Power v. Ratliff

• Citation: 72 So. 864,112 Miss. 88
• Decision Date: 09 October 1916
• Docket Number: 19340,19396
• Court: United States State Supreme Court of Mississippi
• Parties: POWER, SECRETARY OF STATE, v. RATLIFF ET AL. SAME v. CADE

72 So. 864

112 Miss. 88

POWER, SECRETARY OF STATE, v. RATLIFF ET AL.

SAME v. CADE

No. 19340, 19396

Supreme Court of Mississippi

October 9, 1916

Suggestion of Error Overruled Oct. 29, 1916.

In Banc. Appeal from Chancery Court, Hinds County; O. B. Taylor Chancellor.

APPEAL from the chancery court of Hinds county, HON. O. B. TAYLOR Chancellor.

Bill by W. T. Ratliff and another against Joseph W. Power, secretary of state, consolidated with a bill by J. M. Cade against the same defendant. From an order denying dissolution of a temporary injunction granted complainants, defendant appeals.

W. T Ratliff and J. M. Sullivan, citizens of Hinds county and taxpayers of the state, appellees in one of the above-styled causes, prayed for and obtained an injunction against J. W Powers, secretary of state, restraining him from acting upon certain petitions filed by certain electors of the state seeking to have approved by vote of the people certain acts of the legislature known as House Bill No. 264, and House Bill No. 255, the first being an act to promote temperance, to restrict the consumption of intoxicating liquors in this state, to prevent shipments and the delivery thereof in the state, to restrict the quantity of liquor that may be received or possessed, and otherwise provide for state-wide prohibition in Mississippi; the other act being an act to promote temperance and to suppress the evils of intemperance, and to prevent liquor advertisements and the circulation of price lists, order blanks, and other matter for the purpose of inducing or securing orders for liquor, bitters, and drinks in this state. A separate and similar bill of complaint was filed by J. M. Cade, appellee herein in the other of the above-styled causes, and both cases were by agreement argued and submitted together. Without setting out the allegations of the bills of complaint in detail, it is claimed that House Concurrent Resolution No. 24, appearing as chapter 520 of the Laws of 1914, styled "A concurrent resolution proposing an amendment to section 33 of the Constitution of Mississippi providing for initiative and referendum," and inserted in the Constitution by the legislature of 1916 as Senate Concurrent Resolution No. 18, styled "A concurrent resolution to insert in the Constitution of the state of Mississippi an amendment providing for initiative and referendum," was not legally submitted and was not legally adopted as a part of the Constitution for various reasons alleged in the bill, one of which is the averment that the said amendment did not receive the necessary majority of the qualified electors voting at the general election on November 3, 1914; that the said amendment is now no part of the Constitution, and that the people of the state have no right to have referred for their approval any statute passed by the legislature; that the petitions of the electors seek to have referred to a vote of the people the liquor laws passed by the legislature of 1914, and in the bill presented by Mr. Cade, the act passed by the legislature of 1916, chapter 99, for the conservation and protection of game and fish, providing for the department of game and fish, for the appointment of game wardens, and otherwise regulating hunting and killing of game in the state; that the secretary of state, unless restrained, will proceed unlawfully to have referred to a vote of the people the several acts of the legislature mentioned, and in doing so will incur needless and unnecessary expense, and the holding of such illegal referendum will inflict an irreparable injury upon the complainants and, arouse the enmity and passions of the qualified electors of the state arrayed upon the one side or the other of the questions so presented at the election. Complainants W. T. Ratliff and J. M. Sullivan seek to maintain their joint bill as taxpayers. Mr. Cade, in addition to the claim of being a taxpayer, avers that he is the game and fish warden for Hinds county, and as such is entitled to the office and the emoluments thereof without interruption. The bills of complaint were duly answered by appellant, proof taken, and the causes submitted to the chancellor upon the pleadings, proof, and motion to dissolve the temporary injunction issued. The chancellor overruled the motion to dissolve and granted an appeal to the supreme court to settle the principles of the case. The record shows that in pursuance of the initiative and referendum amendment to the Constitution the maximum number of qualified electors petitioned for a reference of the several acts mentioned to a vote of the people; that the petitions were received and filed by the secretary of state, and this official was preparing to have a referendum on the several acts at the general election to be held on the 5th day of November of the present year when he was restrained from further action by the temporary injunction which the chancellor granted and which he declined to dissolve upon motion.

