State v. Stewart
| Decision Date | 30 January 1920 |
| Docket Number | 4551. |
| Citation | 187 P. 641,57 Mont. 144 |
| Parties | STATE ex rel. GOODMAN v. STEWART, Secretary of State. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.
Proceeding by the State, on the relation of Sam Goodman, against Charles T. Stewart, Secretary of State. Writ of prohibition issued and defendant appeals. Reversed and remanded, with directions.
S. C. Ford, Frank Woody and W. D. Rankin, all of Helena, for appellant.
Henry C. Smith, of Helena, for respondent.
At the general election held in November, 1906, the people adopted an amendment to section 1, art. 5, of the state Constitution, which, by executive proclamation, became a part of the Constitution December 7, 1907. Said section 1 of article 5, as amended, in so far as it is pertinent here, reads as follows:
At the general election of 1912 the people, in the exercise of the power so reserved to them, initiated a direct primary law. Session Laws 1913, p. 570. July 29, 1919, the legislative assembly met in extraordinary session to consider matters connected with the drought conditions, and, on request of that body, the Governor specially empowered them to take action with reference to the primary election laws. Under this power the Legislature amended the primary election law of 1912 in certain particulars, as will be hereafter noted. Chapter 28, Laws of Ex. Session 1919. Section 13 of this act reads as follows:
"This act is declared to be an emergency law, and a law necessary for the immediate preservation of the public peace and safety."
A referendum petition was thereafter circulated, and, those from a number of the counties having been filed with the secretary of state, this action was instituted in the district court of Lewis and Clark county to prevent the filing of further petitions. A demurrer was interposed and overruled, judgment entered, and a writ of prohibition issued against appellant. This appeal is from the judgment.
1. It is urged by respondent that the declaration by the Legislature of an emergency is conclusive upon the courts, and in support of this petition counsel cites: Kadderly v. Portland, 44 Or. 118, 74 P. 710, 75 P. 222; In re Menefee, 22 Okl. 365, 97 P. 1014; Sears v. Multnomah County, 49 Or. 42, 88 P. 522; Dallas v. Hallock, 44 Or. 246, 75 P. 204; Hanson v. Hodges, 109 Ark. 479, 160 S.W. 395; State v. Moore, 103 Ark. 48, 145 S.W. 199; Van Kleeck v. Ramer, 62 Colo. 4, 156 P. 1108; State v. Crawford, 36 N.D. 385, 162 N.W. 710, Ann. Cas. 1917E, 955; State v. Bacon, 14 S.D. 394, 85 N.W. 605; State v. Summers, 33 S.D. 40, 144 N.W. 730, 50 L. R. A. (N. S.) 206, Ann. Cas. 1916B, 860; Southerland v. Miller, 79 W.Va. 796, 91 S.E. 993, L. R. A. 1917D, 1040.
In certain of the cases cited, however, the courts were not called upon to construe constitutional provisions such as we now have under consideration, while in others, as will be hereinafter shown, the decisions have been overruled or superseded by later opinions announcing a different rule.
The referendum is a comparatively modern institution, and has been adopted in less than a fourth of the states of the Union, and, consequently, but few of the courts have been called upon to determine the question here involved, and, as is perhaps natural on entering a new field in which an absorbing interest is taken, a great diversity of opinion has been expressed, not only as between the courts of the several states where the provision has been construed, but also as between the learned judges composing those courts. However, a careful analysis of the authorities will, we believe, disclose the fact that conflicting and contradictory opinions expressed are not so much the result of disagreement as to the general rule applicable as to the application thereof to particular statutes, and a mistaken assumption on the part of many jurists that the same principle applies to the question here involved as to the questions arising upon statutes and constitutional provisions providing for the declaration of an emergency for the mere purpose of abridging the time in which acts of the Legislature shall go into effect, which class of provisions and litigation existed prior to the adoption of the initiative and referendum provisions in any of the states.
The Attorney General suggests that a law initiated by the people cannot be withdrawn from its peculiar position by an amendment by the Legislature, no matter what the circumstances, but that in the case of all initiated acts the people have the right to the ultimate determination of whether or not the amendments shall be adopted. This suggestion is without merit.
Prior to the adoption of the initiative and referendum amendment to our Constitution, the people of the state, in whom, originally, all power is vested, had delegated to their representatives, the legislative body, the exclusive authority to make laws for the government of the state, subject only to such restrictions as were found in the Constitution and the exercise of the executive veto. By the adoption of the amendment the people did no more than recall that exclusive authority, and reserve to themselves the power to propose laws, and to accept or reject them at the polls, on any subject, save those subjects enumerated in the excepting clauses contained in the amendment. Thereafter, on those subjects not excepted, either the people or the Legislature may act at will-their power is coextensive; when an act is passed by either method, it becomes the law of the state, no more and no less. "Laws proposed and enacted by the people under the initiative clause of the amendment are subject to the same constitutional limitations as are other statutes, and may be amended or repealed by the Legislature at will." State ex rel. Evans v. Stewart, 53 Mont. 18, 161 P. 309; Kadderly v. Portland, 44 Or. 146, 74 P. 710, 75 P. 222.
2. The question of the propriety of the writ of prohibition to control the action of the Secretary of State is not raised in this action, and will not be disposed of in this opinion.
3. Taking up the analysis of the authorities cited, the first to be considered is that of Kadderly v. Portland, supra. It would seem from the statement of facts that the city of Portland previously organized an improvement district. The original assessment was adjudged invalid for failure to comply with the requirements of the city charter in force. Later, in January, 1903, the Legislature passed an act "for the incorporation of the city of Portland," and attached thereto an "emergency clause," which reads as follows:
"Whereas, there are several bridges upon important thoroughfares and car lines in the city of Portland, now old and in a dilapidated and ruinous condition, dangerous to life and property; and whereas, there is an immediate necessity for the construction of new bridges in the place of said old ones, in order to provide for the safety of the people of said city; and whereas, there are no ways or means by which, under the present charter of said city, new bridges can be constructed in place of the old ones; and whereas, the foregoing act provides ways and means available at once for the construction of new bridges; and whereas, there is otherwise a necessity for the immediate adoption of the foregoing act to insure the health, peace, and safety of the people of Portland; Therefore, this act shall take effect and be in force from and after its approval by the Governor." Sp. Laws 1903, p. 172.
In February, within 30 days, the council proceeded to act under the provisions named, and thereupon suit was commenced; the contention being, among other things, that the charter under which the city was attempting to proceed did not go into effect until 90 days after the adjournment of the Legislature, because of the initiative and referendum amendment adopted in 1902. The court held that-
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