St. Louis Southwestern Railway Co. v. Kavanaugh

• Decision Date: 09 July 1906
• Citation: 96 S.W. 409,78 Ark. 468
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. KAVANAUGH
• Court: Arkansas Supreme Court

96 S.W. 409

78 Ark. 468

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. KAVANAUGH

Supreme Court of Arkansas

July 9, 1906

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor affirmed.

Judgment affirmed.

S. H West and Bridges & Wooldridge, for appellant.

1. The Constitution nowhere provides for a method of ascertaining the result of the vote upon an amendment. Hence the Legislature is without authority to pass an act prescribing the method of arriving at the result of the vote upon an amendment to the Constitution that would, within itself, be conclusive upon the courts in inquiring into the legal adoption of such amendment. Rice v. Palmer, ante p. 355; 48 L. R. A. 655.

2. Since the Constitution requires a majority of all the electors voting at a general State election, the statute limiting the inquiry to a majority of those voting for the five constitutional offices is to that extent defective and unconstitutional. Cases supra; 156 Ind. 104; 51 L. R. A. 722 725; 138 Mo. 187; 51 Neb. 805.

James P. Clarke, J. C. Marshall, Gray & Gracie and Fulk, Fulk & Fulk, for appellee.

1. Action by the legislative department is necessary to supplement the constitutional provisions, and to give effect to the constitutional right of amendment. Within the limits of legislative discretion, the lawmaking power is supreme, and the courts concede and respect it.

2. That which is implied in a statute is as much a part of it as if specifically expressed. 103 F. 420 and cases cited. Every provision of the statute, and the contemporaneous history of its enactment, plainly show the purpose of the Legislature to make the vote cast for the five constitutional officers the standard for ascertaining the number of electors voting at such election, and the courts will respect the standards thus established. 134 F. 423; 45 Ark. 409; 69 Ark. 436; 28 Ark. 328; 15 Kan. 500. For rules adopted by the courts under similar constitutional provisions, where no method was established by the statute of ascertaining the number of electors who voted at such elections, see 71 N.W. 779; 70 N.W. 252; 26 Neb. 517.

HILL, C. J. Mr. Justice RIDDICK concurs in the judgment.

OPINION

HILL, C. J.

This Appeal questions the validity of Amendment No. 5 to the Constitution, commonly called the "Road Tax Amendment," which was declared adopted by the Speaker of the House of Representatives on the 13th day of January, 1899, and duly certified and proclaimed as part of the organic law. The Constitution, art. 6, sec. 3, requires the returns for the election for Governor, Secretary of State, Auditor, Treasurer and Attorney General to be sealed up separately and transmitted to the Speaker of the House of Representatives, who, during the first week of the session, shall open and publish the vote cast for each of the candidates for said offices in the presence of both houses of the General Assembly.

The act of March 1, 1883 (p. 70), as modified by the general election law of 1891 (now sections 716-718, Kirby's Digest) requires the vote on amendments to be separately sealed and delivered to the Speaker and opened, and the result as it appears from the returns then before him ascertained and declared at the same time the vote on said offices is opened and published. When this was done in regard to the amendment in question, it was found that there were 27,209 votes for the amendment and 24,071 votes against it, and the highest vote cast for the candidates for any of the five offices then before the Speaker was for the office of Governor; the total vote cast for the four candidates for that office being 111,897. A simple calculation demonstrated that the amendment received a large majority voting on that question, and received 1260 more votes than a majority of electors voting for any of the said State offices, and the Speaker, on these returns, declared the amendment to have been adopted.

To overcome this result, the appellant shows from the returns on file with the Secretary of State that if the highest vote cast in each county for any office voted for is taken as a basis, and these highest votes aggregated, 116,378 electors voted for some officer at said election, and that therefore the amendment lacked 970 votes of receiving "a majority of the electors voting at such election." The Speaker had none of these county returns before him, showing that there were more votes cast than appeared from the returns before him on the said State officers.

