Rice v. Palmer

96 S.W. 396, 78 Ark. 432, 1906 Ark. LEXIS 306

• Court: Supreme Court of Arkansas
• Decided: April 23, 1906
• Status: Published

Opinions

Hill, C. J.

This is a contest over the office of circuit clerk of Lincoln County, and calls for a decision as to whether Amendment No. 3, authorizing the Governor to fill vacancies by appointment, was legally adopted as part of the Constitution. Rice holds under an appointment made by the Governor; and against his claim to the office thereunder Palmer asserts, first, that Amendment No. 3 was not legally adopted, and, second, that there was no vacancy in the office, within the meaning of the law. The view the court takes of the first question renders unnecessary a decision of the second.

The clause of the Constitution under question is section 22, art. 19, as follows:

“Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all the members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for senators and representatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.”

The county election commissioners are required to certify the vote on the amendment to the Secretary of State, and the Secretary of State is required to transmit these sealed returns to the Speaker of the House of Representatives at the time and in the same manner that the returns for Governor and other executive officers are required to be transmitted to the Speaker. Kirby’s Digest, § 716. The Speaker is required, during the first week of the session, in the presence of both Plouses of the General Assembly, to open and publish the votes cast for Governor, Secretary of State, Treasurer, Auditor and Attorney General, and the person having the highest number of votes for each respective office shall be declared duly elected thereto, and the President of the Senate and Speaker of the House shall file a certificate with the Secretary of State, declaring what persons have been elected to the offices named. Kirby’s Digest, § 2852.

On the occasion of the ascertainment and declaration of the vote for Governor and said other executive officers, the returns on the amendment “shall be opened and counted in the presence of the General Assembly in joint convention assembled.” Kirby’s Digest, § 717.

Then follows this provision: “If it shall appear that a majority of the electors voting at such election adopt such amendment, then the Speaker shall declare such proposed amendment duly adopted by the people of Arkansas.” Then follow provisions for certificate to be filed with the Secretary of State, and for the Governor to make proclamation of the adoption of this amendment. Kirby’s Digest, § 718.

The declaration of the Speaker as to the result of the vote for Governor, Secretary of State, Treasurer, Auditor and Attorney General is not necessarily the final conclusion, for a contest may be had thereafter, and it shall be settled by the joint vote of both Houses, in which joint meeting the President of the Senate shall preside. Kirby’s Digest, § 2877.

There is no statutory provision for any tribunal to determine a contest over the result of the election on an amendment, and the section above quoted, requiring the Speaker to declare the result from the votes then before him, is the only method of ascertainment of the result prescribed by statute.

In the general election of 1899 Amendment No. 3 received 43,446 votes, and there were 40,207 votes against it, and there were 126,986 votes cast for governor.

The Speaker in joint session of the General Assembly of 1895, upon the votes aforesaid then before him, declared the amendment adopted; it was duly certified by the President of the Senate and Speaker, and proclamation made by the Governor. Two questions are involved: First, is the action of the Speaker, followed by the executive proclamation, the ultimate decision of this question which the courts can not review because committed to the other departments of State to determine, or is it a judicial question not to be settled until settled rightly in a judicial court? Second. Does an amendment require a majority of all the votes cast in the election or a majority voting on the question ?

First. It is strongly pressed upon the court that the General Assembly has delegated to the Speaker, as the servant and the mouthpiece of the joint session, the power to determine as to whether a constitutional amendment has been adopted; and that question is a political one, determined by a co-ordinate department of government, and the judiciary is precluded from entertaining it. This argument has often been made in similar cases to the courts, and it is found in many dissenting opinions, but, with possibly a few exceptions, it it not found in the prevailing opinion of any court of last resort. The authorities are practically uniform in holding that whether a constitutional amendment has been properly adopted according to the requirements of the existing constitution is a judicial question, and it is a paramount duty, of the courts to pass upon it. An examination of some of the leading cases may be both interesting and profitable. This exact question came before the New Jersey Court of Errors and Appeals on writ of error from the Supreme Court. The law of New Jersey provided that the Governor should summon four or more members of the Senate to sit with him, and they should constitute a board of canvassers to canvass and estimate the vote given for and against a constitutional amendment which had been voted on, and the board was empowered to “determine and declare” which amendments were adopted, and to certify the same, and its certificate would make the amendment part of the organic law. After the board had decided that an amendment relating to lotteries and one relating to appointments to office were adopted, and one on woman’s suffrage was rejected, citizens and taxpayers caused the question to get into the courts, and the final court said:

