dissenting.
Fourteen years ago this court, by unanimous decision, condemned the precise amendment we are now considering. To-day a divided court, grown wiser or more progressive, can find no flaw in the same amendment. We know what the law was yesterday, but our knowledge of yesterday is ignorance to-day. When to-morrow dawns, what the Constitution will be made to mean, by judicial construction, the prescience of Divinity alone' can conjecture. If apologies were necessary, it seems to me that the above statement furnishes ample apology for this dissent. ■
The present amendment is decided to be a part of the Constitution, and we are confronted with complications, the solution of which is fraught with many difficulties. The court, as now constituted, may work out the problem *589as far as it affects the judge whose title is challenged in the' instant case, because, and because only, whether the solution he right or wrong, the solution will stand as the law of the case. What force the decision of my associates may have upon the rights of judges, whose terms of office extend beyond future elections, is for the future to determine, and, if this decision stands, judicial legislation may save the situation; nothing else can.
This is a very simple lawsuit, and the settlement of the rights of the parties thereto is not a complex problem. The attorney-general challenges the right of appellant to hold the office of judge of the chancery court, and it is wholly unnecessary to construe section 273 of the Constitution in order to decide this question. It is immaterial whether this section of the organic law has been amended or not. There can be no room for doubt that the trial court correctly decided this issue by dismissing the proceeding instituted by the attorney-general. No other judgment could have been rendered, and the amendment in question can in no way affect the judge whose title to the office is attacked. It is unnecessary to cite authorities to show that courts will not undertake to decide constitutional questions unless it is necessary to do so in order to adjust the rights of the parties to the litigation, or unless there is some other compelling reason for a construction of the Constitution. This is obviously the law, and this is the rule followed by all the courts.
In this state of the record my associates have undertaken to lay down rules for the determination of future lawsuits — controversies yet unborn. This is a courageous thing to do, an unnecessary labor of love, and a dangerous precedent, especially when, as in this instance, a fourteen year old and heretofore unchallenged decision of this court is to be repudiated because it is held to be unreasonable, unreasoning, and pernicious. I submit that an effort to provide a rule of construction for the *590future guidance of the people is hazardous in the extreme, and, in my judgment, is entirely futile. According to my associates, a construction of the Constitution is never settled until it is settled'right, and that the right is to be determined by the majority of the court last to pass on the question. It must be very consoling for a judge to be able to say that he knows that he is absolutely right, in spite of the contrary views of three other judges who are just as able and sincere as himself, but, I submit, this frame of mind will destroy all precedent, and substitute therefor the unbridled license of pride of opinion. This will bring about uncertainty, confusion, and frequent injustice.
I will not pause to make a differentiation between the doctrine of res adjudicata and stare decisis; the distinction being known to all lawyers. I claim, however, that the Powell case comes as near being res adjudicata of the instant ease as is possible, without being so in the precise and technical sense. The parties to the Powell case were the state of Mississippi and a judge of the circuit court, who happened to be at the time Eobert Powell; the parties here are the state and a judge of the chancery court, who happens to be the appellee. The decision of this court in the Powell case gave the office to Judge Powell, because the alleged amendment to the Constitution was not framed in the form the Constitution prescribed. The amendment in this case is exactly the same that failed to oust Powell; but by the majority opinion it is made effectual to oust Jones. Had this question arisen soon after the decision of the Powell case, and had my learned associates composed the majority then, we would have had in Mississippi the unique spectacle of Powell holding by appointment, because the elective principle was by one court declared to be nonexistent, while Jones would have been ousted from office by another court -because his appointment was vacated by the adoption of the elective system. Powell could not be ousted by *591any proceeding'known to the law; lie was securely entrenched behind the unscalable walls of res adjudicaba. Jones could not appeal to the decision in Powell’s case to save his office; stare decisis being dead, Jones would have been forced to walk out. By the authority of the Powell case, all of the judges appointed since have exercised their judicial functions, and have taken from and given to litigants property of untold value, and have pronounced death sentence upon a large number of unfortunates, and it now comes to pass that these judges were without authority, except as de facto officers.
I am not unmindful of the fact that the Powell case decided the amendment had not received the majority of the votes cast, but the illustration given above does not lose any of its force because of that fact. Taking into consideration possible complications of the sort mentioned, together with the myriad of evils which attend a vacillating policy of constitutional construction, the conviction is forced upon me that the reasons given for the slaughter of the doctrine of stare decisis are comparatively and essentially weak. The decision of my associates does not possess the elements of stability and fix-edness, because in its every fiber it carries a taint of autoinfeetion, the virus of which is calculated to destroy the decision as a precedent. Judges of different views can always find in that decision authority to ignore precedent, and for whittling away the time-tried doctrine of stare decisis, whenever this principle of law stands in the way.
