Barkley v. Pool

Cornish, J. This is an appeal from an order of the district court, continuing the hearing of the cause to a date subsequent to general election day, November 5, 1918, and granting a temporary injunction restraining the secretary of state from submitting House Roll No. 222 to the electors of the state on ■ said election day. House Roll No. 222 conferred upon women certain voting privileges, and is subject to the referendum provided for in our Constitution; the requirements relating thereto having been complied with. — 801 — A referendum petition had been filed. The plaintiffs brought this action, attacking the petition as invalid and spurious, seeking also an injunction forbidding the secretary of state from submitting the law to a vote of the people at the general election. Issues were framed and a large amount of testimony (not before us) was taken, when the court made the above order, finding, among other things, that the hearing could not be concluded before the general election, and that, in the opinion of the judge, if the petitions were finally adjudged valid, the proposition should be referred to the people at the next succeeding ^general election. The first, and, if answered in the negative, the controlling, question for our consideration is whether the order appealed from, continuing the hearing to a time subsequent to November 5 and restraining the secretary of state from submitting the proposition in the meantime to the voters of the- state, was a final order. If it was not, then this court has no jurisdiction to entertain the appeal. Meng v. Coffee, 52 Neb. 44. It is contended by defendant and interveners that it is a final order, because, in effect, it disposes of the case and finally determines the rights of the parties to the controversy. It is argued that the constitutional provision relating to referendum petitions, which provides that “elections thereon shall be had at the first regular state election held not less than thirty days after such filing,” is mandatory, and that therefore such election must be had upon the day named or not at all. If we admit the premises upon which the argument is based, it is very likely that the conclusion contended for would follow, and that, although, ordinarily, an appeal does not lie from a temporary injunction, it would in this case, inasmuch as the order, by making further proceedings in the case useless, “in effect determines the action and prevents a judgment.” Rev. St. 1913, sec. 8176. — 802 — Wo are of opinion that the order appealed from is not a final order, and that the effect-of it is not a final determination of the rights of the parties to the action. We agree with the rule, stated in 12 C. J. p. 740, sec. 145, as follows: “It is an established general rule that constitutional' provisions are to be construed as mandatory, unless, by express provision or by necessary implication, a different intention is manifest.” It is reasonable to suppose .that the makers of the Constitution would anticipate that petitions might be presented not in compliance with the requirements of the law — petitions invalid for fraud, and other reasons. They would anticipate that questions would arise which are judicial questions, not proper to be decided by a state official acting only in a ministerial capacity. In the absence of any provision in the Constitution, besides the one above quoted, touching the time of the referendum election,, a difficult question might arise, however, as to just when and to what extent the courts might interfere by mandamus or injunction. In this case there are other provisions of the Constitution which need to be considered. Section 1D of the amendment (Const., art. III) contains this language: “This amendment shall be self-executing, but legislation may be enacted especially to facilitate its operation. In submitting petitions and orders for the initiative and the referendum, the secretary of state and all other officers shall be guided by this amendment and the general laws until additional legislation shall be especially provided therefor. ’ ’ The ordering of a referendum suspends the operation of a law until approved by the voters. Section 1C. Following the adoption of the amendment, a law was passed providing that “any citizen” could obtain a writ of mandamus to compel the secretary of state to file a petition if he wrongfully refused to do so; and also providing that, “on a showing that any petition filed is-not legally sufficient,” — 803 — the secretary of state might be enjoined from submitting the proposition; and further providing: “Any person who is dissatisfied with the ballot title * * * may appeal # * # to the district court.” Laws 1913, ch. 159, secs. 5, 6. It is not urged that these laws are invalid. A contention is made that the district court should not have entertained the suit, because of inexcusable delay in bringing it, and because the plaintiffs have not capacity to maintain the action as individuals. These are questions, however, not relevant to our present inquiry, not proper to be considered until some judgment or order is made which finally determines them. -For the purposes of the present discussion we must assume a lawsuit commenced in pursuance of the statutory enactment, without laches, as specially found by the trial judge, and the question is whether the order under consideration, inasmuch as it prevents a submission at the time named in the Constitution, is a final order determining the rights of the parties. We are of opinion that injunction suits may be maintained, and that the enactment providing for them is constitutional. But, when we have gone this far, have we not already answered the question in dispute? Surely, if a lawsuit may be constitutionally commenced, it may be continued until final judgment. If a permanent injunction may be had, its necessary auxiliary, a temporary injunction, may also be had, and become the law for everybody until dissolved. Nor will it be contemplated that, obedience to it can deprive any party of the legal rights that otherwise belong to him. Will the law, harbor some opposing principle, in conflict with this rule of justice, which cuts off its processes in the middle of their course? This would be to bring unreason into the law, which is supposed to be harmonious —consistent with itself. The provision of the Constitution permitting this legislation must have the same — 804 — sanction and force as has the provision fixing the time of the election. If the position contended for will result in denying to either of the parties a trial of their legal rights in court, that amounts to a reductio ad absurdum. These are ancient maxims of the law: “An act of the court shall prejudice no man.” “The law does not compel a man to do that which he cannot possibly perform.” “That which was originally void does not by lapse of time become valid.” Of course, the rights of the petitioners are as much to be regarded as the rights of those objecting to the petition, but no more. We must avoid a rule under which those attacking a petition could, through the, necessary delays of a lawsuit, defeat the rights "of the petitioners; and we must also avoid a rule under which the rights of the public and those objecting to the petition may be defeated. Wo are of opinion that, if the time required for determining the validity of the petition in court extends to a date beyond that of the next ensuing election, it must be held that, by necessary implication, it was not the intent of the Constitution that either those who petition for a referendum or the objectors to the petition should thereby be defeated of their rights, but that the referendum vote should be had as early as it can be had, awaiting the judgment of the court. To hold otherwise would be, on the one hand, to hold that the constitutional right of the people to have referred to them a law may be denied them, or, on the other hand, to hold that a referendum petition, which may be spurious and wanting legal validity in every aspect, may effectually suspend the operation of a law which the legislature has passed. If it be suggested that the vote should be had on the day named, permitting the action to be continued until final adjudication upon the merits, then it might come to pass that the petitioners would be sustained by — 805 — an overwhelming vote of the people, and yet the submission of the v'ote be set aside by a later decision of the court holding that the petition itself or the manner of its submission was insufficient.. Constitution makers would never intend that. The-Constitution of West Virginia provided: “Every point fairly arising upon the record of the case shall be considered'and decided; and the reasons therefor shall be concisely stated. ” Const., W. Va., art. VIII, see. 5. In order to prevent this provision from affecting the common-law rule of res judicata, it was held to be directory,, and not mandatory. Hall & Smith v. Bank of Virginia, 15 W. Va. 323. The word “shall” in statutes, as in colloquial speech, is frequently interpreted to mean a direction, rather than a mandate. To the extent above indicated, we hold that the provision in our Constitution is directory, and not mandatory. The provision is .however, mandatory in the sense that a provision would be if it read that the election should be held upon a certain date, unless the legislature should fix another, date, or unless, under the operation of laws passed in pursuance of tlie amendment, an election upon such date becomes impossible. It is to be said, however, that both the Constitution and the statute contemplate a speedy hearing, to the end that judgment may be had in time for the next ensuing election, and that the courts would be justified in refusing to entertain an action or defense because of laches on the part of either of the parties. Appeal dismissed. Rose, J., dissents. Aldrich:, J., not sitting.