Hodges v. Dawdy

• Decision Date: 08 July 1912
• Citation: 149 S.W. 656,104 Ark. 583
• Parties: HODGES v. DAWDY
• Court: Arkansas Supreme Court

149 S.W. 656

104 Ark. 583

HODGES v. DAWDY

Supreme Court of Arkansas

July 8, 1912

Appeal from Pulaski Circuit Court; F. Guy Fulk, Judge; reversed.

Judgment reversed and petitions for mandamus dismissed.

Hal L Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellant; Callaway & Huie, Cravens & Cravens, Gibson Witt and Morton & Morton, of counsel.

It was incumbent on appellees to show in this complaint that they had a legal right to have appellant certify the petitions out to be voted on by the people of the respective counties, and failing in that, the demurrers should have been sustained and the complaints dismissed. 1 Ark. 11; Id. 121; 6 Ark. 9; Id. 437; 26 Ark. 482; Id. 100; 27 Ark. 382; 45 Ark. 122; 48 Ark. 80; 87 Ark. 379. The office of Secretary of State is not to be made the dumping ground for petitions of every nature and character which do not fall within the purview of the Initiative Amendment. 139 Am. St. Rep. 656. The proposed local measures are inconsistent with the general laws of the State. Art. 7, § 28, Const. 1874, and chap. 38, Kirby's Dig. The legislative power was originally in the people of the whole State. 33 Ark. 497; 92 U.S. 307.

Any construction should be discarded which would lead to absurd consequences. 40 Ark. 431; 100 S.W. 239; Sedgwick on Constitutional and Statutory Construction, 196. Where general provisions are inconsistent with more specific provisions in another part of a statute or Constitution, the particular provisions will be given effect as clearer or more definite expressions of the people's will. 22 Mich. 332; 12 Ga. 526; 132 Ill.App. 376; 106 Wis. 411; 185 U.S. 83. The county court has jurisdiction of all county seat matters. Sec. 28, art. 7. Const.; 33 Ark. 191; 43 Ark. 62; 5 Ark. 21; 55 Ark. 323. It is proposed to change the county seat by a majority of the votes cast on the question. The general law prohibits such change except on the consent of a majority of qualified voters in the county. Sec. 3, art. 13, Const. 1874.

Amendment No. 10 is to be read in connection with the whole Constitution, and, if possible, harmonized with the general terms, tenor and spirit thereof. 93 Ark. 228; 27 Ark. 648; 51 Ark. 534; 60 Ark. 343; 12 Ark. 101; 2 Ark. 98; 4 Ark. 473; 24 Cal. 518.

Miles & Wade, Dan W. Jones, Walker S. Danaher, Sam M. Wassell, I. L. Autrey, Geo. A. McConnell, Jessie A. Harp, and Chas. Jacobson, for appellees.

A county can exercise power of legislation granted to it by the Legislature. 143 Ky. 422. The proposed acts are not in conflict with the Constitution. 26 Okla. 403; 203 Mo. 408; 45 Ark. 400; 54 Ark. 658; 145 S.W. 892. The existing law provides the necessary machinery for the submission of the proposed acts to the people of their respective counties. Mandamus is the proper remedy. 26 Okla. 403. The people of a municipality, may, under Amendment No. 10, initiate an ordinance, the effect of which would be to exempt them from the provisions of § 2041, Kirby's Digest. 59 Ark. 530; 75 Ark. 125; 80 Ark. 337; 35 Ark. 69; 92 Ark. 4.

The Legislature has the right to set aside or suspend a law at pleasure. Sec. 12, art. 2, Const. The defendant, being a ministerial officer, can not raise the question as to whether the proposed laws are unconstitutional, in a mandamus proceeding. 16 S.C. 39; 30 S.C. 524; 43 S.C. 11; 64 S.C. 564; 47 L. R. A. 512.

OPINION

MCCULLOCH, C. J.

The plaintiffs, J. M. Dawdy and other citizens of Dallas County, presented to the Secretary of State their petition to initiate a local or special statute directing the removal of the county seat of that county from Fordyce, its present location, to Princeton. The petition contained the signatures of 8 per cent. of the qualified electors of Dallas County, and they claim the right to initiate said statute, and the right of the people of the county to enact it, under the recent amendment to the Constitution known as the Initiative and Referendum, which was adopted by the people of the State in the year 1910, and which reads as follows:

"That section one, article five, 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 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."

The General Assembly of 1911 enacted a statute, approved June 30, 1911, pursuant to said constitutional amendment, providing means for carrying the same into full effect. It contains certain provisions concerning the initiation or reference of local legislation for counties and municipalities. It provides that "5 per cent. of the legal voters of any county, city or incorporated town may, by petition, order such referendum upon any law * * * applicable only to such county or municipality;" and that 5 per cent. of the legal voters of any municipality may, by petition, order the reference of any ordinance passed by the council. It also provides that "8 per cent. of the legal voters of any county or of any city or incorporated town may, at any time more than four months before any regular general election, propose any measure, not inconsistent with the general laws or Constitution of the State, applicable only to such county or municipality," and that "when any measure proposed of local application only to any county or municipality shall have received a majority of the legal votes cast upon such proposed measure at the election at which the same shall have been voted upon and the result of the vote legally proclaimed, as hereinafter provided, the same shall be and become a law for such county or municipality."

The Secretary of State, acting upon the advice of the Attorney General, declined to certify out the proposed law, so that it may be voted on by the people of Dallas County; and the plaintiffs instituted this action in the circuit court of Pulaski County to compel that officer, by writ of peremptory mandamus, to do so. The Attorney General appeared for the Secretary of State and demurred to the complaint. The demurrer was overruled, and, upon refusal of the defendant to plead further, final judgment was rendered awarding the writ of mandamus as prayed for.

Other petitions were presented to the Secretary of State for the initiation of other local statutes, and a like course was pursued as to each of them. An appeal has been prosecuted in each case, and all of them have been argued together in this court. One of the petitions was to initiate a local statute directing the removal of the county seat of Montgomery County; another a statute fixing the salaries of the officers of Sebastian County; another a statute to regulate horse-racing and to permit betting on horse-races in Garland County; and another to initiate an ordinance of the council of the city of Little Rock permitting games of baseball to be played on any day of the week, including Sunday. The conclusion which we reach in the first case is decisive of them all, and all of them will be disposed of in one opinion.

It is contended by learned counsel for plaintiffs that, aside from the main question as to the right of 8 per cent. of the voters of a county or municipality to initiate a local measure, the Secretary of State can not refuse to certify out an initiated bill because, in his opinion, the same is not subject to the...