Citation Numbers： 235 S.W. 1017, 290 Mo. 560
Judges： ELDER, J. (separate opinion).
Filed Date： 12/7/1921
Status： Precedential
Modified Date： 1/12/2023
At the time the motion for rehearing was considered and overruled the dissenting opinion of ELDER, J., had been filed. The other dissenting opinions had been, in the main, prepared, but had not been filed. In this situation, in view of the brief time which would remain, in any event, for the nomination of delegates to the Constitutional Convention, the two judges who then proposed subsequently to file dissents, orally presented the legal propositions upon which their views were founded. These were considered by the court, and the motion for rehearing was thereafter overruled. It appeared at this time, and subsequently proved to be true, that propositions were to be advanced which previously had not appeared in the case. In view of this, leave was given for the filing of a concurring opinion. Under this leave the following suggestions are made.
I. In the dissenting opinions filed on December 8th and 9th, respectively (after the motion for rehearing was overruled), the position seems to be taken that under the rule announced in the majority opinion it must follow thatLegislative delegations of power to municipalPower: Delegation: corporations and of authority to the PublicTo Municipalities Service Commission, and the like, are invalidand Legislative and unconstitutional; that this result is soAgents. disastrous as to show the amendment of 1908 was not intended to be construed as the majority opinion construes it.
The Attorney-General, and his assistants, whose briefs and arguments in this case disclose a painstaking, *Page 633 lawyerlike and dispassionate study of the case and the questions in it, did not advance the argument now made in the opinions mentioned. The dissenting opinion of ELDER, J., which carefully discusses the issues, does not contain such an argument. The motion for rehearing contains nothing of the kind. Nevertheless, the point is now made and the views of our brethren are always entitled to the most respectful consideration.
It is believed that the argument referred to overlooks the nature and origin of the powers which are now said to be threatened by the rule of the majority opinion. The argument is founded upon the assumption that, for instance, when the Legislature invests a city with authority to pass ordinances for the regulation of matters of local concern, it is thereby investing the city with a part of the "legislative power" in the sense in which those words are used in the Constitution, and that when a city council passes an ordinance it exercises a part of the "legislative power" described in the Constitution. Unless this assumption is made, the argument falls of its own weight. That is, unless it is true that the power exercised by the city in passing ordinances is a part of the "legislative power" in the constitutional sense, it cannot be contended it is affected by the rule of the majority opinion, which deals with the legislative power in no other sense. The question arises whether the thing assumed to be true is true in fact. The question is one which has had the attention of courts and text-writers. As early as 1847 this court discussed it in Metcalf v. St. Louis, 11 Mo. l.c. 105, in this wise:
"Here is clear and explicit delegation of power to pass the ordinance in question. The ordinance appears on its face to have been regularly passed and approved. If the ordinance adopted on this subject be void for want of legal authority, it will follow that the mayor and council can pass no ordinance whatever; and, that the General Assembly can impart no such power to any one corporation. This cannot be seriously contended. We are referred to the 1st section of the 3rd article, Constitution *Page 634 of this State, which declares that, `the legislative power [of the government] shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.' We can see no conflict between this clause and the authority conferred by the General Assembly on the mayor and the city council of St. Louis. The grant of power to pass ordinances for the government of the City of St. Louis, not inconsistent with the Constitution and laws of the State, is not a delegation of the law-makingpower of the government delegated by the Constitution to the General Assembly." (Italics ours).
It therefore appears that this question was decided about sixty-one years before Section 57 of Article IV was adopted, in 1908, and that this court then held the law to be exactly contrary to the assumption made in the argument being considered. This court has uniformly held that the General Assembly cannot delegate its legislative power. It has as uniformly held that municipal corporations lawfully could be invested with the powers now in question. The same holdings are found in the decisions of every state. It is impossible to harmonize these holdings if it be true that the municipalities exercise a part of the legislative power, in the constitutional sense, under legislative delegation.
The rule announced in the Metcalf case is not only the law in Missouri but is generally recognized. Mr. Cooley (Const. Lim., 7 Ed., pp. 264, 265) gives his views as follows:
"It has already been seen that the legislature cannot delegate its power to make laws; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the Legislature, in the entire absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation and police regulation usual with such corporations, would always pass unchallenged. The *Page 635 legislature in these cases is not regarded as delegating itsauthority because the regulation of such local affairs as are commonly left to local boards and officers is not understood tobelong properly to the State; and when it interferes, as sometimes it must, to restrain and control the local action, there should be reasons of state policy or danger of local abuse to warrant the interposition." (Italics ours).
