(dissenting.) I do not agree with the majority of the court in the conclusion reached in this case. I will not discuss the question as to the number of votes required by the Constitution to adopt the amendment, as it seems plain to me that the ascertainment of the result of the election made by the joint session of the Legislature, and its declaration, made through the Speaker of the House, of the adoption of the proposed amendment, are conclusive of that fact, and must be accepted by the courts as final.
I fully concur, however, in all that is said by Mr. Justice Riddick in his separate opinion to the effect that the framers of the Constitution meant to require, for the adoption of an amendment, only the affirmative vote of a majority of all the electors voting upon that question at the election.
The Constitution provides how amendments thereto may be originated and submitted to the people for adoption, but it is silent as to the method by which the result of elections upon the question of adoption or rejection shall be ascertained and declared. At least, there is no express provision of that instrument upon the subject, except that they shall, at -the next succeeding general election for senators and representatives, “be submitted to the electors of .the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this Constitution.”
The nearest approach to an express provision of the Consti-' tution on the subject is found in a section of the same article (sec. 24, art. 19) as follows:
“The General Assembly shall provide by law the mode of contesting elections in cases not specifically provided for in this . Constitution.”
But whether this be held to be authority for the Legislature to provide a method of ascertaining, declaring and contesting the result of an election upon the adoption or rejection of a proposed amendment to the Constitution, certainly nothing is found anywhere in that instrument restricting the power of the Legislature in this regard.
. According to the American system of government, the Constitution of a State is not a grant or enumeration of powers vested in the legislative department, but is a mere limitation upon the exercise of such powers. The Legislature can exercise all. the powers not expressly or by fair implication prohibited by the Constitution. “The Legislature,” said Mr. Justice Lacy in delivering the opinion of this court in State v. Ashley, 1 Ark. 511, “then, can exercise all the power that is not expressly or impliedly prohibited by the Constitution; for whatever powers are not limited or restricted, they inherently possess as a portion of the sovereignty of the State.” The same doctrine has been so often announced that it has become elemental. I am not aware of it ever having been controverted. State v. Fairchild, 15 Ark. 619; Eason v. State, 11 Ark. 481; Baxter v. Brooks, 29 Ark. 173; Ruddell v. Childress, 31 Ark. 511; Dabbs v. State, 39 Ark. 353; Cooley, Const. Lim. § 205.
Then, if it be held that the Legislature possesses the power to provide a method for ascertaining and declaring the result of an' election upon the submission of a proposed amendment to the Constitution, it seems equally clear that the Legislature of the State has done so.
The statutes on the subject, after providing for the method of publication of the proposed amendments, the form of the ballots and duties of the judges of election with respect to certifying the returns, are as follows:
“Section 716. County election commissioners, at the same time and in the same manner that they are required to send the abstracts of election of senators and representatives in the General Assembly, shall send to the Secretary of State copies of the abstracts filed in their office of the returns of the vote on said amendment, plainly marked on the envelope thereof the words: ‘Returns of vote on Amendment No...... From the county of ......’ And in case of a failure to receive any returns of such vote at the seat of government for ten mails after the same is due, the Secretary of State shall dispatch a messenger to the county from which returns have not been received, with directions to bring up such returns or copies thereof.
“Sec. yiy. When all the returns have been received by the Secretary of State, said Secretary shall keep such returns in the original envelopes with the seals unbroken until the General Assembly shall convene, when he shall send such returns to the Speaker of the House of Representatives at the same time and in the same manner as is now provided by law for sending in the election returns for Governor and other State officers, and said returns shall be opened and counted in the presence of the General Assembly in joint convention assembled.
“Sec. 718. If it shall appear that a majority of the electors voting at such election adopt such amendment, then the Speaker shall declare such proposed amendment duly adopted by the* people of Arkansas. And when so declared adopted, the Speaker of the House of Representatives shall cause a true copy of such amendment to the Constitution of the State of Arkansas; signed by the President and the-Speaker of the House of Representatives, and attested by the Secretary of the Senate and the Clerk of the House of Representatives, to be filed in the office of the Secretary of State, and the same shall be and remain a record of said office. The Governor shall, thereupon, publish his proclamation in some newspaper of general circulation, announcing the ratification and adoption of said proposed amendment, and it shall have all the force and effect of any other part of the present Constitution, and shall be recognized by the legislative, executive and judicial departments of the State of Arkansas, from the filing of such certified copy in the office of the Secretary of State, as a part of the organic law of the State.”
