reached by the majority that the case should be affirmed and concur in all that has been said in the majority opinion with reference to the Constitutional amendment submitted by the legislature in 1920' to section 231 to the Constitution not being legally adopted, and that the Powell Case, 77 Miss. 543, 27 So. 927, 48 L. R. A. 652, should not be overruled. •
I think also that chapter 166, Laws of 1922, is not constitutional because it fixes the terms of the levee commissioners at four years instead of two years (chapter 168, Laws 1884), proceeding upon the idea that the amendment to section 231 had carried and was lawfully a part of the Constitution. I think, however, it is within the legislative power to provide for the election of these levee commissioners without any additional constitutional amendment. I believe the terms of section 231, Constitution of 1890, properly construed, leaves the legislative power to provide for the election of levee commissioners unimpaired.
Section 231 of the Constitution of 1890 reads as follows:
“When the terms of the present levee commissioners shall expire, or whenever a vacancy shall occur or be about to occur in either of said boards, the Governor shall make appointments to fill vacancies, subject to the confirmation of the Senate. The terms of office of said commissioners shall remain as provided by law at the adoption of this Constitution; but this provision shall not require the appointment of a commissioner for the Louisville, New Orleans & Texas Railway Company, except in the discretion of the Governor as provided.”
It will be noted that this section provides, “When- the terms of the present levee commissioners shall expire,” indicating that it was the purpose of the constitutional convention to only provide finally and definitely for the immediate succession of those then in office. This language is followed by, “or whenever a vacancy shall occur or be
When the constitutional convention was dealing with other appointments, the language was clear and explicit, having no reference to present incumbents, but applying generally to all appointments. For instance, section 145 of the Constitution, as originally drafted, provides:
“And the Governor, by and with the advice and consent of the Senate, shall appoint one judge for and from each district,” etc.
Section 153 of the original Constitution provided: “The judges of the circuit courts and of the chancery courts shall be appointed by the Governor, with the advice and consent of the Senate,” etc.
The members of the constitutional convention were careful in the use of language and used their words with effect and for a purpose. So it seems to me that when the convention used the term, “When the terms of the present levee commissioners shall expire, . ... the Governor shall make appointments to fill vacancies, subject to the confirmation of the Senate,” it meant that the legislature, after the terms of the successors of the commissioners then
The framers of the Constitution no doubt thought that the schemes devised for the control of the state government by the white people would be éffective, and that the legislature made up of a majority of its members of the white race would be able to deal with the subject in the light of the conditions and situations which confronted it. In the recent case of Miller, State Auditor, v. State ex rel. Russell, Dist. Atty., 94 So. 706, this court held that the legislature had all power not prohibited to it by the Constitution and that restrictions by implication would not be favored. Multiplied authorities to the same effect could be cited.