Mr. Dillon in his work on Municipal Corporations (5 Ed.) sec. 573, says: "Although the proposition that the legislature of a state is alone competent to make laws is true, yet it is also settled that it is competent for the legislature to delegate tomunicipal corporations the power to make by-laws and ordinances,with appropriate sanctions."
Mr. McQuillin, in his work on Municipal Corporations, sec. 124, says: "And while the rule is also fundamental that the power to make laws cannot be delegated, the creation of municipal corporations to exercise local self-government has never been held to violate this principle."
Mr. McQuillin quotes from and cites a decision of the Supreme Court of the United States in which Mr. Chief Justice FULLER says: "It is a cardinal principle in our system of government that local affairs shall be managed by local authorities, and general affairs by the central authority, and hence, while the rule is also fundamental that the power to make laws cannot be delegated, the creation of municipalities exercising local self-government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as a grant of authority to prescribe local regulations, according to municipal practice, subject, of course, to the interposition of the superior in cases of necessity." [Stoutenburgh v. Hennick, 129 U.S. l.c. 147.]
In 19 Ruling Case Law, p. 706, sec. 17, it will be found that the text closely follows the decision last cited. In 12 Corpus Juris, pp. 859, 860, sec. 357 (2), the rule is *Page 636 stated: "In general the legislature may delegate to municipal corporations, and to proper officers of such corporations, all powers incident to municipal government, whether legislative or otherwise, without violating the rule against a delegation by the legislature of its law-making power."
In State v. Hayes, 61 N.H. l.c. 314 et seq. (cited with approval by Mr. Dillon), is a discussion of the origin and powers of municipal corporations which gives a legal and historical view of the subject as related to the present question and discloses the considerable antiquity of the doctrine laid down in the authorities which are here cited. In those authorities will be found cited numerous decisions of the courts.
The authorities are harmonious. The power to invest municipalities with authority to enact ordinances is a part of the legislative power in the constitutional sense. That power the Legislature cannot delegate. The power which the municipalities exercise under legislative authority is not a part of the "general legislative power," according to the Supreme Court of the United States; is "not understood to belong properly to the State," according to Mr. Cooley; and is not a part of the "law-making power of the government delegated by the Constitution to the General Assembly," according to this court when construing our own Constitution. In view of these authorities, and of this court's declaration upon the subject which was the law of this State when the Constitution of 1875 and Section 57 of Article IV were drafted and adopted, it is necessary to conclude that the assumption previously referred to is incorrect and that the argument dependent upon it falls with it.
The suggestion is also made that the rule in the majority opinion may destroy the Public Service Commission. The argument, again, assumes that the power exercised by that body is legislative power in the constitutional sense. This appears from reasons like those given in considering municipal corporations. The power exercised by the Public Service Commission is administrative, *Page 637
and not legislative. The law was passed by the General Assembly. Its administration and execution are confided to the Commission. The power to legislate includes the power to exercise discretion as to what the law shall be. It is distinct from authority or discretion in the execution of a law. This is the settled doctrine in this country. [Field v. Clark, 143 U.S. l.c. 693, 694; Buttfield v. Stranahan, 192 U.S. l.c. 496; Union Bridge Co. v. United States,
State laws authorizing municipalities to enact ordinances and establishing administrative boards are as *Page 638 much subject to the referendum as any other laws and may as readily be proposed by the initiative. Of course, it is not meant to be implied in the reasoning of the dissenting opinions that Section 57 of Article IV would authorize the voters of the State at large to initiate an ordinance (for instance) for the city of Kirksville or to refer to the voters of the State at large an ordinance passed (for instance) by the local authorities of the city of Joplin.
In view of the established principles to which reference has been made and the unbroken line of authority supporting them, as well as their almost axiomatic character, we have reached the conclusion that the position taken in this connection in the two dissenting opinions cannot be maintained.
