State ex rel. Collins v. Jackson

• Decision Date: 10 March 1919
• Docket Number: 20592
• Citation: 119 Miss. 727,81 So. 1
• Court: Mississippi Supreme Court
• Parties: STATE EX REL., COLLINS, ATTORNEY GENERAL v. JACKSON ET AL

81 So. 1

119 Miss. 727

STATE EX REL., COLLINS, ATTORNEY GENERAL v. JACKSON ET AL

No. 20592

Supreme Court of Mississippi

March 10, 1919

APPEAL from the circuit court of Washington county, HON. H. H ELMORE, Judge.

Separate proceedings in quo warranto by the state on the relation of Ross A. Collins, Attorney-General, against J. S. Jackson and others. Judgment for respondents, on demurrer, and relator appeals.

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

No brief of counsel on either side found in the record.

Judgment affirmed.

R. H. &amp J. H. Thompson, Barnett & Perrin, Barbour & Henry, E. L Brown and R. R. Norquist, for appellant.

Robt. B. Mayes, Robt. Powell, Knotts & Jones, N.W. Sumrall, T. E. Mortimer, Jesse D. Jones and J. M. Cashin, for appellee.

SYKES J. SMITH, C. J., and ETHRIDGE, J., dissenting.

OPINION

SYKES J.

Quo warranto proceedings were filed by the attorney-general on behalf of the state in the circuit courts of Washington and Humphreys counties to test the validity of the formation of Humphreys county. Proceedings were filed in both counties against certain alleged members of the board of supervisors of Humphreys county. One of the suits in Washington county was filed against those members of the board of Humphreys county who were citizens of Washington county before the attempted formation of Humphreys county, and the other, filed in this county, was against the five alleged members of the board. Three suits are brought here on appeal, two of them are from Washington county, and one from Humphreys county. Demurrers were sustained in the circuit courts to the quo warranto informations in all three cases.

This litigation arises from the following facts: Under chapter 348 of the Acts of the legislature of 1918, an act authorizing the creation of a new county to be called Humphreys county, and providing for the organization of same from portions of lands situated in Washington, Yazoo, Holmes, Sharkey, and Sunflower counties, Humphreys county was attempted to be organized, and every step of this organization was taken within sixty-six days from the approval of the act by the Governor. It is not necessary to set forth in detail the provisions of the act providing for the creation of this county. While the informations alleged some irregularities in the carrying out of the act, and in the notice for the election in the prescribed territory, there is no charge of fraud, and no allegations that the result of the election was not a full and fair expression of the wishes of the people in this territory. In the statement of the case counsel for appellant mention certain alleged violations of the act, but do not cite any authorities sustaining this position, nor in fact argue these questions in their brief. We therefor say, in passing, that these irregularities would not vitiate the election. Hatten v. Bond, 112 Miss. 590, 73 So. 612; Shines v. Hamilton, 87 Miss. 384, 39 So. 1008; Johnson v. Board of Supervisors, 113 Miss. 435, 74 So. 321; Pradat v. Ramsey, 47 Miss. 24.

The information also charges that this act was passed by the legislature without a proper report of either the committee of the Senate or the House on local and private legislation giving the reasons why it should pass. That this was in violation of section 89 of the Constitution. This court, however, has repeatedly held that the journals of the two houses of the legislature cannot be resorted to by the courts. Ex parte Wren, 63 Miss. 512, 56 Am. Rep. 825; Hunt v. Wright, 70 Miss. 298, 11 So. 608; Mayor etc., v. State, 102 Miss. 663, 59 So. 873, Ann. Cas. 1915A 1213.

The contention of counsel for appellant that the formation of Humphreys county is void is based upon amended section 33, art. 4, of the Constitution. They contend that because of this amendment no act of the legislature can become effective until ninety days after the adjournment of the legislature, unless the act is passed as an emergency act under section 3 of this amendment. The entire argument of counsel for appellant and the authorities cited by them are directed to this principal and, we think, decisive question in the case. Counsel for appellee contend, among other things, that quo warranto is not the proper method of procedure in this case. This court, however, has lately decided this very question against the contentions of appellee in the case of Howie, District Attorney, v. Brantley, 113 Miss. 786, 74 So. 662, Ann. Cas. 1917E 723.