It appears that the provisions of the statute were complied with as to canvassing the returns and declaring the adoption of the amendment in question.
The record of the joint session of the two houses of the Legislature recites the following proceedings:
“The joint assembly then proceeded to open and canvass and publish the returns of the election held September 3, 1894, for Amendment No. 4, and against Amendment No. 4.
“The Speaker of the House declared the result of such election as appears from the returns so opened and published to be as follows:
“For Amendment No. 4, 42,426.
“Against Amendment No. 4, 40,207.
“And it appearing from the said returns that the majority of the electors voting at said election voted for said amendment, the Speaker of the House of Representatives declared the amendment adopted by the people of Arkansas.”
. That the statutes in question contemplate a final and conclusive determination of the result of the election and the adoption of the amendment, there can scarcely be a doubt.
They provide that when the Speaker declares the adoption of the amendment/ and a duly attested copy thereof is filed in the office of the Secretary of State, the “Governor shall thereupon publish his proclamation in some newspaper of general circulation, announcing the ratification and adoption of said proposed amendment, and it shall have all the force and effect of any other part of the present Constitution, and shall be recognized by the legislative, executive and judicial-departments of the State of Arkansas, from the filing, of such certified copy in the office of the Secretary of State, as a part of the organic law of the State.”
It is contended by those who deny the legal adoption of the amendment that the Speaker of the House of Representatives, in complying with the terms of the statute, only performs a ministerial duty in announcing the result of the election, and that no determination of the result is thereby recorded. The majority of the court are pleased to refer to the ascertainment and declaration of the result of the election as the act of the Speaker alone. I think this is entirely too narrow a scope to give to the statute. It is inconceivable to my mind that, if the framers of the statute intended to give no more' force and effect to it than that, they would have provided for the useless ceremony of having both houses of the General Assembly convene in joint session in order to sit idly by and witness the performance of so perfunctory a duty. If the members of the two houses, representing as they do the sovereignty of the people, were to do no more than stand as silent witnesses to the ceremony, without power to protest against or correct a false or erroneous declaration of the result of the election, as well might the result be declared to bare walls instead of in the presence of the Assembly. As well might the returns be left with the Secretary of State to open them and declare the result, the same as he does with the returns of the election of certain State officers which are not required to be certified to the Speaker of the House of Representatives.
The Speaker is the mouthpiece, the creature and servant of the House, not its master in any sense or in the performance of any duty. He merely does the bidding of the House. And, according to all settled rules of statutory construction and of parliamentary law, if he should, in the performance of the duty imposed upon him by this statute, announce a result different from the will of the majority of the members of the joint session, that body would undoubtedly have the power to revise or reverse the ruling and correctly declare the result of the election. The joint session of the two houses also, in my opinion, has the power to hear and determine a contest as to the result of the election. It is not essential that the word “contest” should have been used, if it may be fairly implied from the terms of the act that it was meant to give the joint session the power to ascertain and declare the correct result of the election. The power to hear and determine a contest for the purpose of ascertaining the correct result of the election would necessarily follow.
This court, in Baxter v. Brooks, 29 Ark. 173, in dealing with the power of the Legislature ta hear contest for the office of Governor, salid: “The mere failure on the part of the Legislature to provide a mode of conducting the trial would no more oust the jurisdiction than a failure to establish laws governing actions before justices of the peace' or probate courts would destroy their constitutional jurisdiction, and give power to bestow it somewhere else by a simple enactment.” ' In other words, the framers of the Constitution, by failing to expressly provide for a method of ascertaining and declaring the result of elections for the adoption of amendments, or for contesting the result by proceedings in the courts, have left it to the legislative branch of government for treatment as a political question, the samé as the election of certain officers and contests thereof, and the same as the enactment of laws for the welfare of the people. Viewing the question in that light, the courts have nothing to do with it further than to .decide whether or not amendments have been properly proposed and submitted to the people ánd the result of elections thereon determined and proclaimed by the proper legislative authority.