II. In the correct use of a judicial decision as a precedent at least two things must be understood by the court so using it. It is necessary that the court know (1) what the question is which is then before it for decision, and (2) whatStare Decisis: question was decided in the decision invokedHalliburton Case. as a precedent. The first can be learned from the record of the pending case. The second must be discovered from the previous decision itself. In this case the decision in the Halliburton case is cited as a precedent. The dissenting opinions earnestly argue to the conclusion that the opinion in that case shows that the question now before us was decided in that case in a certain way. To reach this conclusion it is necessary for those who champion it to construe the language of that opinion. In view of the fact that the meaning given to the Halliburton decision in the dissenting opinions is quite different from that given to it in the majority opinion, an examination of the law applicable to the interpretation of judicial decisions when their use as precedents is proposed, and an application of that law to the Halliburton decision, may not be out of place. *Page 639
One of the hornbook rules (Black's Law of Judicial Precedents, sec. 11, p. 49) is: "The language of a judicial decision is always to be construed with reference to the circumstances of the particular case and the question actually under consideration; and the authority of the decision, as a precedent, is limited to those points of law which are raised by the record, considered by the court, and necessary to the determination of the case."
Continuing, Mr. Black says:
"This is a very fundamental principle in the theory of judicial precedents, and has been repeatedly recognized and asserted by the courts, as well as by theoretical text-writers. `A law or rule of law made by judicial decisions,' says Austin (2 Austin, Jurisprudence, Campbell's Ed., sec. 900), `exists nowhere in a general or abstract form. It is implicated with the peculiarities of the specific case or cases, to the adjudication or decision of which it was applied by the tribunals; and in order that its import may be correctly ascertained, the circumstances of the cases to which it was applied, as well as the general propositions which occur in the decisions, must be observed and considered. The reasons given for each decision must be construed and interpreted according to the facts of the case by which those reasons were elicited, rejecting as of no authority any general propositions which may have been stated by the judge, but were not called for by the facts of the case or necessary to the decision. The reasons when so ascertained must then be abstracted from the detail of circumstances with which in the particular case they have been implicated. Looking at the reasons so interpreted and abstracted, we arrive at a ground or principle of decision, which will apply universally to cases of a class, and which, like a statute law, may serve as a rule of conduct. Without this process of abstraction, no judicial decision can serve as a guide of conduct or can be applied to the solution of subsequent cases. For as every case has features of its own, and as every judicial decision is a decision on a specific *Page 640 case, a judicial decision as a whole, or as considered in concrete, can have no application to another and therefore a different case.'"
This rule is not new in the jurisprudence of this State. In State ex rel. v. St. Louis, 241 Mo. l.c. 238 et seq., in an opinion written in Banc by LAMM, J., and concurred in by VALLIANT, C.J., and KENNISU, FERRIS, BROWN, WOODSON and GRAVES, JJ., is found an announcement of the same doctrine. In that case it was said:
"There is a pronounced line of demarcation between what issaid in an opinion and what is decided by it — between arguments, illustrations and references on one side and the judgment rendered on the other. The language used by a judge in his opinion is to be interpreted in the light of the facts and issues held in judgment in the concrete case precisely as in every other human document. . . . It would be a wide and very mischievous departure from correct canons of interpretation to disconnect general language from the issues and facts of a given case and to apply that general language mechanically or automatically to the different facts and different issues of another case; for the sense must be limited according as the subject requires, and words take color from their context."
The opinion then quotes from cases and texts which disclose that the doctrine is ancient and universal. Particularly did the court approve a decision in Lucas v. Commissioners, 44 Ind. l.c. 541, and quoted from it at some length. The rule can be found in that quotation, together with sound reasons for it. This court frequently has approved the rule. [Greene Co. v. Lydy, 263 Mo. l.c. 91; Skilman v. Clardy, 256 Mo. l.c. 322; Pocoke v. Peterson, 256 Mo. l.c. 518; Bender v. Weber, 250 Mo. l.c. 561; Lorenzen v. Railroad, 249 Mo. l.c. 191.] The authorities elsewhere are uniform. [People v. Winkler, 9 Cal. l.c. 236; In re Johnson, 98 Cal. l.c. 542; Larzelere v. Starkweather, 38 Mich. l.c. 100, 101; Holcomb v. Bonnell, 32 Mich. l.c. 8; Hogan v. Board, 200 N.Y. l.c. 370; Crane v. Bennett, 177 N.Y. l.c. 112; Wright v. Nagle, 101 *Page 641 U.S. l.c. 796, 797; Cohens v. Virginia, 6 Wheat. l.c. 399, 400; Swan v. Justices, 222 Mass. l.c. 545; City v. Fant, 96 S.C. l.c. 96.] Numerous other decisions lay down the same rule. We have found none which proposes any other. The necessity for the citations made arises out of the fact that the rule seems to be negatived by the dissenting opinions in that they reach a conclusion which it is thought cannot be reached if the existence of the rule in question is conceded. It is in view of this apparently necessary implication in the dissenting opinions and out of respect for the views of the dissenting brethren that the authorities again have been examined. We find no denial of the rule except the denial necessarily implied in the dissenting opinions in this case.
