State Ex Rel. Pollock v. Becker , 289 Mo. 660 ( 1921 )

The question here seeking solution is of grave importance. It involves the right of the people under the Constitution to enter into and become a part of the law-making power of the State. Correctly determined it cannot but tend to preserve and perpetuate that right; incorrectly determined, to destroy it.

The principal opinion by WOODSON, J., states in detail the facts upon which this controversy is based. However, a synopsis of same may not be inappropriate, if for nothing more than convenience of reference. The Fifty-first General Assembly repealed four laws concerning justices of the peace, their clerks and constables in certain municipal townships, and enacted other statutes relating to the same subjects in lieu thereof. To each there was appended this provision:

"This enactment is hereby declared to be necessary for the immediate preservation of the public peace, health and safety within the meaning of Section 57, Article IV, of the Constitution of Missouri."

Despite these provisions referendum petitions were circulated and having been signed by the required number of legal voters, regarding which there seems to be no question, they were presented to the Secretary of State for filing. He refused to file them, basing his refusal on the provision attached to each above quoted. The proceeding at bar was thereupon invoked to compel affirmative action on the part of the Secretary of State.

I. It was declared by this court in State ex rel. Kemper v. Carter, 257 Mo. l.c. 70, that we adopted our constitutional provision in regard to the initiative and referendum from the Oregon Constitution. The Supreme Court of that state in constructing that portionForeign of its constitution held in Kadderly v. City ofConstruction. Portland, 44 Or. 118, 74 Pac. l.c. 720, that whether a law is excepted from the referendum which declares that it is for the preservation of the public peace, health and safety is a question for the Legislature. In other words, that the Legislature may arbitrarily declare any act as for that purpose, and thereby prevent its reference to the people for approval or rejection. It is to be determined therefore whether this rule is to be followed in construing the adopted provision in our own Constitution.

It may be admitted that it is a general rule when a statute or a constitutional provision has been adopted from another state that the construction here placed upon it by the highest court accompanies it and is treated as incorporated therein. This rule, however, is not absolute. [Whitney v. Fox, 166 U.S. 637; Coulam v. Doull, 133 U.S. 216.] If so, it would result not infrequently in so limiting the exercise of judicial discretion as to result in thwarting the will of the people as expressed in the constitutional provision. The arbitrary application of this rule was never intended, and cases are not wanting which demonstrate that it is subject to numerous exceptions. Especially is this true where, as in this case the foreign construction is not in harmony with the spirit and purpose of our Constitution as declared in the provision sanctioning the initiative and referendum. [Sec. 57, Art. 4, Con. Mo.; Bowers v. Smith,111 Mo. 52; Hutchinson v. Krueger, 34 Okla. 23, Ann. Cas. 1914-C, 98, 41 L.R.A. (N.S.) 315; Western Terra Cotta Co. v. Board Education,39 Okla. 716; Boyd v. C.L. Ritter L. Co. (Va.), 89 S.E. 273.] Furthermore, it is held in a large number of cases that a construction of a statute by the courts of the originating state will not be followed by the courts of the adopting state, if they are clearly of the opinion that it is erroneous and will result in the denial of a substantial right. [Deer Lodge Co. v. U.S. Fidelity Co., 42 Mont. 315, Ann. Cas. 1912-A, 1010; State v. Campbell, 73 Kan. 688, 9 Ann. Cas. 1203, 9 L.R.A. (N.S.) 533; Torrance v. Edwards, 99 Atl. (N.J.) 136; Penn Br. Co. v. N.C., 222 F. 737, 138 C.C.A. 191; Gr. West Sugar Co. v. Gilerest Lbr. Co., 25 Colo. App. 1; Rhoads v. Chicago Co., 227 Ill. 328, 10 Ann. Cas. 111, 11 L.R.A. (N.S.) 623; People v. Griffith, 245 Ill. 532; Moore v. O'Leary,180 Mich. 268; Dow v. Simpson, 17 N.M. 357; Pierson v. Minnehaha Co.,26 S.D. 463, Ann. Cas. 1913-B, 386; State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11.] In Pierson v. Minnehaha County, supra, the court said: "This court should not, under any circumstances be found or required to follow what it deems to be an erroneous construction placed upon a foreign statute, by a foreign court, any more than we should be required to follow an erroneous decision of our own court."

