State ex rel. Howie v. Brantley , 113 Miss. 786 ( 1917 )

Per Curiam.

These cases were argued and submitted together, and present the same legal questions. The first cause, No. 19461, is an appeal from a judgment in quo warranto on the information of the district attorney against ap-pellee, Z. A. Brantley, game and fish commissioner of the state. The petition for the writ averred that ap-pellee was unlawfully holding and exercising the functions of. a public office, was claiming the right to an office in the state capítol, and was demanding hunters’ licenses and threatening to impose fines upon persons violating chapter 99, Laws 1916, known as the “Game and Pish Law.”

In the second cause, No. 19464, Sim Robinson was convicted before the police justice of the city of Jackson for hunting without the license required by said game and fish law. After conviction, he sued out a writ of habeas corpus before the circuit court of the first district of Hinds county. The writ was denied, and Robinson appeals from the judgment, so denying relief by habeas corpus.

The real issue presented by the appeal in the first case, the one vital question for decision, is whether Mr. Brantley legally holds and occupies'the public office of state game and fish commissioner. The controlling question in the habeas cor.pus case is whether appellant Robinson was convicted of crime without authority of law. The determination of the main question in each case must be controlled by the further question whether the new game and fish statute above mentioned is constitutional, and therefore is a valid, subsisting law, and whether the law, if constitutional, is now in force and effect. If there is no such law now in force and effect then it follows that there is no public office of state game and fish commissioner, and, furthermore, no one could be convicted for violating any of the provisions of such law.

The argument of these cases is directed to two general legal propositions. The first general proposition turns upon the question, Is chapter 99, Laws 1916, as drafted and prepared by the legislature, unconstiutional and void on its face? The second general contention is that the statute in question if a valid law, has been repealed or nullified by a vote of the people, acting under the so called initiative and referendum amendment to the Constitution. The discussion of each of these two general propositions has necessarily directed the attention of counsel and court to many specific points of attack on the law in question.

There are several reasons advanced why chapter 99, Laws of 1916, contravenes our state Constitution, and. accordingly why the said law should be regarded as unconstitutional and void on its face. It is suggested that the statute violates sections 20 and 175 of the state Constitution. These sections of our Constitution provide that no person shall be elected or appointed to office in this state for life or during good behavior, but the term of all offices shall be for some specified period, and that officers shall be liable to indictment for willful neglect of duty or misdemeanor in office, and upon conviction shall be removed from office. It is contended that the county wardens and deputies provided for by the game and fish law are public officers, and that section 14 of the act authorizes their appointment and removal by the state game and fish commissioner, and that the authority to remove may be exercised by the state game and-fish commissioner at any time, contrary to the provisions of the Constitution. It is further contended that the statute violates section 261 of the Constitution, which reads as follows:

“The expenses of criminal prosecutions, except those before justices of the peace, shall be borne by the county in which such prosecutions shall be begun; and all net fines and forfeitures shall be paid into the treasury of such county. Defendants, in cases of conviction, may be taxed with the costs.”

Reference to section 17 of the act will show that each county warden is to receive one-half of all fines, forfeitures, and penalties collected in the county in which he holds office, for violations of the game law, and the remaining one-half is to be'forwarded on the first day of each month to the state treasurer to be credited to the game and fish protection fund-provided for by the statute. It is contended that the scheme provided by this new game and fish law, whereby the net fines and forfeitures are to be sent to the state capitol and paid into the state treasury to the credit of the game and fish protection fund, manifestly violates the plain provisions of section 261 of the Constitution.

Section 18 of the statute provides for a county license of two dollars for each resident hunter, a state license of five dollars for each resident hunter, and a license of fifteen dollars for each nonresident hunter. By section 20 of the act nonresidents are prohibited from trapping in the state of Mississippi. It is contended that section 23 permits resident owners to hunt on their own premises, without license, and denies to nonresident hunters the right to hunt upon their own land without first paying for and obtaining a license. From these provisions it is suggested that the law unlawfully discriminates against nonresidents, ip that it denies them the right to trap upon their own plantations or lands, and denies them the privilege of hunting upon their own lands without first obtaining a license; that every one has a qualified interest in the game found upon his own lands, and has a natural right to hunt, trap, and fish thereon, and that this right inheres in him by reason of his ownership of the soil.

