233 S.W. 641 | Mo. | 1921
Lead Opinion
This is an original proceeding by mandamus instituted in this court by the relator against the respondent, the Secretary of State, seeking to compel him to accept and file four certain referendum petitions, hereinafter to be more fully described, so that the laws mentioned in the petitions may be placed upon the ballots at the next general election of the State for confirmation or rejection by the voters of the State.
The pleadings in the case fully and clearly present the legal proposition presented to this court for determination and for that reason I shall here present them in full. They are as follows:
"The petition of relator further alleges that all of said bills were approved by the Governor of Missouri on the 11th day of March, 1921, and that on the 18th day of June, 1921, and within ninety days after the adjournment of the Fifty-first General Assembly, the relator presented to the Secretary of State in the presence of the Governor, 1538 legal referendum petitions containing the total of 65,248 names of legal voters and qualified electors of the State of Missouri, which petitions were legally signed by more than five per cent of the legal voters and qualified electors in more than two-thirds of the Congressional districts of the State of Missouri, asking for a referendum on all four of said Senate Bills in order that the people might at the general election in 1922 vote for the approval or rejection of said measures; that said Secretary of State, wholly disregarding his duties and without any legal right or authority, refused to accept, receive and file said referendum petitions against said bills and assigned as his sole and only reason for such refusal that said bills were not referable, because each of the bills contained among other provisions the following language:
"`This enactment is hereby declared to be necessary for the immediate preservation of the public peace, health and safety within the meaning of Section 57, Article 4, of the Constitution of Missouri.'
"The petition further alleges that it is not true that said bills, or either of them, are necessary for the immediate preservation of the public peace, health or safety within the meaning of Section 57 of Article 4 of the Constitution of Missouri, but that said bills are purely local in their character and pertain to Jackson County, Missouri, only, and that such statements contained in said bills are false and untrue and that such an attempt on the part of the Legislature to prevent said bills from being referred to the people is unconstitutional and void and in violation of Section 57 of Article 4 of the Constitution of Missouri, and that such action on the part of the Secretary of State was and is arbitrary *673 and unfair; that by the refusal of the respondent to accept, receive and file such referendum petitions, the relator and all other citizens of Missouri have suffered and will suffer irreparable wrong and injury and the people of the State will be denied their constitutional right to vote for the approval or rejection of said measures and will be entirely without redress of said wrongs, without the interposition and interference of this court by its writ of mandamus.
"The prayer of the petition prays this court to issue its writ of mandamus, directing and commanding respondent, as Secretary of State, to forthwith accept, receive and file in his office at Jefferson City, Missouri, all of the said referendum petitions pertaining to said Senate Bills Nos. 4, 5, 6, and 7, and to detach the sheet containing the signatures and affidavits and cause them to be attached to one or more printed copies of the measures so proposed, and to deliver such detached copies of such measures to the relator, and that the respondent be compelled to forthwith transmit to the Attorney-General of the State of Missouri a copy thereof in order that said Attorney-General shall provide and return to the Secretary of State a ballot title for said measures, and that said respondent be compelled to furnish to each of the county clerks of the State of Missouri a certified copy of the ballot title and numbers of the several measures to be voted upon at the coming general election, and for such other relief as may be found necessary and expedient to cause the respondent to do that which in justice and right ought to be done.
"After the filing of the petition in this court, relator and respondent entered into a stipulation agreeing that the petition might stand for the alternative writ; that the respondent have until the 28th day of June, 1921, within which to plead; that the cause be submitted to the court upon briefs filed by both parties; that relator have until the 5th day of July, 1921, to file his brief and that respondent have five days thereafter to file his answer brief, and that relator have three days *674 thereafter if desired to the reply brief; and that Senate Bills Nos. 4, 5, 6, and 7, be consolidated in one action and all questions as to joinder be waived."
"Admits that relator is a resident and assessed tax-paying citizen of Kansas City, Jackson County, Missouri, and is a legal voter and qualified elector in said city, county and state, and was on the second day of November, 1918, elected a justice of the peace within and for Kaw Township, Jackson County, Missouri, for a term of four years; admits that respondent is and has been the Secretary of State of Missouri since the 10th day of January, 1921; admits that Fifty-first General Assembly of Missouri convened at Jefferson City on January 5, 1921, and adjournedsiue die on the 21st day of March, 1921, and passed, among other acts, Senate Bills Nos. 4, 5, 6, and 7, with the titles as pleaded; alleges that copies of said Senate Bills Nos. 4, 5, 6, and 7, are attached and marked `Exhibits A, B, C and D,' and made a part thereof; admits that all four of said bills have a community of interest, that is, said bills are similar, affect the same parties, pertain to the same subject, are companion bills, and one is useless without all; admits that all of said bills were approved by the Governor on the 11th day of March, 1921, and that on the 18th day of June, 1921, in the office of the Secretary of State and in the presence of respondent and the Governor of Missouri, relator presented as against each of said bills 1538 referendum petitions containing a total of 65,248 names of legal voters and qualified electors of the State of Missouri, which said petitions were legally signed by more than five per cent of the legal voters and qualified electors in each of two-thirds of the Congressional districts of the State of Missouri as set out in detail in relator's petition; admits that said petitions were presented in *675 order that said Senate Bills Nos. 4, 5, 6, and 7, might be referred to the people of Missouri for their approval or rejection; admits that at the time said referendum petitions were presented, relator demanded respondent to accept, receive and file said petitions against each of said bills and to detach the sheets containing the signatures and affidavits as alleged in relator's petition, and demanded that respondent forthwith transmit to the Attorney-General of the State of Missouri a copy thereof in order that he might provide a ballot title for each of said measures, and demanded that respondent furnish to each of the county clerks of the State of Missouri a certified copy of the ballot titles and numbers of the several measures to be voted upon at the coming general election, and demanded that respondent fully comply with Chapter 47 of the Revised Statutes of Missouri 1919, and other laws appertaining to the referendum acts of the Legislature; and admits that respondent refused to accept, receive and file said referendum petitions against each and all of said bills; denies that in refusing to accept, receive and file said petitions, respondent wholly disregarded his duties as Secretary of State; admits that each of said bills contained among other provisions, the following language:
"`This enactment is hereby declared necessary for the immediate preservation of the public peace, health and safety, within the meaning of Section 57 of Article 4 of the Constitution of Missouri.'