It is noteworthy, as indicative of the legislative intention in framing the statute in question, that the returns of an election upon the adoption or rejection of an amendment are required to be certified and delivered to the Speaker of the House of Representatives, the same as returns of the election of those State officers (Governor, Secretary of State, Treasurer, Auditor and Attorney General) contests of which the Constitution provides shall be before the General Assembly. This indicates an intention to provide a tribunal, not only for the ascertainment and declaration of the result, but also for a contest over a disputed result.
Much may be said, in support of this contention, of the expediency of a speedy and definite ascertainment of the result of such an election, so that the people at large, and especially those who are charged with enforcement of the law, may be informed as to changes in the organic law and, knowing them, may obey its mandate. I can conceive of no more intolerable condition of public affairs that that of having the result'of an election for the adoption or rejection of an amendment to the Constitution left in doubt until such time as the adjudication in the courts of personal rights shall demand a decision of the question. It is chaotic. For, so long as the question of fact whether or not a proposed amendment has received the approval of a majority of the voters remains unascertained by some final arbiter of that question, no man may with certainty know the law.
In the very nature of things, the courts can only adjudicate the validity of an amendment to the Constitution when it is drawn in question in suits involving private rights, and can then base a judgment only upon the facts proved and presented in the record of that particular case. No decision of the question in one case can ever become binding upon the court or parties in another case where the proof is different as to number of votes cast at the general election at which the proposed amendment has been submitted. Therefore the question can never be regarded as definitely settled if its settlement is a judicial question to be adjudicated by the courts. To illustrate: Amendment No. 5, known as the “Road Tax Amendment,” received only a small majority of all the votes cast at the general election of September, 1898, at which it was submitted for adoption or rejection, if the total number of votes cast for the several candidates for Governor be taken as the test. According to the decision of the court, however, the vote for Governor does not necessarily afford the test, and it is always open to question the actual number of votes cast. Now, suppose that in a suit by one taxpayer to restrain the collection of the road tax assessed against his property, he should prove to the satisfaction of the court by proper certificates of the total number of votes cast for the various candidates for county officers that the vote for Governor did not represent the total vote cast at the election, and that the amendment did not receive a majority of all the votes cast at the election. The trial court would then declare that the amendment was not adopted, and that the assessment of road tax was void, and this court on appeal would of course affirm the decision. Let us suppose also that another taxpayer should bring suit for the same purpose, but should be less diligent than the other successful litigant in getting proof of the' total number of votes cast at the election, and content himself with the proof of the number of votes cast for candidates for Governor. The trial court would in that case declare the amendment to have been legally adopted, and enforce the payment of the tax, and this court would of course affirm the decision. We would then have presented the novel spectacle of this court declaring in one case the amendment legally adopted as a part of the organic law of the State, and in another case declaring it to have been rejected. Who, then, could know the law?
But it is said that this is necessarily a judicial question, to be settled by the courts. Why so ? Haven’t the people, in framing the Constitution of the State, the right to leave with the Legislature, as a political question, the power to provide a method of ascertaining and declaring ’ the result of an election upon an amendment? It seems plain to me that in framing the Constitution of 1874 they have done so, and that the Legislature has provided a method of definitely and finally ascertaining the result of such election. I can see no reason, either as a matter of expediency or of law, why this could not be done, or, with due deference to the opinions of my brothers, how a conclusion can be reached that 'it has not been done.
Other questions of like import and equal importance have been left with the legislative branch of government for final decision, and this court has recognized the binding effect of the provision.
The Constitution of 1868 provided that the General Assembly should canvass the returns of the election of Governor, Secretary of State, Treasurer, Auditor and Attorney General, declare the result and hear contests for said offices, and this court has held that it is a valid provision for the final settlement of the result of such election as a political question.