“The question naturally arising first in this case concerns the legitimate scope of our inquiry: Have we authority to consider and decide whether the determination of the board of State canvassers that the proposed amendment had been adopted was lawful, or did that determination, followed by the proclamation of the Governor, preclude judicial cognizance of the subject?” After stating the exact questions involved in regard to the amendments and how the case arose in the Supreme Court (there a court of general and original jurisdiction), the court continues: “It thus -becomes manifest that there was present in the Supreme Court, and is now present in this court, every element tending to maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the judicial department of the Government has not the right to consider whether the legislative department and its agencies have observed constitutional injunctions in attempting to amend the Constitution, and to annul their acts in case they have not done so. That such a proposition is not true seems to be indicated by the whole history of jurisprudence in this country.” The court then goes into an interesting review of the authorities, and then says: “The examination made supports the assertion of Chief Justice Day (of Iowa) that the decisions, so far as they deal with the existence of the principle, are not in conflict. The only case found in which, the jurisdiction of the court was denied is Worman v. Hagan, 78 Md. 152.” (The court then discusses this case, which will be referred to later.) State v. Bott, 45 L. R. A. 251, 43 Atlantic Rep. 744.

In Mississippi a case arose as to the adoption of a constitutional amendment, and the first question which arrested the attention of the court was whether it was a judicial or a political question. Chief Justice Whitfield, in a clear and positive decision, puts at rest any doubts on the question. He' reviews the decided cases on the subject, and says it is settled by an overwhelming weight of authority that this is a judicial question; and then he continues:

“The true view is that the Constitution, the organic law of the land, is paramount and supreme over Governor, Legislature and courts. When it prescribes the exact method in which an amendment should be submitted, and prescribes positively the majority necessary to its adoption, these are constitutional directions mandatory on all the departments of government, and without strict compliance with which no amendment can be validly adopted. Whether an amendment has been validly submitted or validly adopted depends upon the fact of compliance or non-compliance with the constitutional directions as to how such amendment shall be submitted and adopted, and whether such compliance has in fact been had, must, in the nature of the case, be a judicial question.” State v. Powell, 77 Miss. 545, 48 L. R. A. 652.

In the case of Koehler v. Hill, 60 Ia. 545, a very exhaustive examination of this question was had. There was a majority and minority opinion, and then on motion for rehearing this question was threshed over. Chief Justice Day delivered a vigorous opinion, overruling the motion for rehearing. He reviewed the adjudged cases fully, and concluded his opinion on this branch of the case as follows:

“We have then seven States, Alabama, Missouri, Kansas, Michigan, North Carolina, Wisconsin and Indiana, in which the jurisdiction of the courts over the adoption of an amendment to a constitution has been recognized and asserted. In no decision, either State or Federal, has this jurisdiction been denied. We may securely rest our jurisdiction upon the authority of these cases. ITe would be a bold jurist, indeed, who would ride roughshod over such an unbroken current of judicial authority, so fortified in principle, sustained by reason, and so necessary to the peaceful administration of the government.”

The Alabama court said:

“The Constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It is said that certain acts are to be done, certain requisitions are to be observed, before a change can be effected. But to what purpose are these acts required or the requisitions enjoined, if the Degislature or any other department of the government can dispense with them? To do so would be to violate the instrument they are sworn to support; and every principle of public law and sound constitutional policy requires the court to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law.” Collier v. Frierson, 24 Ala. 108.

The following States in the following cases have entertained jurisdiction of suits to determine the validity of the adoption of constitutional amendments, and treated such questions as judicial questions: Missouri, State v. McBride, 4 Mo. 303; North Carolina, University of N. C. v. McIver, 72 N. C. 76; Michigan, Westinghausen v. People, 44 Mich. 265; Indiana, State v. Swift, 69 Ind. 505; Wisconsin, State v. Timme, 54 Wis. 318; California, Oakland Paving Co. v. Hilton, 69 Cal. 479; Kansas, Prohibitory Amendment Cases, 24 Kan. 700; Minnesota, Secombe v. Kittelson, 29 Minn. 555; New Jersey, State v. Wurts, 45 L. R. A. 251, s. c. 43 Atl. Rep. 244; Alabama, Collier v. Frierson, 24 Ala. 108; Iowa, Koehler v. 60 Ia. 543; Mississippi, State v. Powell, 77 Miss. 545. And against this array of authorities is only the Maryland court in Worman v. Hagan, 78 Md. 152.