It is further contended that, under section 18 of the game law, all minor members of families may hunt under the one license issued to the head of the family, and that, accordingly this unlawfully discriminates against certain other hunters. It is suggested that a large portion of the hunting and fishing is done by young men or boys under the age of twenty-one years, who,, under the provisions of this act, would not be required to pay a license if they are living under the parental roof; that the amount of game which every hunter is authorized to take is limited; that under this plan a father with many sons could take a much larger portion of game and fish than many other heads of families; that the orphan boy in many instances could not avail himself of the provision of hunting under a license issued to the head of a family', but, on the contrary, would be required to pay the license. Prom all this it is contended that, although the fish and game equitably belongs to all the people of’the state, under the requirements of this new statute there is unlawful discrimination against certain classes of citizens of our own commonwealth.

The further question presents itself, that is, if the statute under attack attempts unlawfully to divert the fines and forfeitures from the various counties and deposit them in the state treasury to the credit of the game protection fund, contrary to the state Constitution, and if the licenses provided for work an unlawful discrimination against certain classes of citizens, that then no adequate revenue is provided for maintaining the office of state game and fish commissioner, for paying the extra expenses of county wardens, and for enforcing the provisions of the statute; and, if this be the true situation, then the act does not provide a workable plan and harmonious scheme for protecting the game and fish of Mississippi, and that accordingly, the whole act should he declared unconstitutional and void. It is suggested that the legislature would not have enacted this law without the means for paying the officers charged with the duty of enforcing it; that the legislature would not have enacted it with the other objectionable features indicated; that the law is so deficient in many important particulars that the whole act should be struck down as inoperative and void.

Many reasons are also assigned why chapter 99, Laws of 1916, ha.s not been nullified by a referendum vote of the people. On this branch of the discussion, several reasons are assigned why the referendum amendment to the Constitution has not been legally adopted and in serted as a part of our organic law. Briefly stated, the contentions are that the initiative and referendum amendment to the Constitution is void on its face, because the amendment, purporting to be only one amendment, in fact embraces two separate and distinct powers and amendments to the state Constitution, to wit the power of the people themselves to make or nullify a statutory law; and, second, the power of the people to initiate a constitutional amendment. It is furthermore claimed that this amendment did not receive a majority of the qualified electors voting at the general election at which the people undertook to adopt or approve the initiative amendment, contrary to the provisions of section 273 of our state Constitution, requiring every amendment to our organic law to receive “a majority of the qualified electors voting” at the election.

The members of this court have given to the many delicate and constitutional questions presented by these records* the most careful thought and consideration. After mature deliberation, a majority of the court are convinced beyond doubt that the judgment of the learned circuit court is erroneous, and should be reversed. The several members of the court are not agreed, however, upon any one reasón that should be assigned why the judgment of the lower court should be reversed. Some of the justices are of the opinion that the game and fish statute is unconstitutional on its face, and therefore inoperative and void; and they reach this conclusion regardless of the initiative and referendum amendment to the Constitution and the vote of the people thereunder. Other members of the court are of the opinion that the statute in question has been legally voted out by the people, and therefore is -no longer in force and effect. Inasmuch as a majority of the court are not agreed upon any one of the many constitutional points argued and considered, and therefore no legal principal can be conclusively settled at this time, we shall forego or waive any elaborate discussion of the merits or demerits of any one of the many contentions made or constitutional questions argued. As stated by the Wisconsin court, through Marshall, J.:

“A situation so extraordinary rarely occurs in judicial work. That. it should move judicial minds to exhaust all reasonable efforts for harmony, as it has in this case, is most natural.” Will of McNaughton; Frame v. Plumb, 138 Wis. 179, 118 N. W. 997, 120 N. W. 288.