This court recently said, in regard to the Speaker's duty in this matter: "The votes on the principal State officers were then before him, and from them he could reach, at least approximately, the votes in the election, and the votes on the amendment would give the other necessary data to a prima facie decision from the face of the returns, and, in the language of Judge Cooley, 'the final decisions must rest with the courts.'" Rice v. Palmer, ante, p. 432.

In the Rice-Palmer case the Speaker had declared Amendment No. 3 adopted, although the votes before him showed that it did not receive a majority of the electors voting for any of said State officers. The Speaker was acting upon the erroneous theory that the vote upon the question of the amendment alone controlled. The court held that the decision of the Speaker was not a finality; and where it was shown to be wrong, as in that case, the courts must declare the true result. Now, this is a case where the Speaker acted correctly on the returns before him; and, as the integrity of the returns were not and are not questioned, the only point for decision is whether the Speaker, and the courts, will be bound to confine the evidence of the "majority of the electors voting at such election" to the votes cast for said five officers, or shall the courts receive evidence that more electors voted in the said election on other offices or questions than upon the offices whose votes were before the Speaker?

It was the evident purpose of the act of 1883 to confine the evidence to the votes sent to the Speaker. The act does not in terms so declare; but, when read in the light of the history of legislation on this subject, all doubt as to this fact is removed. The clause of the Constitution providing for the submission of constitutional amendments (art. 19, § 22) was not self-executing, and required legislation to effectuate its purpose. The General Assembly of 1879 provided the machinery for amending the Constitution, and the same assembly submitted to the electors Amendment No. 1, commonly called the "Fishback Amendment." This act required the election judges to count the votes for the amendment separately from the offices, but to return the same with the other returns to the county clerk, and the clerk was required to separately abstract the vote, but to make the return of it to the Secretary of State in like manner as the returns on the candidates voted for. It was then provided that when all the returns were in the office of the Secretary, the Governor, Secretary of State and Attorney General should canvass the vote; "and if it be found that a majority of the votes (voters) of the State voting at such election have voted for any such amendment, the officers herein directed to canvass the same shall certify the facts," etc.

In the general election of 1880 the Fishback amendment received a large majority of the votes cast on the subject, and a clear majority of the votes cast on the State office receiving the highest vote. But the count was not based on any of these votes. It was thus explained by the Secretary of State: "As no provision was made by law for ascertaining the actual number of votes cast at the election of September 6, as contemplated by the Constitution, in order to ascertain the same, I addressed a circular letter to all the county clerks in the State, in which they were required to certify to this office the actual number of votes cast at each and all the precincts in the several counties, as shown by the poll books of each and every precinct in each county." See Public Documents of Arkansas, 1880-1881, pages 17 and 18. The aggregate vote made up in this way demonstrated that the amendment had not received "a majority of all the electors voting at such election," and it was declared "defeated." See Id. pages 34-38. Hempstead's History of Arkansas, pages 281, 283.

This result was very unsatisfactory to the supporters of the Fishback amendment, and its adoption and a different method of ascertaining the vote upon amendments became public questions of moment. The General Assembly of 1883 resubmitted the amendment to the electors, and the same assembly repealed this act of 1879, and substituted the present system therefor, which, briefly stated, segregates the vote on the amendments from all the other returns except said five offices which are the only returns going before the General Assembly, and required the Speaker from the votes then before him to declare the result of the election on the amendment. This bit of history explains this legislation, and points its evident purpose.

While the Speaker's duty is perfunctory, and confined to narrow lines, yet it is contemplated that he shall have the true basis to ascertain the result, which he must declare, and this basis must be accepted by the courts, as well as the Speaker, if it was competent for the Legislature to create this basis as the only evidence of the number of electors voting in the election for the purpose of deciding whether or not an amendment has been adopted.

The court has held that it was a judicial, as contra-distinguished from political, question whether the Constitution has been amended in the manner prescribed by the Constitution itself. In other words, that it is the paramount duty of the court...