State ex rel. Morris v. Mason

Dissenting Opinion.

Breaux, J.

I will occupy but little time and take but little space in stating the grounds of my dissent. The questions involved have *695been so thoroughly discussed in the opinions of the majority and in-, the dissenting opinion of the senior Associate Justice (with the latter-I concur) that I am inclined to record a silent dissent.

The importance of the subject and the thoroughly prepared briefs-urge me to write out a few general propositions in support of my opinion. I have written the word brief above, as sickness did not permit me to hear the oral argument. I take part in the decision-only for the reason that a desire to have a full bench to pass upon the case was manifested and counsel acceded to the wish expressed at the time the case was orally argued.

I have no dissent to express from the proposition that the articles-of the Constitution furnish us with the test to decide the legality of' the proposed amendment. A proposition as plain does not need argument or authority in its support.

A vast power is vested in the General Assembly. When limitations to this power can not be found in the Constitution of the United States or in the Constitution of the State, the will and discretion of' the Legislature are the only limits. The power being thus extensive, there is safety, surely, in adhering to the words of the- Constitution- and in not parting from them until repealed by the popular will lawfully expressed.

An amendment presented in compliance with Article 256 can be submitted to a vote without the signature of the Executive, provided it is not objectionable in point of substance and does not contain legislative enactments.

The proposed amendment was not exclusively prepared, acted upon by the Legislature and submitted in accordance with the requirements of Article 256 of the Constitution. This article contains a complete law in itself on the subject. It provides who shall cause-the advertisement of the proposed amendment to be made; the time and the newspaper; the submission for approval or rejection, and the proclamation to be made of the result. The General Assembly added to the words of the Constitution, which reads: proposition “ for amendment shall be published for three months preceding the next election,” etc. Art. 256.

In the projet of amendment it is made the duty of the Secretary of State to publish the amendment “within ninety days after the first day of January, 1891.”

The words in the Constitution, “preceding the next election,” *696■fix the time of advertisement. They do not indicate any three months prior to the election, nor are they uncertain as to the time.

A preceding event is one which happens immediately previous, .as, for instance, the preceding day, or the preceding chapter, is the day or the chapter which goes before.

A preceding proposition is closely followed by another. It is •opposed to succeeding. To illustrate: If the Legislature had or- ■ dered a notice to be given or an advertisement to succeed the adoption of an amendment, the time would be immediately after the ■adoption, as preceding requires that it shall be immediately preceding. Under the Constitution the advertisement should be made three months immediately preceding the election.

When laws are adopted to have an advertisement made at another time than that indicated in the Constitution, the proposition to amend is not constitutional and organic in its entirety, but partly legislative, and Article 75 of the Constitution then applies.

The proposed amendment provides by special enactment that special advertisement of its submission shall be made at another time than that ordered in the Constitution.

The constitutional provision fixes the advertisement ninety days ■preceding the election.

The amendment for submission provides for its advertisement more than twelve months prior to the election. In the enactment of this law the Governor is part of the law-making power.

I find a well considered decision on the subject in the California reports.

Amendments to the Constitution of California, as it is in Louisiana, are proposed by the two houses of the Legislature, but the time for the submission to the voters must be fixed by an act of the Legislature, as the Constitution is silent in that respect.

I quote from the decision: “It will be remarked that the power to propose an amendment is vested in the two houses, and if two-thirds of all the members elected to each of the two houses vote in favor thereof, it shall be the duty of the Legislature to submitsuch amendments to the people to be voted thereon.

“ The proposal of the amendment is not by the Legislature as such in the ordinary enactment of a law, and with the proposal the Gover.nor has nothing to do. * * But the matter of submitting the proposed amendment to the vote of the people is quite different.

*697 'ThcCt is to be done by 'the Legislature by a law to that effect, and in the enactment of a law the Governor is a part of the law-making power.

The time when the election is to, be held must be fixed by law, and ■as there is no law fixing such time, it must be fixed by an aet of the Legislature, and is therefore subject to executive veto. Hatch vs. Stone-man, Governor, Pacific Reporter, Yol. 6, No. 11, p. 785.

The propositions .to amend are amenable to the additional objection that there are several amendments in the act to be submitted.

The Constitution requires: When more than one amendment shall be submitted at the same time, they shall be submitted in such form •as to enable the electors to vote on each separately.

The subjects of amendments of the organic laws gave some concern early in the history of the government. Alexander Hamilton, whose writings have secured for him a place in history among the first of the many wise and distinguised men of those days, gave the ¡subject great attention.

I quote from one of his letters in the Federalist: “But every ¡amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would be no necessity for management or compromise in relation to any other ■point; no giving or taking. The will of the requisite number would ¡at once bring the matter to a decisive issue.”

The wisdom of reducing amendments to single propositions has ■since been considered and measures have been adopted to carry out the theory suggested by its necessity.

In some States the proposed amendment must be adopted by the ¡successive Legislatures, perhaps by two-thirds of one’ and three-fourths of the next. In some States not more than one amendment can be brought before the same Legislature; in some it is provided that amendments must not be submitted to the people often er than once in five years, and so -on.

In Louisiana the Convention adopted the expedient of enabling •the elector to vote on each amendment separately.

The charter of a company is a distinct scheme; an independent proposition; a separate aet. In organic law, in legislation, in jurisprudence, it is a distinct subject.

If articles, stipulations and conditions other than those essential to its organization, and not germane thereto, are made a part of the *698act of incorporation, it includes more than one proposition, one-subject, one project.

In addition to the charter and the privileges it i& designed to secure, it is in contemplation to set aside and appropriate the annual revenues it offers, for the term of twenty-five years, to purposes named.

The objects are the most important which require the attention of' the government.

The schools, the levees, charities, pensions, drainage.

The amount proposed will no longer be a comparatively insignificant sum for the Charity Hospital (although highly beneficial to that great institution), unfelt and unperceived as a separate question in the movements of appropriations by the Legislature.

In the affairs of the State the House of Representatives has always been the authority in originating bills for raising revenue or-appropriating money. This it is proposed to alter in so far as relates to the amount offered.

At least six articles of the Constitution will be amended or repealed. These articles are 14, 35, 43, 53, 54 and 55. I do not commit myself to the averment that different amendments and changes can not be made by one amendment, when they are germane, but I do assert that the propositions are not germane; some of them can not, under the law, be grouped in one amendment, and should be submitted separately. They are dissimilar and not reducible to a-condition of oneness.' It is not a composite whole, but a number of different subjects involving distinct intent.

I have considered questions of law, and my propositions are advanced to that end.

Statements are not made with reference to policy or to the impolitic in political development. They have no place here, but belong to another department.

Should the proposed amendment be made part of the Constitution and the State maintain the authority of her laws, her welfare and. her, prosperity, under their wise administration and enforcement, and • continue to maintain her deserved position in the great family of States, there will be no cause for regret.

If the reverse should be the result, and the precedent, as a question of law, should become bad and injurious, the sovereignty of the. *699State will be responsible, embracing in that sovereignty every citizen. No one will escape the responsibility and the sting of reproach.

Therefore, the right and duty of each to discuss measures of law of great importance, and to express his views, particularly when he admits, on the part of those with whom he differs, the sincerity he claims for himself.

I dissent from the opinion of the majority of the court.