The majority of the court are agreed that chapter 99, Laws of 1916, should not now be regarded in force and effect in Mississippi; and from this it necessarily follows that there is no such public office now as that of state game and fish commissioner. It is the judgment of the court, therefore, that the writ of quo warranto was properly issued; that the demurrer filed by the district attorney to the special plea in bar of- the defendant was improperly sustained; that the judgment entered in favor of Mr. Brantley was erroneous, and that this judgment should be set aside and vacated and a judgment entered here, declaring that no such office as state game and fish commissioner now exists, and that ap-pellee should be ousted of and restrained from exercising the functions of any such office. We are also of the opinion that the judgment of the learned circuit court, denying the petition of habeas corpus to Sim Robinson, should be set aside, and, there being no dispute as to the facts, that judgment should be entered here in favor of Sim Robinson, relieving him from the conviction mentioned, and discharging him from custody. So ordered. Affirmed.

Sykes, J., dissents.

ON Suggestion oe Ebbob.

Smith, C. J.

Appellee was duly appointed, and qualified, as fish and game warden under chapter 99, Laws 1916, and entered upon the discharge of his duties as such. Afterwards the statute was referred to the people for ratification or rejection, under the provisions of the initiative and referendum amendment to the Constitution (chapter 159,- Laws 19.16), and there was a majority vote against it. Some time thereafter this proceeding was instituted in the court below to test the right of appellee to continue to hold and discharge the duties of the office, and this appeal is from a judgment in his favor.

On a former day of this term, the judgment of the court below was reversed, and judgment final was entered here in favor of appellant. A majority of us concurred in the result reached, but were divided upon the various questions presented for determination. Sec. 74 So. —. The cause now comes on again to be heard upon the motion of appellee to correct this judgment, on the ground that no question presented to us by the record has been decided against him by a majority of the judges, from which it necessarily follows that the judgment of the court below should be affirmed, and also upon a suggestion of error, pointed at the conclusion arrived at by some of the judges, that the fish and game law is void, for the reason that it violates several sections of the Constitution. Upon consideration of the motion and suggestion of error, a majority .of us have arrived at a conclusion that will enable us .to dispose of the case without reference to either question of practice presented by the motion, or the constitutionality of the statute presented by the suggestion of error.

Appellee’s main contention on the merits is that the referendum election was a nullity, for the reason that the initiative and referendum amendment is invalid on two grounds, the first of which is that it failed to receive a majority of the votes cast at the election at which it was submitted to the people for ratification or rejection. The provision of section 273 of the Constitution, with reference to the. votes necessary for the adoption of a constitutional amendment, is as follows:

“If it shall appear that a majority of the qualified electors voting shall have voted for the proposed change, alteration, or amendment, then it' shall be inserted by the next succeeding legislature as a part of this Constitution, and not otherwise.”

The evidence upon which this claim of appellee is based, as it appears from' his plea, admitted to be true by the demurrer, and from the agreement of counsel, is that the original election returns transmitted to the secretary of state by the election commissioners of the various counties disclose that nineteen thousand one hundred and eighteen votes were cast in favor of the amendment, eight thousand seven hundred and eighteen against it, and that the highest vote cast for any officer voted for at the election was thirty-seven thousand five hundred and eighty-three, but do not disclose the total number of votes cast at the election, unless all of the voters voted for the officer receiving the highest number of votes. After the receipt of these returns, the secretary of state wrote a circular letter to the election commissioners of each county, requesting them to reconvene and ascertain and certify to him the total number of votes cast in each' county, with which request the election'commissioners of all hut six counties complied by certifying to the secretary of state, not the number of votes counted by them in ascertaining the result of the election, hut the number of qualified electors who deposited ballots in the ballot boxes as appeared from the list thereof made by the clerk of the election as each ballot was deposited. The number of such qualified electors was forty thousand and seventy. If the amended returhs are to govern, the'amendment was rejected; and if they are not, it was ratified.