No suggestion has ever been made that that is a judicial question which must be settled by the courts. On the contrary, this court has held that the courts can not review the decisions of the Legislature. Baxter v. Brooks, 29 Ark. 173. This decision sustained by the great weight of authority. Taylor v. Beckham, 108 Ky. 278; Batten v. McGowan, 1 Metc. 533; State v. Marlow, 15 Ohio St. 134; People v. Goodwin, 22 Mich. 496.
The Constitution provides that no local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or the thing to b.e affected may be situated; but this court has repeatedly held that the question whether -the notice has been given is one exclusively for the Legislature, and that the courts will not treat it as a judicial question, and review the action of the Legislature. Davis v. Gaines, 48 Ark. 370; Waterman v. Hawkins, 75 Ark. 120.
The Constitution also provides that “in all cases where a general law can be made applicable, no special law shall be enacted” by the General Assembly; but this court has often held that the question whether the desired result can be accomplished by a general act must be determined by the General Assembly, and that its determination is conclusive. Boyd v. Bryant, 35 Ark. 69; Davis v. Gaines, supra; Carson v. Levee District, 59 Ark. 513; St. Louis S. W. Ry. Co. v. Grayson, 72 Ark. 119; Waterman v. Hawkins, supra.
The court, in the case last cited, quoted with approval the following language from Judge CooéÉY : “The moment a court ventures to substitute its own judgment for that of the Legislature in any case where the Constitution has vested the Legislature with power over the subject, that moment it enters upon a field where it is impossible to set limits to its authority, and where its discretion alone will measure the extent of its interference.” Cooley’s Const. Lim. (7 Ed.), p. 236.
The Constitution provides that no appropriation of money shall be made except for defraying the necessary expenses of government, and for certain other purposes named, without the concurrence of a majority of two-thirds of the General Assembly; yet this court held that the General Assembly must be the judge whether the object of an appropriation is for “necessary expenses of government,” and that its determination is binding upon the courts. State v. Sloan, 66 Ark. 575; State v. Moore, 76 Ark. 197.
If these are not judicial questions to be determined by the courts alone, how can it properly be said that the result of an election’ upon the adoption or rejection of a proposed amendment to the Constitution is essentially a judicial question, which must be determined by the court, even though the framers of the Constitution have seen fit not to restrict the power of the Legislature to provide a method of finally and conclusively ascertaining the result of such election?
It is not material whether the Constitution itself provides that the Legislature shall determine the result of the election, or whether, by silence upon the subject, and by failing to restrict the power of the Legislature in that respect, it has left that branch of government free to provide a method of ascertainment. The effect is the same, for, as we have already seen, the Legislature is vested with sovereign power, except as is expressly or by fair implication restricted by the Constitution. I think the views I have expressed are fully sustained by authority.
The following cases sustain the doctrine that where the Legislature, by authority of the Constitution, has erected -a tribunal for the purpose of determining the result of an election upon any subject, the decision of such tribunal is conclusive, and can not be reviewed by the courts. Govan v. Jackson, 32 Ark. 553; Batten v. McGowan, 1 Metc. 533; Taylor v. Beckham, 108 Ky. 278; Luther v. Borden, 7 How. (U. S.) 1; Taylor v. Beckham, 178 U. S. 548; State v. Harmon, 31 Ohio St. 250; Corbett v. McDaniel, 77 Ga. 544; Simpson v. Commissioners of Mecklenburg, 84 N. C. 158; Miles v. Bradford, 22 Md. 170; Worman v. Hagan, 78 Md. 152.
The case of Worman v. Hagan, supra, is precisely in point, except that the Maryland Constitution provided that the returns of elections should be made to the Governor, and that he should ascertain and declare the result. The court said: “It will be seen that the Constitution confides to the Governor exclusively the power and duty of ascertaining the result of the vote from an examination of the returns made to him. And, on his proclamation that a proposed amendment has received a majority of the votes cast, it becomes eo instanti a part of the Constitution. There is-no reference of the question to any other officer, or any other department. It is committed to the Governor without qualification or reserve, and without, appeal to any other authority. Most certainly, no jurisdiction is conferred on this court to revise his decision. It may be asked what is to be done in case the Governor should violate his duty, and wrongfully proclaim an amendment as adopted which in point of fact had been rejected. It would not be becoming in this court to suppose that such a contingency would ever happen. The courtesy due to the executive department forbids us to entertain such a conjecture. But, if, unhappily, in future times it should ever occur, assuredly a sufficient remedy will be found. The resources of a free government are ample, and will always be found adequate to punish and repress offenses against its sovereignty.”