In State ex rel. Brislawn v. Meath, supra, the Supreme Court of Washington, in discussing the arbitrary rule announced in Kadderly v. Portland, supra, pertinently said: "The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority. If, therefore, a statute, purporting to have been adopted to promote the public health, the public morals, or the public safety, has no real or substantial relation to these objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."

In Hutchinson v. Krueger, supra, this question was given exhaustive consideration. Quoting from State v. Campbell, supra, the Supreme Court of Oklahoma says: "We recognize the force of the rule that where one state adopts a statute from another state it adopts the construction placed thereon by the courts of that state; but this is a general rule to which there are numerous excepions. It is not an absolute rule."

In Dixon v. Ricketts, 26 Utah, 215, it was said: "It is a general, though not a binding, rule of statutory construction that where the provisions of a statute have received judicial construction in one state, and it is then adopted in another state, it is adopted with the construction so given it." Further quoting from Endlich on Statutes, sec. 371, the court says:

"`Whilst admitting that the construction put upon statutes by the courts of the state from which they are borrowed is entitled to respectful consideration, and that only strong reasons will warrant a departure from it, its binding force has been wholly denied, and it has been asserted that a statute of the kind in question stands upon the same footing, and is subject to the same rules of interpretation, as any other legislative enactment. And it is manifest that the imported construction should prevail only so far as it is in harmony with the spirit and policy of the general legislation of the home state, and should not, if the language of the act is fairly susceptible of another interpretation, be permitted to antagonize other laws in force in the latter or to conflict with its settled practice.'"

In Coad v. Cowhick, 9 Wyo. 316, 87 Am. St. 953, the court, construing a statute adopted from Ohio, refused to follows a decision of the latter court, holding a judgment not a lien upon after-acquired lands of the judgment debtor. The reasons stated by the Wyoming court were that the statute under consideration was not peculiar to Ohio, as other states had similar provisions, using the identical words, or language the same in substance, and because it considered the decision of the Ohio court to be opposed to the best reasoning and the weight of authority.

In Ancient Order v. Sparrow, 29 Mont. 132. 1 Ann. Cas. 144, the Supreme Court of that state in construing a statute adopted from California, said: "This court will not blindly follow the construction given a particular statute by the court from which we borrowed it, when the decision does not appeal to us as founded on right reasoning."

The limitation placed upon the rule by this court is that the construction given by the courts of a state to a statute will be given respectful consideration by the courts where such statute has been adopted. We said thus much, no more, in the Carter Case,257 Mo. 70.

In State v. Campbell, 73 Kan. 688, 9 L.R.A. (N.S.) 533, the Supreme Court of that state in construing a statute adopted from Missouri said in effect: "To regard ourselves as absolutely bound by the construction given to this statute by the Supreme Court of Missouri would give it greater weight than if it had been construed originally by our own court, in which case the right and duty of this court to disregard its former ruling would not be denied, if, upon reexamination, it should be found opposed to the better reasoning, in conflict with the great weight of authority or not in harmony with the spirit and policy of our laws."

From these cases and others of like import it will be seen that the arbitrary application of the rule in the construction of adopted statutes accords neither with reason nor precedent. The most conservative statement of its application is to be found in our later Missouri cases, in which it is said in effect that when a law is adopted by the Legislature of this State the construction placed upon it by courts of the state of its origin will be presumed to have met with the approval of the Legislature when adopting it. [Knight v. Rawlings, 205 Mo. 412; State ex rel. Guion v. Miles, 210 Mo. 127; State ex rel. v. Carter, supra.] Thus expressed the rule loses its arbitrary application and becomes as it should be, persuasive, in that if the former construction of an adopted law is found to be reasonable and in harmony with the spirit and purpose which promoted its adoption, a like construction will be given to it here. Otherwise, not.