Leaving out of view appellant’s contention'that these election commissioners were without authority under the statute to reconvene and amend the election returns transmitted by them to the secretary of state, and were also without authority at any time to declare and certify to the secretary of state the total number of votes cast at the election, and assuming, for the sake of the argument, that the amended returns transmitted to the secretary of state are official records of his office, so that we may take judicial notice thereof — for it is only evidence of which we can take judicial notice that can be considered in determining questions of this character — the amended returns are of no value here; for they show, not the number of “qualified electors voting,” but simply the number thereof who appeared at the polls and deposited ballots, legal or otherwise, iu the ballot boxes, which ballots may or may not have been counted by the managers or commissioners in ascertaining the result of the election. “Though a qualified voter succeeds in getting his name on the poll list and a ballot in the box, he is not a voter voting unless his ballot is such as is prescribed by law and conforms to the general law regulating elections.” 9 R. C. L. 1122; State v. Clark, 59 Neb. 709, 82 N. W. 8; State v. Clausen, 72 Wash. 409, 130 Pac. 479, 45 L. R. A. (N. S.) 714. As shown in the note to State v. Clausen, supra, all of the authorities hold that some rejected ballots should be excluded in ascertaining the re'sult of. this kind of an election; the only conflict among them being as to the character of rejected ballots which should be excluded. That ballots are frequently rejected by the managers and commissioners of elections, so that they never become in fact votes, is a matter of common knowledge. The discrepancy, therefore, for aught that appears to the contrary, between the number of ballots deposited in the ballot boxes and the highest number of votes cast for any officer, may be caused by the fact that some ballots were rejected by the managers or commissioners. Consequently as was done in State v. Jones, 106 Miss. 522, 64 So. 241 (and, for that matter, as has heretofore been done each time an amendment has been inserted in the Constitution), we must presume that the highest number of votes cast for any officer represents the total number of votes cast at the election, from which it follows that we must hold that the amendment received the required number of votes.

This brings us to the second objection urged by counsel for appellee to the amendment, which is that it contains more than one proposition, and therefore violates the requirement of section 273 of the Constitution'that:

“If more than one amendment shall be submitted at one time, they shall be submitted in such manner and form that the people may vote for or against each amendment separately. ’ ’

The ground of this objection is that the amendment reserves to the people three separate and distinct powers, each of which could have been the subject of a separate amendment: First, power to adopt a statute upon their own initiative; second, power to annul a statute enacted by the legislature; and, third, power to amend the Constitution upon their own initiative.

The solution of this question will be largely determined by whether we adhere to the liberal and common sense interpretation put upon section 273' of the Constitution, in State v. Jones, 106 Miss. 522, 64 So. 241; or whether we return to the strict and narrow interpretation put thereon in State v. Powell, 77 Miss. 543, 27 So. 927, 48 L. R. A. 652. That it is our duty to adhere to the ruling in the former case we entertain no doubt; not only for the reason that an interpretation once put upon a Constitution should be thereafter adhered to, unless manifestly wrong- and mischievous in effect, but for the further reason that it is one of the fundamental canons of construction that Constitutions should receive a liberal interpretation, to the end that the will of the people as therein expressed may have full and complete operation. It is true that there was a dissenting opinion in that case; but the writer thereof, who concurs herein, expressly declined to pass upon the question here presented, for the reason that, in his judgment, first, a decision thereof was not necessary for a disposition of the case; second, the amendment was not passed by the legislature; and, third, the case was controlled by State v. Powell, 77 Miss. 543, 27 So. 927, 48 L. R. A. 652, which case, under the stare decisis maxim, should be adhered to and not overruled.