The proper construction of this amendment has received the most careful consideration of this court. The only part of the amendment with which we are here concerned is that part which relates to the referendum. This amendment is commonly known as the initiative referendum amendment, and its constitutionality was passed upon by this court in the Brantley Case, above cited. The referendum part of it is as follows:

"Sec. 33. The legislative authority of the state shall be vested in a legislature which shall consist of a Senate and a House of Representatives, but the people reserve to themselves the power . . . at their own option, to approve or reject at the polls any act, item, section or any part of any act or measure passed by the legislature. . . .

"2. The second power reserved by the people is the referendum, and it may be ordered either by a petition signed by the required number of qualified voters or by the legislature, as other bills are enacted. . . . The filing of a referendum petition against any one or more items, sections or parts of any measure shall not delay the remainder from becoming operative. Referendum petitions against measures passed by the legislature shall be filed with the secretary of state not later than ninety (90) days after the final adjournment of the session of the legislature at which such measures were passed, except when adjournment shall be taken temporarily for a longer period than ninety (90) days, in which case such petition shall be filed not later than ninety (90) days after such temporary adjournment. All measures referred to a vote of the people by referendum petitions shall remain in abeyance until such vote is taken.

"3. If it shall be necessary, for the immediate preservation of the public peace, health or safety, then a measure shall become effective without delay; such necessity shall be stated in one section, and if, upon a yea and nay vote, three-fourths of those voting in each house shall vote in favor of the measure going into immediate operation, such measure shall become operative at once. It shall be necessary to state in such section the facts constituting such emergency. . . . If a referendum petition is filed against such emergency measure, such measure shall be a law until it is voted upon by the people, and if it is then rejected by a majority of the voters voting thereon, it shall be thereby repealed.

"4. . . . Any measure submitted to the people, as herein provided, shall take effect and become law when approved by a majority of the votes cast thereon, and not otherwise. Such measure shall be in operation on and after the thirtieth day after the election at which it is approved," etc.

The contention of the able counsel for appellant is very well expressed by them as follows:

"Our proposition is that no legislative act can be made operative within ninety days of the 'final adjournment of the session,' unless 'it shall be necessary for the immediate preservation of the public peace, health or safety,' and then only in case that by the act itself 'such necessity shall be stated in one section,' and, further, be passed 'upon a yea and nay vote' of 'three-fourths of those voting in each house.' A mere reading of section 33 as amended will demonstrate that we are right."

Counsel contend that, under paragraphs 1 and 2 of this amendment, since the people have reserved to themselves the option to approve or reject within ninety days laws passed by the legislature, and it being further provided in paragraph 2 that "the filing of a referendum petition against any one or more items, sections or parts of any measure shall not delay the remainder from becoming operative," and the further provision that "all measures referred to a vote of the people by referendum petitions shall remain in abeyance until such vote is taken," demonstrates that no act (except emergency acts) passed by the legislature can take effect until ninety days after its adjournment, or until the time for the filing of referendum petitions has passed, which time is ninety days after adjournment, section 3 of the act points out and provides explicitly what kind of laws may be made to take effect immediately, namely, those laws "necessary for the immediate preservation of the public peace, health, or safety." This section provides that this necessity shall be stated in the act and be passed by a three-fourths yea and nay vote. This act upon its passage becomes a law, and is not suspended by the filling of a referendum petition against it, but remains the law until it is voted upon by the people, "and if it is then rejected by a majority of the voters voting thereon, it shall be thereby repealed.

Our attention is especially called by counsel for appellant to the language used in section 3 relating to laws passed under it, which are usually called emergency laws, and the language relating to other laws in sections 2 and 4; for instance section 2 says, "The filing of a referendum petition against any one or more items . . . shall not delay the remainder from becoming operative;" that this clause clearly indicates that no part of the law had become operative when this petition was filed, and this clause, "All measures referred to a vote of the people by referendum petitions shall remain in...