Whittemore v. Terral

• Decision Date: 17 November 1919
• Docket Number: 202
• Citation: 215 S.W. 686,140 Ark. 493
• Parties: WHITTEMORE v. TERRAL
• Court: Arkansas Supreme Court

215 S.W. 686

140 Ark. 493

WHITTEMORE v. TERRAL

No. 202

Supreme Court of Arkansas

November 17, 1919

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; affirmed.

Judgment affirmed.

Cohn Clayton & Cohn, for appellants.

1. The Federal Constitution does not restrict the power of the States so as to prohibit them from controlling the action of their representative legislative assemblies by referendum to the people or otherwise, but relates to the ultimate legislative authority of the States expressed and the action of the Legislature ratifying the amendment falls within the terms of Amendment No. 10 providing for the referendum. Art 5, U. S. Const. "Legislature" does not mean legislative assemblies, but allows the people to concur or ratify by referendum vote. 94 Ohio St. 154; 114 N.E. 55; Webster's

New Int. Nat. Dict., "Legislature," Cent. Dict. verbum; 1 Bryce Am. Commonwealth, p. 461; 241 U.S. 567, 565-8; 127 N.W. 848; 44 Ore. 118; 53 Id. 163; 241 U.S. 565-569; 223 U.S. 118; Cooley, Const. Lim., p. 59, note 3; Dwarris 704; 9 Wheat, 1-7; 223 U.S. 118; Const. 1874, art. 2, §§ 1-29; 104 Ark. 563-5.

The people are at least part of the Legislature within article 5 of the United States Constitution and a reference to the people of an act, H. R. No. 1, does not contravene that Constitution.

2. The act was subject to a referendum vote, comes within the 10th Amendment. 119 Ark. 314; 171 S.W. 871; 173 Id. 1099; 76 Ark. 303; 60 Id. 343; 26 Id. 281-285; 119 Ark. 322; 76 Id. 303; 9 Id. 270; 51 Id. 534; 11 S.W. 878. The provisions of Amendment No. 10 must be liberally construed to effect the purpose of the people. 103 Ark. 48-57; 162 U.S. 197; 3 How. 24; 1 Wheat. (U.S.) 120; 91 U.S. 72; Endlich, Int. Stat., § 29; 57 F. 426; 62 62 A. 1035; 71 Kan. 811; 81 P. 450; 70 L. R. A. 450; 6 Am. Cases 298; 23 Mich. 499; 130 Mo.App. 687; 108 S.W. 1095.

By the terms of the 10th Amendment the power is reserved in the people to approve or reject any act of the legislative assembly. The word "act" means any "action" taken. 1 A. & Eng. Enc. Law. (2 Ed.) 575; 1 Bouvier 102; Funk & Wagnell New Stand. Dict., p. 29; Webster New Int. Dict., p. 22, subd. 2; Smith v. Strothers, 8 P. 852; 68 Cal. 194.

The effect and substance of an act and not the name are to be considered. 181 P. 920; 66 Ore. 70-78; 130 S.W. 689; 86 Ore. 390; 45 S.E. 821; 206 U.S. 276; 232 U.S. 548-556. See also 106 Ark. 506-509-10; 104 Id. 583-591; 105 Id. 380; 103 Ark. 48-52-57; 104 Ark. 583; 53 Mich. 681; 176 U.S. 581-602; 123 Id. 623-661; 117 Ark. 582.

The initiative and referendum amendment is self-executing and needs no act of the Legislature to effect its purpose. 103 Ark. 48-52; 104 Id. 583, etc.

John D. Arbuckle, Attorney General, and Robert C. Knox, Assistant, for appellee.

The term "Legislature" as used in article 5 means the General Assembly of the State. 3 How. (U.S.) 24; 23 Mich. 499; 121 U.S. 12. The power of ratification conferred by the Federal Constitution relates solely to the legislative assemblies of the States and can not be brought within the reserved legislative authority of the people themselves, and the language of Amendment No. 10 does not apply the referendum to the action of the General Assembly in ratifying the amendment to the Federal Constitution. 2 How. 24; 121 U.S. 12; 146 Id. 1; 45 N.H. 601; 4 Elliott's Debates, 407; 119 Ark. 314; 26 S.D. 5; 223 U.S. 117; 3 Howard 24; 23 Mich. 499; 121 U.S. 12. The words "act of the Legislature," as used in Amendment No. 10 to our Constitution, does not contemplate resolutions but means acts passed by the Legislature, and the word "act" means "law" duly passed, and does not include a joint resolution. Cases supra.

OPINION

McCULLOCH, C. J.

The General Assembly of this State, during the last session thereof, adopted a joint resolution ratifying the proposed amendment to the Constitution of the United States prohibiting "the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof, for beverage purposes," and appellants and other legal voters constituting more than five (5) per centum of the voters of the State filed their petition with the Secretary of State in apt time asking for a referendum to the people of said resolution in accordance with the provisions of Amendment No. 10 to the Constitution. The Secretary of State refused to certify the referendum, and this action was instituted by appellants in the circuit court of Pulaski County to compel him to do so.

The contention of appellants is (1) that the Federal Constitution, in providing for the ratification of amendments by "the Legislatures of three-fourths of the several States," does not restrict the powers of the States so as to prohibit them from controlling the action of their representative legislative assemblies by referendum to the people or otherwise, but that it relates to the ultimate legislative authority of the States, in whatever form expressed; and (2) that the action of the General Assembly of this State ratifying the amendment falls within the terms of Amendment No. 10, providing for the referendum.

On the other hand, it is contended by the Attorney General, who appears on behalf of the Secretary of State, that the power of ratification conferred by the Federal Constitution relates solely to the legislative assemblies of the States, that it can not be brought within the reserved legislative authority of the people themselves, and that the language of Amendment No. 10 does not apply the referendum to the action of the General Assembly in ratifying an amendment to the Federal Constitution.

We proceed to a consideration of the last of the propositions stated, and since our conclusion on that is found to be decisive of this case, we need go no further.

Amendment No. 10 does not, in our opinion, provide for a referendum on the action of the General Assembly in ratifying an amendment to the Federal Constitution. That portion of our Constitution reads as follows:

"The legislative powers of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people of each municipality, each county and of the State, reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls as independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than 8 per cent. of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon.

"The second power is a referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety), either by the petition signed by 5 per cent. of the legal voters or by the legislative assembly as other bills are enacted. Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures referred to the people. All elections on measures referred to the people of the State shall be had at the biennial regular general election, except when the legislative assembly shall order a special election. Any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon and not otherwise. The style of all bills shall be, 'Be It Enacted by the People of the State of Arkansas.' This section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure. The whole number of votes cast for the office of Governor at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal votes necessary to sign such petition shall be counted. Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State, and in submitting the same to the people he and all other officers shall be guided by the general laws and the acts submitting this amendment until legislation shall be specially provided therefor."

An analysis of this provision of our Constitution reveals the fact that the reserved referendum power of the people relates only to laws enacted by the General Assembly. The word "act," as there used, means an enacted law--a statute. This is clearly manifested by that part of the language used which provides that referendum petitions must be filed not more than ninety days after adjournment of the session "at which the bill on which the referendum is demanded," and that a "measure referred to the people shall take effect and become a law when it is approved by a majority vote thereon." The words "act" and "measure" and "law" are used interchangeably, showing plainly that the power relates to the enactment of laws, and...