It is undoubtedly trué that each of the propositions contained in the amendment here under consideration could have been embodied in separate amendments, and that the failure to adopt one of them would have in no wise interfered with the • operation of the other or others; but this fact alone cannot be made determinative of the question, as was pointed out in State v. Jones, supra. If this fact alone is determinative, the Jones Case would have been decided the reverse of what it was; for the amendment there under consideration contained two separate and distinct propositions: First, the change from the appointment to the election of circuit judges; and, second, the change from the appointment to the election of chancellors — either of which could have been adopted and put into operation without reference to the other, and one of which might have been desirable in the opinion of some of the voters and the other not. "What caused that amendment to be single, instead of double, was the unity in its ultimate end; to wit, the change from the appointment to the election of the judges of the courts of original jurisdiction; for “the unity of object is to be looked for in the ultimate end, and not in the detail or steps leading to the end.” Lobaugh v. Cook, 127 Iowa, 181, 102 N. W. 1121. “If, in the light of common sense, the propositions have to do with different subjects, if they are so essentially unrelated that their association is artificial; they are not one; but if they may be logically viewed as parts or aspects of a single plan, then the constitutional requirement is met in their submission as one amendment.” State v. Anderson, 49 Mont. 387, 142 Pac. 210, Ann. Cas. 1916B, 39.

Returning, now, to the amendment under consideration, it seems clear from an inspection thereof that the three propositions contained in it are, in the language of the supreme court of California, in Ex parte Pfahler. 150 Cal. 71, 88 Pac. 270, 11 L. R. A. (N. S.) 1092, 11. Ann. Cas. 911, but “parts of one general plan or scheme looking to a more direct control of . . legislation’ ’ (or of the laws, both constitutional and statutory, by which they are to be governed) “by the people.” This purpose can be partially accomplished by the adoption of any one of the three propositions, but can be accomplished in full only by the adoption of all of them.

The supreme courts of Montana, in State v. Anderson, supra, and Washington, in Gottstein v. Lister, 88 Wash. 462, 153 Pac. 595, have each demonstrated that an initiative and referendum amendment contains but one proposition, within the meaning of a constitutional provision similar to ours. If further reasons be desired for so holding, they may be found in the opinions rendered in those cases. That the purpose of two of these propositions is to insure control by the people over statutes, and of the other to insure their control over the Constitution, is immaterial; for a statute and a Constitution, though of unequal dignity, are both “laws,” and each rests upon the will of the people.

There is another aspect in which this question may he viewed, which is not without value in this connection, and that is, as declared by our Bill of Rights, that “all political power is vested in and derived from the people,” and they have the right to confer "as much or as little thereof on the various departments of our government as they may desire. By section 33 of the Constitution, as originally adopted, all legislative power was conferred on the legislature. By the section as amended, only a part of this power is conferred upon the legislature, the remainder thereof being reserved to the people. So no new power was conferred by the amendment, either upon the legislature or the people. This is especially true with reference to the power to make or amend the Constitution, for that power had never been delegated to the legislature, except to the limited extent provided by section 273 of the Constitution, which section remains intact, being in no way affected by the amendment here under consideration.

Much has been said in the argument of this cause, and of others, in which this question was presented, but not decided, about the evil results which may follow the adoption of this amendment — one of which may be the reopening of questions supposed to have been put at rest by the adoption of our present Constitution. This result may, or may not, follow, hut with it we have here no concern; for that question was for the determination of the legislature which submitted the amendment, and of the people who adopted it. Our duty is to uphold the amendment, unless it appears to us beyond reasonable doube to be invalid.

We conclude, therefore, that the initiative and referendum amendment was properly inserted in the Constitution, from which it necessarily follows that the statute here in question was annulled by the referendum vote thereoni This being true, the judgment formerly entered by us is correct, without reference to the merits of the matters submitted by the motion and suggestion of error, both of which will be overruled, without any expression of opinion by us relative thereto.

Motion to correct judgment and suggestion error overruled. . Overruled.