State ex rel. Collins v. Jones

• Citation: 64 So. 241,106 Miss. 522
• Decision Date: 09 February 1914
• Docket Number: 17196
• Court: United States State Supreme Court of Mississippi
• Parties: STATE ex rel. COLLINS, ATTORNEY-GENERAL, v. P. Z. JONES

64 So. 241

106 Miss. 522

STATE ex rel. COLLINS, ATTORNEY-GENERAL, v. P. Z. JONES

No. 17196

Supreme Court of Mississippi

February 9, 1914

APPEAL from the circuit court of Hinds county, HON. W. A. HENRY Judge.

Quo warranto by the state, on relation of Ross A. Collins attorney-general, against P. Z. Jones. From a judgment for respondent, relator appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Ross A Collins, attorney-general, Geo. H. Ethridge, assistant attorney-general, E. F. Noel, J. M. Vardaman, Neely Powers and J. H. Howie, for appellant.

The first and sixth grounds of demurrer are substantially the same, and allege that the amendment was a nullity because it contained more than one proposition and was not submitted in such manner and form that the people might vote for each amendment separately.

The first ground for demurrer is as follows: First, the petition praying for the issuance of quo warranto shows on its face that the state has no cause of action against the said defendant.

The sixth ground of demurrer is as follows: Sixth, for further cause of demurrer defendant states that the so-called amended section 153 of the Constitution, relied upon by the state, is a nullity because it was never submitted to be voted upon in the manner required by section 273 of the Constitution. Section 273 of the Constitution provides that whenever an attempt is made to amend the Constitution, that: "If more than one amendment shall be submitted at one time, they shall be submitted in such manner and form that the people may vote for each amendment separately."

And the petition shows that this was not done, but the petition shows that the so-called amendment submitted two amendments at the same time and in the same amendment and not "in such manner and form that the people might vote for each amendment separately." The one amendment submitted the dual proposition as to whether or not circuit judges shall be elected, and as to whether or not chancery judges should be elected, thus changing from the present system of appointment, and submitting a dual proposition in a way that violated section 273 of the state Constitution.

We submit that section 153, as originally contained in the Constitution, constituted only one section and one subject-matter, and that was the mode of securing the judges of the courts of original jurisdiction. This section before amendment read: "Judges of the circuit court and of the chancery courts shall be appointed by the governor." Not judges and chancellors shall be appointed by the governor.

They are all judges, and the only difference in them is the difference in their jurisdiction. The Constitution previous to amendment provided that judges be appointed. Now it provides that they be elected. Can it be said that the word, judges, must be split into parts before this section can be amended? This amendment merely changes section 153 to the extent of providing that judges of the circuit and chancery courts shall be elected by the people, in a manner and at a time to be provided by the legislature. Only one office, that of judges, is affected, and only one section and one feature of that section is touched, section 153, substituting an elective for an appointive provision, and authorizing the legislature itself to provide the time and manner of elections.

All that section 273 of the Constitution intended to guard against was the submission of different and unrelated subjects. The different subject-matters dealt with in one amendment need not be interdependent or indivisible, and is largely a matter of legislative discretion. The legislature is not compelled to submit separate amendments on propositions pertaining to a single purpose. 1 Story Const., 451; Black, Interpretation of Laws, 28; State ex. rel. Hudd v. Timm, 54 Wis. 318; State ex rel. Morris v. Mason, 43 La. Ann. 590; State ex rel. Adams v. Herriot, 10 S.D. 110; Words and Phrases Judicially Defined, 368; Edwards v. Lesuer, 31 L. R. A. 815; Green v. Waller, 32 Miss. 677.

There would be but little trouble about this amendment were it not for the dictum in the case of State v. Powell, 77 Miss. 543. This case deals with "judicial amendments." It alters five sections of the Constitution and touches on three other matters not affected by the present amendment. The dictum in this case is to the effect that more than one proposition was submitted to the people to be voted on and that the legislature had no right to submit to the people more than one proposition in the same amendment and that the said propositions should have been submitted to the people in separate amendments. On this proposition the court said, in 77 Miss. 571: "We are satisfied that the proposition submitted to the voters contained at least four separate amendments. The sections proposed to be repealed, to wit: 145, 149, 151, 152 and 153, relate to separate matters. Section 145 deals alone with the supreme court, as does said section 149. Section 153 deals with the judges of the circuit courts and of the chancery courts. Section 151 deals with the method of filling vacancies in the supreme court. Section 152 deals with circuit and chancery districts. It will thus be seen that the sections of the Constitution of 1890 sought to be repealed treat separately of the supreme court and supreme court judges, and of the judges of the circuit and chancery courts."

