State ex rel. Elsas v. Missouri Workmen's Compensation Commission

• Citation: 2 S.W.2d 796,318 Mo. 1004
• Decision Date: 04 February 1928
• Docket Number: 28380
• Parties: The State ex rel. Lora Elsas v. Missouri Workmen's Compensation Commission, Alroy S. Phillips et al., Members
• Court: United States State Supreme Court of Missouri

2 S.W.2d 796

318 Mo. 1004

The State ex rel. Lora Elsas v. Missouri Workmen's Compensation Commission, Alroy S. Phillips et al., Members

No. 28380

Supreme Court of Missouri

February 4, 1928

Alternative writ made absolute.

Cleary & Barnett and Denton Dunn for relator.

(1) Under Section 57, Article 4, Constitution of Missouri, any measure referred to the people which receives a majority of the votes cast thereon becomes the law of the State immediately. Bradley v. Union Bridge Co., 185 F 544; Salem Hospital v. Olcott, 67 Ore. 448. (2) The provision of our Constitution (Art. 4, sec. 57) reading "any measure referred to the people shall take effect and become the law when it is approved by the majority of the votes cast thereon, and not otherwise" taken together with other provisions of the same section, is self-executing. State v. Langworthy, 55 Ore. 303; Stevens v Benson, 50 Ore. 269; State Tax Comm. v. Moore, 103 Ark. 48; State ex rel. v. Carter, 257 Mo. 52; 12 C. J. 735, sec. 126; 720 and 721, secs. 74, 75, 79; 719; Cyc Anns. 1914-1918 (2nd permanent Volume) p. 3213, col. 1. (3) The construction of the same provisions in the Constitution of the State of Oregon as put upon them by the courts of that State are greatly persuasive with the courts of this State. State ex rel. v. Carter, 257 Mo. 52; State ex rel. v. Miles, 210 Mo. 127; Knight v. Rowlings, 205 Mo. 412. (4) The courts of other states whose constitutions contain initiative-and-referendum provisions having identical, or almost identical, clauses concerning the time when a measure receiving a majority of the votes cast thereon goes into effect, apparently take it for granted that the measure becomes immediately effective. Ex parte Smith, 49 Okla. 727; Thompson v. Secretary of State, 192 Mich. 514; State Nat. Bank v. Council of Frankfort (Ky.), 269 S.W. 727; In re Interrogatories by Governor, 66 Colo. 319; Sears v. Multnomah County, 49 Ore. 42; Notes 50 L. R. A. (N. S.) 209, 210; Notes 50 L. R. A. 1917B, 19; State Tax Comm. v. Moore, 103 Ark. 48. (5) In determining the time when any enactment goes into effect the province of construction is to ascertain and give effect to the intention of the law, but that intention must be derived from the law itself and may not be invented by the court. State ex rel. v. Roney, 82 Ohio St. 376.

North T. Gentry, Attorney-General, L. Cunningham, Assistant Attorney-General, and T. H. Antrobus, Special Assistant Attorney-General, for the State.

