Brickhouse v. Hill

T. C. McRae, Special Chief Justice. The case of Arlitt v. Hill, No. 9014, has been consolidated with the case of Brickhouse v. Hill, No. 9011, and in this opinion reference will only be made to the consolidated case by the title of Brickhouse v. Hill. The appellant, in his capacity as mayor, was proceeding, by virtue of an ordinance of the city council, to issue bonds to fund the debt of the city of Little Rock, under the Constitutional Amendment No. 11, which was submitted by the General Assembly to the electors of the State for approval or rejection at the general election held in October, 1924. Upon the application and petition of the appellee, the chancery court of Pulaski County restrained the appellant from issuing bonds under .said amendment, holding that it had not been approved by the said electors, and the case is before this court on .appeal. So the question involved is: "Was amendment No. 11 adopted? Indirectly, there is involved the same question as to the amendments numbered 10 and 12, proposed by the same General Assembly, and submitted to the electors at the same general election. The votes “For” and “Against” these amendments were as follows: For Amendment No. 10......................................... 52,151 Against Amendment No. 10....................... 40,955 For Amendment No. 11................................................ 57,854 Against Amendment No. 11...,................................ 35,449 For Amendment No. 12....................... 56,910 Against Amendment No. 12.................................... 34,174 Total vote for Governor.................:............125,760 It will be noticed that neither of the said amendments received the vote of a majority of the electors who voted at said election for Governor, and, under § 22 of article 19 of the Constitution of 1874, as construed by this court in previous decisions, would have failed of adoption if there had been no change in the Constitution as to the number of votes necessary. But each of them received a majority of the votes cast thereon, and, under the Constitution as it now is, and as it was when said Amendments 10, 11 and 12 were .submitted and voted upon, they were each adopted at the general election in October 1924. The Amendment No. 11 received a majority of 22,405 of the votes cast thereon. The several opinions of this court referred to by counsel, some in criticism and some by way of approval, were in cases construing § 22 of article 19 of the original Constitution, before the Initiative and Referendum Amendment No. 7. For the determination of the question in the pending ease it is not necessary to overrule any of the cases that have been referred to, except Hildreth v. Taylor, 117 Ark. 474. 'The opinion in that ease is largely based upon the premises that Amendment No. 7 was taken from a similar amendment adopted in the year 1902 in the State of Oregon, and that, while there was no judicial construction in Oregon of their amendment, still there was a construction by the people that it did not fix the number of votes on constitutional amendments, as an amendment was adopted in 1906 expressly providing that a majority voting .at the election should adopt. This statement follows the familiar rule that, where a law is taken from the laws of another State, it is presumed to be taken with the previous construction given that law in that State. This rule, of course, is .sound, and the application here is important. However, the opinion of our court in that case was erroneous in the statement of the situation in Oregon. The I. and E. Amendment there adopted in 1902, of which our Number Seven is a substantial copy, was before the Supreme Court of Oregon in the year 1908, in Farrell v. Port of Columbia, 93 Pac. 254, and the court there said that, under the amendment, a majority voting on the question on an initiative amendment decided the election. Prior to the I. and E. Amendment in Oregon, amendments to the Constitution could only be submitted by the General Assembly, and the form was this: A designated majority in the General Assembly proposed the amendment; it then laid over until the next General Assembly, and, if a designated majority of that General Assembly also favored it, it was submitted to the voters at the next election, and, if a majority voting on the question approved, the amendment was adopted. (Section 17, art. 1, original Constitution of Oregon.) This section was expressly amended in 1906, so that only one General Assembly was required to submit a proposed amendment, and the people then voted on it, and a majority voting on the question adopted it. The I. and E. Amendment did not attempt to change the rule of the old Constitution for submission of amendments by the General Assembly, but expressed the added method of submission by initiative petition. The rule for the majority vote was the same under both methods of submission. It is submitted that the error in the opinion in Hildreth v. Taylor, in the assumption of the construction put upon the I. and it. Amendment in Oregon, was of controlling force in interpreting the language of our Amendment Number Seven. The other cases may be briefly summarized as follows : In Arkansas Tax Commission v. Moore, 103 Ark. 48, it was only decided that the amendment was self-executing, and that the existence of an emergency was a legislative question and not a judicial