I respectfully dissent from the opinion filed in this case by our learned brother *Page 711 WOODSON. It is based solely upon the opinion of GRAVES, J., in State ex rel. Westhues v. Sullivan, 283 Mo. 547. That was an action instituted by the Prosecuting Attorney of Cole County against the Secretary of State and the Attorney-General of the State, restraining them from submitting the Workmen's Compensation Act under the Referendum Amendment, Section 57, Article IV, of the Constitution. All of the judges were agreed on certain points: (1) that the prosecuting attorney had no authority to bring the action to restrain the State officials; (2) the referendum petitions not having been filed in the office of the Secretary of State, the action was premature; (3) the emergency clause to the act sought to be referred did not declare that the measure "is necessary for the immediate preservation of the public peace, health or safety. . . . But, for our present purpose, it suffices to say that the emergency clause does not bring the measure within the excepted class named in the Constitution." [Page 334.] Judge GRAVES, however, proceeded in a learned and interesting opinion in view of the fact that the question might arise in futuro. Judge WOODSON concurred. Judge WALKER did not concur in the reasons or conclusion of Judge GRAVES. What the other judges said will be noted later in this opinion.
Judge GRAVES, at page 334, said: "As said by FARIS, J., in State ex rel. v. Carter, 257 Mo. l.c. 70, we borrowed our referendum provision from Oregon and borrowed it after the ruling in the Sears Case, supra."
The Initiative and Referendum Amendment was adopted in this State at the November election in 1908. It was taken almost literally from the Constitution of Oregon. [State ex rel. v. Carter, 257 Mo. 52, 68.] In the year 1904, the Supreme Court of Oregon, in Kadderly v. Portland, 44 Or. 118, 75 P. 222, in passing on the question raised in this case, expressly ruled that the action of the Legislature declaring that an enactment is necessary for the immediate preservation of the public peace, health and safety, etc., is final and conclusive, *Page 712 and cannot be questioned in any judicial proceeding. We quote in part from the opinion:
"The amendment excepts such laws as may be necessary for a certain purpose. The existence of such necessity is therefore a question of fact, and the authority to determine such fact must rest somewhere. The Constitution does not confer it on any tribunal. It must, therefore, necessarily reside with that department of the government which is called upon to exercise the power. It is a question of which the Legislature alone must be the judge, and when it decides the fact to exist, its action is final. [Briggs v. McBride, 17 Or. 640, 21 P. 878, 5 L.R.A. 115; Umatilla Irrig. Co. v. Barnhart, 22 Or. 389, 30 P. 37; Gentile v. State, 29 Ind. 409; Wheeler v. Chubbuck, 16 Ill. 361; Sutherland on Stat. Const. 108.] In this view we are supported by the Supreme Court of South Dakota. In 1898 an amendment to the constitution of that state was adopted by the people, similar in many respects to the amendment now under consideration; and, so far as the laws exempted from its operation are concerned, the language of the two amendments is identical. In State ex rel. v. Bacon, 14 S.D. 394, 404, 85 N.W. 225, the court say in referring to this amendment: `It will be observed that the law of 1901 which we are considering not only declares that an emergency exists, but also that the "provision is necessary for the immediate preservation and support of the existing public institutions of this state." It seems to have been uniformly held under constitutions containing an emergency clause, and providing that laws containing such a clause shall take effect as therein directed, that the action of the Legislature, in inserting such a clause is conclusive upon the courts (citing authorities). No reason occurs to us why the same rule should not apply to the act in question. The Legislature having declared that the provisions of that act are necessary for the immediate preservation and support of the existing public institutions of the state, that declaration is conclusive upon this court, and brings this *Page 713 class clearly within the exception contained in Section 1 [as amended] of Article 3 of the Constitution.'
"But, it is argued, what remedy will the people have if the Legislature, either intentionally or through mistake, declares falsely or erroneously that a given law is necessary for the purposes stated? The obvious answer is that the power has been vested in that body, and its decision can no more be questioned or reviewed than the decision of the highest court in a case over which it has jurisdiction. Nor should it be supposed that the Legislature will disregard its duty, or fail to observe the mandates of the Constitution. The courts have no more right to distrust the Legislature than it has to distrust the courts. The Constitution has wisely divided the government into three separate and distinct departments, and has provided that no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in the Constitution expressly provided. [Const. Or., art. 3, sec. 1.] It is true that power of any kind may be abused when in unworthy hands. That, however, would not be a sufficient reason for one co-ordinate branch of the government to assign for attempting to limit the power and authority of another department. If either of the departments, in the exercise of the powers vested in it, should exercise them erroneously or wrongfully, the remedy is with the people, and must be found, as said by Mr. Justice STRAHAN in Briggs v. McBride, 17 Or. 640, 5 L.R.A. 115, 21 P. 878, in the ballot box. We are of the opinion, therefore, that the findings and declarations of the Legislature that the Act of 1903 for the incorporation of the city of Portland was necessary for the immediate preservation of the public peace, health, and safety are conclusive on the courts, and consequently the charter was not subject to the referendum power, and was in force and effect from and after its approval."
