Brickhouse v. Hill

• Decision Date: 16 February 1925
• Docket Number: (No. 183-185.)
• Citation: 268 S.W. 865
• Parties: BRICKHOUSE, Mayor, et al. v. HILL. ARLITT et al. v. HILL, Speaker.
• Court: Arkansas Supreme Court

268 S.W. 865

BRICKHOUSE, Mayor, et al. v. HILL.

ARLITT et al. v. HILL, Speaker.

(No. 183-185.)

Supreme Court of Arkansas.

February 16, 1925.

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Separate suits by I. D. Hill against Ben D. Brickhouse, mayor, and others, and by Tom Hill, Speaker of the House of Representatives, against J. A. Arlitt and others. Cases consolidated. Judgments for plaintiffs, and defendants appeal. Reversed, and cases dismissed.

John F. Clifford and A. B. Cypert, both of Little Rock, for appellants Brickhouse and others.

Duty & Duty, of Rogers, for appellants Arlitt and others.

H. W. Applegate, Atty. Gen., for appellee Tom Hill.

Rogers, Barber & Henry, of Little Rock, for appellee I. D. Hill.

J. C. Marshall, Cockrill & Armistead, W. R. Donham, Jas. E. Hogue, Horace Chamberlin, Rose, Hemingway, Cantrell & Loughborough, all of Little Rock, J. V. Bourland, of Ft. Smith, W. L. Pope, of Pocahontas, and Henry Moore, Jr., of Texarkana, Pat Henry, Joe Harris, Adrain Williamson, Lamar Williamson, and J. G. Williamson, all of Monticello, amici curiæ.

McRAE, Special Chief Justice.

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 .......................125,760
                

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 section 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 Nos. 10, 11, and 12 were submitted and voted upon, they were each adopted at the general election in October, 1924, and are now a part of the Constitution of this state. 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 section 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. 474, 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 initiative and referendum amendment there adopted in 1902, of which our No. 7 is a substantial copy, was before the Supreme Court of Oregon in the year 1908, in Farrell v. Port of Columbia, 50 Or. 169, 91 P. 546, 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 initiative and referendum 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. Article 17, § 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 initiative and referendum 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 of 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 initiative and referendum amendment in Oregon, was of controlling force in interpreting the language of our amendment No. 7.

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 No. 7 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. 525, 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 (Laws 1911, p. 582) providing details for carrying out the purposes of amendment No. 7 used the term "measure" in many places in referring to constitutional amendments. The term "measure" is defined in the Century Dictionary as "anything devised or done with the view of the accomplishment of a purpose."

In the case of New Jerusalem Proposition, 26 Okl. 548, 109 P. 823, the Supreme Court of Oklahoma, in passing upon an initiative and referendum amendment, held that the term "measure" included a constitutional amendment.

Stare Decisis.

This court is of the opinion that the decision in Hildreth v. Taylor, is wrong, and that more good than harm would result from changing it at this time, and it is overruled so far as it is in conflict with this decision. This, then, makes the law as if Hildreth v. Taylor had never been decided as it was.

In Whittington v. Flint, 43 Ark. 513, 51 Am. Rep. 572, the court said:

"A rule of decision once deliberately adopted and declared ought not to be disturbed `by the same court, except for very cogent reasons and upon a clear manifestation of error.' But there are cases which `ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.'"

The court then overruled five prior decisions. In Collier v. Davis, 47 Ark. 367, 1 S. W. 684, 58 Am. Rep. 758, in overruling a prior case, the court said:

"It is always a misfortune for a court to change front on a question which may affect property rights acquired since the rule was announced. And it is sometimes doubtful whether more mischief will be produced by adhering to an error, or by retracting it. The case has stood for more than five years, although it was never satisfactory to the profession. It is, however, indefensible in principle, and it was decided against the clear weight of authority."

In the Supreme Court of the United States there have been several cases overruling prior decisions on questions involving the Constitution. The Legal Tender Cases, 12 Wall. 457, 554, 570 (20 L. Ed. 287), involved a decision of this kind. Justice Strong of the court said:

"Even in cases involving only private rights, if convinced we had made a mistake, we would hear another argument and correct our error. And it is no unprecedented thing in courts of last resort, both in this country...