question. State v. Donaghey, 106 Ark. 56, held that Amendment Number Seven repealed the provisions of the original amendment section, in the feature that the time for the advertising was reduced from six months to four months. There was no occasion to decide, and it was not decided, whether or not the time for advertising amendments submitted to the Legislature was changed. Ferrell v. Keel, 105 Ark. 380, merely decided that the style of bills, “Be it enacted,” etc., was not necessary on bills passed by the General Assembly. •Whittemore v. Terral, 140 Ark. 493, held that a referendum did not lie to the action' of the General Assembly in adopting an amendment to the Federal Constitution. Mitchell v. Hopper, 153 Ark. 525, held that the veto power of the Governor did not extend to a resolution of the General Assembly submitting a constitutional amendment. The act of the Legislature for 1911, providing details for carrying out the purposes of Amendment Number Seven, used the term “measure” in many places in referring to constitutional amendments. The term “measure” is defined in the Century Dictionary as “anything devised or done with the view of the accomplishment of a purpose.” In the case of The New Jerusalem Proposition, 26 Okla. 548, Pac. 823, the Supreme Court of Oklahoma, in passing upon an I. and R. Amendment, held that the term “measure” included a constitutional amendment. STARE DECISIS. This court is of the opinion that the decision in Hildreth v. Taylor is wrong, and that more good than harm would result from changing it at this time. And it is overruled, so far as it is in conflict with this decision. This then makes the law as if Hildreth v. Taylor had never been decided as it was. In Whittington v. Flint, 43 Ark. 513, the court said: “A rule of decision once deliberately adopted and declared ought not to be disturbed ‘by the same court, except for very cogent reasons and upon a clear manifestation of error.’ But there are cases which ‘ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.’ ” The court then overruled five prior decisions. In Collier v. Davis, 47 Ark. 367, in overruling a prior case, the court said: “It is always a misfortune for a court to change front on a question which may affect property rights acquired since the rule was announced. And it is sometimes doubtful whether more mischief will be produced by adhering to an error, or by retracing it. The case has stood for more than five years, although it was never satisfactory to the profession. It is, however, indefensible in principle, and it was decided against the clear weight of authority.” In the Supreme Court of the United States there have been several cases overruling prior decisions on questions involving the Constitution. The Legal Tender Cases, 12 Wall. 457, 554 570, involved a decision of this kind. Justice Strong of the court said: “Even in cases involving only private rights, if convinced we have made a mistake, we would hear another argument and correct our error. And it is no unprecedented thing in courts of last resort, both in this country and in England, to overrule decisions previously made. We agree this should not be done inconsiderately, but, in a case of such far-reaching consequence as the present, thoroughly convinced as we are that Congress has not transgressed its powers, we regard it as our duty so to decide and to affirm both the judgments.” In the case of the Propeller Genessee Chief v. Fitzhugh, 12 How. 443, 459, Justice Taney said: “But the decision referred to has no relation to rights of property. It was a question of jurisdiction only, and the judgment we now give can disturb no rights of property, nor interfere with any contracts heretofore made. The rights of property and of parties will be the same by whatever court the law is administered. And as we are convinced that the former decision was founded in error, and that the error, if not corrected, must produce serious public as well as private inconvenience and loss, it becomes our duty not to perpetuate it.” In Pollock v. Farmers’ Loan & Trust Company, 157 U. S. 429, 575, the court said: “It is the decision in the case of the Thomas Jefferson which mainly embarrasses the court in the present inquiry. We are sensible of the great weight to which it is entitled. But at the same time we are convinced that, if we follow it, we follow an erroneous decision into which the court fell, when the great importance of the question as it now presents itself could not be foreseen; and the subject did not therefore receive that deliberate consideration which, at this time, would have been given to it by the eminent men who presided here when that case was decided. For the decision was made in 1825, when the commerce on the rivers of the West and on the lakes was in its infancy, and of little importance, and but little regarded compared with that of the present day. However,' the nature of the question concerning the extent of the admiralty jurisdiction, which have arisen in this court, were not calculated to call its attention particularly to the one we are now considering. “Manifestly, as this court is clothed with the power, and intrusted with the duty, to maintain the fundamental law of the 'Constitution, the discharge of that duty requires it not to extend any decision upon a constitutional question if it is convinced that error in principle might supervene.” This