Carson v. Sullivan,
| Decision Date | 28 July 1920 |
| Citation | 223 S.W. 571,284 Mo. 353 |
| Parties | C. C. CARSON, Appellant, v. JOHN L. SULLIVAN, Secretary of State, et al |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court. -- Hon. J. G. Slate, Judge.
Reversed and remanded (with directions).
J Elmer Ball for appellant.
(1) Respondents are executive or administrative officers of the State of Missouri and are amenable to injunction when they attempt to do what they ought not do. Sec. 6750, R. S. 1909; Merchants' Exchange v. Knott, 212 Mo. 616; Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441; Symth v. Ames, 169 U.S. 466, 18 S.Ct. 418. (2) Appellant, as a taxpayer and citizen of the State of Missouri, is authorized and entitled to prosecute this action. Sec. 6750, R. S. 1909; Newmeyer v. Railway, 52 Mo. 81; State v. Curators, 57 Mo. 178; State ex rel. v. Woodside, 254 Mo. 580. (3) The Eighteenth Amendment was proposed to the several states of the United States by the Sixty-fifth Congress in the same manner as the preceding seventeen amendments to the Federal Constitution were proposed by the Congress, and as provided by the terms of Article V of the Constitution of the United States. Black's Const. Law (3 Ed.), p. 45; 12 C. J. 681-682 secs. 14, 15, 16, 17. (4) Said resolution is not an "act of the legislative assembly" within the meaning of Section 57, Article IV, of the Constitution of Missouri. 1 C J. p. 912, note 75. (5) The Constitution of Missouri distinguishes within itself between acts and resolutions and uses the terms "act" and "law" interchangeably. Secs. 24, 25, 30, 37, 38, 40, Art. 4; Secs 12, 14, Art. 15. (6) It was not the intention of the General Assembly of Missouri or of the people of this State to include resolutions of the character of said "Senate Joint and Concurrent Resolution No. 1" within the provisions of the Constitution of Missouri relating to the referendum. In re Opinion of the Justices of Maine, 107 A. 673; Hebring v. Brown, 180 P. 328; Whittemore v. Terrall, 215 S.W. 686. (7) The submission of said "Senate Joint and Concurrent Resolution No. 1" to the voters of the State of Missouri for their approval or rejection is contrary to the terms and provisions of Article V of the Constitution of the United States and is therefore a nullity, illegal and void. (a) The debates and proceedings of the members of the convention which framed the Federal Constitution sustain this view. Madison's Journal, pages, 111, 112, 199, 200, 410, 416 and 452; 4 Elliott's Debates on Fed. Con., pp. 177, 176. (b) The definitions of the term "Legislature" sustain this view. 25 Cyc. 182. (c) The meaning and use of the term "legislature" in other sections of the Federal Constitution sustain this view. Clause 1, Section 2, Article 1; Section 3, Article 1; Section 4, Article 1; Clause 2, Section 1, Article II, U. S. Constitution. (5) The decisions of the United States Supreme Court on sections of the Federal Constitution containing the term "legislature" sustain this view. State ex rel. v. Hildebrant, 241 U.S. 565. (8) A provision of a State constitution which contravenes the Federal Constitution is null and void. Article VI, U. S. Constitution; 12 C. J. p. 743, par. 3b; Dodge v. Woolsey, 18 How. 331-338, 15 L.Ed. 401; Gibbons v. Ogden, 9 Wheat, 210; Northern Securities Co. v. United States, 193 U.S. 347.
Frank W. McAllister, Attorney-General, for respondent.
