State ex rel. Little Rock v. Donaghey , 106 Ark. 56 ( 1912 )

Kirby, J.,

(after stating the facts). Can more than three amendments to the Constitution be proposed or submitted to the people at the same time or election for their approval or rejection?

The people are the source of all political power, and it has never been doubted that according to the institutions of this country the sovereignty of every State resides in the people of the State, and they can alter or change their form of government at their own pleasure. Whether they have done so, is a question to be settled by the political power, and when that power has decided, the judiciary can but follow and sustain its action.

But whether an amendment to the State Constitution has been adopted in accordance with its requirements is a question for judicial determination. Rice v. Palmer, 78 Ark. 432 ; 96 S. W. 396; St. L. S. W. Ry. Co. v. Kavanaugh, 78 Ark. 468, 96 S. W. 409.

“The most that can be said is' that when the soverign body has clearly moved and that movement gives evidence of irresistible force, the various systems of officials constituting the existing government, including courts, must heed and bow to it, or else go down before it.” Mack v. Johnson, 59 Ark. 333.

Article 19, § 22, of the Constitution of the State of Arkansas (1874) and Amendment No. 10, the Initiative and Referendum Amendment thereto, provide the methods of amending the Constitution. Section 22 of article 19 provides how amendments to thé Constitution may be proposed and submitted to the people by the General Assembly, the number of votes required for their adoption and, “but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the elector to vote on each amendment separately.”

Before the adoption of Amendment No. 10, the Legislature was the only agency authorized to propose amendments to the Constitution for the approval of the people and Amendment No. 10 provides: “The legislative powers of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people of the State reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls as 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 8 per cent, of the legal voters 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.”

Under this amendment 8 per cent, of the legal voters are authorized to propose an amendment to the Constitution in accordance with its provisions, and it furnishes another method of submitting amendments to the Constitution. Unquestionably, the provisions of section 22, article 19, prohibiting the submission of more than three amendments at the same time is conclusive upon the power of the General Assembly to submit them, and, unless this prohibition is altered or amended by Amendment No. 10, authorizing the submission of amendments by this other agency, it will be binding likewise upon its power.

It was not the purpose nor the intention of the people in the adoption of Amendment No. 10, the Initiative and Referendum Amendment to the Constitution, to abrogate and destroy the Constitution of the State, the framework of its government, by substituting therefor the provisions of said amendment. They reserved to themselves thereby the power “to propose laws and amendments to the Constitution and to enact or reject the same at the polls, as independent of the legislative assembly,” a power theretofore committed exclusively to the General Assembly — the right to submit amendments to the Constitution, upon the initiative of 8 per cent, of the legal voters — making no mention nor suggestion in this reservation of power, as to the number of amendments that can be submitted at any one time. There is no intimation in it of an intention to propose or adopt amendments to the Constitution, independent of the provisions of the Constitution, nor otherwise than in accordance with its requirements, as modified by the amendment.

As said in Hodges v. Dawdy, 104 Ark. 583: “The constitutional amendment whereby the people of the State reserve to themselves the power to legislate directly by the initiative or referendum does not abrogate the existing Constitution and laws of the State, except such provisions as are necessarily repugnant thereto. (Citing cases). The amendment being the last expression of the popular will in shaping the organic law of the State, all provisions of the Constitution which are necessarily repugnant thereto must, of course, yield, and all others remain in force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it. * * * In the construction of its terms and in the determination of its scope and effect, the courts should follow settled rules of interpretation.”

In State v. Roach, 230 Mo. 408, cited in the Dawdy case the court said: “The rules and principles applicable to the submission of constitutional amendments to the voters of this State are applicable alike to amendments proposed to the Constitution under the initiative and referendum amendment, or amendments proposed by the General Assembly of this State.”

“No interpretation of the amendment should be allowed, which would conflict with any other provision of the Constitution, or which is not absolutely necessary in order to give effect to the amendment. Such construction should be given as will, if possible, leave all the other provisions of the Constitution unimpaired and in full force.”

“The doctrine relating to repeals and amendments by implication applies alike to Constitution and statutes, and requires that earlier expressions yield when necessary to give effect to the latest expressions of the intention of those entitled to control.” State v. Creamer, 88 Ohio St. 412.