The rule that a decision must be "read in the dry light of its own facts" and not otherwise, when the question whether it constitutes a precedent arises, is a rule for determining what the language of the decision means; what is decided.
In the Halliburton case it was in discussing the first of the two questions which the court formulated for decision in that case that the language was used which is now relied upon in the dissenting opinions as decisive of this case. That question is set out in the majority opinion but, for easy reference, is restated here:
"First: Were the petitions as presented to the respondent, Secretary of State, legally sufficient to authorize the submission to the voters of this State of an amendment to or change in the organic law (the Constitution) of this State.' Or, in other words, do the petitions embrace in fact a demand for the submission of a constitutional amendment within the contemplation and purview of the initiative amendment adopted in this State in November, 1908, as well as the legislation approved June 12, 1909, providing for the carrying out of such initiative amendment to the Constitution?"
It is not believed that an examination of the language of this question, as thus formulated by the court itself, will lead to the conclusion that this court, when it *Page 642 framed it, thought it was about to consider and decide the question which it is now contended it did decide. An examination of the briefs shows that the first contention made by respondent was that the proposed amendment to the Constitution was, when judged by its substance, temporary and legislative in character; that the power of the Legislature and of the people, by the initiative, to submit constitutional amendments did not include power to submit, as amendments to the Constitution, matter which was not of permanent sort and of constitutional nature in that sense, but which was in its essence temporary and legislative in nature. Respectable authorities were cited in support of this view. It was not contended a constitutional convention might not include what it would in a proposed constitution, nor that any matter might not be included when the people adopted a new constitution. The contention was that the power to submit amendments was limited, and limited in the manner suggested. The briefs deal with this question at length. Another contention of respondent was that the power to redistrict the State into senatorial districts had been delegated by Section 7 of Article IV of the Constitution and that this delegation bound the people. The argument was that the redistricting could not be done by the people by constitutional amendment until the delegated power had been resumed; under the delegation the power was in the legislative department by force of the Constitution itself, and having been delegated by the people, the people had deprived themselves of the power to do what they provided in the Constitution the delegatee should do. This proposition was argued at length and numerous authorities cited. It did not occur to any lawyer then in the case or on the bench that this last argument in any way depended upon the question whether the conditional power of the three executive officers to redistrict had survived the adoption of Section 57 of Article IV. That question was not gone into by any one connected with the case for the sufficient reason that the argument on this head could not have been affected *Page 643 in any way by the decision of that question. If the power of these officers was not affected by Section 57, then it remained and the delegation of power remained, literally as stated in Section 7 of Article IV. If Section 57 of Article IV destroyed the power of these officials, yet the delegation to the General Assembly remained unaffected except in so far as Section 57 enabled the people to participate in legislation. The foundation of the argument of counsel and court, in this respect, was the fact of the constitutional delegation of the power to redistrict, which remained the same whether or not Section 57 affected the conditional power of the three executive officers. Since the fact that the power was delegated justified the argument, and that fact remained the same whether the three officials had or had not been deprived of their power, then the question whether they had been so deprived had and could have had no influence on the decision. This means that the question now contended to have been decided was not in the Halliburton case and, of course, was not decided in that case. A fair consideration of that decision, in the light of the rule first mentioned, it is respectfully submitted, can lead to no other conclusion.