The strength of appellant’s contention is in the argument that the General Assembly delegated to the Speaker, as the presiding officer of the joint session, the determination of this question. Chief Justice Whitfield said in State v. Powell, supra, “It may be that where the Constitution creates a special tribunal, and confides to that tribunal the exclusive power to canvass votes and declare the result, and make the amendment part of the Constitution, as a result of such declaration, by proclamation, or otherwise prescribed method fixed for such tribunal by the Constitution, then the action of the special tribunal would be final and conclusive, whether its action be judicial or not. This is so because it was competent for the sovereign people, speaking through their Constitution, so to provide.”

v It will be noted that Chief Justice WhiteiErd limits the exception to constitutionally created tribunals, but other courts recognize statutory tribunals as possessing the same power of ultimate conclusion where the Legislature exoressly provided. Judge Cooley thus expressed it in an analogous proposition:

“As the election officers perform for the most part ministerial functions only, their returns, and certificates of election which are issued upon them, are not conclusive in favor of the officers who would thereby appear to be chosen, but the final decision must rest with the courts. This is the general rule, and the exceptions are those cases where the law under which the canvass is made declares' the decision conclusive, or where a special statutory board is established with power of final decision.” Cooley, Const. Lim. p. 937..

In view of this exception to the rule of judicial review, which has in a few instances been applied to adoption of constitutional amendments, it is important to consider whether section 718, Kirby’s Digest, can be construed as creating the Speaker, either individually or as the representative of the joint session, a tribunal to determine the result of the election on amendments.

It is true that he must make declaration of the apparent result from the votes before him, just as he makes declaration of the election of governor and other officers from the votes before him. In the event of contest over one of the executive offices it is expressly provided that the joint session at a meeting presided over by the President of the Senate shall determine it, thereby showing clearly that there is no finality to this declaration from the face of the returns. Must it be taken, because there is no express provision for the joint session or other tribunal to determine a contest over an election on the amendment, that the only determination of it shall be the prima facie one from the face of the returns before the Speaker?

Suppose a few votes determine the fate of an amendment, and the returns from one county are known to be indubitably stained with fraud, and the proof is at hand. The Speaker is powerless to do more than declare the result as it appears from these returns sent him by the Secretary of State, who hands them to him as received from the county boards. Is it to be thought for a moment that it was ever intended that this, perfunctory duty of the Speaker, limited to the face of the returns, should preclude inquiry and permit the organic law to be changed contrary to the expressed wishes of a majority of the people? Can it be possible that the lawmakers intended the organic law to be changed on the face of the returns, and yet no officer, from Governor to constable, is necessarily concluded by the face of the returns? The statement of the position carries its own refutation. Certainly no such intention can be imported into the legislation which imposed this formal duty on the Speaker, as the words of the act negative the thought of a final decision of the question by the Speaker. “If it shall appear that a majority,” etc., is the language employed.

The Century Dictionary gives six definitions of the word “appear,” comprehending all shades of meaning attached to it, and none of them convey the idea of judicial or final determination or decision, but all convey the thought of the surface, the apparent, the obvious, that which is to be seen at first sight. The use of this word in defining the duties of the Speaker in this regard was quite apt, and properly imposed the formal and ministerial functions of casting up and declaring in open session what would appear to be the result. The votes on the principal State offices were then before him, and from these he could reach, at least approximately, the votes in the election, and the votes on the amendment would give the other necessary data to a prima facie decision from the face of the returns, and, in the language of Judge Cooley, “the final decision must rest with the courts.”