When we adopted the Referendum Amendment from the Constitution of Oregon, we adopted the construction given it by the Supreme Court of that State as much *Page 714 as if that construction had been written into the body of the amendment. [State ex rel. v. Carter, supra, l.c. 69; State ex rel. Guion v. Miles, 210 Mo. 127, 146.]
Judge JAMES T. BLAIR filed an opinion in the Sullivan Case in which WILLIAMS, GOODE and WILLIAMSON, JJ., concurred. It is as follows: —
"I concur in Paragraphs I, II and III. In Pargraph IV, I concur because we are bound by the construction given the Oregon Constitution by the Supreme Court of that State prior to our adoption of its provisions. With respect to Paragraph V, it is enough to say that the expressions in Section 81, therein referred to, do not indicate any intent to put the act in force under the public peace, health or safety clause of the referendum section of our Constitution. As to the `broader question,' I express no opinion. It cannot be involved in this case. In the remaining paragraphs I concur."
So it appears that the propositions decided in that case are that the prosecuting attorney could not institute the proceedings against the State officials, that the action was premature, and that the act did not declare it was necessary for the immediate preservation of the public peace, health or safety, and there was no question before the court for determination. Nevertheless, Judge GRAVES proceeded to discuss a supposititious case. His rulings were clearly obiter dicta. Five of the judges disagreed with his conclusions. Four of the judges held that we are concluded by the interpretation given the act by the Supreme Court of Oregon. The decision is, therefore, a direct authority in favor of our contention that we adopted the Referendum Act with the construction given it by the Supreme Court of the State of its origin.
But it is said: Suppose the Legislature should declare a legal holiday and embody in the act the "peace, health or safety" clause. Would this court be concluded by the declaration? The answer is: We have no such case before us. The Constitution has solemnly *Page 715 vested the legislative power of this State in the General Assembly of the State of Missouri. That body is an independent, co-ordinate department of our government, answerable only to the people of the State for the execution of the powers delegated to it by the Constitution. Moreover the measure may be submitted to a direct vote of the people by an initiative petition, so that there is no foundation for the suggestion that the Legislature may, by fraud or trickery, prevent legislation by the people.
As was well said in Oklahoma City v. Shields, 22 Okla. 265,100 P. 559, l.c. 576:
"To determine, under a state Constitution, what can be accomplished by general or special legislation, has been, with but few exceptions, held to be a question solely for the Legislature. [Citing cases.]
"We conclude that the judgment of the Legislature in determining whether or not an emergency existed — that is, whether or not a measure is immediately necessary for the preservation of the public peace, health, or safety — rests solely with the Legislature. It is not subject to review by the courts, or any other authority except the people. Under the reserved power of the initiative and referendum, after the declaration of an emergency, when not referred to the people for their judgment in such measure, it still remains with the people, if they are dissatisfied with a measure, by an initiative petition to cause the same to be submitted to the people at the next general election for determination as to whether or not such act shall be repealed."
In State v. Moore, 103 Ark. 48, 145 S.W. 199, l.c. 202, the court said:
"It was a question exclusively for legislative determination; and such determination alone could bring it within this exception and power of the Legislature to make it immediately effective, and thereby remove it from the general class of laws upon which the people reserved the right to order the referendum. [Stevens v. Benson, supra; Kadderly v. Portland, 44 Or. 118, 74 P. 720; Sears v. Multnomah County, 49 Or. 42, 88 *Page 716 716 P. 522.]" See, also, Van Kleek v. Ramer, 62 Colo. 4, 156 P. 1108.
"But it belongs to the political, and not to the judicial, department of the government to determine these interesting and important questions of civic policy, as its wisdom shall deem for the best interests of the people." [State ex rel. v. Bacon,14 S.D. 394, 85 N.W. 225, 228.]
Being of the opinion reached by the majority of the court in the Sullivan case, supra, that we are concluded by the interpretation given to the Referendum Amendment in the Kadderly Case, and that we are without power to question the finding of the Legislature in the premises my conclusion is that the writ should be denied.