I am unable to concur in the views expressed or the result reached in the opinion filed by my learned brother WOODSON.
In the first place the case of State ex rel. v. Sullivan,283 Mo. 547, 224 S.W. 327, relied on as the sole authority for said opinion, does not even purport to decide the question involved in this case and the expression of opinion on the question here involved made in that case does not even rise to the dignified status of obiter dicta. In passing on the questions really involved in the Sullivan Case, supra, GRAVES, J., expressed as his view that the legislative declaration that an act passed by the General Assembly is necessary for the immediate preservation of the public peace, health and safety, is not binding on the Court and whether such act may be submitted to the people under the provisions of our Constitution in relation to the referendum is subject to judicial review and such declaration is not binding on the courts. WOODSON, J., concurred in those views. In that case the views as expressed were obiter, because no question of that sort was in the Sullivan Case. WALKER, C.J., expressly dissented to that view and WILLIAMSON, GOODE, BLAIR and WILLIAMS, JJ., *Page 717 made it very clear in their separate concurrence that they expressed no opinion on the question, because that question was not in that case for decision. That case is, therefore, utterly valueless as an authority in the case before us.
It is settled beyond any question that when one state borrows a statute or a constitutional provision from another state and the highest court in that state has authoritatively construed said statute or constitutional provision prior to its adoption in the second state, such statute or constitutional provision is held to have been adopted together with such construction by such highest court. [Skouten v. Wood, 57. Mo. 380; State ex rel. v. Miles, 210 Mo. l.c. 146; State ex rel. v. Sullivan, 224 S.W. 327.]
There appears to be no question that the referendum provision to our Constitution was borrowed from the State of Oregon. [See opinion of GRAVES, J., in State ex rel. v. Sullivan,224 S.W. 327.]
In the case of Kadderly v. Portland, 44 Or. 118, 75 P. 22, it was squarely decided by the Supreme Court of Oregon, on January 11, 1904, and more than four years before the referendum amendment was added to our Constitution, that the declaration of the Legislature that a given act is necessary for the immediate preservation of the public peace, health and safety is final and that such declaration is conclusive on the court. That construction was part of the provision when we borrowed it from the State of Oregon, and if not absolutely binding on this court is persuasive authority of the highest character.
In addition the highest courts of the States of Oklahoma, South Dakota, Arkansas and Colorado have ruled on very similar constitutional provisions as has a Supreme Court of Oregon.
While it is true the conclusion reached by my brother WOODSON is the same as that of the Supreme Courts of California, Washington and Michigan, I note that it is pointed out in respondent's brief as follows: "Out *Page 718 of twelve cases determined by the various supreme courts, eight were decided by an undivided court; of these eight, six determined the question of final determination in favor of the Legislature, and two determined that question in favor of the courts. Of the cases determined by a divided court, two determined the question in favor of the Legislature and two in favor of the courts. Of the cases decided by a divided court twenty-eight judges gave their opinion on the question, fifteen deciding in favor of legislative determination and thirteen in favor of judicial determination. In the twelve courts passing on this question, sixty-eight judges participated, forty-three of whom decided the question in favor of the legislative determination and twenty-five in favor of judicial determination." Thus it is seen that the weight of authority is decidedly against the conclusion that this is a matter for determination by the court.
On principle and independent of the decided cases, I am of the opinion that the courts are and should be bound by the declaration of the Legislature, and for these reasons I dissent.
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