í < js not in the common law, a maxim more eminently just and promotive of the public convenience, than that of ‘stare decisis... If law, well established may be annulled by an opinion, a foundation is laid for the most restless instability. The decisions of one court may be overruled by another court; and those of the latter will have only a transient efficacy, until some future court, dissatisfied with them, shall substitute new *592principles in their place. No system of inflexible adherence to established law can be as pernicious as such ceaseless and interminable fluctuations.” Palmer’s Adm’rs v. Mead, 7 Conn. 149.
To put it mildly, I believe it may be said, without the least exaggeration, that the judges composing this court when the Powell case was decided were lawyers of more than average ability, and that opinions rendered by them bear evidence of careful and thoughtful consideration of all questions presented to the court. The spokesman for the court in the Powell ease enjoyed, and still enjoys,, the distinction of being pre-eminently endowed with the power of exact and analytical reasoning, and the opinion prepared by him in that case, and approved by his. associates, show that he frankly met and judicially dissected the cases mainly relied on by my associates to support their views in the present case. The Powell case had the best thought of three great judges, and those three-judges reached a conclusion directly opposed to the views-of my associates in the present case. It would seem that this fact alone would be a sufficient reason why we should. adhere to the construction of the organic law of the state adopted in the Powell case. To the strength of the decision in the Powell case may be added the further fact that for fourteen years the construction placed upon the-Constitution in that case has remained unchallenged, and no effort has been made to amend the Constitution so-as to modify or change the rule of construction then announced.
We must presume that the representatives of the people, and the people themselves, are not dissatisfied with the Powell case, but, on the contrary, that they approve-the same; and we must go further to ascertain why the legislature submitted the amendment in its present form. I think I may with propriety 'take judicial knowledge of' the political history of the state and therein find a possible solution of the puzzle. Political issues in this state-*593are few, and tlie people are necessarily a unit on almost every tiling, and to give some spice to tlie campaigns candidates for public offices have used an elective judiciary-for the purpose of relieving the monotony of each campaign. It is certain, however, that no amendment to the Constitution whereby the rule of construction adopted in the Powell case might be changed has been proposed or discussed. The elective judiciary issue must, however, be preserved in some form for future exploitation, and the least harmful way to attain this end has been to submit an amendment to the Constitution which would be guaranteed not to put that question at rest. Plowever, having served in the legislative department of the government, and being now unable to even conjecture what reasons controlled me in many of the votes cast by me, I am fully conscious of the futility of any effort to peer into the legislative mind, and I have about come to the conclusion that it is quite as difficult to forecast the workings of the judicial mind. But whatever may have been the motive of the legislature when this question was submitted in a form condemned by the -supreme court as abortive to accomplish the election of the judges of the chancery court and judges of the circuit court, it remains sure that the legislature adopted the surest plan to defeat the election of these judges, unless this court should waver and recant, which contingency, I submit, was not reasonably to be anticipated.
In presenting my views, I have thus far proceeded upon the theory that the rule of construction announced by my associates is a better rule of construction than was announced in the Powell case, while, as a matter of fact, I am not prepared to concede that theory. My own opinion of this controverted point is that this court adopted a reasonable rule in the Powell ease — not the only reasonable rule, hut simply a reasonable rule. I am not called upon to say what rule I would choose if the rule to be adopted was an original question, but I have no doubt of the rule we should adopt in this case.
*594Again, I submit that there is no reason why the courts of one state should permit the courts of other states to construe their Constitution for them. The court of this state is much better qualified to interpret the will of our people than are the courts of South Dakota, Colorado, or Wisconsin. The nation itself has always been divided into two great schools of thought in the construction of the powers-of Congress under the Constitution. Mississippi has always lined up with the strict constructionists, while the dominant thought of the states just mentioned is probably on the side' of the liberals. Must we slavishly follow the lead and adopt as inspiration the views of our neighbors, when their problems and their ideals are entirely different from and out of harmony with our own?
In our anticommercial statutes we have adopted a policy entirely different from that in any other state. Our “ Jim Crow” laws would receive a cold reception in the states mentioned. In the emancipation of women from the rigors of the common law in regard to the ownership of property, we did not wait for Wisconsin, Colorado, and South Dakota to lead the way. In fact, we have generally led and seldom trailed.
I believe no case can be found in the entire history of American jurisprudence where in a succeeding court has overruled the decision of its predecessors in a case like this, and that the opinion of my associates in the present case stands in a class created by itself. The enormous number of cases cited by my associates may appear impressive, but, as they do not touch the question here involved, the impressiveness of numbers is not at all convincing. The industry displayed by my learned associates in searching the authorities in a vain effort to find a case which can be construed to justify the overruling of a principle of constitutional construction that has been the fixed rule of law for fourteen years is commendable, but I submit that their industry and ability *595has been unavailing in the present case. When they nevertheless stand to their guns, admiration for their unflagging industry yields to astonishment at their temerity.