`Denies that it is not true that said bills, or either of them, are necessary for the immediate preservation of the public peace, health and safety within the meaning of Section 57 of Article 4 of the Constitution of Missouri; denies that said bills, and each of them are purely local in their character and pertain to Jackson County only and do not affect the citizenship of Missouri in any particular; denies that the statement contained in each of said bills is false and untrue, and denies that such statement does not prevent said bills from being referred to the people for their approval or rejection, and that *676 the action of the Legislature in inserting said statements in said bills was unconstitutional and void and in violation of Section 57 of Article 4 of the Constitution of Missouri; and denies that the action of respondent, as Secretary of State, was and is arbitrary, unfair and in violation of Section 57 of Article 4 of the Constitution of Missouri, or with any other provision of the Constitution; denies that by his refusal to accept, receive and file such referendum petitions the relator and other citizens of Missouri have suffered, and will suffer, irreparable wrong and injury and the people of the State be denied any constitutional right whatsoever by reason of his said action; denies each and every allegation contained in relator's petition and alternative writ of mandamus not herein expressly admitted; further answering, respondent states that he refused, and still refuses, to accept, receive and file the referendum petitions tendered by the relator for the following reasons:
"1. That said Senate Bills Nos. 4, 5, 6 and 7, and each of them, contain the following language:
"`This enactment is hereby declared to be necessary for the immediate preservation of the public peace, health and safety, within the meaning of Section 57, of Article 4, of the Constitution of Missouri.'
"Alleges that by reason of said legislative declaration contained in each of said bills and by reason of the provisions of Section 57 of Article 4 of the Constitution of Missouri, said bills are not subject to, but are excepted from, the referendum.
"2. That said bills, and each of them, are necessary for the immediate preservation of the public peace, health and safety, and that, therefore, by the provisions of Section 57 of Article 4 of the Constitution of Missouri, said bills are not subject to the referendum; and alleges that, having made return fully to the relator's petition and the alternative writ of mandamus herein, respondent prays the court that the peremptory writ of mandamus prayed for by relator be denied." *677
"Admits that said Senate Bills Nos. 4, 5, 6 and 7, and each of them, contained the following language:
"`This enactment is hereby declared to be necessary for the immediate preservation of the public peace, health and safety within the meaning of Section 57 of Article 4 of the Constitution of Missouri.'
"Denies that by reason of said legislative declaration contained in each of said bills and by reason of the provisions of Section 57 of Article 4 of the Constitution of Missouri, said bills are not subject to, but are excepted from, the referendum; denies that said bills, and each of them, are necessary for the immediate preservation of the public peace, health and safety, and therefore, by the provisions of Section 57 of Article 4 of the Constitution of Missouri said bills are not subject to the referendum; further alleges that said statement in each of said bills is false and untrue and in violation of Section 57 of Article 4 of the Constitution of Missouri and that said bills are not excepted from the referendum by reason of said statement; and further alleges that it is not true that said bills, or either of them, are necessary for the immediate preservation of the public peace, health and safety and alleges that said bills are purely local in their character and simply provide for legislating out of office eight justices of the peace and eight constables in one township (Kaw) in the entire State of Missouri, and that the bills are not in any sense necessary for the immediate preservation of the public peace, health and safety.
"We submit, therefore, that there is simply one question for this court to determine and that is whether or not the adoption by the Legislature of the `peace, health and safety clause' excepts these bills from the referendum. That is, may a Legislature select only one township in the entire State of Missouri and legislate *678 out of office eight justices of the peace and constables who have been elected for a four-year term and authorize the Governor to appoint their successors until the next general election. By stipulation filed and the pleadings, all other questions are eliminated, and the court is called upon to determine the one legal question involved."
There is but a single legal proposition presented by this record to this court for determination, and that is, has the Legislature of the State the constitutional authority under Section 57 of Article 4 of the Constitution to enact a law, and debar the power of the courts of the State from passing upon the question as to whether or not the law is subject to referendum by adding thereto the words: "This enactment is hereby declared to be necessary for the immediate preservation of the public peace, health, and safety, within the meaning of Section 57 of Article 4 of the Constitution of Missouri?" Said section, in so far as here necessary, reads as follows:
"The legislative authority of the State shall be vested in a legislative assembly, consisting of a senate and house of representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than eight per cent of the legal voters in each of at least two-thirds of the Congressional districts in the State shall be required to propose any measure by such 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 four months before the election at which they are to be voted upon. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety and laws making appropriations for the current expenses *679 of the State government, for the maintenance of the State institutions and for the support of public schools) either by the petitions signed by five per cent of the legal voters in each of at least two-thirds of the Congressional districts in the State, or by the legislative assembly, as other bills are enacted."
This question has been most elaborately and ably discussed by counsel for the respective parties, and all the authorities bearing upon the question from the various states of the Union have been cited, and after a thorough consideration of the same, I am fully satisfied that the law of the case was, and is, fully and correctly declared by GRAVES, J., in the case of State ex rel. v. Sullivan,
For the reasons stated, I am of the opinion that the writ of mandamus should be made permanent. It is so ordered. James T.Blair, C.J., Graves, Walker and Elder, JJ., concur in separate opinions; Higbee and David E. Blair, JJ., dissent in separate opinions.
Concurrence Opinion
The question here seeking solution is of grave importance. It involves the right of the people under the Constitution to enter into and become a part of the law-making power of the State. Correctly determined it cannot but tend to preserve and perpetuate that right; incorrectly determined, to destroy it.
The principal opinion by WOODSON, J., states in detail the facts upon which this controversy is based. However, a synopsis of same may not be inappropriate, if for nothing more than convenience of reference. The Fifty-first General Assembly repealed four laws concerning justices of the peace, their clerks and constables in certain municipal townships, and enacted other statutes relating to the same subjects in lieu thereof. To each there was appended this provision:
"This enactment is hereby declared to be necessary for the immediate preservation of the public peace, health and safety within the meaning of Section 57, Article IV, of the Constitution of Missouri."
Despite these provisions referendum petitions were circulated and having been signed by the required number of legal voters, regarding which there seems to be no question, they were presented to the Secretary of State for filing. He refused to file them, basing his refusal on the provision attached to each above quoted. The proceeding at bar was thereupon invoked to compel affirmative action on the part of the Secretary of State.
I. It was declared by this court in State ex rel. Kemper v. Carter, 257 Mo. l.c. 70, that we adopted our constitutional provision in regard to the initiative and referendum from the Oregon Constitution. The Supreme *699
Court of that state in constructing that portionForeign of its constitution held in Kadderly v. City ofConstruction. Portland,
It may be admitted that it is a general rule when a statute or a constitutional provision has been adopted from another state that the construction here placed upon it by the highest court accompanies it and is treated as incorporated therein. This rule, however, is not absolute. [Whitney v. Fox,
In State ex rel. Brislawn v. Meath, supra, the Supreme Court of Washington, in discussing the arbitrary rule announced in Kadderly v. Portland, supra, pertinently said: "The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority. If, therefore, a statute, purporting to have been adopted to promote the public health, the public morals, or the public safety, has no real or substantial relation to these objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."
In Hutchinson v. Krueger, supra, this question was given exhaustive consideration. Quoting from State v. Campbell, supra, the Supreme Court of Oklahoma says: "We recognize the force of the rule that where one state adopts a statute from another state it adopts the construction placed thereon by the courts of that state; but this is a general rule to which there are numerous excepions. It is not an absolute rule." *701
In Dixon v. Ricketts, 26 Utah, 215, it was said: "It is a general, though not a binding, rule of statutory construction that where the provisions of a statute have received judicial construction in one state, and it is then adopted in another state, it is adopted with the construction so given it." Further quoting from Endlich on Statutes, sec. 371, the court says:
"`Whilst admitting that the construction put upon statutes by the courts of the state from which they are borrowed is entitled to respectful consideration, and that only strong reasons will warrant a departure from it, its binding force has been wholly denied, and it has been asserted that a statute of the kind in question stands upon the same footing, and is subject to the same rules of interpretation, as any other legislative enactment. And it is manifest that the imported construction should prevail only so far as it is in harmony with the spirit and policy of the general legislation of the home state, and should not, if the language of the act is fairly susceptible of another interpretation, be permitted to antagonize other laws in force in the latter or to conflict with its settled practice.'"