II. It becomes pertinent, therefore, to inquire as to the spirit and purpose of the people in incorporating the initiative and referendum into our Constitution. For reasons not necessary to be enumerated here, but of sufficient impelling power to prompt action, at the time, it was determined to provide an efficient method for the checking andInterest of regulating of legislative power. This determinationReferendum. found expression and was given operative force in the adoption of the initiative and referendum. We are concerned here more particularly with the latter. It may be ordered, says in effect our organic law (Secs. 57, Art. IV), in regard to all matters of legislation, except laws necessary for the immediate preservation of the public peace, health or safety, appropriations of current expenses of the State government, the maintenance of State institutions and the support of public schools. Comprehensive in its terms and definite in its exceptions, it requires, as Hudibras would have it, "neither gloss or comment but may be unriddled in a moment." The case with which it may be interpreted, however, must not lessen the force of the fact, which was the moving impulse in the adoption of the amendment, that the power thereby reserved is in the people and that upon which it is to be exercised is the Legislature. In other words, the Legislature, proposes and the people dispose of its acts, either by approval or rejection as they may deem proper, save as excepted in the Constitution. Despite this unequivocal declaration of power it is contended by respondent, supported by the holding of the Supreme Court of Oregon in the Kadderly case, supra, that the Legislature may nevertheless determine, not only the extent to which this power may be exercised, but whether it may be exercised at all. This holding violates the spirit and destroys the purpose of the amendment. If the Legislature, as in the instant case, may except from the referendum acts abolishing the offices of justices of the peace, clerks and constables in a designated township and provide for the selection of their successors by simply declaring that such acts are for the immediate preservation of the peace, health and safety, then a like exception may be effected by appending this provision to any other act, regardless of the absurdity of its application and thus the constitutional power intended to be reserved will there by be completely destroyed.

A blind following of the rule of construction, we have discussed, stripped of all of its exceptions, is the chief refuge sought to sustain the contention that the Legislature may, in this instance by the magic of misapplied words, restore to itself a power reserved by the people to themselves. Construing the rule, however, in the light of the numerous exceptions noted and in harmony with the spirit manifested and the purpose intended to be accomplished in the adoption of the amendment, we avoid absurdities in the use of words otherwise unmistakable in their meaning, recognize without doing violence to same the limitations upon legislative power and, at the same time do not minimize that reserve to the people.

III. There is a familiar maxim, uniform in its application, that the reason of the law is the life of the law, or as the pedants put it, Ratio legis est anima legis. By theAbsurdity. reason of the law we mean, of course, the occasion or moving cause, of its enactment. This is the touch stone of correct interpretation. Which, says a learned judge, "if not sought and found by the courts, they miss their prime and most august function." [Dudley v. Clark, 255 Mo. l.c. 586.] Applying this maxim to the referendum provision, we found, without doing violence to either its words, context or subject matter, that the reason for its enactment was legislative regulation. Applying the maxim to the acts under review, will, therefore, enable it to be determined regardless of barren rules or arbitrary precedents, whether the incorporation therein of the provision that they are for the preservation of the public health, etc., renders them immune from reference or whether this provision is a mere legislative brutum fulmen, incongruous in its setting and hence inconsistent with the subject-matter of the acts.

Enough has been said to indicate the nature of the acts under review. By their terms they apply not to the justices' clerks and constables of the State or of a certain class of counties, but to those of townships which have or may hereafter have a certain population. This precludes their general application, and at the same time enables them to escape the constitutional pruning knife under the thinly veiled mantle of classification. As a matter of fact, of which we may take judicial notice, their present application is limited to the municipal township in which Kansas City is located. Unless, therefore, we attribute to them the virtue of Prince Ahmend's tent which, at will, would cover an army or could be folded within the compass of its owner's pocket, we cannot classify these acts as of a general nature, such as was, evidently contemplated by the Constitution in the use of the word "public" in the referendum.

To emphasize this conclusion, analysis of that portion of the excepting clause here under consideration is appropriate. It will be recalled that its wording, so far as is applicable here, is "except as to laws necessary for the immediate preservation of the public peace, health or safety." The word "preservation," say the lexicographers, presupposes a real or existing danger; and "immediate preservation from" is indicative of a present impelling necessity, with nothing intervening, to prevent the removal of the danger. By the "public peace" we mean that quiet, order and freedom from disturbance guaranteed by law. [Neuendorff v. Duryea, 6 Daly (N.Y.) 276, 52 How. (N.Y.) 269; Gribble v. Wilson, 101 Tenn. 612.]

Laws in regard to "public safety" are allied in their application and effect to those enacted to promote the public peace, preserve order and provide that security to the individual which comes from an observance of law. By the "public health" is meant the wholesome sanitary condition of the community at large. [1 Bl. Comm. 122; Anderson's Law Dic.]