Decree reversed, and cause remanded.

Lamar F. Easterling, Assistant Attorney-General, for appellant.

W. C. Wells, W. M. Hemingway, W. E. Morse, W. T. Ratliff and L. Brame, for appellee.

STEVENS J. SYKES, J., dissenting.

OPINION

STEVENS, J.

(After stating the facts as above). Lying upon the threshold of this case is the question whether equity has jurisdiction to enjoin the secretary of state from taking the steps necessary to refer the several acts of the legislature to an election by the people. While the answer denies that complainants have the right to the injunction prayed for and granted, this particular question was not stressed by counsel in the arguments before us, and we might, therefore, well preface our remarks in the language of the Oklahoma court in McAlester v. Milwee:

"They (counsel) are so anxious to have this court pass upon the case upon its merits that they do not wish to urge that question (jurisdiction) in this court. The court does not take that view of the matter; we think it is time enough to pass upon such important questions when they are reached in due course, with proper parties, in a proper proceeding." 31 Okla. 620, 122 P. 173, 40 L. R. A. (N. S.) 576.

The question of the jurisdiction of equity in this case is so serious that we do not feel justified in waiving or ignoring it. The general rule is that an injunction will not lie to restrain the holding of an election. It is not necessary to say that this rule obtains to the extent that equity will never restrain the holding of an election, for the door of the court is always open to those who seek protection in matters of property and the maintenance of civil rights or who reasonably apprehend the infliction of irreparable injury. There may be elections authorizing bond issues or directly affecting property rights, and if such an election is attempted to be held without authority of law, equity might well interfere. The cases at bar however, do not fall in that class. The complainants in the instant cases have obtained an injunction restraining the secretary of state from performing official duties imposed upon him by a proposed amendment inserted by the last legislature as a part of our Constitution, and thereby indirectly restraining this official from taking the necessary steps to refer the liquor laws and the game law to a vote of the people in accordance with the provisions of this initiative and referendum amendment. The very object of the suits is to prevent the holding of an election on these questions. The only property rights which complainants in one of the suits have is their interest as taxpayers. The referendum called for by the amendment sought to be held void submits for the approval of the people the laws petitioned against, and the amendment expressly provides that this approval or rejection must be registered "at the general state or congressional elections, except when the legislature shall order a special election." At the time the injunction was served these questions were being prepared for submission at the general November, 1916, election. If submitted, the questions so presented will not require the holding of an additional election, but will simply lengthen the ticket to be voted on at the regular election of this year. If appellant submits the questions to a vote of the people, the additional burden of taxation upon complainants will be the paltry sum of a few cents, an injury trifling and insignificant. The injury in no wise could be called irreparable within the sense of that term as employed in equity jurisprudence. Complainants Ratliff and Sullivan do not seek the protection of property rights. They would likely resent the imputation that they have any interest in liquors or any newspapers profiting by liquor advertisements, and even though a complainant might have an alleged interest in the sale of liquors or the operation of a newspaper within the confines of our state, a vote upon the liquor laws enacted by the legislature of 1916 might possibly help but could never hurt such complainant in the enjoyment of any such rights. It is conceded that the liquor laws in question are valid enactments of our legislature, and it must be remembered that complainants do not seek to prevent the enforcement of an illegal or unconstitutional act of the legislature. While the bills purport to enjoin the secretary of state in the performance of his ministerial duties, the gravamen of the bill after all is an injunction against the exercise by the people of a veto power upon the legislation in question. It cannot possibly hurt any one for the people to register their choice or will on these liquor laws. If the people approve the laws no injury has been inflicted upon any one, and the statutes in question remain valid and...