I have carefully reviewed the cases cited in the opinion of the court, viz.: Beck v. Allen, 58 Miss. 143; Lombard v. Lombard, 57 Miss. 177; Garland v. Rowan, 2 Smedes & M. 631. These cases are relied on to justify a refusal to stand by the doctrine of stare decisis. I have been unable to perceive in what way these cases give any comfort to my associates.
My brethren have assumed that the amendment construed in the Powell case “was very much more complex and complicated than the amendment proposed in the instant case.” I confidently submit that this assumption is unsound by whatever rule the comparative complexity of the two amendments may be measured. Did the legislature pass the amendment? Tested by any rule, I confidently assert that the legislature has never passed an amendment. They did exactly what the resolution under review says they did, and nothing more. _ There is no room for construction to be found in the resolution. The Constitution commands the legislature to pass a resolution amending the Constitution if they deem an amendment necessary, and when the legislature has passed such resolution their powers are exhausted. The legislature is not empowered to submit to the people an amendment; the Constitution imposes this duty upon the secretary of state.
There is not a word or syllable in the entire resolution that justifies the presumption that the legislature sought to amend the Constitution, but, on the contrary, the resolution plainly and undisguisedly shifts this responsibility to the broad shoulders of the people. All that part of the resolution providing for its submission is brutum ful-men, but it does demonstrate exactly what the legislature intended to do, viz., to submit, not to pass, an amendment. *596No lawyer, however resourceful he may be, can answer this contention, except by resorting to the contemporaneous construction idea, a pure legal fiction as unsubstantial in its application to this case as the fabric of a dream. No intention can be imputed to the legislature different from what the resolution plainly sets forth. They did submit an amendment to the people; they did not pass a resolution amending the Constitution.
My associates do not-balk at overruling a solemn decision of this court, nor do they hesitate to repeal the Constitution by giving contemporaneous construction the force' of an amendment to the Constitution. A mere reading of section 253 will demonstrate that the legislature must pass an amendment to the Constitution; the amendment must be voted for by two-thirds of each house. This must affirmatively appear. The resolution in the present case does not pretend that the members of the legislature voted to amend the Constitution.
The resolution states that the members voted to submit an amendment to the people. There is nothing to ■construe; the language of the resolution is plain and unambiguous. It is well known that members will vote for referring things to the people, when they are uncompromisingly opposed to the proposition referred. This question has never been raised until it was raised in this case, and I earnestly insist that the contention of appellee is unanswerable, unless it can be said that contemporaneous construction has infinitely more force than a decision of the supreme court.
In order to maintain this amendment it is not only necessary to overrule the Powell case. It is also necessary to give more weight to the contemporaneous construction idea than is given to the solemn decision of the highest court of the state. My associates are driven into a pul de sac, and, to find a way out, contemporaneous construction is clothed with the force and power of an amendment to the Constitution. In my opinion, nothing *597could more forcibly illustrate tire unwisdom of straying from tlie beaten path to promulgate a new rule of construction wliicb. may, or may not, be a better rule than the old rule.
All of the cases cited by my associates seem to give great weight to the fact that the people had voted for the amendments before them. It seems to be the contention that the people’s vote cures all defects and omissions of the legislature. This does not seem good nonsense to me. The people have limited themselves in their own Constitution, and the courts have no power to loosen the self-imposed limitations. Besides; the people have commanded their representatives not to bother them with voting on amendments, unless the representatives believe them necessary, and the Constitution points out the way for the representatives to manifest their belief that the proposed amendment is necessary. Something is said about the people’s having indorsed the amendment we are considering. By a pure fiction of the law this is true, and it would also be true had only five votes been cast, three of which were cast for the amendment. Less than twenty thousand voters are no more the people than the three tailors of London, who issued their decree styling themselves: “We, the people of England. ’ ’ The people are presumed to know the law, and by this legal fiction I am authorized to say that the voters did not vote on this amendment because they knew the supreme court had said that it was void. As a matter of fact, this court has no mandate of the people to spur them to an extraordinary effort to destroy the wholesome doctrine of stare decisis, and all talk about the people’s will, clearly expressed, sounds well, .but has no foundation of fact.
In the celebrated case of Shylock v. Antonio, Bassanio makes a powerful appeal to the judge to depart from the fixed rules and find a rule to fit the special case. I quote the appeal and the reply of the wise and just judge, viz.:
*598Bassmio: ' “And I beseech you,
Wrest once the law to your authority:
To do a great right, do a little wrong,
And curb this cruel devil of his will.”
Portia:
“It must not be; there is no power in Venice • Can alter a decree established:
’Twill be recorded for a precedent,
And many an error, by the same example,
Will rush into the state: it cannot be.”
I believe it is generally admitted that justice was meted out in that case by a strict adherence to the law as it was written, and I submit the same result will follow in a large majority of cases by the application of the same principle.
In conclusion, I venture to suggest to my associates a careful and thoughtful consideration of the Golden Text of the International Sunday School Lessons for yesterday, which reads thus: “Look therefore whether the light that is in thee be not darkness.” Luke xi, 35,