“If an amendment duly adopted conflicts with a previous provision, the amendment, being the last expression of the will of the people, will prevail as an implied modification pro tanto of the former provisions.” Hammond v. Clark, 136 Ga. 313; 71 S. E. 479.

The Oregon court, construing its amendment, said: “The initiative amendment to the Constitution necessarily carried with it all powers essential to make its provisions effective, and any part of the Constitution previously in force inconsistent therewith was necessarily repealed.” State v. Langworth, 55 Ore. 303.

For other authorities, showing the proper rule of construction to be that the amendment and the previous provisions of the Constitution are to be harmonized, when not necessarily inconsistent and repugnant, see State v. Clay County, 93 Ark. 228; Greenwood v. Maddox, 27 Ark. 648; State v. Martin, 60 Ark. 343; Ex parte Ellis, 12 Ark. 101; State v. Scott, 9 Ark. 282; Pulaski County v. Irvin, 4 Ark. 473; Ex parte Jones, 2 Ark. 93; 8 Cyc. 749; Printing Co. v. Shafroth, 124 Pac. (Col.) 175.

The people in making the Constitution, in their wisdom declared that no more than three amendments to the Constitution shall be submitted at the same time by the power authorized therein to submit amendments for their consideration and adoption. That was their sole agency authorized to submit amendments to the Constitution and the restriction and prohibition was conclusive upon it. Since then, they have proceeded in accordance with the requirements of the Constitution for the submission of amendments to it, adopted Amendment No. 10 thereto, reserving to themselves, or 8 per cent, of the voters the like power to submit amendments to the Constitution, independently, it is true, of their other agency, the Legislature, but necessarily in accordance with the provisions of their Constitution as amended.

The people are the whole power and in the exercise of their power have set limitations upon themselves by the Constitution and their right to the exercise of it, and their “Thus far shalt thou go and no further,” binds them and all their agencies for the submission of amendments to the Constitution, which is their expressed will, conclusive upon their supreme power and subordinate agencies, alike. The Legislature does not exercise the power of the people under the provisions of their Constitution, the chart for legislative guidance, and if they shall submit as many amendments to the Constitution at a session of the Legislature, as can, under the constitutional limitation be submitted, it must be conclusively presumed that all are submitted that are necessary to the public welfare, and no initiative petition can be filed after three amendments are duly submitted by the General Assembly proposing an additional amendment to be passed upon at the same election. The contention that the General Assembly can preclude the people from submitting amendments by its action in proposing three amendments to the Constitution before any are initiated by 8 per cent, of the voters is no reason for construing the provisions of Amendment No. 10 reserving the right to the people to submit amendments to the Constitution, “as independent of the legislative assembly” as in conflict with the prohibition in said section 22, of article 19. There is likewise nothing to prevent the people, if 8 per cent, of the voters shall think the welfare of the State demands that it shall be done from proposing three amendments to the Constitution by initiative petitions before any are proposed by the Legislature, and if three are duly proposed in accordance with the provisions of said Amendment No. 10 the Legislature will likewise be precluded from proposing or submitting further amendments to the Constitution at the same time or election.

The people can now exercise this power of amendment through either of two agencies, the General Assembly, or upon initiative petitions of 8 per cent, of the legal voters— but they can not exercise it through either agency otherwise than in accordance with the provisions and limitations of the Constitution, which apply alike to both and limit the number of amendments that can be proposed or submitted at the same time, through either or both agencies to three. It is the people acting in any event, through either agency and the constitutional prohibition operates alike upon both. They will not be engaged or disturbed with considering more than three amendments at the same time, without regard to what agency proposes or submits them. The General Assembly having proposed two amendments to the Constitution, numbered 11 and 12, and the voters having by initiative petition proposed another numbered 13, making three in all proposed for submission at the same time, before the filing of the petition proposing said Amendment No. 15, it was attempted to be submitted in violation of the Constitution and could not therefore have been adopted.

The majority of the court are of the opinion that it is not necessary to the decision herein that the other two questions presented, shall be decided in this case.

It follows from the decision that the judgment of the circuit court in denying the application for mandamus was correct and it is affirmed.

Justices Wood and Smith dissent.