In concluding Paragraph I of its opinion in the Halliburton case the court holds that the power to redistrict the State has been delegated and could not be exercised in the manner proposed until the people by constitutional amendment had resumed the power by repealing the delegation of it; and holds that the people could not "put in the Constitution, which is regarded as the organic and permanent law of the State, mere legislative acts providing for the exercise of certain powers." The court adds: "We are unwilling to give our assent to the contention that these petitions should have been accepted and filed, whether or not they were applicable to a subject or matter contemplated by the initiative and referendum." This last evidently means the same as that which counsel in the case is quoted as saying in the brief, i.e. that the initiative-and-referendum amendment had no effect *Page 644 either way on the two real questions urged upon the court on this phase of the case. And this was and is entirely true. That amendment gave the people no power to propose a constitutional amendment which the Legislature could not have proposed and this fact was in no wise affected by the question whether the power of the executive officers remained or was abrogated by that amendment. The court did refer to that power as still existing, and these remarks are seized upon. In other instances the court specifically named the General Assembly apparently as sole delegatee of the power to redistrict. [Page 437.] If the one is a decision one way, the other is equally a decision to the contrary. The fact is, neither is a decision either way, for the reason stated. When the rule first stated is applied and the facts in the case are kept in mind and the questions for decision, as stated by the court, as presented in the briefs and as finally announced as decided, are considered, it seems that this decision ought not to be misunderstood to the extent that it would be thought to pass upon the question now before this court. We see no reason for refusing to apply to the Halliburton case the same law and rule which is applied to other decisions in determining what they decide and upon what matters they stand as precedents. This rule has stood the test of time. It has received the continuous and unbroken approval of this court to the present moment. It has universal approval. No reason for its abrogation is advanced. It is merely overlooked in the dissents. When this established rule is applied and the decision tested by it, the argument in the dissents which are based upon the Halliburton and other cases distinguished in the majority opinion seems to us, with due respect to their authors, to be unsound.
Confirmatory of the soundness of this view is another thing. The motion for rehearing in the Halliburton case bears the signature of two able lawyers who subsequently became members of this court. We quote, with approval, from one of the dissenting opinions in this case: "The late John Kennish and the late John C. Brown, *Page 645 both of whom afterwards served the State with great honor and distinction as members of this court, were of counsel for relator in the Halliburton case." In the motion for rehearing in that case will be found no such conception of the decision as is now suggested in the dissents. In fact, after discussing at length the question as to the discretionary power of the Secretary of State, the motion contains the following:
"The main ground upon which the decision of this court is based in denying the peremptory writ against respondent, is that the proposed constitutional amendment is legislative and not constitutional in character; and that a measure legislative in character cannot be adopted under the guise of being a constitutional amendment. . . . But let us consider what consequences will follow if the court's construction of the initiative-and-referendum amendment is to stand. Under that construction a measure legislative in character and a measure constitutional in character must respectively be proposed as such, and if either should be proposed under the form or guise of the other, it would be void and of no effect, even if adopted by the necessary vote at the polls."
The matter is then argued at length. An examination of this motion fails to disclose that the eminent counsel who represented relator in the Halliburton case suspicioned that the court had decided what it is now insisted it did decide. Their brief shows they did not discover in advance that the question was in the case, and the motion they filed shows they did not discover from the opinion that the court had decided it. Their conceded ability strongly tends to preclude the inference that they overlooked the question which, it is now discovered in the dissents, was the head of the corner in the Halliburton case. If the question whether the conditional redistricting power of the three executive officers had survived the adoption of Section 57 of Article IV was not involved in that case (and we think it is indisputable that it was not) then it was not decided and could not *Page 646 have been decided. If it was involved as contended, not only court and counsel for respondent, but the distinguished counsel for relator, whose memory we revere and whose reputation for sound thinking is not lightly to be impugned, failed to discover its presence. Also, we have been unable to find that the case has been misunderstood by any annotator or text-writer.
III. In two of the dissenting opinions it continues to be contended that the rule adopted by the court destroys all restrictions upon the exercise of legislative power, and, from this, it is argued that the construction the court gives the words "the legislative authority" must beLegislative Power: incorrect. In substance, the insistenceAbsolute and Qualified is that the abrogation of theseExercise: restrictions would lead to results whichRestrictions. it is not reasonable to believe the people could have intended. It is conceded, of course, that the court holds the restrictions are not affected, but it is argued that this conclusion cannot be maintained in the face of the holding that "all legislative power" was meant to be included in the words "the legislative authority" as used in the amendment of 1908. With due respect to the opinion of those who advance these arguments in these opinions, we have been unable to escape the conclusion that there is, in the two opinions mentioned, evidence of a confusion of different concepts of legislative power and of the treatment of restrictions upon power and of power itself as identical.
It seems obvious that the distinction between a grant of power and a restriction upon the exercise of a power is so wide that it approaches demonstration in its simple statement. Supererogation would seem to reach its climax in an attempt to argue a thing of such axiomatic character. Nothing need be added to what is said in the court's previous opinion on this subject. The real basis of the continued insistence upon the argument mentioned is the idea of legislative power, as it appears in the two dissents last filed. The meaning given in the *Page 647 court's opinion to the words "legislative authority" as they appear in Section 57 of Article IV is the only meaning of which they seem reasonably susceptible. There is a conception of legislative power which implies absolutism in the sovereign. There is another which conceives it as the full power which might be exercised by the legislative branch of a government of freemen. There is a third which conceives it as the last, less such power as is deducted by constitutional restrictions which the people deem proper for the furtherance of good government but which might be thought not absolutely essential to the existence of free government.
