Mitchell v. Hopper

• Decision Date: 15 May 1922
• Docket Number: 373
• Citation: 241 S.W. 10,153 Ark. 515
• Parties: MITCHELL v. HOPPER
• Court: Arkansas Supreme Court

241 S.W. 10

153 Ark. 515

MITCHELL v. HOPPER

No. 373

Supreme Court of Arkansas

May 15, 1922

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

Chas T. Coleman, T. M. Mehaffy, J. F. Loughborough and J. H. Carmichael, for appellant.

Only three amendments may be submitted at an election. Art. 19 § 22, Constitution. The provision for amendments is not self-executing, but needs legislation. 78 Ark. 468, 472; 106 Ark. 67.

That legislation was supplied by the act of 1879, which is found with amendments, in chap. 33, C. & M. Digest, and chap. 32, Kirby's Digest. See §§ 1, 2, 3 and 4 of the original act, Acts 1879 p. 128. In conferring upon the Governor power to approve or disapprove resolutions for constitutional amendments, that Legislature, many members of which were also members of the Constitutional Convention, was carrying out what the framers of the Constitution understood to be its proper construction; and that act has been continuously in force since that time.

The exception of questions of adjournment in § 16 art. 6, Const., left no other exceptions from the provision that every order or resolution must be submitted to the Governor. 37 Ark. 374.

Adjudications in other States holding that the veto power under the particular Constitution considered did not apply to resolutions submitting constitutional amendments, but in each of them the provisions differed from ours in the matter of submitting amendments in this: It required as large a vote to pass the resolution submitting the amendment in the first place as it would take to pass the amendment over the veto of the executive. Moreover, in all these cases there was no mention of provisions for an amendment that were not self-executing, or of a Constitution where the construction by the legislative and executive branches had been uniform over a long period of time that approval or disapproval by the executive was necessary. See 3 Dall. 378; 101 Md. 117, 60 A. 540; 6 N.D. 81, 68 N.W. 418; 43 La.Ann. 655, 6 So. 798; 196 Pa. 396; 66 Cal. 632, 6 P. 734. The act of 1879 should be regarded as a contemporaneous construction of this Constitutional provision, in that it was passed at a time when it was desired to submit amendment number one, and should be given great weight on that account. 51 Ark. 559; 54 Id. 364, 370; 62 Id. 339.

The constitutionality of the act of 1879 has never been questioned by this court. On the contrary it has been upheld as necessary in carrying out § 22, art. 19 of the Constitution. 78 Ark. 472; 106 Id. 67.

Since the adoption of amendment No. 10 and the enabling act to carry it into effect, this court has always held that the enabling act was valid, and was necessary to carry it into effect. See 106 Ark. 506; 117 Id. 465.

Every Legislature since the adoption of the Constitution, and all the executives likewise since that time, have construed it to mean that the Governor must approve a joint resolution submitting an amendment before it can be submitted to the people. Black's Constitutional Law, 3rd. Ed. 51; Id. 326.

J. S. Utley, Attorney General, Wm. T. Hammock, and Elbert Godwin, Assistants, for appellee; R. W. Robins, Geo. F. Hartje and J. C. Marshall, of counsel.

There is no mention of any veto power on the part of the Governor appearing in art. 19, § 22, Constitution. His veto power is limited by art. 6, § 15 Id., to bills which have passed both houses of the General Assembly, and does not extend to any kind of resolution. The requirement of art. 6, § 16, Id., to the effect that orders and resolutions in which the concurrence of both houses may be necessary (except on questions of adjournment) shall be presented to the Governor, etc., does not embrace resolutions proposing amendments to the Constitution.

Art. 5, Constitution, U. S. is no more silent as to the power of the President over proposed Constitutional amendments than is art. 19, § 22, of our Constitution, while § 16, art. 6 of our Constitution it is patent was adopted from the later part of § 7, art. 1 of U. S. Constitution; yet it has been held that the President's approval of a resolution of Congress submitting an amendment to the Constitution was not necessary. 3 Dall. 378; 253 U.S. 229; 253 U.S. 232. The Congress itself once voted that the sending of a resolution proposing an amendment to the President was an inadvertent act and that his approval was unnecessary. 34 L. R. A. 97.

