Power v. Ratliff

72 So. 864, 112 Miss. 88

• Court: Mississippi Supreme Court
• Decided: October 15, 1916
• Status: Published

Opinions

SteveNS, J.

delivered the opinion of the court.

(After stating the facts as above). Lying upon the threshold of this case is the question whether equity has jurisdiction to enjoin the secretary of state from taking the steps necessary to refér the several acts of the legislature to an election by the people. While the answer denies that complainants have the right to the injunction prayed for and granted, this particular question was not stressed by counsel in the arguments before us, and we might, therefore, well preface our remarks in the language of the Oklahoma court in McAlester v. Milwee:

“They (counsel) are so anxious to have this court pass, upon the case upon its merits that they do not wish to urge that question (jurisdiction) in this court. The' court does not take that view of the matter; we think it is time enough to pass upon such important questions, when they are reached in due course, with proper parties, in a proper proceeding.” 31 Okl. 620, 122 Pac. 173, 40 L. R. A. (N. S.) 576.

The question of the jurisdiction of equity in this case is so serious that we do not feel justified in waiving or ignoring it. The general rule is that an injunction will not lie to restrain the holding of an election. It is not necessary to say that this rule obtains to the extent that equity will never restrain the holding of an election, for the door of the court is always open to those who seek protection in matters, of property and the maintenance of civil rights or who reasonably apprehend the infliction of irreparable injury. There may be elections authorizing bond issues or directly affecting property rights,, and if such an election is attempted to be held without authority of law, equity might well interfere. The eases. at bar, however, do not fall in that class. The complainants in the instant cases have obtained an injunction restraining the secretary of state from performing official duties imposed upon him by a proposed amendment inserted by the last legislature as a part of pur Constitution, and thereby indirectly restraining this official from taking the necessary steps to refer the liquor laws and the game law to a vote of the people in accordance with the provisions of this initiative and referendum amendment. The very object of the suits is to prevent the holding of an election on these questions. The only property rights which complainants in one of the suits have is their interest as taxpayers. The referendum called for by the amendment sought to be held void submits for the approval of the people the laws petitioned against, and the amendment expressly provides that this approval or rejection must be registered “at the general state or congressional elections, except when the legislature shall order a special election.” At the time the injunction was served these questions were being prepared for submission at the general November, 1916, ■election. If submitted, the questions so presented will not require the holding of an additional election, but will simply lengthen the ticket to be voted on at the regular election of this year. If appellant submits the questions to a vote of the people, the additional burden of taxation upon complainants will be the paltry sum of a few cents, an injury trifling and insignificant. The injury in no wise could be called inseparable within the sense of that term as employed in equity jurisprudence. Complainants Ratliff and Sullivan do not seek the. protection of property rights. They would likely resent the imputation that they have any interest in liquors or any newspapers profiting by liquor advertisements, and even though a complainant might have an alleged interest in the sale of liquors or the operation of a newspaper within the confines of our state, a vote upon the liquor laws enacted by the legislature of 1916 might ■ possibly help but could never burt sucb complainant in tbe enjoyment of any such rights. It is conceded that tbe liquor laws in question are valid enactments of our legislature, and it must be remembered that complainants do not seek to prevent tbe enforcement of an illegal or unconstitutional act of tbe legislature. While tbe bills purport to enjoin tbe secretary of state in tbe performance of bis ministerial duties, tbe gravamen of tbe bill after all is an injunction against tbe exercise by the'people of a veto power upon tbe legislation in question. It cannot possibly burt any one for tbe people to register their choice or will on these liquor laws. If tbe people approve tbe laws no injury has been inflicted upon any one, and tbe statutes in question remain valid and subsisting laws of our commonwealth. Tbe liberty of property rights of no one will be affected.