It is not necessary to the disposition of the case to determine whether the amendment was submitted in proper form.

It is said in the case of People v. Sours, 31 Colo. 369, 74 P. 167, 102 Am. St. Rep. 34, that after ratification by the people of the constitutional amendment, every reasonable presumption, both of law and fact, is to be indulged in favor of the validity of the amendment of its state Constitution, and it is also said that unless satisfied beyond reasonable doubt that the Constitution has been violated in the submission of the constitutional amendment, it must be upheld by the court. It is also said in this case that a constitutional amendment, embracing several subjects, all of which are germane to the general subject of the amendment, is valid and may be submitted to the people as a single proposition.

"The self imposed limitation on the power of the people to amend their fundamental law should not be so construed as to defeat the will of the people, plainly expressed, on account of a slight and unimportant failure to comply literally with such limitations if the requirements are substantially observed." State ex rel. Thompson v. Winnett (Nebr.), 10 L. R. A. (N. S.), p. 149, and note; 110 N.W. 1113.

To consider a proposition as two amendments, the proposition must relate to at least two distinct and separate purposes not dependent upon or connected with each other. State ex rel. Hudd v. Timme, 54 Wis. 318; State v. Heriod, 10 S.D. 109, 72 N.W. 93.

Provision of Constitution or laws may be repealed by implication as well as by express repeal. Prohibitory Amendment Cases, 24 Kan. 700.

As to adoption of amendments to the Constitution, if the spirit of the Constitution is obeyed, the form is immaterial and the amendment will be declared valid.

"When the voice of the people is constitutionally expressed in their favor, the amendments become and are a part of the fundamental law." Trustees University of N.C. 72 N.C. 76.

The action of the two houses and the will of the people, as expressed by their vote, should not be set aside or disregarded upon purely technical grounds, when no material requirement of the Constitution has been omitted, and where the proceedings taken clearly manifest the intention of those bodies and the people to amend the fundamental law, citing and approving in re Senate, File 31, 41 N.W. 981, 25 Neb. 864, and Prohibitory Amendment Cases, 24 Kan. 700. Lovett v. Ferguson, 10 S.D. 44; 71 N.W. 765.

We respectfully submit that the doctrine of these cases is sounder in principle than the doctrine in the Powell case, if such is held in that case.

The Constitution designed the ballot to be a practical instrument and realized that it might be possible for the people to pass on several different sections of the Constitution pertaining to different matters, and where this is the case, instead of grouping all the propositions together and voting for them as a unit, it thought the best results could be obtained by having a separate vote as to each independent proposition, and this is the true limit to place on the legislature.

In State v. Timme (Wis.), 11 N.W. 785, the court said: "We think amendments to the Constitution which the section required, shall be submitted separately, must be construed to mean amendments which have different objects and purposes in view." See, also: Mason v. State, 43 La. Ann. 590, 9 So. 800; 24 Kan. 700; Hays v. Hays, 47 P. 732; 5 Ida. 154; Gabbott v. Chi., etc., R. R. Co., 171 Mo. 84, 70 S.W. 891. See, also, authorities collected in 10 Century Digest, title, "Constitutional Law," section 2.

Did the legislature fix a time and manner for the election of judges of the circuit and of the chancery courts, and did the legislature act in accordance with the constitutional amendment, and did the governor have the right to attempt to nullify the legislature's action?

It was clearly the intention of the legislature to provide a scheme that would be in nowise dependent upon the sanction or consent of the governor. It is well settled that the proposing of constitutional amendments, and providing for changes in the organic law is not legislation in the ordinary acceptation of that term. It has been numerously held by the authorities that a resolution proposing an amendment to the Constitution does not have to be submitted to the...