The view that the Bill of Rights withholds certain rights of citizens from the field in which legislation may operate in a government like ours is vindicated by the authorities and by the history of our institutions. [Cooley's Const. Lim. (7 Ed.) p. 65 et seq.] The conception of legislative authority in the mind of the framers and adopters of Section 57 of Article IV of the Constitution could not have been that conception which implies absolute power to legislate unless we convict the people of having forgotten the fundamentals of freedom as they are set forth in the Bill of Rights. It was ordained to protect and preserve them. The main purpose of our government and our Constitution is their protection and preservation. To say that the people, in establishing the State government, forgot these is to say they forgot the things which gave point and purpose to the establishment of a government. It seems safe to conclude that the view of the Bill of Rights taken by the majority opinion is correct and to say the dissenting opinions are not intended to contradict it in that respect.
There are, and in 1908 were, in the Constitution, certain restrictions upon the legislative power, or its exercise, which further limit the subjects to which it may be applied and the manner in which it may be exerted. From the residue of power which is left after the reservations in the Bill of Rights have been deducted from the conception of legislative power as it would appertain to an *Page 648 absolute monarch, these restrictions make further deductions by means of prohibiting legislative action or forbidding such action except in a prescribed manner. What was left was the legislative power under our Constitution at the time Section 57 was drafted and adopted. The people had no other legislative power or authority in mind, because no other exercisable legislative power then existed in this State. It is clear that the section has in it no suggestion of an intent to create new legislative power, and none that the power which then existed was to be diminished. It dealt with the legislative power as it then was. It neither added to it nor substracted from it. Its language puts this beyond dispute. This is what the majority opinion holds. This is the power which must be and is meant when in the amendment it is said that "the legislative authority of the State shall be vested," etc. It seems manifest that the argument that the words declaring what agencies shall be vested with legislative power destroy restrictions upon legislative power, depends upon the assumption that the legislative power or authority intended to be included in the amendment is not only the legislative power as it then existed and could be exercised under our Constitution, but included all legislative power which could have been exercised by the General Assembly if the Constitution had contained no restrictions upon its activities. This is an assumption of the thing which the argument is designed to prove. This method cannot advance the argument. It may also be suggested that the words of the amendment are entirely general. They name a definite thing and name it as a whole. If they do not include it all, what method is to be adopted in determining the part which is excepted? The language is general and all-embracing. Any idea of exception to it must and does stand in direct contradiction to the words used in the amendment. No amount of argument can hide the all-inclusiveness of the language used, nor explain away the plain contradiction between that language and the thought of exception to it. Nor does the amendment elsewhere contain any suggestion of an exception to its terms. *Page 649
Amendments are adopted for the express purpose of working changes. It is not the business of courts to explain them away. They are to be interpreted in furtherance of the purpose which actuated the people in their adoption.
The question which remains is whether the power formerly invested by Section 7 of Article IV in the executive officers is legislative power, and that question is fully and correctly discussed and disposed of in the original opinion.
IV. It is argued that the amendment confines the referendum to "acts of the legislative assembly," and, therefore, it is said, recognizes and excludes from its operation the power of the executive officials under Section 7 of Article IV. If the question here concerned the referability of theReferable redistricting measure now in question, the argumentActs. referred to would be relevant and, it might be, somewhat persuasive. What relevance it has to the question whether the framers of the measure (the executive officers) had authority to act in the premises is not so apparent.
The question whether a measure is an act of the legislative assembly and the question whether the same measure has been promulgated by executive officers without authority are so widely separated that the distinction obtrudes itself and needs no argument.
V. In the opinion of the writer of this, the opinion prepared by GRAVES, J., convincingly covered every question in the case. It is out of deference to the very earnest and continued insistence, in the two dissents last filed, that theConclusion. original ruling is wrong, that a response to new matter and a slightly more detailed discussion of some other questions have been thought proper. With all the respect due the deliberate expression of his views by any member of this court, we have re-examined the legal proposition advanced by our colleagues and have given expression to *Page 650 our views upon them. The judgment in this case accords with the intent of the people as expressed in the amendment of 1908.Woodson, Graves and Walker, JJ., concur.