In Coad v. Cowhick,
In Ancient Order v. Sparrow,
The limitation placed upon the rule by this court is that the construction given by the courts of a state to a statute will be given respectful consideration by the courts where such statute has been adopted. We said thus much, no more, in the Carter Case,
In State v. Campbell,
From these cases and others of like import it will be seen that the arbitrary application of the rule in the construction of adopted statutes accords neither with reason nor precedent. The most conservative statement of its application is to be found in our later Missouri cases, in which it is said in effect that when a law is adopted by the Legislature of this State the construction placed upon it by courts of the state of its origin will be presumed to have met with the approval of the Legislature when adopting it. [Knight v. Rawlings,
II. It becomes pertinent, therefore, to inquire as to the spirit and purpose of the people in incorporating the initiative and referendum into our Constitution. For reasons not necessary to be enumerated here, but of sufficient *703 impelling power to prompt action, at the time, it was determined to provide an efficient method for the checking andInterest of regulating of legislative power. This determinationReferendum. found expression and was given operative force in the adoption of the initiative and referendum. We are concerned here more particularly with the latter. It may be ordered, says in effect our organic law (Secs. 57, Art. IV), in regard to all matters of legislation, except laws necessary for the immediate preservation of the public peace, health or safety, appropriations of current expenses of the State government, the maintenance of State institutions and the support of public schools. Comprehensive in its terms and definite in its exceptions, it requires, as Hudibras would have it, "neither gloss or comment but may be unriddled in a moment." The case with which it may be interpreted, however, must not lessen the force of the fact, which was the moving impulse in the adoption of the amendment, that the power thereby reserved is in the people and that upon which it is to be exercised is the Legislature. In other words, the Legislature, proposes and the people dispose of its acts, either by approval or rejection as they may deem proper, save as excepted in the Constitution. Despite this unequivocal declaration of power it is contended by respondent, supported by the holding of the Supreme Court of Oregon in the Kadderly case, supra, that the Legislature may nevertheless determine, not only the extent to which this power may be exercised, but whether it may be exercised at all. This holding violates the spirit and destroys the purpose of the amendment. If the Legislature, as in the instant case, may except from the referendum acts abolishing the offices of justices of the peace, clerks and constables in a designated township and provide for the selection of their successors by simply declaring that such acts are for the immediate preservation of the peace, health and safety, then a like exception may be effected by appending this provision to any other act, regardless of the absurdity of its application and thus the constitutional *704 power intended to be reserved will there by be completely destroyed.
A blind following of the rule of construction, we have discussed, stripped of all of its exceptions, is the chief refuge sought to sustain the contention that the Legislature may, in this instance by the magic of misapplied words, restore to itself a power reserved by the people to themselves. Construing the rule, however, in the light of the numerous exceptions noted and in harmony with the spirit manifested and the purpose intended to be accomplished in the adoption of the amendment, we avoid absurdities in the use of words otherwise unmistakable in their meaning, recognize without doing violence to same the limitations upon legislative power and, at the same time do not minimize that reserve to the people.
III. There is a familiar maxim, uniform in its application, that the reason of the law is the life of the law, or as the pedants put it, Ratio legis est anima legis. By theAbsurdity. reason of the law we mean, of course, the occasion or moving cause, of its enactment. This is the touch stone of correct interpretation. Which, says a learned judge, "if not sought and found by the courts, they miss their prime and most august function." [Dudley v. Clark, 255 Mo. l.c. 586.] Applying this maxim to the referendum provision, we found, without doing violence to either its words, context or subject matter, that the reason for its enactment was legislative regulation. Applying the maxim to the acts under review, will, therefore, enable it to be determined regardless of barren rules or arbitrary precedents, whether the incorporation therein of the provision that they are for the preservation of the public health, etc., renders them immune from reference or whether this provision is a mere legislative brutum fulmen, incongruous in its setting and hence inconsistent with the subject-matter of the acts.
Enough has been said to indicate the nature of the acts under review. By their terms they apply not to the justices' clerks and constables of the State or of a certain *705 class of counties, but to those of townships which have or may hereafter have a certain population. This precludes their general application, and at the same time enables them to escape the constitutional pruning knife under the thinly veiled mantle of classification. As a matter of fact, of which we may take judicial notice, their present application is limited to the municipal township in which Kansas City is located. Unless, therefore, we attribute to them the virtue of Prince Ahmend's tent which, at will, would cover an army or could be folded within the compass of its owner's pocket, we cannot classify these acts as of a general nature, such as was, evidently contemplated by the Constitution in the use of the word "public" in the referendum.
To emphasize this conclusion, analysis of that portion of the excepting clause here under consideration is appropriate. It will be recalled that its wording, so far as is applicable here, is "except as to laws necessary for the immediate preservation of the public peace, health or safety." The word "preservation," say the lexicographers, presupposes a real or existing danger; and "immediate preservation from" is indicative of a present impelling necessity, with nothing intervening, to prevent the removal of the danger. By the "public peace" we mean that quiet, order and freedom from disturbance guaranteed by law. [Neuendorff v. Duryea, 6 Daly (N.Y.) 276, 52 How. (N.Y.) 269; Gribble v. Wilson,
Laws in regard to "public safety" are allied in their application and effect to those enacted to promote the public peace, preserve order and provide that security to the individual which comes from an observance of law. By the "public health" is meant the wholesome sanitary condition of the community at large. [1 Bl. Comm. 122; Anderson's Law Dic.]
