Combs v. Gray

• Decision Date: 12 April 1926
• Docket Number: 308,300
• Citation: 281 S.W. 918,170 Ark. 956
• Parties: COMBS v. GRAY
• Court: Arkansas Supreme Court

281 S.W. 918

170 Ark. 956

COMBS v. GRAY

No. 308, 300

Supreme Court of Arkansas

April 12, 1926

Appeal from Pulaski Circuit Court, First Division; John W. Wade Judge; affirmed.

STATEMENT BY THE COURT.

T. A Gray filed his petition in the circuit court against Harvey G. Combs, as Secretary of the Arkansas State Democratic Central Committee, to compel him to accept the pledge of the petitioner and the fee required to place his name on the Democratic ticket as a candidate for Lieutenant Governor.

His cause of action is based upon the ground that the office of Lieutenant Governor was created by the adoption of proposed Amendment No. 16 of the Constitution. The amendment was submitted to the voters by the General Assembly of 1913, and was voted on at the general election held in 1914.

The record shows that a majority of the qualified electors who voted at said election upon the proposed amendment, voted in favor of it, but that it did not receive a majority of all the qualified electors of the State who voted at said general election held in 1914.

Amendment No. 16 was proposed by the Legislature of 1913 as an amendment to the Constitution of the State of Arkansas to be submitted to the electors of the State for approval or rejection at the next general election, which was held in 1914. Inasmuch as only the question of whether the proposed amendment was adopted or not is an issue in this case, it need not be set out in full, but will be cited as being in the Acts of Arkansas 1913, p. 1527.

The circuit court held that the amendment was legally adopted and that it is now a part of our State Constitution. Judgment was rendered accordingly, and to reverse that judgment this appeal has been prosecuted.

Judgment affirmed.

Harvey G. Combs and Tom W. Campbell, for appellant.

T. A. Gray, E. L. McHaney and Walter J. Terry, for appellee.

HART J. MCCULLOCH, C. J., dissenting.

OPINION

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

The correctness of the decision of the circuit court that proposed Amendment No. 16 was legally adopted and that it is now a part of our State Constitution depends upon the construction to be placed upon what has been commonly referred to as Amendment No. 10, or the Initiative and Referendum Amendment, in connection with our various decisions construing the same. Amendment No. 10 has been placed among the amendments to the Constitution in Crawford & Moses' Digest, and called by the digesters Amendment No. 7.

Inasmuch as the amendment must be considered in connection with article 19, § 22, of the Constitution, for the sake of convenience both will be set out in this opinion. Art. 19, § 22, of the Constitution reads 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 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."

Amendment No. 7 reads as follows:

Article 5, § 1, amended: "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 the laws necessary for the immediate preservation of the public peace, health or safety), either by 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. The style of all bills shall be, 'Be it Enacted by the People of the State of Arkansas.' This section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure. The whole number of votes cast for the office of Governor at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal votes necessary to sign such petition shall be counted. 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."

In the early history of this court, in State v. Scott, 9 Ark. 270, a safe rule of constitutional construction with reference to amendments to the Constitution was stated as follows: "In determining the intention of the framers of the amendment, we must keep in view the Constitution as it stood at the time the amendment was made, the evil to be remedied by the amendment, and the amendment proposed, by which the evil is to be remedied. No interpretation should be allowed which would conflict with any other provision of the Constitution, or which is not absolutely necessary in order to give effect to the proposed amendment. On the contrary, such construction should be given as will, if possible, leave all the other provisions in the Constitution unimpaired and in full force."

Practically the same rule was adopted in Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656, where what is commonly called the Initiative and Referendum Amendment now under consideration was before the court for construction. The court said: "The constitutional amendment whereby the people of the State reserve to themselves the power to legislate directly by the initiative and referendum does not abrogate the existing Constitution and laws of the State, except such provisions as are necessarily repugnant thereto (citing cases). The amendment being the last expression of the popular will in shaping the organic law of the State, all provisions of the Constitution which are necessarily repugnant thereto must of course yield, and all others remain in force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it."

One or the other of these modes of expressing the same practical rule of construction has been cited with approval in all subsequent decisions relating to the amendment now under consideration.

In the cases of Ferrell v. Keel, 105 Ark. 380, 151 S.W. 269, and Brickhouse v. Hill, 167 Ark. 513, 268 S.W. 865, the rule in the Scott case was quoted with approval, and in the Keel case it was said that no better rule of construction has ever been proposed at any time or any place. Practically the same rule as expressed in the Hodges case has been approved in the cases of State ex rel. v. Donaghey, 106 Ark. 56, 152 S.W. 746; Grant v. Hardage, 106 Ark. 506, 153 S.W. 826; and Hildreth v. Taylor, 117 Ark. 465, 175 S.W. 40.

In the Donaghey case, it was held that the Initiative and Referendum Amendment now under consideration did not abrogate § 22, art. 19, of the Constitution, which provides that no more than three amendments shall be proposed or submitted at the same time. The court was of the opinion that, in the absence of anything in the amendment conferring initiative and referendum powers indicating an intention to repeal the existing constitutional provision, the latter remained in force and governed in all cases relating to the submission of amendments to the Constitution.

In the Hardage case it was held that, because the Initiative and Referendum Amendment provided that 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 on this language should be given its ordinary and natural meaning, and should govern in cases where amendments to the Constitution are submitted under the initiative. The court expressly refrained from deciding whether this provision was inconsistent with or repugnant to the provision in art. 19, § 22, providing for six months'...