Arkansas Tax Commission v. Moore

• Decision Date: 11 March 1912
• Parties: ARKANSAS TAX COMMISSION v. MOORE
• Court: Arkansas Supreme Court

145 S.W. 199

103 Ark. 48

ARKANSAS TAX COMMISSION v. MOORE

Supreme Court of Arkansas

March 11, 1912

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

STATEMENT BY THE COURT.

The Tax Commission, relying upon the authority given it by Act No. 1 of the extraordinary session of the General Assembly of 1911 entitled, "An act to reduce the rate of taxation, and to revise and amend the revenue laws of Arkansas" (the Turner-Jacobson Act), brought this suit against the assessor of Pulaski County, to enforce the provisions of the law and to require him to comply therewith.

The Attorney General appeared, and asked leave to be made a party, and moved the court to dismiss the suit, challenging the validity of the act of the Legislature, which motion was sustained, and from the judgment the Tax Commission appealed. Said act was approved June 29, 1911, and in section 127 provides: "In the year 1911 all property in the State shall be listed for assessment and valued as on the first Monday in June of said year; the several assessors shall assess the property in their respective counties between the first Monday in June and the 1st day of September; the several boards of supervisors of assessments shall meet as boards of equalization the 1st day of September, and may continue in session until October," etc. Section 28 clause 5, provides that "in the year 1911 the corporations whose assessments is provided for in this section shall make the return herein prescribed and file the same with the Arkansas Tax Commission on or before the 1st day of July of said year." And section 29 requires "The assessors shall enter upon their books the assessments so certified in the same manner as they enter assessments of railroads, etc." By section 64 it is provided: "The board of supervisors of assessments shall meet on the 1st day of July of each year," etc. Section 128, after enumerating the laws repealed, concludes "And this act shall take effect and be in force from and after its passage."

Judgment affirmed.

Mehaffy, Reid & Mehaffy, for appellant.

The act was operative and in effect. It falls within the exception of Amendment No. 10. The amendment does not apply to "laws necessary for the immediate preservation of the public peace, health or safety," and as to such laws the action of the legislative department is final and conclusive. 74 P. 720; 79 Id. 720; 24 Kan. 700, 706, 721; 66 Ark. 575; 48 Id. 513; 61 Id. 21; 35 Id. 73; 59 Id. 513; 70 Id. 557; 69 Id. 376; Endlich on Int. of Stat. §§ 44, 47, 48; Suth. on Stat. Const. § 238. The case of 31 Ark. 701, has not been overlooked.

Hal L. Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.

1. The Referendum Amendment is self-executing. 91 P. 577; 95 Id. 435.

2. The act was not effective until ninety days after the adjournment of the Legislature unless the emergency clause is attached. 88 P. 522; 83 Ark. 448.

3. As to the meaning of the words "after its passage," etc. See 53 Fla. 647; 90 N.E. 754; 70 S.W. 945; 100 Id. 1042.

4. The act and its legislative history show there was no intention to make it immediately effective. Suth. on Stat. Const., § 52; 90 Ark. 174; 83 Id. 448; 72 Id. 565; 36 Cyc. 1138; 32 Ark. 414, 515; 34 Id. 263; 94 U.S. 268; 16 Ill. 361; 14 Ohio 472; 16 Wall. 499; 40 Ark. 212.

OPINION

KIRBY, J., (after stating the facts).

The Attorney General contends that said act of the Legislature was not effective and in force at the bringing of the suit, because of the provisions of Amendment No. 10 to the Constitution, known as the Initiative and Referendum Amendment, thus making it necessary to determine the effect of said amendment.

It provides: "The legislative powers of this State shall be vested in a General Assembly which shall consist of the Senate and House of Representatives, but the people of each municipality, each county and of the State, reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls as independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than 8 per cent. of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon.

"The second power is a referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety) either by the petition signed by 5 per cent. of the legal voters, or by the legislative assembly, as other bills are enacted. Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures referred to the people. All elections on measures referred to the people of the State shall be had at the biennial regular general elections, except when the legislative assembly shall order a special election. Any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise. * * * Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State, and in submitting the same to the people he and all other officers shall be guided by the general laws and the acts submitting this amendment until legislation shall be specially provided therefor."

It is necessary to determine first, the suit having been brought before the expiration of the ninety days after the adjournment of the session of the Legislature which passed the act, whether this amendment to the Constitution is self-executing. A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected or the duties imposed may be enforced," is the general rule given in Cooley's Constitutional Limitations, and approved by our court. Jones v. Jarman, 34 Ark. 323; Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380.

"The question in every case is whether the language of a constitutional provision is addressed to the courts or the Legislature--does it indicate that it was intended as a present enactment, complete in itself as definitive legislation, or does it contemplate subsequent legislation to carry it into effect? This is to be determined from a consideration both of the language used and the intrinsic nature of the provision itself. If the nature and extent of the right conferred and of the liability imposed are fixed by the provision itself, so that they can be determined by the examination and construction of its own terms, and there is no language used indicating that the subject is referred to the Legislature for action, then the provision should be construed as self-executing," and its language as addressed to the courts. Willis v. Mabon, 48 Minn. 140, 50 N.W. 1110, 16 L. R. A. 281.

Heretofore the people, the primary source of power in our government, intrusted all their power for making laws to the legislative department of government, with constitutional restrictions and limitations, and now by this amendment they have reserved to themselves power to pass directly upon all acts of their Legislature, except laws necessary for the immediate preservation of the public peace, health or safety, and approve or reject the same. The people regarded it necessary to reserve such power, and, knowing they would be impotent to compel their Legislature to make provision to carry into effect their will, upon a mandatory expression thereof even, they plainly reserved the right, independently of legislative sanction, and directed in clear, concise and unequivocal terms, the manner of submitting to the people the matters initiated and referred, and that in submitting them the Secretary of State and all other officers "shall be guided by the general laws and the acts submitting this amendment until legislation shall be specially provided for." Without any action by the Legislature, laws could be initiated or referred in accordance with the terms of this constitutional amendment, and we hold that it was clearly intended to be and is self-executing. We are confirmed in this view by a well-considered opinion of the Supreme Court of Oregon, holding a like provision of the Constitution of that State, from which ours was borrowed, self-executing. Stevens v. Benson, 50 Ore. 269, 91 P. 577.

It may be desirable, however, for the better protection of the right secured, to provide a more specific and definite system for giving full effect to these provisions of the Constitution, and it was the purpose of the people, its makers, that it should be done if needed, and so expressed in saying that the officers in carrying it into effect shall be guided by the general laws, etc., "until legislation shall be specially provided therefor;" but, as Judge Cooley says, "All such legislation must be subordinate to the constitutional provision and in furtherance of its purpose, and must not in any particular attempt to narrow or embarrass it." Constitutional Limitations, 122.

Thus the people retained this right with power to enforce it, without regard to the disposition of their Legislature, leaving to it the power to make all further laws thought desirable to facilitate the exercise of the right in its full enjoyment.

Under this...