The meaning of these controlling words in the excepting provision, concerning the correctness of which there can be no reasonable ground of controversy, furnishes no reason, except such as may exist in the exuberant *706
fancy of their draftsman, for the incorporation of this provision in the acts here subjected to interpretation. To assert that either the public peace or health or safety was so menaced in the township designated as to call for the enactment of a statute in the exercise of the police power, is refuted by the language and evident purpose of the acts themselves. Read with an open mind, and an intelligent understanding of the words employed, and disregarding any esoteric meaning or purpose their enactment might imply, with which we have no concern here, their real object, or raison d'etre, to give it a Gallic flavor, was to effect a change in the personnel of the officers designated, as well as the laws defining their duties and prescribing their powers. Leaving the propriety of their enactment, and the wisdom of their terms, so far as concerns their legitimate subject-matter, out of the question, they disclose no tenable ground which will stand the test of interpretation for the incorporation therein of the provision by which it was sought to exempt them from the referendum. Plainly put, the incorporation of this appendant provision involves an absurdity the presence of which is sufficient under a well established rule of construction to authorize its rejection. It has no place or proper purpose in legislation of the character here being considered. Statutes are not to be construed so as to result in an absurdity. The provision should therefore be held to be superfluous. [Darlington Lbr. Co. v. Railroad,
IV. It may be conceded that every intendment should be made in favor of the propriety of legislative action. Notwithstanding this presumption, however, the courts have ever since the ruling by the Supreme Court of the United States, in Marbury v. Madison, 1 Cranch, 137, exercised the right to determine whether legislative enactments are violative of the Constitution. "It is," said the learned Chief Justice in that case, "emphatically *707
the province and duty of the judicial department to say what the law is." More imperative is this duty under modern constitutions in which the lawmaking power is no longer exclusively the province of the Legislature, but is divided between it and the people themselves. Instead, therefore, of the judicial construction of statutes, as at bar, constituting an invasion of the legislative province, it amounts to nothing more than a determination by the court as to whether the Legislature has properly exercised its discretion in declaring these acts subject to the police power exception, or whether its declaration was unwarranted, and if sustained, will result in cutting off the people's reserve power to participate in legislation. If the constitutionality of an act was, therefore, a proper matter of judicial determination before the referendum amendment, it is none the less so since, because in its last analysis, a ruling as to the proper application of the exception in the acts is nothing more than a judicial determination of their validity under the organic law. If the exception has been properly incorporated in the acts, then they are valid; if improperly incorporated, then they are invalid so far as the exception is concerned. We said in State ex rel. Roach v. Halliburton,
In harmony with the foregoing conclusions, and sustaining them by a carefully analyzed array of cases, is the opinion of the Supreme Court of Montana in State ex rel. Goodman v. Stewart, 187 P. 641, in which MATHEWS, J., speaking for that court, has discussed and determined with clearness and strength of conclusion almost every phase of the matter at issue. An epitome of *708
these relevant rulings is all that is permissible here. They are as follows: As to whether an act is necessary for the immediate preservation of the public peace, etc., and thus excepted from the referendum, is to be controlled by the nature of the act and not by a superfluous declaration of necessity incorporated therein; that the propriety of the incorporation of the exception in an act is a judicial question; that in determining same the utmost that can be considered in the face of the act, the history of the legislation, contemporaneous declarations of the Legislature, the evil to be remedied, and the natural or absurd consequences of any particular interpretation. From all of which the conclusion is authorized that if a statute purports to be for the preservation of the public peace, health, etc., and from its words and subject-matter it has no real or substantial relation to the act, or is a palpable invasion of rights reserved by the Constitution, it is the duty of the courts to so decide and thereby give effect to the fundamental law. [Mugler v. Kansas,
We therefore concur in the conclusion reached by WOODSON, J., in the principal opinion. This concurring opinion has been deemed necessary on account of the writer's dissent in State ex rel. Westhues v. Sullivan,
Concurrence Opinion
While I concur in the result of the opinion filed herein by my learned associate. Judge WOODSON, I feel constrained to briefly express my individual views upon the question presented for determination.
As is provided in Section 57 of Article IV of the Constitution of this State, the second power reserved by the people is the referendum, and, in the language of the said section, "It may be ordered except as to laws necessary for the immediate preservation of the public peace, health or safety." The mandate of the *709
Constitution, coming directly from the people, is superior to the will of the Legislature. As to who shall be the judge of whether or not a law is "necessary for the immediate preservation of the public peace, health or safety," the Constitution is silent. True, the Legislature, being invested with the law-making power, must in the first instance, be the judge of the necessity in a given case, otherwise it could not act. But, is that determination, if in fact without substantial basis, final and conclusive? I think not. The discretionary power initially lodged in the legislative department of the government should not be abused but should always be exercised in a manner consonant with the true intent of the framers of the Constitution and of the people who adopted it. If, therefore, a statute purports to have been adopted to meet an emergency which palpably, from the face of the statute, does not exist, it becomes the duty of the courts to take jurisdiction and give effect to the constitutional intent and purpose. In such tribunal alone resides the power to determine whether or not the act of the Legislature conflicts with the provisions of the Constitution. [Baily v. Gentry,
It has been ably suggested by my learned brother HIGBEE that the Initiative and Referendum Amendment under review was taken from the Constitution of Oregon and that we are bound by the construction placed upon it by the Supreme Court of that state, which court ruled that the declaration of the Legislature upon the question of necessity was conclusive. While it may be conceded that the general rule is as stated, nevertheless that rule is not absolute or imperative and has its exceptions. One of these exceptions is that where the courts of the adopting state are of the opinion that the foreign construction is erroneous, the borrowed law does not carry with it the prior construction in the originating state. [Ancient Order of Hibernians v. Sparrow,
In the instant case, to say that the preservation of the public peace, health and safety demands the immediate abolition, in one certain township, of the offices of eight justices of the peace and constables (who from the record before us are to be presumed to be properly and efficiently discharging their respective duties), and the immediate appointment of new justices and constables, is asking us to go far afield from the true intent of the constitutional provision invoked by respondents.
Entertaining the views above indicated, I am of the opinion that the writ of mandamus should be made permanent. James T.Blair, C.J., Graves and Walker, JJ., concur.
Concurrence Opinion
I concur in the law announced by our brother WOODSON in this case. He adopts what the writer said in Paragraph Five of the opinion in the case of State ex rel. Westhues et al. v. Sullivan, 283 Mo. l.c. 584, et seq. We there ruled, upon what appeared to us to be the weight of authority and the very reason of the matter, that the Legislature, under Section 57 of Article IV of our Constitution, could not close judicial *680 determination as to the real character of any law by saying that such law was "necessary for the immediate preservation of the public peace, health or safety" of the State. We further said that this court could examine the face of the legislative act, and if in fact it was not for "the immediate preservation of the public peace, health or safety" of the State, we could and would declare the legislative declaration to the effect that it was "necessary for the immediate preservation of the public peace, health or safety" of the State, void, and of no effect, as being in conflict with said constitutional provision, and the spirit thereof. We shall not reargue this naked principle of law which our brother has adopted as his views. Nor would we write at all in this case, but for the fact that our learned associate has not discussed the character of the legislative acts before as at this time. He sets out an outline of them, and ordinarily this would, or should suffice. In this record we find that learned counsel for respondent insist (1) that we borrowed our constitutional provision from Oregon, and are bound by the construction which the Supreme Court of that State placed upon it before our adoption, and (2) that the laws here involved are in fact necessary for the "immediate preservation of the peace, health or safety" of Missouri. The questions are seriously presented and should be seriously considered. In their order we shall consider them, and such other contentions as may require notice.
I. It has been suggested that the views of the writer, expressed in Paragraph Five of the opinion in State ex rel. Westhues v. Sullivan, 283 Mo. l.c. 584, was obiler and was only interesting "in view of the fact that the question mightObiter. arise in futuro." It is true that a majority of my brothers were of opinion that such case was decided before reaching that question, but counsel, on both sides, conceived the question to be thoroughly in the case, and on that theory briefed and vehemently argued it. What was written was in response to that insistence, *681 and it was written after full investigation, not only of all the cases cited, but of all that could be found. It was written in exact coolness and deliberation, and far from a battle line, such as surrounds the instant case. But even obiter may express good law, and we think this alleged obiter does express the law, as well as the common sense of the question.