The strongest qase cited by appellant is State V. Wurts, 40 Atl. Rep. 740, but this was not the final decision of that case, and while the judgment was affirmed the ultimate conclusion' on this question was different in the court of last resort, the gist of which has been given. Worman v. Hagan, 78 Md. 152, s. c. 21 L. R. A. 716, seems to support the appellant, although Chief Justice Whitfield in State v. Powell, supra, treats this case as one where a constitutionally created special tribunal took it out.of the general rule, and does not regard it as antagonistic in principle with the other cases. While it is possible for that distinction to be made and save it from being an exception, yet the Maryland court itself did not make that distinction, and this appears to be merely a case out of plumb.

Luther v. Borden, 7 How. 1, is relied upon by counsel here, as it has been by counsel on the losing side in most of the other cases. There is a statement in the body of the opinion to this effect: that in forming the Constitution of the various States, and in the various changes and alterations which have since been made, the political department has always determined whether the proposed constitution or amendment was ratified or not by the people, and the judical power has followed the decision. This was not a point decided in the case, and the statement was made merely in the course of the argument leading to the points decided. The case grew out of “Dorr’s Rebellion” in Rhode Island. The question was not as to an amendment of the Constitution, nor as to the adoption of the “Dorr Constitution,” but was that where there were two opposing governments in a State, the determination of which was the legitimate government was a political, and not a judicial, question, and where the courts of the State decide which was the proper government under its own laws, the Federal courts must follow the State decision. That this case, notwithstanding some general language, is not an authority for appellant is obvious; but if any doubt remains on the subject, the analysis-of the case by Chief Justice Day in Koehler v. Hill, supra, will remove it. There can be little doubt that the consensus of judicial opinion is that it is the absolute duty of the judiciary to determine whether the Constitution has-been amended in the exact and precise manner required by the Constitution, unless perchance a special tribunal has been erected to determine this question; and even then many of the authorities hold that this tribunal can not be permitted to illegally amend the organic law. Therefore it is the duty of the court to decide the question on its merits.

Second. This brings a consideration of the question whether in fact the amendment was adopted as required by the Constitution. The Constitution provides how an amendment shall be passed through the General Assembly for submission to the people and for publication for at least six months “immediately preceding the next general election for senators and representatives, at which time the.same shall be submitted to the electors of ‘the State for approval or rejection; and if a majority of the electors voting in such election adopt such amendments, the same shall become a part of the Constitution.” Art. 19, § 22.

“Such elections” evidently refers to the general election for senators and representatives. Any other construction would be straining the natural meaning of clear and proper English. The majority necessary to adopt it must be the majority of electors voting at the general election for senators and representatives, and not a mere majority voting on the subject of the amendment. The framers of the Constitution of 1874 used plain and simple English. 'They knew what they wanted, and what they did not want, and this, more than any other Constitution of the State, is full of details and explicit limitations. The time in which it was framed begot positiveness and strong convictions. This method of amending the Constitution by direct vote of the people is an adaptation to the American constitutional system of the initiative and referendum of the Swiss Republic. For a change there to be made in the organic law, it must secure a majority, not only of all the citizens of the Republic, but of all the Cantons of the Republic. This system is common to many States, and the prevailing rule is to require a majority of all the voters in the election, and not a mere majority of those voting on the question. Of course, the framers of the Constitution could have provided for either method; there were precedents for either of them when that clause was written, but, having deliberately and clearly adopted the rule that it must be a majority of the electors voting in the election, instead of a majority voting on this question, it is only for the court to bow to the express terms of the Constitution. This language needs no extrinsic aids to discover its meaning, but the court is not without authority for this construction. Similar or almost similar language has been before the courts many times, and while there is some conflict in the decisions, still the conflict is more apparent than real, and arises more from difference in language employed than in principles of construction. The authorities on. this subject are reviewed at length by Judge Trieber in Knight v. Shledon, 134 Fed. 423, and by Chief Justice Whitfield in State v. Powell, 77 Miss. 545. The case law is carefully gone over in these opinions, and it would be an idle task to repeat what has been so well done. These two decisions demonstrate that the great weight of áuthority sustains the construction reached by the court as above stated.

In view of the foregoing opinion, it necessarily follows that the conclusion,,.is that Amendment No. 3 was not adopted, and therefore the Governor did not have authority to appoint Rice circuit clerk. This was the judgment of the circuit court, and it is affirmed.

Justices Battre and Wood concur. Mr. Justice Riddick concurs in the judgment; his reasons will be stated in an individual opinion. Mr. Justice McCulloch dissents.