State ex rel. Pollock v. Becker

• Decision Date: 01 August 1921
• Citation: 233 S.W. 641,289 Mo. 660
• Parties: THE STATE ex rel. JOHN H. POLLOCK v. CHARLES U. BECKER, Secretary of State
• Court: Missouri Supreme Court

233 S.W. 641

289 Mo. 660

THE STATE ex rel. JOHN H. POLLOCK v. CHARLES U. BECKER, Secretary of State

Supreme Court of Missouri

August 1, 1921

Writ granted.

John T Barker and John M. Atkinson for relator.

The Secretary of State refused to accept these referendum petitions for the sole reason that Senate Bills Nos. 4, 5, 6 and 7 contained the "peace, health and safety clause." Relator contends that this action was arbitrary, and that this court must determine from the entire bills whether the peace, health and safety is involved. State ex rel. v. Sullivan, 224 S.W. 327; State ex rel. v. Roach, 230 Mo. 435; State ex rel. v Meath, 84 Wash. 302; In Re Hoffman, 155 Cal 114; McClure v. Nye, 22 Cal.App. 248; Rigdon v. San Diego, 30 Cal.App. 107; Riley v. Carico, 27 Okla. 33; Beal v. State, 103 A. (Maryland), 99; Attorney-General v. Lindsay, 178 Mich. 524; Simpson v. Gage, 195 Mich. 581; Payne v. Graham, 7 A. L. R. 516; Strange v. Levy, 107 A. (Maryland), 549; County v. Dayton, 92 Ohio St. 215; State ex rel. v. Whisman, 36 S.D. 260, L. R. A. 1917B, 1; Case v. Howell, 85 Wash. 281, 147 P. 1162; State ex rel. v. Wright, 251 Mo. 341; Mugler v. Kansas, 123 U.S. 623; O'Neil v. Amusement Co., 8 A. L. R. 1600; In re Jacobs, 98 N.Y. 981, 50 Am. Rep. 636.

Jesse W. Barrett, Attorney-General, Merrill E. Otis and Albert Miller, Assistant Attorneys-General, for respondent.

(1) The initiative and referendum provision in the Constitution, Section 57 of Article IV, was taken bodily from the Constitution of Oregon. State ex rel. v. Carter, 257 Mo. 68, 70; State ex rel. v. Sullivan, 224 S.W. 334. (2) The initiative and referendum amendment was adopted in Missouri at the November election in 1908. More than four years before, to-wit, on January 11, 1904, the Supreme Court of Oregon, in the case of Kadderly v. Portland, 44 Ore. 118, 75 P. 222, construed the Oregon provision as authorizing the Legislature finally and conclusively to determine whether a given act is necessary for the immediate preservation of the public peace, health and safety. Missouri, having taken its amendment from Oregon, took it with that interpretation, and that interpretation is now binding upon the Supreme Court of Missouri. State ex rel. v. Sullivan, 224 S.W. 342; State ex rel. v. Sullivan, 224 S.W. 334; State ex rel. v. Carter, 257 Mo. 69; State ex rel. v. Miles, 210 Mo. 146; Skouten v. Wood, 57 Mo. 380; Skrainka v. Allen, 76 Mo. 389; Knight v. Rawlings, 205 Mo. 433. (3) Under a constitutional provision excepting from the referendum laws necessary to the immediate preservation of the public peace, health or safety, it is for the Legislature to say what laws come within the exception, and its decision is final and conclusive. Kadderly v. Portland, 44 Ore. 118, 75 P. 222; State ex rel. v. Bacon, 14 S.D. 394, 85 N.W. 225; Oklahoma City v. Shields, 22 Okla. 265, 100 P. 559; In re Menefee, 22 Okla. 365, 97 P. 1014; Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S.W. 199; Hanson v. Hodges, 109 Ark. 479, 160 S.W. 392; Van Kleek v. Ramer, 62 Colo. 4, 156 P. 1108; In re Senate Resolution, 54 Colo. 262, 130 P. 333; People ex rel. v. Ramer, 61 Colo. 422, 158 P. 146. (4) Whether an act is necessary for the preservation of the public peace, health and safety is a question of fact. The finding by the Legislature as to questions of fact is not subject to judicial review. State ex rel. v. Hackman, 275 Mo. 646; Ex parte Renfrow, 112 Mo. 591, 594. (5) Even if it should be held that the legislative finding is not conclusive, nevertheless it should be conclusive in all cases of doubt. Attorney-General v. Lindsay, 178 Mich. 524; State ex rel. v. Howell, 85 Wash. 281. (6) The phrase "immediate preservation" in the referendum provision refers merely to those laws which will be necessary before the time when the people under the referendum would have time to vote upon them. Hanson v. Hodges, 160 S.W. 392, 396. (7) The laws involved in this case are, as a matter of fact, necessary to the immediate preservation of the public peace, health and safety.