With reference to tbe so-called game and fish law, Mr. Cade claims a right to enjoy tbe emoluments of bis office as fish and game warden of Hinds county without tbe interruption of an election. What is said about tbe rights of Ratliff and Sullivan as taxpayers applies with equal force to tbe rights of Mr. Cade as a taxpayer. In addition, however, be claims tbe right' to have tbe court protect him in bis office. Tbe game law in question is conceded to be a valid enactment of tbe legislature, and if tbe people by referendum .vote approve tbe law, no injury is inflicted upon Mr. Cade or any one else. He will still continue to be tbe game warden of Hinds county. If tbe people reject or disapprove tbe law, then tbe rights of the people to nullify this act of the legislature can and will be called in question. If tbe initiative and referendum amendment is void and no part of our present Constitution, tbe vote of tbe people upon tbe game law will have no legal effect upon its validity, and Mr. Cade will still be tbe lawful game and fish warden of Hinds county, and as such entitled to the office and tbe emoluments thereof. This complainant, therefore, has not shown that irreparable injury will be done him by submission of this question to a vote of the people. Tbe injury threatened must be substantial and not fanciful or theoretical.

Counsel for appellees rely upon the case of Conner v. Gray, 88 Miss. 489, 41 So. 186, 9 Ann. Cas. 120, which was a suit instituted by certain citizens and taxpayers to restrain the holding of an election for the creation of a new county. There are some general expressions in this opinion sustaining the jurisdiction of chancery to enjoin an electon called in violation of the Constitution and laws of the state, and these general expressions of the court support the argument of counsel for the complainants in the instant cases. We have examined the issues and the opinion of the court in this case of Conner v. Gray, and with the highest regard for the learning and ability of the judge delivering the opinion of the court in that case, we are forced to the conclusion that the statements of the court in that case upon the jurisdiction of equity are too general and far-reaching. It must be observed, however, that the court in the Conner-G-ray Case declined the relief sought and dismissed the bill, and the decree of the lower court was affirmed. ■ The court reached the right result in that case, and found, as a matter of fact, and so held that:

‘ ‘ The taxpayer has utterly failed to prove himself within the provision of the law as stated in Gibbs v. Green, 54 Miss. 592, in that he has failed to show, not only‘that the act about to be performed is unconstitutional,’ but also failed to show that he will be injured in any way.”

In addition to the alleged rights of the complainants as taxpayers a justice of the peace and certain members of the board of supervisors complained in that case of the attempt to create a new county upon the ground that they would be taken out of their county and jurisdiction and placed in a different county, and in response to the contention of these officers the court says:

“Neither the members of the board of supervisors, nor the justice of the peace, have any right to complain of the exercise by the legislature of its constitutional power in the creation of a county until they become directly affected by it. They cannot maintain this bill simply because they fear some invasion may be made upon their rights as officers. ”

The pronouncements of the court in that case with reference to the interest of the complainants as taxpayers and officers fully accord with the views of the court here ■expressed as to the irreparable injury threatened complainants in the present cases, and the holding of the court there is really authority for the holding here made.

It will not do to say that the election if held will bevoid. The proper remedy will be appropriate action to prevent the execution of any proposition voted for. Thompson v. Mahoney, 136 Ill. App. 403. In this case the court observes that:

“The attempt to check the free expression of opinion, to forbid the peaceable assemblage of the people, to obstruct the freedom of elections, if successful, would result in the overthrow of all liberty regulated by law. The mere effort to assume such power is dangerous to the rights of the citizens. . . . The principle which would authorize the mighty mandate of a court of chancery in this case would justify it in every election to be held by the people, and thus the whole administration of the government might be obstructed and all power and authority placed at the footstool of the judge.”

-The practice contended for in the present cases would tend too much to government by injunction. It is time enough to elicit an expression of the court as to the validity of a law or constitutional amendment when the substantial rights of litigants have been invaded. It is well settled that courts cannot interfere with the legislature in the enactment of a void statute or with a municipal corporation in the mere enactment of a void ordinance. The legislature and the people of our state have undertaken to amend the Constitution in a way to confer the right upon the people to enact or reject a law by the so-called initiative and referendum. This amendment the legislature has inserted as a part of the organic law of our state. Whether they have succeeded or not is a question not now before this court. It is sufficient to say that the qualified electors are now undertaking to act in pursuance of this authority, and in attempting to have the laws in question referred to their vote they are at least attempting the performance of a legislative act, and the courts have no more right to interfere with this legislative act of the people than they have to prevent an abortive attempt of the legislature to pass a law. The making of the laws belongs to a co-ordinate branch of the government, and the courts have nothing to do with the making, but must deal altogether with the finished product. The complainants in the present proceeding are seeking an advance opinion as to the validity of a constitutional amendment before that amendment has been enforced in a way to effect the substantial property rights of any one. There is no law authorizing a hill of complaint to remove an alleged cloud on or uncertainty about a statute or constitutional amendment before the same has been put into force and effect in a way to injure the parties complaining.

