Ferrell v. Keel

• Citation: 151 S.W. 269,105 Ark. 380
• Parties: FERRELL v. KEEL
• Decision Date: 15 October 1912
• Court: Arkansas Supreme Court

151 S.W. 269

105 Ark. 380

FERRELL v. KEEL

Supreme Court of Arkansas

October 15, 1912

Appeal from Jackson Chancery Court; Geo. T. Humphries, Chancellor reversed.

Cause reversed and remanded.

McCaleb & Reeder and Jno. W. & Jos. M. Stayton, for appellants.

1. The act is void because of the uncertainty of the boundaries of the district. 125 U.S. 345; 72 Ark. 126; 81 Id. 565; 42 Oh. St. 527; Cooley on Taxation (3 ed.) 225; 14 Cyc 1030-3, 1039; Welty on Assessments, § 297; 35 Cyc. 844; 28 Id. 1123; 32 So. Rep. 27; 34 Ark. 224.

2. The enacting clause is void. There must be an enacting clause substantially as prescribed by the Constitution. Under the Initiative and Referendum clause, the style should be "Be it enacted by the people of the State of Arkansas." This is self-executing and mandatory, and repeals § 19, art. 5, of our Constitution. 27 Ark. 284; 101 Ark. 437; 179 U.S. 251; 105 P. 106; 70 Ark. 25; 72 Id. 8; 76 Id. 32; 1 Id. 21; 26 Id. 265; 31 Id. 710; 9 Id. 270; 12 Id. 101; 51 Id. 534; 60 Id. 343; 26 Id. 534, 285; 76 Id. 309; 99 P. 427; 103 Id. 780; 104 P. 426; 72 Cent. L. J. 367, 237; 130 S.W. 692; 50 N.W. 1110; 106 P. 540; 73 A. 679; 124 S.W. 757.

The act is void.

Stuckey & Stuckey and Morris M. Cohn, for appellee.

1. The enacting clause is not void. The people did not pass this act, nor was it referred to the people. It was passed by the Legislature and became a law when approved by the Governor. It may be that all laws passed by the people should have the enacting clause as prescribed by Amendment No. 10, but the word "all " refers only to acts passed by the people, and not those passed under art. 5, § 18; 29 Ark 42-3; 106 P. 540; 106 Id. 544; 109 Id. 821; 95 Ia. 435.

The amendment is not self-executing. 95 P. 435; 115 Id. 383; 98 Id. 149, 1111; 85 Ark. 89; 65 Id. 312; 60 Id. 325, 332; 34 Id. 501; 109 P. 478; 102 Id. 829; 67 S.E. 940; 95 S.W. 824; 121 Am. St. 967; 209 U.S. 211; 80 N.W. 143.

2. The description of the boundaries is sufficient. 48 Ark. 370; 52 Id. 107; 70 Id. 451; 96 Id. 410; 167 U.S. 548, 589-90; 180 U.S. 324, 342; 60 S.E. 75; 30 Cal. 467; 25 Cal. 296; 89 P. 275; 106 S.W. 815; 116 Ky. 441; 66 Me. 354; 144 Ky. 184; 107 S.W. 1121. Falsa demonstatio non nocet. 4 Enc. Law, 797; 4 Id. (2 ed.) 763, note 2; 52 Ark. 107; 84 Id. 257, 267; 167 U.S. 548; 147 N.Y. 675; 42 N.E. 344.

F. S. Osborne, amicus curiae.

[The regular judges being disqualified herein, this cause was tried before James H. Harrod, Joseph M. Hill, Joseph W. House, J. V. Walker, and James H. McCollum, special judges The opinion of the court was handed down by]

HARROD, Special Judge. Mr. Special Justice HOUSE and Mr. Special Justice WALKER concur. Mr. Special Justice HILL and Mr. Special Justice MCCOLLUM dissent.

OPINION

HARROD, Special Judge.

The judges of the Supreme Court having certified to the Governor their disqualification to determine the validity of the enacting clause of the act involved in this suit, this special court was appointed by the Governor, under section 9 of article 7 of the Constitution, to determine this cause.

The General Assembly of this State, at the 1911 regular session, created the Village Creek & White River Levee District, by and act approved March 9, 1911. The commissioners of the district organized, selected assessors and engineers, and proceeded to assess the lands of the district for the levee tax. Various land owners commenced suit in the Jackson Chancery Court to enjoin the proceedings. A demurrer was interposed to their complaint, and it was sustained, and, electing to stand on their complaint, their suit was dismissed, and they appealed to this court to reverse that decree.

The appellants urge here, among others, the following grounds for reversal:

First. That the act is void because its enacting clause is, "Be it enacted by the General Assembly of the State of Arkansas."

Second. That the boundaries of the district are so indefinitely described by the act that the land subject to the tax could not be definitely ascertained, and that the act was therefore void.

The style of the act in question is: "Be it Enacted by the General Assembly of the State of Arkansas." Is that style of bill or enacting clause valid since the adoption of the Initiative and Referendum Amendment? The amendment is as follows:

"That section 1, article 5, of the Constitution of the State of Arkansas be amended so as to read as follows:

"Section 1. 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 says 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 general regular 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."

The amendment proposes to amend section 1 of article 5 of the Constitution. That section is as follows:

"The legislative powers of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives."

No other section or article of the Constitution of 1874 is mentioned in the amendment.

Section 19 (section 18, Kirby's Digest) of article 5 of the Constitution reads as follows:

"The style of the laws of the State of Arkansas shall be: 'Be it Enacted by the General Assembly of the State of Arkansas.'"

The question is, Was this provision of the Constitution abrogated by the Initiative and Referendum Amendment? Is this specific provision of our organic law to be treated as no longer in force? It is claimed that it was annulled by this provision of the Initiative and Referendum Amendment: "The style of all bills shall be, 'Be it Enacted by the People of the State of Arkansas.'" So the question we are to consider involves the construction of the Initiative and Referendum Amendment in relation to the enacting clause of this act. Two constructions are open to the court. It may be held that section 18 is abrogated by the amendment, or it may be held that it remains in force as not affected by the amendment. The correct decision of the case involves nothing but the application of rules of law that must govern the court in the construction of the amendment. By what rules of law should we be governed? More than sixty years ago, in the case of State v. Scott, 9 Ark. 270, Mr. Justice WALKER, in a case involving the construction of an amendment to the Constitution, said: "In determining the intentions 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."

These rules of construction were laid down at an early day, when the jurisprudence of our State was in its infancy; but none better have been proposed at any time or any place. Let us try this case by these rules of construction, and see what the result will be. How did the Constitution stand when the amendment was adopted? It provided that all legislative power was in the General Assembly (section 1 article 5), and that the style of all laws should be: "Be it Enacted by the General Assembly of the State of Arkansas...