II. The general rule is that where a statute or a constitutional provision is borrowed from another State, and has received a construction in the initial state by the highest court of that state, the presumption is that theAdopted borrowing state adopted it in the light of suchConstitutional construction. This, however, is only a rule ofProvision. statutory construction, and the exceptions to the rule are as ancient as the rule itself. When we say "general rule" above, we mean that such is the frequent expressions of the courts. This court has often given similar expressions, where the question was under consideration. We have likewise given expression as to the exceptions. Nowhere are these exceptions more concisely stated than in 25 R.C.L. 1073, whereat it is said:
"The general rule just stated as to the construction of adopted statutes is by no means absolute, or imperative on the courts of the adopting state, but is subject to numerous exceptions. The rule that the adoption of a foreign statute carries with it the prior construction in the originating state has been held to be applicable only where the terms of the statute are of doubtfulimport so as to require construction. So the rule has been declared to be inapplicable where radical or material changes are made in the statute; where the statute had been materially changed by amendment, after the decisions construing it and before adoption; where the foreign construction is not in harmony with the constitution of the adopting state, or is contrary to the spirit and policy of the jurisprudence of the adopting state;or where the courts of the adopting state are clearly of theopinion *682 that the foreign construction is erroneous, or that itsapplication would lead to a denial of a substantial right."
To like effect is 36 Cyc. 1154-5: "Where the Legislature enacts a provision taken from a statute of another state or country, in which the language of the act has received a settled construction, it is presumed to have intended that such provision should be understood and applied in accordance with that construction. This rule of construction, however, while recognized by all the courts, is subject to a number of limitations. The construction placed upon the statute by courts of the state from which it was adopted is regarded as persuasive, and indeed as entitled to very great weight, with the courts of the adopting state, but not as conclusive; and it will not be applied where it would be inconsistent with the Constitution of the adopting state, or contrary to the spirit and policy of its laws, or is regarded as unsound in principle and against theweight of authority."
In each of the foregoing quotations the italics are ours. Under the rule the court's interpretation to be considered is the interpretation given before the adoption. It could not be otherwise, because there could be no presumption that a given construction had been adopted, with the adoption of the statute, unless the construction preceded the adoption. The cases all so hold, and had to so hold by the very reason of the thing. In the early case of Pratt v. Miller,
The exception to the rule uppermost in our mind is that expressed in the terms "or where the courts of the adopting state are clearly of the opinion that the foreign construction is erroneous, or that its application would lead to a denial of a substantial right." The Kadderly case from Oregon does not announce sound doctrine. The Washington court repudiated it, and their constitutional provision was not adopted until four years after ours, aind long after the Kadderly case. Our Constitution provides both for a legislative referendum, and a referendum by the people. It is absolutely against all reason to rule that the Legislature can, by trick and chicanery, through a declaration against the very face of the bill, cut the people off from the constitutional rights to refer all measures, and yet retain the legislative right. In what we ruled in Sullivan's case we had in mind all rules of statutory construction, as well as all exceptions to such rules. We have recognized the exceptions before (
III. Of these bills, which change in a way the system of justices courts in Jackson County, and cut down the number of such courts, and the number of the constables *684 thereof, it is urged that they really go to the immediate preservation of the peace, health and safety of the great State of Missouri. Courts are not supposed to be blimled bats. Of current history courts take judicial knowledge. What all know, the courts must judicially know. The current history shows the real purpose of these laws, and we need not state that history. It is known to every member of the Legislature, every judicial officer of the State, and every lawyer and citizen, who has read and kept abreast with the current history, made and now being made. To say that the purpose of these bills was to protect Missouri in some great, impending emergency relative to her peace, health or safety, is not only in the face of the bills themselves, but in the face of what her citizens know. We need not go further. James T. Blair, C.J., and Walker, J., concur.
Concurrence Opinion
Section 57 of Article IV of the Constitution provides, among other things:
"The legislative authority of the State shall be vested in a legislative assembly, consisting of a senate and house of representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve the power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative. . . . The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety and laws making appropriations for the current expenses of the state government, for the maintenance of the state institutions and for the support of the public schools) either" by petitions, etc.
At its regular session in 1921 the General Assembly passed certain acts which were intended to make changes in the system of justice of the peace courts in Kansas *685 City. Appended to one or more of these acts is the following:"Emergency. — This enactment is hereby declared to be necessary for the immediate preservation of the public peace, health and safety within the meaning of Section 57, Article 4, of the Constitution of Missouri." No emergency clause under Section 36 of Article 4 was attached or passed, but the principal bill contains a clause to the effect that it "shall become effective" July 1, 1921. Properly drawn petitions for the reference of these, signed by the requisite number of voters who possess the required qualifications, have been tendered to respondent for filing. He refused to file them because of the inclusion in the acts of the section which has been set out. This suit is brought to compel the filing of the petitions and the reference of the acts.
I. It is urged that the inclusion in the acts of the clause that the "enactment is hereby declared to be necessary for the immediate preservation of the public peace, health and safety" is conclusive upon the question of fact whether the actLegislative is so necessary. Upon this question much has beenFinding. said in the briefs, and in opinions prepared by my brethren, and much can be found in the decisions they cite. Both sides of the argument are presented with vigor and learning. There is little that can be added. A few rather general observations may not be out of place.
(1) In the circumstances the remarks of a learned annotator can properly be given place so that a general view of the question may be had at the outset. In the copious note to theGeneral decision in Hockett v. Licensing Board,
"According to the other line of authorities the legislative determination is not conclusive. The latter conclusion, that the legislative determination to declare an *686 emergency is not final, seems to be the correct one. The limitation upon the power of the Legislature to declare an emergency that only laws of a certain class shall be so subject, or that all laws except the class shall be subject to the referendum, without expressly vesting in the Legislature power to determine what laws come within that class, leaves to the courts the power to determine the question. In other words, a law must be a law belonging to the excepted class before it can be declared free from the referendum. Where the law is of the prescribed character the legislative determination that it shall be free from the referendum is final; but its determination that the law belongs to the excepted class is not. In support of this theory it has been pointed out that the clause excepting the named laws from the referendum is not the usual general emergency provision, but an exception to the otherwise universal application of the reserved power of referendum; that the clear purpose of the exception is to preserve unimpaired the right of the Legislature to exercise the police power so far as it may be emergent; that the exception from the referendum includes only those certain, definite and unquestioned phases of the police power which, in their very nature, may be and usually are emergent. It is further stated, that, as the court exercises jurisdiction to determine whether an act of the Legislature is a valid exercise of the police power, it must be a judicial question whether the exercise by the Legislature of certain phrases of that power which are selected and made an exception to the constitutional guaranty of the referendum is a valid exercise of the power."