Wilbur F. Spottswood for amicus curiae.

(1) The Constitution (Secs. 1 and 57, Article IV), in vesting legislative power in the General Assembly, reserved to the people the right to subject to popular vote all laws, except certain classes of laws, among them the class of laws "necessary for the immediate preservation of the public peace, health or safety." (2) It is conceded that, to bring the law, now under consideration, within the exception, exempting certain classes of laws from the referendum, it must appear that it belongs to a class of laws which are necessary either for the immediate preservation of the public peace or for the immediate preservation of the public health, or for the immediate preservation of the public safety. (3) From its very nature the law in question belongs to the class of laws which are necessary for the preservation of all these public blessings. It creates a court of justice having a certain measure both of civil and criminal jurisdiction, including jurisdiction in cases of nuisance; and civilization knows of no scheme by which it can dispense with its courts as instruments for the accomplishment of those ends. Such laws are absolutely necessary. (4) And not only is the law in question necessary for the preservation of the peace, health, and safety of the people, but it is immediately necessary for their preservation, since the menace to the peace, health and safety of the community, against which society, through its courts, raises the shield and unsheaths the sword, is always present, always immediate, always instant. Not for a moment can an efficient judicial system be dispensed with, if the public peace, health and safety are to be preserved. (5) Some have supposed that the court can consider previously existing conditions and previously existing laws, in order to determine whether the act now before the court is necessary; but it is submitted that such a conception is entirely erroneous. Were the court to go into such matters, it would, for the time being, lay aside its judicial character, and become, for the nonce, a legislative body. Its judgment would be forged in the heat of parliamentary debate, and would rest upon conceptions, not of what the law was, but upon conceptions of what the law ought to be. In short, we would have an exhibition of the exercise by the judicial branch of a function wholly legislative, contrary to the entire scheme of government embodied in the Constitution. (6) What Section 57 of Article IV of the Constitution does, is, not to provide that particular laws, made necessary by particular conditions, shall be excepted from the referendum, but that certain classes of laws shall be so excepted; and the only function of the court is, to determine whether the law, from its nature, falls within one of those classes. That this law does fall within the class of laws necessary for the immediate preservation of the public peace, the public health and the public safety, we have already shown.

WOODSON, J. James T. Blair, C. J., Graves, Walker and Elder, JJ., concur in separate opinions; Higbee and David E. Blair, JJ., dissent in separate opinions.

OPINION

In Banc.

Mandamus.

WOODSON J.

This is an original proceeding by mandamus instituted in this court by the relator against the respondent, the Secretary of State, seeking to compel him to accept and file four certain referendum petitions, hereinafter to be more fully described, so that the laws mentioned in the petitions may be placed upon the ballots at the next general election of the State for confirmation or rejection by the voters of the State.

The pleadings in the case fully and clearly present the legal proposition presented to this court for determination and for that reason I shall here present them in full. They are as follows:

PETITION.

"This action was brought in the name of the State of Missouri at the relation of John H. Pollock against Charles U. Becker Secretary of State. The petition, which was filed in this court on the 18th day of June, 1921, alleges that the relator is a resident and citizen of Kansas City, Jackson County, Missouri, and a legal voter and qualified elector in said city, county and State, and at the November election in 1918 was elected justice of the peace within and for Kaw Township in said county and State for a term of four years, and that the respondent Becker is now the duly elected and acting Secretary of State of the State of Missouri; that the 51st General Assembly convened at Jefferson City, January 1, 1921, and adjourned sine die on March 21, 1921, and passed, among others, Senate Bill No. 4, entitled, 'An Act to amend Section 2688 of the Revised Statutes of Missouri, 1919, relating to Justices of the Peace, abolishing the offices of Justices of the Peace, elected in districts and certain townships and providing for the transfer of business pending before such Justices;' and Senate Bill No. 5, entitled, 'An Act repealing Article 9 including Sections 2923 to 2943 inclusive, Chapter 22 of the Revised Statutes of Missouri, 1919, entitled "Justices and constables in townships of two hundred thousand and less than four hundred thousand" -- and making a new article in lieu thereof;' and Senator Bill No. 6 entitled, 'An Act to amend Section 2689 of the Revised Statutes of Missouri, 1919, relating to Justices of the Peace;' and Senate Bill No. 7, entitled, 'An Act amending Section 2143 of the Revised Statutes of Missouri, 1919, relating to constables, abolishing the office of constable in districts, in certain townships, and providing for constables in such townships;' that all four of said bills have a common interest and pertain to the same subject and affect the same parties, that is,...