The meaning of these controlling words in the excepting provision, concerning the correctness of which there can be no reasonable ground of controversy, furnishes no reason, except such as may exist in the exuberant fancy of their draftsman, for the incorporation of this provision in the acts here subjected to interpretation. To assert that either the public peace or health or safety was so menaced in the township designated as to call for the enactment of a statute in the exercise of the police power, is refuted by the language and evident purpose of the acts themselves. Read with an open mind, and an intelligent understanding of the words employed, and disregarding any esoteric meaning or purpose their enactment might imply, with which we have no concern here, their real object, or raison d'etre, to give it a Gallic flavor, was to effect a change in the personnel of the officers designated, as well as the laws defining their duties and prescribing their powers. Leaving the propriety of their enactment, and the wisdom of their terms, so far as concerns their legitimate subject-matter, out of the question, they disclose no tenable ground which will stand the test of interpretation for the incorporation therein of the provision by which it was sought to exempt them from the referendum. Plainly put, the incorporation of this appendant provision involves an absurdity the presence of which is sufficient under a well established rule of construction to authorize its rejection. It has no place or proper purpose in legislation of the character here being considered. Statutes are not to be construed so as to result in an absurdity. The provision should therefore be held to be superfluous. [Darlington Lbr. Co. v. Railroad, 216 Mo. 658; Perry v. Strawbridge,209 Mo. 621; Johnston v. Ragan, 265 Mo. 420; Stack v. Genl. Bak. Co., 223 S.W. (Mo.) 89.]

IV. It may be conceded that every intendment should be made in favor of the propriety of legislative action. Notwithstanding this presumption, however, the courts have ever since the ruling by the Supreme Court of the United States, in Marbury v. Madison, 1 Cranch, 137, exercised the right to determine whether legislative enactments are violative of the Constitution. "It is," said the learned Chief Justice in that case, "emphatically the province and duty of the judicial department to say what the law is." More imperative is this duty under modern constitutions in which the lawmaking power is no longer exclusively the province of the Legislature, but is divided between it and the people themselves. Instead, therefore, of the judicial construction of statutes, as at bar, constituting an invasion of the legislative province, it amounts to nothing more than a determination by the court as to whether the Legislature has properly exercised its discretion in declaring these acts subject to the police power exception, or whether its declaration was unwarranted, and if sustained, will result in cutting off the people's reserve power to participate in legislation. If the constitutionality of an act was, therefore, a proper matter of judicial determination before the referendum amendment, it is none the less so since, because in its last analysis, a ruling as to the proper application of the exception in the acts is nothing more than a judicial determination of their validity under the organic law. If the exception has been properly incorporated in the acts, then they are valid; if improperly incorporated, then they are invalid so far as the exception is concerned. We said in State ex rel. Roach v. Halliburton, 230 Mo. 408, 139 Am. St. Rep. 639, that "legislation is subject to existing constitutional restrictions." An apparent, much less a patent, violation of these restrictions will authorize judicial determination. Our power therefore is ample, to enable us to determine, as we do, free from any tenable charge of unwarranted invasion, that the legislative declaration as to the immunity of these acts from the referendum was unwarranted

In harmony with the foregoing conclusions, and sustaining them by a carefully analyzed array of cases, is the opinion of the Supreme Court of Montana in State ex rel. Goodman v. Stewart, 187 P. 641, in which MATHEWS, J., speaking for that court, has discussed and determined with clearness and strength of conclusion almost every phase of the matter at issue. An epitome of these relevant rulings is all that is permissible here. They are as follows: As to whether an act is necessary for the immediate preservation of the public peace, etc., and thus excepted from the referendum, is to be controlled by the nature of the act and not by a superfluous declaration of necessity incorporated therein; that the propriety of the incorporation of the exception in an act is a judicial question; that in determining same the utmost that can be considered in the face of the act, the history of the legislation, contemporaneous declarations of the Legislature, the evil to be remedied, and the natural or absurd consequences of any particular interpretation. From all of which the conclusion is authorized that if a statute purports to be for the preservation of the public peace, health, etc., and from its words and subject-matter it has no real or substantial relation to the act, or is a palpable invasion of rights reserved by the Constitution, it is the duty of the courts to so decide and thereby give effect to the fundamental law. [Mugler v. Kansas,123 U.S. 623, 31 Law. Ed. 205.]

We therefore concur in the conclusion reached by WOODSON, J., in the principal opinion. This concurring opinion has been deemed necessary on account of the writer's dissent in State ex rel. Westhues v. Sullivan, 283 Mo. 547, which, upon a careful review, has been found to be unwarranted. James T. Blair, C.J., andGraves, J., concur.