I do not think that the conclusion of the majority of the court upon this question is by any means sustained by the array of authorities cited in the opinion. Few, if any of them, are decisive of the precise point presented'.
The case of Koehler v. Lange, 60 Iowa, 543, which seems to be relied upon with much confidence in the opinion of the majority, decides a totally different proposition. The Constitution of Iowa provided that constitutional amendments might be proposed by one session of the General Assembly, and “entered on the journals with the yeas and nays taken thereon, and referred to the Legislature to be chosen at the next general election,” and the same published for three months before such election, and, if agreed to by a majority of the members elected to each house of the next session, it should then be submitted to the people for adoption. The question arose whether or not the amendment had been properly proposed at the first (eighteenth) session of the General Assembly, the journals of that session disclosing the fact that the amendment as proposed at that session was materially different in phraseology from the one agreed to at the next session and voted upon by the people. It was contended on behalf of those who maintained the validity of the amendment that the joint resolution adopted at the next session agreeing to the proposed amendment was a conclusive determination of the fact that it had been legally proposed at the previous session, but the court (quoting the syllabus) said: “When the Eighteenth General Assembly proposed an amendment to the Constitution, a recital of such proposed amendment by the Nineteenth General Assembly, in a joint resolution agreeing to the same, is not conclusive upon the court as to the form of such amendment as originally proposed, nor as to whether the Eighteenth General Assembly actually agreed to the same in the manner required by the Constitution; and such recital does not preclude and estop the courts, in a proper case, from examining the journals of the Eighteenth General Assembly, to ascertain whether or not the amendment, as originally proposed, was in fact the same as that recited and agreed to by the Nineteenth General Assembly, and whether or not it was legally and constitutionally agreed to by the Eighteenth General Assembly.”
The several opinions of the court took a very wide range in discussing the question stated above, but nowhere was the question involved in the case at bar raised or discussed. It is therefore not an authority on this question. No question was involved there of the conclusiveness of the findings of a tribunal especially created to determine the result of an election upon a proposed amendment. On the contrary, the opinion in that case expressly recognized the force of former decisions of that court (Ryan v. Varga, 37 Iowa, 78; West v. Whitaker, Id. 598) holding that under a statute authorizing township trustees, upon presentation of the petition of one-third of the resident taxpayers, to order an election to vote a tax "in aid of railroads, the decision by the trustees of the question whether or not the petition contained the requisite number was judicial, and could not be reviewed collaterally by the court.
The same court had previously held, in the case of Baker v. Board, etc., 40 Iowa, 226 (Chief Justice Day, who delivered the opinion of the court in Koehler v. Lange, also delivering the opinion in this case), that (quoting the syllabus) “the decision of the Board of Supervisors that a petition asking for a submission of the question of relocating a county seat is signed by a majority of the legal voters in the county is judicial, and is conclusive until set aside or reversed upon appeal, writ of error, certiorari or other method provided for direct review.”
None of the decisions of the courts of Missouri, North Carolina, Indiana, Michigan, Wisconsin, California, Kansas, Minnesota or Alabama, in the cases cited by the majority, are upon the questions presented in the case at bar. At most, they only decide that the courts may declare proposed amendments to the constitution not legally adopted where it is shown that they have not been made in accordance with the requirements of the Constitution ; but in none of them is the question raised or decided as to the powers of the legislative branch of government to create a tribunal for the final' and conclusive determination of the result of an election.
The North Carolina court, in the case cited by the majority, decided that a certain amendment had been legally adopted; and subsequently in the Simpson v. Commissioners, 84 N. C. 158, and Cain v. Commissioners, 86 N. C. 8, the same court held that the decision of the commissioners to the effect that a majority of the voters favoring the adoption of the provisions of a fence law was final, and could not be reviewed by the courts.