Section 22, art. 19, Constitution, nowhere hints at executive action, but on the contrary evinces a positive intention to send proposed amendments direct from the General Assembly to the Secretary of State for publication and submission, and a reading of that section will dispel any belief that § 16, art. 6, embraces resolutions proposing Constitutional amendments. 43 La.Ann. 655.

The General Assembly in proposing amendments to the Constitution does not act in its ordinary legislative capacity, but acts in the capacity of a convention expressing the supreme will of the people. 8 Ark. 445. The Hartje resolution, therefore, is not a legislative matter, and was not subject to executive action. Supra; 49 Ark. 554; 140 Id. 493; 253 U.S. 350; 42 S.C. 217; 117 Ark. 582. The Governor, in approving or disapproving bills or resolutions, is acting as a part of the legislative power and not as an executive. The power of veto is inherently a legislative and not an executive power, and must be found in the Constitution as a part of the legislative power or it does not exist. 36 L. R. A. (N. S.) 244; 153 P. 594; 140 S.W. 405. See also 72 Ark. 94.

On the proposition that the Governor has no power to veto resolutions proposing constitutional amendments see the following decisions from the various States:

Alabama: 87 So. 375; 24 Ala. 108. California: 6 P. 734; 4 L. R. A. 429. Colorado: 36 P. 221; 160 P. 1032. Illinois: 281 Ill. 17. Iowa: 14 N.W. 748. Kentucky: 47 S.W. 779. Louisiana: 43 La.Ann. 647; 9 So. 776. Maryland: 60 A. 538, 539. Michigan: 115 N.W. 429, 446. Missouri: 31 L. R. A. 815. Nebraska: 41 N.W. 981. Nevada: 12 P. 838. North Dakota: 34 L. R. A. 97. Pennsylvania: 196 Pa. 396, 50 L. R. A. 568. Tennessee: 122 Tenn. 471. Wisconsin: 152 N.W. 419.

The rule that where a clause in a Constitution which has received a settled judicial construction is adopted in the same words by the framers of another Constitution, it will be presumed that the construction thereof was likewise adopted, applies not only to adoption by one State from another, but also to the adoption in the same State of clauses or provisions in an older Constitution that have received judicial construction into a later Constitution. Black, Constitutional Law, par. 43; 11 Ark. 594; 68 Id. 433; 78 Id. 346; 82 Id. 334; 96 Id. 316; 98 Id. 125; 104 Id. 417; 109 Id. 479; 113 Id. 552; 117 Id. 465; 120 Id. 389.

It is the duty of this court to construe the Constitution according to its terms and provisions its construction is called for and without reference to the length of time others may have misconstrued it; nor is it in any manner bound by any such misconstruction. Where there is great doubt, legislative construction may be resorted to for aid, but even then it is not binding upon the courts. 85 Ark. 89, 94; 52 Id. 330; Cooley on Constitutional Limitations, 71.

OPINION

SMITH, J.

Senate joint resolution No. 1, passed at the 1921 session of the General Assembly, proposed an amendment to the Constitution of the State. The resolution was agreed to by a majority of all the members elected to each House, and this assent was regularly entered on the journals of the Senate and of the House. The resolution was transmitted to the Governor, and by him disapproved. The General Assembly adjourned before the Governor acted on the resolution, and there was therefore no action by the General Assembly after the attempted veto.

Appellant who is a citizen and taxpayer of the State, brought this suit to enjoin the Secretary of State from incurring the expense of publishing the proposed amendment and from submitting the same to the vote of the people.

In his answer the Secretary of State denied the authority of the Governor to veto a resolution of the General Assembly proposing an amendment to the Constitution, and alleged that the Governor's attempt to do so was futile. The court below accepted that view and dismissed the complaint, and by this appeal we are asked to determine whether the Governor had that authority. No other question is presented.

Section 22 of article 19 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."

Article 19 is designated "Miscellaneous Provisions," and received this designation, no doubt, because of the variety of subjects covered by it. It is significant that the section quoted does not appear in article 5 of the Constitution, which deals with the legislative department. When analyzed, it appears that the constitutional requirements for...