special court is profoundly impressed with the suggestion that it should not, without the most careful consideration, overrule any decision of the able and learned regular court. And so, with the valuable aid of such members of the bar of the State as have accepted our invitation to brief and argue this case, we have striven to get all the light possible that we might reach a correct conclusion. We would not overrule the regular court in the case of Hildreth v. Taylor if we did not feel that it had announced an erroneous and dangerous construction of our Constitution. Such mistakes should never be perpetuated. That there should be no further delay in fixing the correct constitutional rule for determining the majority necessary to adopt an amendment, is shown by the conditions with which the State is confronted, and which no doubt caused the General Assembly to propose, and the people, to adopt, the three amendments involved in this case. And we deem it not improper to briefly refer to these conditions. The Judges of the Supreme Court are overworked and underpaid. The docket of that court is eight months behind. Belief is offered by Amendment No. 10. The credit,- honor, prosperity and growth of the counties, cities and towns that are in debt, and the saving from debt of those that are not so involved, depend largely upon Amendment No. 11. The limit of sixty days for each General Assembly, so far as the regular session is concerned, and the want of a limit upon local legislation, have practically made it impossible to get the benefit of the judgment of the members of the General Assembly upon public questions. This situation can be changed by Amendment No. 12. Shall the indefensible rule in the case of Hildreth v. Taylor continue these deplorable conditions? So, in view of the authorities we have cited, and these conditions, it appears that the court should now depart from the propriety of the doctrine of stare decisis. And attention to 7 R. C. L., at page 1008, where there is an excellent sum-up of the holdings of the courts on the question, is called: “If judges were all able, conscientious and infallible; if judicial decisions were never made except upon mature deliberation, and always based upon a perfect view of the legal principles relevant to the question in hand, and if changing circumstances and conditions did not so often render necessary the abandonment of legal principles which were quite unexceptionable when enunciated, the maxim stare decisis would admit of few exceptions. But the strong respect for precedent which is ingrained in our legal system is a reasonable respect which balks at the perpetuation of error, and it is the manifest policy of our courts to hold the doctrine of stare decisis subordinate ’ to legal reason and justice, and to depart therefrom when such departure is necessary to avoid the perpetuation of pernicious error. A departure from the rules of stare decisis can be justified only upon substantial grounds, and neither justice nor wisdom requires a court to go from one doubtful rule to another. Nor is it a sufficient reason for overturning a rule of law, well .settled and apparently salutary in operation, merely because the reason given- for. its original adoption are not altogether satisfactory, and strict logical reasoning might have led the court originally to have adopted a different rule. If, however, a decision or series of decisions are clearly incorrect, either through a mistaken conception of the law, or through a misapplication of the law to the facts, and no injurious results would follow from their overthrow, and especially if they were injurious or unjust in their operation, it is the duty of the court to overrule such cases. Hasty or crude decisions should be examined without fear and reversed without reluctance. While it is true that long acquiescence in an erroneous decision, so that it has become a rule of property or practice, may raise it to the dignity of law, yet it must not be understood that a previous line of decisions affecting even property rights can in no case be overthrown.' Where the error of a previous decision is recognized, but the rules therein announced have become rules of property, the question whether or not the rule of stare decisis should be adhered to becomes a simple choice between relative evils. The rule should be adhered to unless it appears that the evil resulting from the principle established must be productive of greater mischief to the community than can possibly ensue from disregarding the previous adjudications upon the subject. In questions of practice, a close adherence by a court to its own decisions, even though it may at times have erred or decided differently from settled adjudications upon the subject, is necessary and proper for the regularity and uniformity of practice, and that litigants may know with certainty the rules by which they must be governed in the conducting of their cases. In such cases, the importance of the rule generally depends upon the certainty, and not upon the intrinsic merit. But where the decision goes to the merit of the controversy, where the whole right of parties is dependent upon and is governed by it, in such ease, if the court should, from any cause, have erred, it is not only proper, but it is an obligatory duty upon them, a duty imperiously demanded by litigants whose rights are before them for adjudication, to