Brickhouse v. Hill
| Decision Date | 16 February 1925 |
| Docket Number | 184,185,183 |
| Citation | 268 S.W. 865,167 Ark. 513 |
| Parties | BRICKHOUSE v. HILL. ARLITT v. HILL |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.
Decree reversed and case dismissed.
John F Clifford, E. R. Parham and J. H. Carmichael, for appellant.
If it be admitted that, under art. 19, § 22, of the Constitution of 1874, in order to adopt an amendment there must have been a majority of all votes cast at the election nevertheless that rule was changed by the Initiative and Referendum Amendment, now known as No. 7, and should have changed the rule of decision, as was done in the "anti-trust cases," 76 Ark. 303. There can be no question, in the light of the "history of the times," from the decision in Rice v. Palmer, 78 Ark. 432, in 1906 to the adoption of the I. and R. Amendment in 1910, but that this amendment intended to put beyond dispute for all time the question of the number of votes required to adopt an amendment. It is equally clear, from the discussions preceding the election, and the fact that the term "measure" was one of the questions raised in these discussions, that that word, as used in the amendment covers amendments to the Constitution. In a long line of decisions our Supreme Court has recognized the change and the effect of the I. and R. Amendment, and, in one way or another, every present member thereof has held that a majority vote cast upon the question was sufficient. All the courts that have passed on the word "measure" since the decision in Hildreth v. Taylor, 117 Ark. have held that it included amendments. 106 Ark. 56, dissenting opinion; 103 Ark. 48 Id. 452; 110 Ark. 528; 117 Ark 266; 104 Ark. 510 Id 583; 105 Ark. 380; 156 Ark. 509; 151 Ark. 369; 110 Ark. 528; 143 Ark. 203; 145 Ark. 143. The Initiative and Referendum Amendment in the use of the words, "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," is not ambiguous, and requires only a majority of those voting on the question. 78 Ark. 432, 452, 455, dissenting opinions; 45 Ark. 400; 69 Ark. 336; 60 Ark. 343; 49 Ark. 376; 95 U.S. 360; 111 U.S. 556; 68 Md. 146; 104 Ky. 629; 20 Wis. 572; 5 N. Dak. 594; 20 Ore., 154; 130 N.Y. 319; 1 Wash. 303; 24 Law. Ed. (U.S.) 410; 74 F. 532; 60 Conn. 528, 22 A. 1016; 147 U.S. 99, 37 Law. Ed. 96; 111 U.S. 263; 28 Law. Ed. 520. In a note to 98 Am. Dec. 673, the general rule is laid down, viz: "a majority of the legal voters is satisfied by a majority of the legal voters voting." 16 Wall. 644. See also 112 U.S. 268, 28 Law. Ed. 760; 24 F. 113; 138 Ind. 516, 37 N.E. 987.
No brief was filed by regular counsel for appellee; but in his behalf C. E. Daggett, Jas. E. Hogue and Henry Moore argued the case orally, and Cockrill & Armistead filed briefs as amici curiae.
On behalf of appellant. J. V. Bourland, Pat Henry, Joe Harris and Williamson and Williamson, W. L. Pope, Capt. Robert W. Brown, J. C. Marshall, W. R. Donham, Horace Chamberlain, Geo. B. Rose and J. F. Loughborough filed briefs as amice curiae.
In the case of Arlitt v. Hill,
Duty & Duty, for appellant.
H. W. Applegate, Attorney General and Brooks Hays, for appellee.
OPINION
The case of Arlitt v. Hill, No. 9014, has been consolidated with the case of Brickhouse v. Hill, No. 9011, and in this opinion reference will only be made to the consolidated case by the title of Brickhouse v. Hill.
The appellant, in his capacity as mayor, was proceeding, by virtue of an ordinance of the city council, to issue bonds to fund the debt of the city of Little Rock, under the Constitutional Amendment No. 11, which was submitted by the General Assembly to the electors of the State for approval or rejection at the general election held in October, 1924. Upon the application and petition of the appellee, the chancery court of Pulaski County restrained the appellant from issuing bonds under said amendment, holding that it had not been approved by the said electors, and the case is before this court on appeal.
So the question involved is: Was amendment No. 11 adopted?