The recent case of McAlester v. Milwee, supra, sustains our view of the jurisdictional question. In that case the taxpayer attempted to enjoin the holding of an election to recall the mayor of the city. The court in that case says:

“Courts of equity are only conversant with matters of property and the maintenance of civil rights, and will not interfere to enforce or protect purely political rights. This doctrine has been universally applied in other jurisdictions where equity has been invoked to interfere in matters preceeding an election.”

In addition to the authorties relied upon by the Oklahoma court other authorities are listed'in a note to this case as reported in 40 L. R. A. (N. S.) 576.

In tlie case of State ex rel. Crammer v. Thorston, 9 S. D. 149, 68 N. W. 202, 33 L. R. A. 582, an elector and taxpayer attempted to enjoin the submission to a vote of the people of a constitutional amendment upon the grounds that the submission would he invalid and without authority of law. It was contended in that case that the legislature had not legally passed the resolution submitting the amendment to the qualified electors of the state, and that the election if held would be a nullity. The court in a lucid and sensible opinion, among other things, says:

“If the legislature has proceeded properly and its proposed amendment shall be ratified by the people, the relator will have no legal cause of complaint, because, as a good citizen of the state, he will be bound to cheerfully accept the lawfully expressed will of a majority of its soverign electors. If, on the other hand, the action of the legislature was such as to render any answer to the question inoperative, the Constitution will not be modified, and no one will be affected. Any additional burden which might result to relator, as a taxpayer, by reason of submitting this question at a general election, is too trifling, fanciful, and speculative for serious consideration; and if, as -claimed by him, the legislature has done nothing but submit a question to the people, it has done what it had a right to do, and any additional expense resulting from such action will be a legitimate expenditure of public money. Evidently an essential ground of equitable jurisdiction is wanting.”

A similar attempt to prevent the submission of a constitutional amendment to a vote of the people was made in the case of People ex rel. O’Reilly v. Mills, Secretary of State, 30 Colo. 262, 70 Pac. 322, wherein the court observes:

“The judicial- department can no more interfere with such legislation or the successive steps necessary to be taken to amend the Constitution than it can with the general assembly in the passage of other laws, because the judicial cannot directly interfere with the functions óf the legislative department. . . . When laws have been passed no donht in a proper case the inquiry can then be made as to whether or not the requirements of the fundamental law in their passage or in their provisions have been observed, but in the first instance the body to which has been delegated the £ower to pass laws must be left untrammeled, to act in such matters as its wisdom may dictate.”

It is stated by Mr. Dodd in his work on the Revision and Amendment of State Constitutions, p. 232, that:

“In Oregon, for example, a measure may be initiated by the people or by the legislature and then submitted to the people for approval. , The submission of laws for popular approval in Oregon and in several other states makes such a popular vote an integral step in the process of ordinary lgislature. But the courts at present decline to interfere with the process of legislation, and wait until the validity of a law is attacked before them.”

Another case of interest in this question is that of Duggan v. City of Emporia, 84 Kan. 429, 114 Pac. 235, Ann. Cas. 1912A, 719, wherein complainants attempted to enjoin the calling and holding of an election under the initiative and referendum act of that state as applied to cities of the second class. The court declined to issue the temporary injunction, and in affirming the case the supreme court of that state, through Porter, J., says: '

“Another reason why the contentions of the appellant cannot be sustained, if it were conceded that he could maintain the action in his capacity as taxpayer, is that it does not appear that, he will suffer any injuries as a consequence of the holding of the election. Acts which, though irregular and unauthorized, can have no injurious results constitute no grounds for equitable relief by in-, junction. 1 High. Inj. (4th Ed.), par. 9, and cases cited; Hutchinson v. Delano, 46 Kan. 345, 26 Pac. 740; Coffeyville Min., etc., Co. v. Citizens’ Natural Gas, etc., Co., 55 Kan. 173, 40 Pac. 326; Hurd v. Atchison, etc., R. Co., 73 Kan. 83, 84 Pac. 553.

“If the result of the election is in favor of the proposed ordinances the statute (Laws 1909, ch. 82, par. 31; Gen. St. 1909, par. 1503) provides that they shall thereupon become binding and valid ordinances of the city; but when they are sought to be enforced, if any person’s rights are affected there'by the courts are open for him to test the legality of the ordinances, as well as of the election by which they were adopted.