(1) There is a vast difference between the initiative power and the referendum power. Where a law is proposed by initiative petition, it must be adopted or rejected in the form proposed and its provisions will become operative at the time fixed by such law. An act passed by the General Assembly and referred to the people for their approval or rejection must be approved or rejected in the form it was originally enacted, and the time stated in the act for the taking effect of its various provisions would of necessity be adopted and approved by the people at the same time the remainder of the act was approved. Section 79 of the Workmen's Compensation Law can no more be left out of the law or ignored than any other part of the act. (a) By Section 79 the provisions of Sections 2, 3, 4 and 34 of the Workmen's Compensation Act concerning the rights of employers and employees did not go into effect until fifty-four days after the other provisions of the law became effective. The general provisions of the law became effective November 16, 1926, and Sections 2, 3, 4 and 34 became effective on the 9th day of January, 1927. (b) The conclusion is irresistible that either the General Assembly by Section 79 meant for Sections 2, 3, 4 and 34 of the act to become effective fifty-four days after the approval of the act by the people or that they should become effective on the 1st day of September after such approval. It would be more reasonable to hold that the Legislature intended said sections to become effective fifty-four days after the approval of the act by the people as certified by the Secretary of State and proclaimed by the Governor rather than on the 1st day of September, 1927. Salem v. Olcott, 67 Ore. 448. (c) The General Assembly has power to pass a law which will take effect upon the happening of a future event. The Local Option Law took effect in certain counties only upon the vote of the people in such counties. The vote did not create the law, but made it operative. State ex rel. Maggard v. Pond, 93 Mo. 606. The General Assembly may provide when certain sections of the law shall become effective. State ex rel. v. Edwards, 136 Mo. 360; Whittaker v. Mutual Life Ins. Co., 133 Mo.App. 664; State v. Schenk, 238 Mo. 429; State v. Kyle, 166 Mo. 287; State ex inf. v. Dallmeyer, 295 Mo. 638. A statute may have a potential existence although it will not go into effect until a future time. State ex rel. v. Kansas City, 276 S.W. 389; State ex rel v. Dirckx, 211 Mo. 568. The Legislature may provide that different parts of a statute shall go into effect at different times. State ex rel. v. Kansas City, 276 S.W. 389; 36 Cyc. 1201. Statutes should be construed to carry out the legislative intent and reasonable effect should be given to every word, phrase and sentence when possible. Lauck v. Reis, 310 Mo. 184; Castilo v. Highway Comm., 279 S.W. 677; Betz v. Railroad Co., 314 Mo. 390; State v. Douglas, 312 Mo. 373. (2) The canvassing of the returns and certifying the result were as much a part of the election as the casting of the ballots. State v. Kyle, 166 Mo. 287. No one could know whether the act had been approved by the people or not until the returns of the election were canvassed. The law affected the contractual rights of the parties and to hold that it was retrospective in its operation would create liabilities that did not exist at the time of the injury and would bar defenses that did then exist, and would be in violation of the Constitution prohibiting the enactment of retroactive laws. Sec. 15, art. 2, Mo. Constitution. There must of necessity be laws providing for the holding of the election, the casting and counting of the ballots of the people and the canvassing of the votes and returns to ascertain the result. Secs. 5911, 5912, 5913, R. S. 1919. The election of the parties to accept the provisions of the law is in the nature of a contract and the law should be considered as read into and made a part of the contract of employment. State Ind. Comm. v. Nordenholt Corp., 259 U.S. 263; Crane v. Leonard, 214 Mich. 218; Reutenik v. Packing Co., 132 Wash. 108; Berry v. Donovan, 120 Me. 457. The General Assembly in enacting the law, and the people in approving it, did so with the provisions of Section 79 of the act deferring the time of the taking effect of Sections 2, 3, 4 and 34.

Lathrop, Morrow, Fox & Moore, for Montgomery Elevator Company, amicus curiae.

The Missouri Workmen's Compensation Law became legally effective on or after November 16, 1926, and was not in effect when relator's husband was killed. Sec. 57, art. 4, Mo. Constitution; Chap. 47, R. S. 1919; State ex rel. Drain v. Becker (Mo.), 240 S.W. 229; State ex rel. Kemper v. Carter, 257 Mo. 52; State v. Kyle, 166 Mo. 287; Bradley v. Union Bridge & Co., 185 F. 544; State ex rel. Shaw v. McCoy (Del.), 43 A. 270.

OPINION

Graves, J.

There are two cases in our docket involving the question as to when the Workmen's Compensation Act became effective. Both have been assigned to the writer. The other case is "The State of Missouri at the relation of Louis Lickenstein, Relator, v. Missouri Workmen's Compensation Commission, Alroy S. Phillips, Chairman, Evert Richardson, member, and Orin H. Shaw, member of Missouri Workmen's Compensation Commission, Respondents," and is our No. 28236.

We select the instant case (No. 28380) for the principal opinion, because the question therein is broader than in the other case. The two cases were argued and submitted at the same time. In the instant case there is a motion for judgment on the pleadings in this language:

"Now comes the relator herein and intending hereby to admit the facts pleaded in the respondents' return, but not to admit the conclusions of law therein, particularly as the same appear in the next to the last paragraph of said return, moves the court for judgment upon the pleadings herein filed and prays the court that she be granted relief as prayed in her petition herein."

There is no substantial difference between the several statements in this case. We have three of them, i. e., one by relator, one by the Attorney-General for the Commission, and one by counsel for Montgomery Elevator Company, Amicus Curiae.

Relator has gleaned from the pleadings the facts, and thus states them:

"This is a direct proceeding in mandamus to require the Missouri Workmen's Compensation Commission to assume jurisdiction over a compensation claim growing out of injuries received November 4, 1926. The facts involved are for the purpose of this hearing conceded by both sides and the question to be answered is what is the legal effect of those facts.

"On November 4, 1926, Marshall Elsas, the husband of relator, was in the employ of the Montgomery Elevator Company, an Illinois corporation, having an office in Kansas City, Missouri, where it employed and had employed for several years more than ten employees, including said Elsas. On that day while helping to install an elevator in the regular course of his employment in the three-story building of the Missouri Casket Company in Kansas City Missouri, the ladder upon which he was working gave way and precipitated him down the elevator shaft from the third floor of said building to the bottom of the shaft. On November 24 1926, as a result of the injuries received...