State Ex Rel. Pollock v. Becker , 289 Mo. 660 ( 1921 )

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 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,1 Mo. 164; Justices' Answers, 70 Me. l.c. 599; People v. Rafferty,77 Misc. 258; Cohens v. Virginia, 6 Wheat. 264; 6 R.C.L. 69.]

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,29 Mont. 132; State v. Campbell, 73 Kan. 688; Whitney v. Fox, 166 U.S. 637.] While the interpretation put upon statutes or constitutional provisions by the state from which they were taken are persuasive and are entitled to respectful consideration, nevertheless that interpretation should be founded on right reasoning. Because the Supreme Court of the State of Oregon may have ruled that the Legislature alone can determine whether or not an emergency exists, that ruling should not bind this court if, for instance, our Legislature should enact a law designating a certain flower as the official state flower and containing an emergency clause reciting that the measure was for the immediate preservation of the public peace, health and safety. Would any one argue that such an absurd and arbitrary dictum, declaring such a law necessary for the immediate preservation of the public peace, health and safety, was rightfully intended to have the effect of withholding the right of referendum should an attempt be made to invoke it? And yet such would be the consequence if the reasoning of the Supreme Court of Oregon is to be followed. Such a doctrine would be totally destructive of the referendum, for, by the mere ipse dixit of the Legislature, without cause in truth or fact, any measure could be withheld from ratification or rejection by the people at the polls.

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.