(2) Section 57 of Article IV of the Constitution does not provide that an act of the Legislative Assembly shall be exempt from the referendum if the Assembly shall declare it to be "necessary for the immediate preservation of theFinality of public peace, health or safety." On the contrary,Legislative the exemption is made to depend upon the fact thatFinding. the act is so necessary. This, of course, is not and cannot be *687 disputed. The argument is not that the Constitution provides in terms that the legislative finding shall be conclusive. The argument is, in substance, that the effect of such a legislative finding of fact is final and conclusive on the courts in the very nature of the case.
(3) If respondent is right in the position he takes on this question, i.e., that the inclusion of the peace, health and safety clause in the acts now in question, is conclusive on the question of fact whether the acts are necessary for the immediate preservation of the public peace, health and safety and bars all investigation of that question by the courts, it cannotAll Acts be denied that the same thing must be true as to allor None. acts in which that clause has been or may hereafter be included. If it is final as to one, it must be so as to all. Neither the language of Section 57, nor the character of the rule contended for, will admit of a classification of legislative acts with respect to the question of the finality of the legislative finding upon the question of exemptability from the referendum on the ground of necessity for the immediate preservation of the public peace, health and safety. It is final in the case of every act, or it is final, in the sense contended for by respondent, with respect to none. This does not seem to be denied.
(4) If, as just pointed out, respondent's proposition must be true as to all acts in which the peace, health or safety clause is incorporated, if true as to any, then it is proper in the light of this, to examine the result of upholding respondent's contention. If the peace, health or safety clause can be employed by a majority of the Legislative Assembly to exempt allPolice acts (not otherwise exempted) from the referendum, thenPower. it may be employed to exempt laws passed in the exercise of the police power or pursuant to an attempt to exercise that power. The question is approached from this angle in order to avoid an apparent conflict of authorty upon the question whether the peace, health or safety clause is designed solely to exempt from the referendum *688 emergent exercise of the police power or whether it is broader than that. For the purposes of what is now to be written it makes no difference which contention is sound.
The police power aims directly to promote the "public welfare, and it does so by restraint and compulsion." These are said by Mr. Freund in his work on Police Power, Section 3, to be the "two main attributes or characteristics which differentiate the police power." It is well settled that the police power has its limitations. Generally, it is limited in its exercise to the enforcement of the maxim, "Sic utere tuo ut alienum nonlaedas." [Tiedeman on Limitations of Police Powers, sec. 85, pp. 196-197.] For instance "in the exercise of the police power, personal liberty can be subjected to only such restraint as may be necessary to prevent damage to others or to the public." [Ibid.] According to the same author it is also well established that while the exercise of a particular calling may be regulated or prohibited if it threatens damage to the public or other individuals, and while the Legislature has a discretion to impose regulations when a proper case arises, it is nevertheless "strictly a judicial question whether the trade or calling is of such a nature as to require or justify police regulations. The Legislature cannot declare a certain employment to be injurious to the public good, and prohibit it, when as a matter of fact, it is a harmless occupation." The learned author quotes with approval from Beebe v. State,
The purpose of what has been said is not to attempt to define the police power and cite all cases which come within it or announce any comprehensive rule concerning it, but to show that there are instances in which questions of fact are presented to and determined by the courts and in which the implied finding of fact by the Legislature has no binding or conclusive force.
(5) Let us suppose the General Assembly, prior to the adoption of Section 57 of Article IV, had included in a regulatory act, which depended upon the police power for its validity, an express finding that a calling was subject to regulationPolice under the police power and that the particularPower regulation enacted was necessary to secure thePrior to public peace, health or safety. Would this haveSection 57. bound the courts upon the question of fact which they would otherwise have determined for themselves and have thereby rendered valid a regulation which otherwise would have been invalid? Would the courts then have been compelled to uphold the regulation, though neither the calling nor the regulation imposed in any way touched the public welfare in such sense as to bring such calling or regulation within the police power? To these questions the authorities cited above return negative answers. *691 If the answers are to be in the affirmative then by including in an act an express declaration, for instance, that a calling touched the public health and that the regulation prescribed protected the public health, the legislatures have always had the power to widen and enlarge the police power and bind courts on questions of fact with respect to which text-writers and courts agree they are not bound by the finding implied in every regulatory act which is passed, and thus evade most of the limitations on the police power found in the general language of constitutions. It will hardly be claimed this could have been done prior to the adoption of Section 57 of Article IV. It is not necessary to discuss at length the character of the presumption of validity which attends legislative enactments. It is enough for this phase of the case that it is settled that such presumption is not conclusive.
(6) With the law in this condition and the police power so limited by provisions in both State and Federal constitutions, Section 57 of Article IV was adopted. If respondent is correct, that section exempts from the referendum every legislative act in which the Assembly includes a finding that such actWidening is necessary for the immediate preservation of thePolice Power public peace, health or safety. With respect to restraints upon callings, which classes of acts have been selected to illustrate the argument, the finding that they are necessary for the immediate preservation of the public peace, health or safety is necessarily a finding that the calling "touches" the public peace, health or safety. In other words, it is a finding upon the exact question of fact which heretofore has been held to be a question for the courts when they came to the question of validity of regulations under the police power. If the inclusion of the peace, health and safety clause in an act is, as respondent contends, conclusive upon the courts, then the result is that Section 57 empowers the Legislative Assembly to widen and extend the police power to include callings and regulations to which it could not have been *692 extended prior to the adoption of Section 57, and this by the simple use of a form of words in acts it passed without regard to the character of the regulation and despite the fact that the regulation is concededly unconstitutional had not the peace, health and safety clause been included in the act imposing it. It would enable the Legislative Assembly to remove from the realm of judicial questions every question of fact such as that referred to in the quotation in Ex parte Lucas, supra, and thereby largely revolutionize the law concerning the scope and extent of the police power by virtue merely of a phrase which declares that to be true which is untrue. If this marked change in the law was intended to follow the adoption of Section 57, is it unreasonable to think that the section would have been couched in language which would have at least given some hint of it? In the same article of the Constitution of which Section 57 became a part upon its adoption, appears Section 36, which pertains to the emergency clause required to put an act of the Legislative Assembly into immediate operation. This section expressly provides that the declaration of an emergency shall be put into the act intended to be put into immediate force thereby. The effect of this clause has, so far as is discovered, never been doubted. The language of Section 36 is markedly different from that of Section 57. Is it likely, that with an intent that Section 57 should, in effect, so far as the question here is concerned, have the same absolute force as Section 36, that those who framed and adopted Section 57 would have so carefully abstained from the use of a formula at hand in the very instrument they were amending, which formula would have accomplished, so far as legally possible, the purpose they had in view? Is not the avoidance of the approved formula particularly significant in view of the rather revoluntary effect of their intent if it was that which respondent ascribes to them? The difference between the words used in these two sections is wide and is inexplicable if respondent is right in his present contention. *693
Further, the purpose of the referendum is to "reserve to the people" the power to pass upon acts of the Legislative Assembly. That reservation is founded upon a belief that acts might be passed which would not be for the public good. In a sense it evidences a disbelief in legislative omniscience. Is it reasonable to think the people meant to reserve to themselves the power to refer acts of the Legislative Assembly because they feared that body might err in its enactments and then intended to confer upon a bare majority of the same Assembly, whose errors the referendum was designed to correct, full power to defeat any and all references of any and every bill by the simple inclusion in such bills of a set form of words, even though these words, so used, were false on their face? It will not do to say the people would have their remedy at the polls and could punish legislators by defeating them. This was true before there was a referendum section proposed and adopted. The remedy by referendum was added to that available at the polls.