(1) Appellant's contention hinges upon the meaning of the word "act," as employed in that part of Section 57 which defines the power reserved to the people to refer commonly known as the referendum, the contention being that, as there used, it means only an act of the legislative assembly in the enactment of bills into laws, and does not include resolutions of any character upon any subject. Among the well established and generally recognized rules of constitutional construction are the following, which are important in the matter at hand: (a) The primary purpose is to ascertain and give effect to the intent of the farmers and the people who adopted it. (b) It is presumed that words are employed in their natural and ordinary meaning. (c) The construction should not be technical, and should be neither liberal nor strict. (d) The object sought to be accomplished and the evils sought to be prevented should be constantly kept in mind. (e) An exception stated excludes all other exceptions. 12 Corpus Juris, pp. 700, 703. (2) The people of the State wrote into their Constitution in 1875 and into that part of it known as the "Bill of Rights," which is an express limitation upon the legislative and other power of the state government, the following provision, Section 3 of Article II: "That Missouri is a free and independent State, subject only to the Constitution of the United States; and as the preservation of the States and the maintenance of their governments are necessary to an indestructible Union, and were intended to co-exist with it, the Legislature is not authorized to adopt nor will the people of this State ever assent to any amendment or change of the Constitution of the United States which may in any wise impair the right of local self-government belonging to the people of this State." The reference to the people, for their approval or rejection, of the action of the General Assembly in ratifying the Eighteenth Amendment is strictly in line with the spirit and purpose of this provision. A fundamental canon of construction is that "in interpreting clauses we must presume that words have been employed in their natural and ordinary meaning." Cooley on Const. Limitations (7 Ed.), p. 92; Gibson v. Ogden, 9 Wheat, 188; 12 C. J. p. 705; State ex rel. v. Railroad, 263 Mo. 696. (4) Appellant seeks to give to the word "act" a narrow, technical meaning, which limits its application to one form of legislative action, to acts taken in a particular way and in a particular manner. Legislative action by resolution is frequently taken and is a well recognized method of expression for the legislative will. Applying the rule and giving to the words "any act" their natural and ordinary meaning, they mean any action the legislative assembly may take within the scope of its power, and certainly include action by resolution, as well as by bill. (5) A settled conviction in the minds of the majority of the people of this State that their legislative representatives did not always reflect their wishes, led to the adoption of the initiative and referendum. They believed that legislative action in many instances was not in accord with the will of a majority of the people. Their purpose in the amendment was to provide a means by which the people might reject the action of their representatives in the Legislature and themselves declare and accomplish the will of the majority. Certainly no more important duty comes to the representatives of the people of a State than the approval or rejection of amendments to the Federal Constitution. (6) The provision expressly excepts certain subjects from the operation of the referendum, namely, "laws necessary for the immediate preservation of the public peace, health or safety and laws making appropriations for the current expenses of the state government, for the maintenance of the state institutions and for the support of public schools." A glance at these exceptions will disclose that they all belong to one class, that is, that they are all of such character that the delay incident to their reference to the people at a subsequent election would stop the wheels of government and leave its institutions and those dependent upon it for support from day to day, helpless. It is evident that it is only measures which meet emergencies of this character that are excepted. 25 Ruling Case Law, p. 230; 12 C. J. p. 699. (7) Appellant's contention is that the term "legislatures," as used in the clause "when ratified by the legislatures of three-fourths of the several states," does not mean the body which exercises the power of legislation for the state, but that the elected members of the legislative assembly are constituted a special body, by Article V, for the purpose of ratifying or rejecting proposed amendments, and that they act under the special authority of that article and not as the representatives of the legislative or sovereign power of the people. Upon this theory rests the contention that the action of the legislature in ratifying or rejecting amendments to the Federal Constitution cannot be referred to the people under the referendum provisions of the State Constitution, whatever the provisions of the State Constitution may be. Under the American system of government, the people are the repository of all governmental power. Both the national and state governments are republican, or representative, in form, and the distribution of the powers of government into three separate and distinct departments or branches, namely, the executive, legislative and judicial, is an essential principal and element of republican government. The legislative is the law-making branch of the state government and is the representative of the sovereign power of the people. It represents the people in their sovereign capacity and exercises sovereignty, under prescribed rules and limitations, for the people. Because the legislative branch of the state government was and is the repository of the sovereign power of the people of the state and directly representative of the people of the state, the framers of the Constitution provided that proposed amendments to the Federal Constitution should be submitted to the legislatures of the several states. The intention was that the people of the state, in the exercise of their sovereign power, should ratify or reject amendments. At the time of the adoption of the Constitution there was no recognized or practical...
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