Hanson v. Hodges

• Decision Date: 13 October 1913
• Citation: 160 S.W. 392,109 Ark. 479
• Parties: HANSON v. HODGES
• Court: Arkansas Supreme Court

160 S.W. 392

109 Ark. 479

HANSON v. HODGES

Supreme Court of Arkansas

October 13, 1913

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge affirmed.

STATEMENT BY THE COURT.

This is a mandamus proceeding to compel the Secretary of State to accept and file a petition for a referendum of an act entitled "An Act to Regulate the Issuance of Liquor License in Arkansas," approved February 17, 1913.

The petition therefor recited that petitioners are residents of the State, and were such on January 1, 1913, and were then and are now duly qualified electors of the State of Arkansas in the county of Pulaski.

The petition further recited "That at the session of the General Assembly of the State of Arkansas, held in the year 1913, an act entitled as stated above was passed and was signed and approved by the Governor on February 17, 1913, a copy of which act was attached to the petition marked exhibit 'A' and made part thereof.

"That by the terms of said act the sale of intoxicating liquors in cities and counties where the vote had been in favor of such sale was and is made dependent upon the filing of a petition to be signed by a majority of the adult white inhabitants living within the corporate limits of any incorporated town or city, in manner and form as provided in said act; but that by the seventh and last section of said act it was and is provided as follows, towit: 'This act being necessary for the public peace, health and safety, shall take effect and be in force from and after December 31, 1913.'

"That being advised and believing the fact to be that the said act could be the subject of referendum under the amendment to the Constitution of the State of Arkansas relating to the Initiative and Referendum, being known as Amendment No. 10 and under the act of the General Assembly of the State of Arkansas, being 'An act to provide for carrying into effect the initiative and referendum powers reserved by the people in Amendment No. 10 to the Constitution of the State of Arkansas on general county and municipal legislation, to regulate elections thereunder and to punish violations of this act,' approved June 30, 1911, petitioners, together with 12,155 other citizens and electors of the State of Arkansas, after said February 17, 1913, and within less than ninety days after the final adjournment of the said General Assembly of the State of Arkansas, caused to be filed with the defendant, Earle W. Hodges, as Secretary of State of said State of Arkansas, a petition or petitions prepared and circulated as required by said amendment and act, ordering and asking that said act be referred under the said referendum clause of Amendment No. 10 to the people of the State of Arkansas, either for adoption or rejection, as the case might be, at the general election to be held on the second Monday of September, 1914, said petitions being in matter and form as shown by exhibit 'B' thereto attached and made part thereof.

"That the whole number of votes cast for the office of Governor of the State of Arkansas at the regular election last preceding the filing of said petitions for the referendum of said enactment aggregated 169,649 votes, and under the said tenth amendment the number of citizens and electors required to obtain said referendum was 8483, and that the number of citizen and electors who have signed said petitions exceeds the required number 3,675.

"That notwithstanding said petitions are in the proper form and contain more than sufficient signatures as required by law and notwithstanding that the said act contains no emergency clause such as is required by the provisions of the said tenth amendment, and is otherwise subject to the referendum aforesaid, yet the said defendant, as such Secretary of State, on the 31st day of May, 1913, refused and still doth refuse to accept and file said petitions, or either of them as required by law, to the end that the said act might be properly submitted for the referendum under the said provision of the tenth amendment to the Constitution and act of the General Assembly aforesaid. And that the petitioners are therefore remediless except by the means of a writ of mandamus to be granted by this honorable court, compelling the said defendant, as such Secretary of State, to accept and file the said petitions for a referendum of this act, as contemplated by the law in such cases made and provided.

"Wherefore, petitioners pray for a writ of mandamus directed to the said Earle W. Hodges, as Secretary of State of the State of Arkansas, commanding and requiring him, as such Secretary of State, to accept and file said petition as required by law, to the end that a referendum be had as to said act, as contemplated by law, and for costs and other proper relief."

Said petition was duly sworn to and was filed in the Pulaski Circuit Court, Second Division, on the 31st day of May, 1913, and proper notice of the application for mandamus was duly served on the Secretary of State; and in addition to said notice there was duly served upon him on said day an alternative writ of mandamus. Attached to the petition was a copy of the act referred to and a copy of the form of a properly prepared petition for referendum as presented to the Secretary of State. The act in question is Act No. 59 of the Acts of 1913 at page 180.

Respondent, Secretary of State, demurred to the petition for mandamus for the reason that it did not state facts sufficient to constitute a cause of action.

The sole issue presented on the demurrer to the petition, and the sole question now presented for our decision is whether or not said act was subject to referendum. The lower court held that it was not subject to the referendum, and on this issue sustained the demurrer and dismissed the petition. Appellants have appealed from that action of the court.

In the record is a written stipulation of counsel to the effect that it was agreed that if said act is, or was, subject to the referendum the mandamus prayed for should have been granted by the circuit court, and that it should be so ordered by this court, and if said act by reason of the provisions of section 7 is not so subject, the judgment of the lower court should be affirmed.

Judgment affirmed.

W. L. & D. D. Terry and Morris M. & Louis M. Cohn, for appellants.

1. The legislative declaration is not conclusive upon the courts. 76 Ark. 202; 81 Id. 562; 83 Id. 54; 118 Ind. 502; 21 N.E. 39; 103 U.S. 637. The power of the Legislature is not unlimited. 76 Ark. 202; 74 P. 720; 88 Id. 522; 145 S.W. 199.

2. The Legislature has not determined that this law was necessary for the immediate preservation of the public peace, health or safety. The language used is the criterion, and the words used are given the meaning they ordinarily bear. The law is self-executing. 76 Ark. 303; 75 Id. 542; 60 Id. 343; 59 Id. 237; 66 Id. 361; 138 Mo. 347; 103 Ark. 48.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. No act will be considered necessary for the immediate preservation of the public peace, etc., except such acts as the Legislature find to be so, and when the Legislature does so find it is conclusive. 74 P. 710; 88 Id. 522; 100 Id. 559; 103 Ark. 54.

2. It was the intention of the Legislature to remove the act from the operation of Amendment No. 10, and the declaration, while not in the best words that might have been employed, expresses unmistakably the legislative intent. The courts always endeavor to ascertain from the language used the intent of the Legislature and what it intended to accomplish.

Coleman & Gantt, Sam Frauenthal and J. V. Bourland, amici curiae.

1. The immediate necessity alone can deprive the people of their voice in accepting or rejecting the act. 7 Ind. 13. Either the exact words of the exception * * * must be used, or their necessary equivalent. Nothing can be taken by implication but must be expressly declared. 133 P. 1145; 88 P. 522; 31 Ark. 701; 103 Ark. 53; 36 Cyc. 1194; 18 L.R.A. (N.S.) 664.

2. The Legislature must determine the necessity of the law; if not, the courts can not do so. The Legislature did not do so. 74 P. 710; 85 N.W. 605; 88 P. 522; 100 Id. 559; Cooley, Const. Lim. 89; 36 Cyc. 1194.

OPINION

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

The provisions of Amendment No. 10, the Initiative and Referendum Amendment, are 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 days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is...