Legislatures, like courts, sometimes err. The referendum has been thought designed to correct legislative errors. If respondent's position is tenable, then if the Legislative Assembly shall err and pass a bad law (in the belief that it is a good law) the error in passing this bad law is not subject to the referendum, but is exempt from such correction upon condition only that the same Legislative Assembly shall commit one more error, i.e., find as a fact that the law is necessary for the immediate preservation of the public peace, health or safety and then put this erroneous finding into the bad law. Does one error plus one error equal no error for the purposes of this case?
To ascribe such an intent to the people is to charge them with incorporating a remarkable absurdity in the organic law of the State. If the people desired that the same body whose enactments they wished to supervise by means of the referendum should have full power to prevent such supervision in every case, it seems reasonable to think they would have said so and, particularly, *694 would not have avoided so carefully a form of words already in the Constitution which would have been adequate to have effectuated this remarkable purpose.
(7) Further, if the section means that the people intended to bind the State courts with respect to the question of fact whether an act is necessary for the immediate preservation of the public peace, health or safety, what did theyBinding on intend concerning the same finding when a caseState and was presented to the Federal courts in which theFederal Courts validity of a police regulation was challengedAlike. because it in no wise affected or touched the public good but was merely an arbitrary restraint? Will respondent contend that the power of the courts of the United States to wipe out arbitrary and excessive impositions and restraints on a finding of their own that they are so (McLean v. Arkansas,
(8) It might be argued that the legislative finding is conclusive upon the question whether an act is exempt from the referendum, but not conclusive on the same question of fact when the courts shall be called upon to consider the validity of the same act. It is but fair to respondent to say heConclusiveness advances no such argument. He does not deny thatUpon Referendum an act, to be exempted from the referendum, mustand Courts. in fact be necessary for the immediate preservation of the public peace, health or safety — as Section 57 provides. What he contends is that when the Legislative Assembly puts the peace, health and safety clause into an act it thereby conclusively determines that fact to be true and no court or person can be heard to deny the truth of that finding. So far as his argument is concerned, we do not understand him to suggest the distinction referred to in the first sentence of this paragraph. We think that in refraining from doing so he exhibited sound judgment. If, when applied to an act of the class selected above to illustrate the case, the Legislative Assembly has found the act to be necessary for the immediate preservation of the public health, for instance, and if that finding necessarily includes a finding that the calling regulated "touches the public health," and if that finding binds the courts with respect to the matter of exempting the act from the referendum, it is difficult to see how it could be held that the people, in adopting Section 57, intended that the conclusiveness of the same finding could be evaded when the validity of the same act was drawn in question in the courts. It is the same act or law and it is the same finding. It is a finding that a particular fact in fact exists. It is not a finding that the Legislative Assembly is of opinion that the fact exists, nor a finding that it exists solely with reference to the power to exempt the act from the referendum. Section 57 requires the fact of necessity actually to exist before the exemptive power arises. The finding is that it does in fact exist. There is nothing in Section 57 which suggests that whatever finding, if any, is authorized, *696 is one thing for one purpose and another thing for another purpose. Such an intent would have been well expressed by words which would have vested directly in the Legislative Assembly power to declare the act exempt from the referendum whenever it thought proper to do so. No such words are found in the section. Did the people intend that the court should hold the same finding of fact conclusive, in one breath, and inconclusive in the next? Unless they did so intend the argument first adverted to constitutes no obstacle to the application of what has been said in preceding paragraphs. An easily conceivable result of the acceptance of the argument as true would be, that with respect to the same act, the same court would be compelled to hold the act was not referable because (being bound by the legislative finding) in truth and fact the act was within the police power, and subsequently compelled to hold that the act was not within the police power because the fact found by the Legislative Assembly was not a fact at all. Ought the people to be convicted of perpetrating such an absurdity unless they have made their intent to do so very clear? It is quite clear from the language they used that they intended nothing of the kind. The ease with which a purpose to permit the reference of laws to be defeated by a legislative declaration of something which might or might not be true could have been made evident and the careful avoidance of any expression which would evidence such a purpose are worthy of consideration in this connection. We decline to hold that those who framed and adopted this amendment did not mean what they said, but meant something which is excluded by what was said.
II. State ex rel. v. Hackman, 275 Mo. l.c. 646, and Ex Parte Renfrow, 112 Mo. l.c. 594, are cited as supporting the proposition that the finding of the Legislative Assembly is conclusive. It will hardly be contendedCases Distinguished. these decisions hold that a legislative finding such as those discussed in the preceding paragraphs with respect to the applicability of the *697 police power to particular callings or activities, is final. Those cases did not involve that question. This sufficiently distinguishes them so far as concerns what appears herein.
III. The contention that the acts in question are in fact necessary for the immediate preservation of the public peace, health or safety is sufficiently considered in other opinions in this case. The argument that the courts would beQuestion of without means to determine the question of factFact. alluded to, in case it be held that it is open to them to pass upon it, is made. No greater difficulty would be likely to be presented than those presented when the courts do pass upon questions of fact in determining whether police regulations are valid or invalid.
IV. The effect of the Oregon construction prior to our adoption is also well disposed of in other opinions in the case. The question upon which we followed such a construction in the case of State ex rel. v. Sullivan, was one which fellForeign within the general rule. Upon such a question, oneConstruction: within the general rule, it is immaterial whetherException. it is said that it is very persuasive, or that the adopting State is presumed to have adopted it, or that the courts of the adopting State are bound by it. In either case, on a question within the general rule, the previous construction is adopted. The question in this case falls within several exceptions to the general rule. This is too clear to require argument and other opinions in the case make that fact plain. The insistence that the rule in the Kadderly case must be adopted in this case, because it preceded our adoption of Section 57, assumes that the question in this case falls within the general rule upon the subject of the adoption of previous constructions and that it does not fall within any of the exceptions thereto. That this assumption is contrary to the fact will be apparent from a reading of the rule and of the exceptions to it. *698 The rule and its exceptions are discussed in one or more concurring opinions and can be found there.
For these reasons and others given in other opinions filed the alternative writ should be made peremptory. Walker and Graves,JJ., concur.
Dissenting Opinion
I respectfully dissent from the opinion filed in this case by our learned brother *711
WOODSON. It is based solely upon the opinion of GRAVES, J., in State ex rel. Westhues v. Sullivan,
Judge GRAVES, at page 334, said: "As said by FARIS, J., in State ex rel. v. Carter, 257 Mo. l.c. 70, we borrowed our referendum provision from Oregon and borrowed it after the ruling in the Sears Case, supra."