Indirectly, there is involved the same question as to the amendments numbered 10 and 12, proposed by the same General Assembly, and submitted to the electors at the same general election. The votes "For" and "Against" these amendments were as follows:
For Amendment No. 10
52,151
Against Amendment No. 10
40,955
For Amendment No. 11
57,854
Against Amendment No. 11
35,449
For Amendment No. 12
56,910
Against Amendment No. 12
34,174
Total vote for Governor
It will be noticed that neither of the said amendments received the vote of a majority of the electors who voted at said election for Governor, and, under § 22 of article 19 of the Constitution of 1874, as construed by this court in previous decisions, would have failed of adoption if there had been no change in the Constitution as to the number of votes necessary. But each of them received a majority of the votes cast thereon, and, under the Constitution as it now is and as it was when said Amendments 10, 11 and 12 were submitted and voted upon, they were each adopted at the general election in October 1924. The Amendment No. 11 received a majority of 22,405 of the votes cast thereon.
The several opinions of this court referred to by counsel, some in criticism and some by way of approval, were in cases construing § 22 of article 19 of the original Constitution, before the Initiative and Referendum Amendment No. 7. For the determination of the question in the pending case it is not necessary to overrule any of the cases that have been referred to, except Hildreth v. Taylor, 117 Ark. 465, 175 S.W. 40.
The opinion in that case is largely based upon the premises that Amendment No. 7 was taken from a similar amendment adopted in the year 1902 in the State of Oregon, and that, while there was no judicial construction in Oregon of their amendment, still there was a construction by the people that it did not fix the number of votes on constitutional amendments, as an amendment was adopted in 1906 expressly providing that a majority voting at the election should adopt. This statement follows the familiar rule that, where a law is taken from the laws of another State, it is presumed to be taken with the previous construction given that law in that State. This rule, of course, is sound, and the application here is important.
However, the opinion of our court in that case was erroneous in the statement of the situation in Oregon. The I. and R. Amendment there adopted in 1902, of which our Number Seven is a substantial copy, was before the Supreme Court of Oregon in the year 1908, in Farrell v. Port of Columbia, 50 Ore. 175, 93 P. 254, and the court there said that, under the amendment, a majority voting on the question on an initiative amendment decided the election. Prior to the I. and R. Amendment in Oregon, amendments to the Constitution could only be submitted by the General Assembly, and the form was this: A designated majority in the General Assembly proposed the amendment; it then laid over until the next General Assembly, and, if a designated majority of that General Assembly also favored it, it was submitted to the voters at the next election, and, if a majority voting on the question approved, the amendment was adopted. (Section 17, art. 1, original Constitution of Oregon.)
This section was expressly amended in 1906, so that only one General Assembly was required to submit a proposed amendment, and the people then voted on it, and a majority voting on the question adopted it. The I. and R. Amendment did not attempt to change the rule of the old Constitution for submission of amendments by the General Assembly, but expressed the added method of submission by initiative petition. The rule for the majority vote was the same under both methods of submission.
It is submitted that the error in the opinion in Hildreth v. Taylor, in the assumption of the construction put upon the I. and R. Amendment in Oregon, was of controlling force in interpreting the language of our Amendment Number Seven.
The other cases may be briefly summarized as follows:
In Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S.W. 199, it was only decided that the amendment was self-executing, and that the existence of an emergency was a legislative question and not a judicial question.
State v. Donaghey, 106 Ark. 56, 152 S.W. 746, held that Amendment Number Seven repealed the provisions of the original amendment section, in the feature that the time for the advertising was reduced from six months to four months. There was no occasion to decide, and it was not decided, whether or not the time for advertising amendments submitted to the Legislature was changed.
Ferrell v. Keel, 105 Ark. 380, 151 S.W. 269, merely decided that the style of bills, "Be it enacted," etc., was not necessary on bills passed by the General Assembly.
Whittemore v. Terral, 140 Ark. 493, 215 S.W. 686, held that a referendum did not lie to the action of the General Assembly in adopting an amendment to the Federal Constitution.
Mitchell v. Hopper, 153 Ark. 515, 241 S.W. 10, held that the veto power of the Governor did not extend to a resolution of the General Assembly submitting a constitutional amendment.
The act of the Legislature for 1911, providing details for carrying out the purposes of Amendment Number Seven, used the term "measure" in many places in referring to constitutional amendments. The term "measure" is defined...
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... ... 534, 2011 WL 6275536, is “wrong, and that more good than harm would result from changing it at this time, and it is overruled.” Brickhouse v. Hill, 167 Ark. 513, 519, 268 S.W. 865, 867 (1925). We therefore overrule Williams v. State, 2011 Ark. 534, 2011 WL 6275536 in its entirety ... ...
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