The Michigan court in the case cited by the majority merely held that an amendment had been submitted to the people at a general election as authorized by the Constitution, and had been legally adopted. The same court, in a later case (Hipp v. Board, etc., 62 Mich. 456) held that the decision of a board of commissioners announcing the result of an election for removal of a county seat was conclusive, and could not be reviewed.
The Minnesota case cited by the majority, instead of sustaining their views, held valid an amendment to the Constitution of that State upon grounds which would uphold the amendment we are now considering. That court held in the case cited that acquiescence by the officials and people in the terms of an amendment amounted to a ratification thereof. The court, speaking through Judge MiTch'err, said: “As ultimate sovereignty is in the people, from whom all legitimate civil authority springs, and inasmuch as in the inception of all political organizations it is this original and supreme will of the people which organizes civil government, a court has no right to inquire too technically into any mere irregularity, in the manner of proposing and submitting to the people that which they have solemnly adopted and subsequently recognized and acted upon, as part of the fundamental law of the State. We doubt whether a precedent can be found in the books for the right of a court to declare void a constitution, or amendment to a constitution, upon such grounds. But, however this may be, there are, in our opinion, two conclusive reasons why the right to inquire into any irregularities in the mode and means by which this constitutional amendment was proposed and adopted must be now forever closed. First. Such irregularities if any, must be regarded as healed by the subsequent act of Congress admitting Minnesota into the Union. Second. They must be deemed cured by the recognition and ratification of this amendment, as a part of the Constitution, by the State, after its admission into the Union. This was done by the issue of the State railroad bonds, and accepting the security for the protection of the State under its provisions, etc.”
Amendment No. 3, as well as several other amendments to the Constitution which are by this decision declared not to have been legally adopted, have for many years been acquiesced in and treated as a part of the organic law of the State by the people and by all the departments 'of government alike. Judges have sat upon the bench holding commissions from the Governor pursuant to the authority of this amendment. Officers of all departments of government have been appointed by the Governor to fill vacancies, and no one has heretofore questioned his power to do so. In fact, this court has upheld the validity of such appointments. For more than twelve years Amendment No. 2, which falls by this decision, has limited the right of every citizen to vote at elections to the payment of a poll tax, and no one has questioned its validity. For several years a road tax has been regularly levied and paid, without objection, in most of the counties of the State pursuant to Amendment No. 5, and its validity is yet to be adjudicated.
I do not.mean to express the view that this amounts to a legal ratification of the amendments, but I mention the matter in order to call attention to the fact that the Minnesota decision cited by the majority in support of their views, instead of doing so, by the application of doctrines therein declared would uphold, instead of rendering invalid, the amendment we are now passing upon.
The two decisions of the Mississippi and New Jersey courts are the only cases cited in the opinion of the majority which, in any degree, tend to support their views on this question. The Mississippi case (State v. Powell, 77 Miss. 545) is not precisely in point, because it does not appear either that the Constitution or statutes of that State provide that the returns of the election shall be made to the Legislature or that that body shall ascertain and declare the result. Some of the reasons stated in the opinion in that case sustain the majority view, but, though it expresses the views of a court of great learning and ability, and was delivered by a learned judge for whose opinions on any subject I entertain the utmost respect, I am unwilling to follow its lead, believing, as I do, that it is based upon unsound reasoning.
The New Jersey court bases its conclusions upon the fact that the proceedings in which the question of the adoption or rejection of the amendment was a direct and not a collateral attack upon the findings of the State board of canvassers, and that it was in that way subject to review. The court reached a conclusion upon the facts in accord with the findings of the State board, and approved the findings to the effect that the amendment had received the necessary majority, and had been legally adopted.
I am therefore firmly convinced that the majority have-reached the wrong conclusion in this-case, and, on account of the importance of the question, feel constrained to record my dissent therefrom.
I am authorized to say that Mr. Justice Riddick concurs in the views I have herein expressed.