The Initiative and Referendum Amendment was adopted in this State at the November election in 1908. It was taken almost literally from the Constitution of Oregon. [State ex rel. v. Carter,
"The amendment excepts such laws as may be necessary for a certain purpose. The existence of such necessity is therefore a question of fact, and the authority to determine such fact must rest somewhere. The Constitution does not confer it on any tribunal. It must, therefore, necessarily reside with that department of the government which is called upon to exercise the power. It is a question of which the Legislature alone must be the judge, and when it decides the fact to exist, its action is final. [Briggs v. McBride,
"But, it is argued, what remedy will the people have if the Legislature, either intentionally or through mistake, declares falsely or erroneously that a given law is necessary for the purposes stated? The obvious answer is that the power has been vested in that body, and its decision can no more be questioned or reviewed than the decision of the highest court in a case over which it has jurisdiction. Nor should it be supposed that the Legislature will disregard its duty, or fail to observe the mandates of the Constitution. The courts have no more right to distrust the Legislature than it has to distrust the courts. The Constitution has wisely divided the government into three separate and distinct departments, and has provided that no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in the Constitution expressly provided. [Const. Or., art. 3, sec. 1.] It is true that power of any kind may be abused when in unworthy hands. That, however, would not be a sufficient reason for one co-ordinate branch of the government to assign for attempting to limit the power and authority of another department. If either of the departments, in the exercise of the powers vested in it, should exercise them erroneously or wrongfully, the remedy is with the people, and must be found, as said by Mr. Justice STRAHAN in Briggs v. McBride,
When we adopted the Referendum Amendment from the Constitution of Oregon, we adopted the construction given it by the Supreme Court of that State as much *714
as if that construction had been written into the body of the amendment. [State ex rel. v. Carter, supra, l.c. 69; State ex rel. Guion v. Miles,
Judge JAMES T. BLAIR filed an opinion in the Sullivan Case in which WILLIAMS, GOODE and WILLIAMSON, JJ., concurred. It is as follows: —
"I concur in Paragraphs I, II and III. In Pargraph IV, I concur because we are bound by the construction given the Oregon Constitution by the Supreme Court of that State prior to our adoption of its provisions. With respect to Paragraph V, it is enough to say that the expressions in Section 81, therein referred to, do not indicate any intent to put the act in force under the public peace, health or safety clause of the referendum section of our Constitution. As to the `broader question,' I express no opinion. It cannot be involved in this case. In the remaining paragraphs I concur."
So it appears that the propositions decided in that case are that the prosecuting attorney could not institute the proceedings against the State officials, that the action was premature, and that the act did not declare it was necessary for the immediate preservation of the public peace, health or safety, and there was no question before the court for determination. Nevertheless, Judge GRAVES proceeded to discuss a supposititious case. His rulings were clearly obiter dicta. Five of the judges disagreed with his conclusions. Four of the judges held that we are concluded by the interpretation given the act by the Supreme Court of Oregon. The decision is, therefore, a direct authority in favor of our contention that we adopted the Referendum Act with the construction given it by the Supreme Court of the State of its origin.
But it is said: Suppose the Legislature should declare a legal holiday and embody in the act the "peace, health or safety" clause. Would this court be concluded by the declaration? The answer is: We have no such case before us. The Constitution has solemnly *715 vested the legislative power of this State in the General Assembly of the State of Missouri. That body is an independent, co-ordinate department of our government, answerable only to the people of the State for the execution of the powers delegated to it by the Constitution. Moreover the measure may be submitted to a direct vote of the people by an initiative petition, so that there is no foundation for the suggestion that the Legislature may, by fraud or trickery, prevent legislation by the people.
As was well said in Oklahoma City v. Shields,
"To determine, under a state Constitution, what can be accomplished by general or special legislation, has been, with but few exceptions, held to be a question solely for the Legislature. [Citing cases.]
"We conclude that the judgment of the Legislature in determining whether or not an emergency existed — that is, whether or not a measure is immediately necessary for the preservation of the public peace, health, or safety — rests solely with the Legislature. It is not subject to review by the courts, or any other authority except the people. Under the reserved power of the initiative and referendum, after the declaration of an emergency, when not referred to the people for their judgment in such measure, it still remains with the people, if they are dissatisfied with a measure, by an initiative petition to cause the same to be submitted to the people at the next general election for determination as to whether or not such act shall be repealed."
In State v. Moore,
"It was a question exclusively for legislative determination; and such determination alone could bring it within this exception and power of the Legislature to make it immediately effective, and thereby remove it from the general class of laws upon which the people reserved the right to order the referendum. [Stevens v. Benson, supra; Kadderly v. Portland,
"But it belongs to the political, and not to the judicial, department of the government to determine these interesting and important questions of civic policy, as its wisdom shall deem for the best interests of the people." [State ex rel. v. Bacon,
Being of the opinion reached by the majority of the court in the Sullivan case, supra, that we are concluded by the interpretation given to the Referendum Amendment in the Kadderly Case, and that we are without power to question the finding of the Legislature in the premises my conclusion is that the writ should be denied.
Dissenting Opinion
I am unable to concur in the views expressed or the result reached in the opinion filed by my learned brother WOODSON.
In the first place the case of State ex rel. v. Sullivan,
It is settled beyond any question that when one state borrows a statute or a constitutional provision from another state and the highest court in that state has authoritatively construed said statute or constitutional provision prior to its adoption in the second state, such statute or constitutional provision is held to have been adopted together with such construction by such highest court. [Skouten v. Wood, 57. Mo. 380; State ex rel. v. Miles, 210 Mo. l.c. 146; State ex rel. v. Sullivan,
There appears to be no question that the referendum provision to our Constitution was borrowed from the State of Oregon. [See opinion of GRAVES, J., in State ex rel. v. Sullivan,
In the case of Kadderly v. Portland,
In addition the highest courts of the States of Oklahoma, South Dakota, Arkansas and Colorado have ruled on very similar constitutional provisions as has a Supreme Court of Oregon.
While it is true the conclusion reached by my brother WOODSON is the same as that of the Supreme Courts of California, Washington and Michigan, I note that it is pointed out in respondent's brief as follows: "Out *718 of twelve cases determined by the various supreme courts, eight were decided by an undivided court; of these eight, six determined the question of final determination in favor of the Legislature, and two determined that question in favor of the courts. Of the cases determined by a divided court, two determined the question in favor of the Legislature and two in favor of the courts. Of the cases decided by a divided court twenty-eight judges gave their opinion on the question, fifteen deciding in favor of legislative determination and thirteen in favor of judicial determination. In the twelve courts passing on this question, sixty-eight judges participated, forty-three of whom decided the question in favor of the legislative determination and twenty-five in favor of judicial determination." Thus it is seen that the weight of authority is decidedly against the conclusion that this is a matter for determination by the court.
On principle and independent of the decided cases, I am of the opinion that the courts are and should be bound by the declaration of the Legislature, and for these reasons I dissent.
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