“One of the grounds urged for the injunction is that the ordinances are unconstitutional because of some defect in their title, but this gives a court of equity no jurisdiction to enjoin the passage of an ordinance. No one would claim that the legislature could be enjoined from the enactment of an unconstitutional law or that the electors could be enjoined from attempting in an unwarranted manner to amend the Constitution. It is a familiar principle that injunction will not. lie to prevent legislative action by a municipal corporation. New Orleans Waterworks Co. v. New Orleans, 164 U. S. 471, 17 S. Ct. 161, 41 L. Ed. 518; Cape May, etc., R. Co. v. Cape May, 35 N. J. Eq. 419; State v. Superior Ct., 105 Wis. 651, 81 N. W. 1046, 48 L. R. A. 819. . . .

“That this is an attempt to enjoin legislative action is apparent. The initiative and referendum statute provides that upon the presentation of a petition in proper form, duly certified by the city clerk, the mayor and council or mayor and commissioners shall do one of two things: Pass the proposed ordinance within ten days thereafter or call an election and submit the ordinance to the . people; and upon its adoption by a majority of the electors it becomes a valid ordinance. This is legislation, either direct by,the city or indirect by the people. ...

“The futility of the proceedings to enjoin the submission of the proposed ordinances is likewise obvious when we reflect that the people may not adopt them, and the court ought not to be called upon to anticipate conditions which may never arise.”

The same thought is reflected and approved in the statement appearing on page 1011, vol. 9 B. O. L.:

“It will rarely happen that a court can say in advance that irremediable, wrong will result to individual electors from the result of an illegal election; and, moreover, there is ordinarily an adequate legal remedy afforded for testing the validity of the election after it has been held.”

As stated by the Louisiana court in Harrison et al. v. City of New Orleans et al., 33 La. Ann. 222, 39 Am. Rep. 272, in commenting upon an application to enjoin the mayor and administrators of the city of New Orleans and the common council from voting on or passing an alleged illegal ordinance:

‘ ‘ The mere voting on or passing the ordinance in question cannot per se do the plaintiff any possible injury! It will be time enough to complain, if it be a subject for complaint, when steps are taken, or a beginning made, to put the ordinance into actual execution.” ,

A similar question came before the court of Illinois in Fletcher v. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220, a case which was begun by a bill in chancery praying that a certain act of the general assembly apportioning the state of Illinois into senatorial districts be declared unconstitutional and void, and to restrain the county clerk of one of the counties from issuing or causing to be posted notices of the election for representatives from the Eighteenth senatorial district. The court at the conclusion of a lengthy opinion says:

“Indeed, it is so well settled that courts will not enjoin the holding of an election that, in drafting the bills, the pleaders did not venture to pray for that species of relief. Furthermore, as is of course well known, the election to be held in November, 1894, will not be confined to the choice of senators and representatives in the general assembly, but it will be for the election of state treasurer, members of Congress, and certain county officers ; and it is not pretended that, so far as those officers are concerned, tlie election will be in any respect illegal or unauthorized. Nor is it shown, at least by any clear or intelligible averment, that voting for senators and representatives in the general assembly in and for the districts created by the apportionment acts in question, will in any material degree increase the expense of holding the election. In no view, then, can it be held that the complainants, as taxpayers, have made out a case for an injunction to restrain the public authorities from doing acts whereby an illegal indebtedness will be - incurred. ’ ’

Counsel for appellees rely upon the case of Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, Ann. Cas. 1914B, 916. The majority opinion in that case appears to sustain the jurisdiction of the court, but the dissenting opinion of Cockrell, J. concurred in by Justice Shackleford, seems to express the safer view. It might be observed also that the suit in that case was by the governor of the state in his official capacity as well as a taxpayer, and the court may have been influenced by the thought that the governor should be accorded the right to prosecute this suit for and on behalf of all the people that might be affected by the constitutional amendment there attempted to be submitted to a vote of the people. This is reflected by the statement of "Whitfield, C. J., hr the majority opinion that:

“In view of the great importance of this matter to the people of the state, this court has permitted the merits of the cause to be fully argued at the bar for both parties on the application for a supersedeas.”