State ex rel. Denman v. Cato ( 1923 )

Cook, J.,

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 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 Thomas E. Buford was elected to hold the office of levee commissioner for Tallahatchie county, for a period of four years and seven months. At the time of this election, E. Y. Cato was holding the office of levee commissioner of Tallahatchie county under an appointment of the Governor.

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 adopted by the required majority of votes and has been properly inserted in the Constitution is one for judicial determination. Green v. Weller, 32 Miss. 650; Sproule v. Fredericks, 69 Miss. 898, 11 So. 472; State v. Powell, 77 Miss. 543, 27 So. 927, 48 L. R. A. 652; State v. Jones, 106 Miss. 522, 64 So. 241; State v. Brantley, 113 Miss. 786, 74 So. 662, Ann. Cas. 1917E, 723.

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 presented by art array of able counsel when that case was before the court. We have given the opinion in that case a careful reconsideration in the light of the argument now advanced against it, and, upon the point here involved, we are convinced that the decision is correct, and that the construction, there placed upon section 273 should be followed. In an able and exhaustive opinion in the Powell Case, Chief Justice Whitfield traced the history of the section from its appearance in our Constitution of 1817, and after an exhaustive analysis of the authorities in this state and other jurisdictions, it was held that the majority required by section 273, Constitution of 1890, for the adoption of a constitutional amendment, is a majority of all the electors voting at the election, and we cannot add anything to the logic or reasoning of the opinion in that case.

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.

The act of the legislature of 1884, creating the YazooMississippi Delta levee board, provided that the levee commissioners should be appointed by the Governor by and with the advice and consent of the Senate, and this act was in force when the Constitution of 1890 was adopted. Section 231 of the Constitution provides that, “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,” and we think it is clear from the language of this section that the makers of the Constitution intended to continue the policy of selecting levee commissioners by .appointment, and that the power to appoint such commissioners should thereafter be exercised by the Governor, by and with the consent of the Senate. For more than thirty years the executive department has construed this section as vesting in the Governor the power not only to fill vacancies caused by death, resignation, or removal, but also to appoint successors in office upon the expiration of the terms of the commissioners. The legislature, by failing for thirty years to attempt to provide another method of selection, and then submitting to the people a proposed amendment to section 231 so as to malee levee commissioners elective, has construed this section as a limitation on its power. It is manifest that chapter 166 of the Laws of 1922 was not enacted by the legislature Avith any idea that such legislation could be constitutionally enacted without an amendment of section 231, but that it Avas enacted in pursuance of and to put into effect the supposed amendment to the section. The construction placed on this section by both of the co-ordinate branches of the state government is entitled to great weight, and should prevail unless it is clearly wrong. We think it is clearly right, and that the judgment of the court below should be affirmed.

Affirmed.