reexamine the opinion so pronounced, and, if found to be erroneous, to recede from it. In the matter of constitutional provisions it has been held that, while courts recognize to the fullest extent the necessity for the stability, consistency, and a firm adherence to the doctrine of stare decisis in passing upon and construing any provisions of the organic law, yet if an error has been committed, and becomes plain and palpable, they will not decline to correct it, even though it may have been reasserted and acquiesced in for many years.” When used in relation to the submission of a question to an election under our republican system of government, the words used should be given their legal significance, rather than the ordinary and actual significance. The Supreme Court of this State, in State v. Smith, 40 Ark. 432, said: “It is the duty of every court, when satisfied of the intention of the Legislature, clearly expressed in a constitutional enactment, to give effect to that intention and not to defeat it by adhering too rigidly to the mere letter of the statute or to technical rules of construction. And any construction should be disregarded that would lead to absurd consequences.” The following statement of the rule is taken from Lewis’ Sutherland’s Statutory Construction, vol. II: “A statute may be construed contrary to its literal meaning when a literal construction would result in an absurdity or inconsistency, and the words are susceptible to another construction, which would carry out the manifest intention.’’ Finally, this court holds that this question is set completely at rest by the provisions of the amendment proposed as number thirteen, and adopted in the year 1920 as a substitute for Amendment Number Seven, presumably to remove all doubt about the meaning of Amendment Number Seven, and, in language about which there can be no doubt, the vote on the question is made the test of measures proposed by the General Assembly, as well as those initiated by the people. Thirteen was adopted by a very large majority of those voting on the amendment. Here are some of the provisions of this substituted amendment: “The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly.” “Definition: The word ‘measure’ as used herein includes any 'bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character.” “Majority: Any measure submitted to the people as herein provided shall take effect and become a law when approved by a majority of the votes cast upon such measure, and not otherwise, and shall not be required to receive a majority of the electors voting at such election.” “This section should not be construed to deprive any member of the General Assembly of the right to introduce any measure, but no measure shall be submitted to the people by the General Assembly, except a proposed constitutional amendment or amendments as provided in this Constitution.” It is insisted that, under Amendment Number Seven, only a majority of the votes cast upon any initiated amendment is necessary to adopt, but that, to adopt an amendment proposed and submitted by the General Assembly, there must be a majority of all the electors voting at such election. For the settlement of this case it is not necessary'for us to decide that question. The amendment voted upon in 1920 as number thirteen was by initiated petition, and received the votes necessary to adopt it. Thirteen and not seven, should govern the majority that would decide whether or not the Amendments ten, eleven and twelve were adopted. Thirteen requires only a majority of the votes cast upon the amendment. Each of the three amendments received such a majority, and was adopted. The court is of the opinion that the submission of an amendment in 1922 substantially like that of number thirteen, and which received less than a majority of the votes cast unon it, did not have the effect of repealing thirteen, and that it remains a part of the Constitution just as if there had been no submission and vote on a similar amendment in 1922. It is insisted that the words “as herein provided” in the third paragraph quoted from the amendment proposed as thirteen, have the effect to limit the requirements for adoption therein prescribed, which is “a majority of the votes cast upon such measure,” to amendments initiated by the people, and that thirteen does not a'pply to amendments proposed and submitted by the General Assembly. This is contrary to reason and practice in legislation and not supported by the authorities. If such had been the intention, instead of the words used, the words “this section” or “this article” would have been substituted. The Amendment Number Thirteen must be construed as though introduced into the place of § 22, article 19, of the original Constitution, and the legal significance of the words “as herein provided” is as if the words “■as provided by the Constitution” were substituted for them. In the case of McKibbon v. Lester, 9 Ohio State 627, the court said, “the words ‘under the restrictions and limitations herein provided’ must be taken to refer to the restrictions and limitations provided in the original act, as it stands after all the amendments made thereto are introduced into their proper places therein.” The decree of the chancellor enjoining the appellant, the mayor of Little Rock, from issuing bonds under the Amendment No. 11 is reversed and the case dismissed.