Power v. Robertson

Smith, C. J.

(dissenting.)

I am of the opinion that the judgment of the court below should be reversed, and the cause, if such it be, should be dismissed.

Among the questions presented for decision by this record are, first, the right of the revenue agent to maintain the action; second, the jurisdiction, ml non of the court below; and, in event the two foregoing questions should be decided in accordance with the appellee’s contention, then, third, is the judgment rendered correct?

The interest which the appellee claims in this controversy, by virtue of which he is entitled to maintain the action is, first, that he is a taxpayer; and, second, that his office will be adversely affected by the proposed law; neither of which, if Power v. Ratliff, 112 Miss. 88, 72 So. 864, Ann. Cas. 1918E, 1146, is to be followed, will avail him for that purpose, for it was there held that neither a taxpayer nor a person whose office will be abolished by the enactment *237of a proposed law under section 33 of the Constitution can invoke the restraining power of the courts to prevent the holding of an election for the adoption of the law. This holding is in accord with previous decisions of this court, particularly Gibbs v. Green, 54 Miss. 592, and Conner v. Gray, 88 Miss. 489, 41 So. 186, 9 Ann. Cas. 120.

But if Power v. Ratliff, supra, is not to be followed, then the question of the jurisdiction of the court below of a cause of the nature of the one presented by the record arises in determining which we must look to the amendment to section 33 of the Constitution, and, if po such jurisdiction is there conferred, then to other provisions of the Constitution, the statutes and the common law. The amendment to section 33 of the Constitution does not in express terms confer jurisdiction on any court to decide the sufficiency of a petition proposing the enactment of a law under it, and I am of the opinion that no such jurisdiction is conferred by implication.

The amendment to section 33, after providing that “the sufficiency of all petitions shall be decided by the secretary of state” and of what the proof or verification thereof shall consist, provides that — “In the event that the sufficiency of the petition is challenged, the question shall be tried at once, in term time or in vacation, and such cause shall be a preference cause over all other causes. . . . In the event of legal proceedings in any court to prevent giving effect to any petition, upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition.”

This language neither confers jurisdiction nor provides a procedure by which jurisdiction may be exercised. The utmost effect that can be given to it is that, when the sufficiency of the petition is called in question in a court having jurisdiction thereof, the cause shall be given preference over other cases, tried either in term time or vacation, and that the burden of proving the petition’s insufficiency shall be upon the party attacking it. It creates no ■cause of action, nor confers any right, but simply regulates *238the exercise of a right, or the disposition of a cause of action, that may arise by virtue of some other provision of the Constitution, of a statute, or of the common law.

One of the contentions of counsel for the appellee seems to be that the amendment to section 33 of the Constitution creates a new cause of action and new jurisdiction, to be known as a challenge of the sufficiency of a petition filed under the amendment, for they style the initial pleading filed by them in the court below as a “challenge,” refer to the appellee therein as the “challenger,” and the allegation therein is that he “comes and challenges,” etc. The word “challenge,” in the amendment, can have no such .signification. It means simply “called in question,” and the amendment must be construed as if it read:

“In event that the sufficiency of the petition is called in question,” etc. •

The provision of section 156 of the Constitution giving to the circuit court “jurisdiction in all matters, civil and criminal, . . . not vested ... in some other court,” and of section 702, Code of 1906 (section 481, Hemingway’s' Code), that it shall have “jurisdiction in all . . . actions and causes, matters and things arising under the Constitution and laws of the state which are not exclusively cognizable in some other court,” created neither a new jurisdiction nor cause of action. It simply provides that such as exist and have not been assigned to some other court shall be cognizable in the circuit court.

The only other statute which could be or is sought to be invoked by the appellee is section 91 Code of 1906 (section 73, Hemingway’s Code), under which the circuit court may “review the judgments of all tribunals inferior to” it by means of a writ of certiorari, which statute will be hereinafter considered.

Coming, now, to the common law, it is undoubtedly true that by virtue thereof the circuit court has jurisdiction to restrain some public officers under some circumstances from exercising a power not conferred on them by law, *239which jurisdiction it exercises by the issuance of a writ of prohibition. One of the appellee’s counsel stated on the oral argument that in instituting this proceeding counsel for the appellee were in doubt as to the exact nature of' the jurisdiction which the court below could exercise, and consequently tried to frame their pleadings so that a cause of action might be presented under either the common law or writ of certiorari jurisdiction or both, The judgment rendered indicates that the court also entertained a similar doubt, for in some of its features it resembles a judgment in a proceeding for a writ of prohibition, and in others of a review of a judgment of an inferior tribunal on a writ of certiorari.

“The writ of prohibition is an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an inferior tribunal, properly and technically denominated such, or to an inferior ministerial tribunal possessing incidentally judicial powers, and known as a quasi-judicial tribunal or even in extreme cases to a purely ministerial body, commanding it to cease abusing or usurping judicial functions.”

It will not be issued when the tribunal or officer to whom it is sought to be directed had been invested with the jurisdiction exercised, though the order entered by it or him may be erroneous for other reasons, and not when the injury complained of by the person seeking, it can be redressed in another procedure or tribunal. 32 Cyc. 598 et seq.; Clayton v. Heidelberg, 9 Smedes & M. 623; Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518.

Under section 3241, Code of 1906 (section 2543, Hemingway’s Code), the procedure for determining whether or not a writ of prohibition shall issue is that provided by section 3231, Code of 1906 (section 2533, Hemingway’s Code), et seq.; and while the two petitions filed by the appellee in the court below are not in approved and technical form for a writ of prohibition proceeding, it may be, and I shall concede, that under section 729, Code of 1906 (section 512, Hemingway’s Code), the writ should issue, in *240event it can be gathered from the allegations of the petition that the appellee is entitled thereto.

The ordinary duties of the secretary of state are admittedly purely ministerial, and this court stated in Power v. Ratliff, 112 Miss. at page 94, 72 So. 864, Ann. Cas. 1918E, 1146, that those imposed on him by the amendment to section SB of the Constitution are also ministerial. The judicial power, which the appellee claims is here conferred on the secretary of state, is to determine the-sufficiency of the petition. The power thus conferred is nothing more than he would have had to discharge, had the provision been omitted, and is that which rests upon every ministerial officer, to wit, to determine whether or not the facts exist which require the performance by him of any act; his duty being always not to act unless he is required so to do by the law when applied to existing facts. In order to determine such a question, it is always necessary for a ministerial officer to examine into and determine questions of fact, but in so doing he is exercising neither a judicial nor quasi-judicial power.

Judicial power “is the power of a court to decide and pronounce a judgment and carry it into effect between persons or parties who bring a case before it for decision.” 2 Bouvier’s Law Dictionary, 1740; 11 C. J. 120; Railroad Co. v. Adams, 77 Miss. 776, 25 So. 355; Flournoy v. City of Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468; Board of Supervisors v. Melton, 123 Miss. 615, 86 So. 369. There are no parties to the proceeding by the secretary of state to determine the sufficiency of a petition, and he is required to make no order or judgment therein, but simply to proceed with the ministerial act of submitting the law proposed by the petition to the qualified electors of the state in the manner required by the election laws. Moreover, the power to determine the sufficiency of the petition is expressly conferred on the secretary of state by the amendment to the Constitution here in question, and as herein-before pointed out a writ of prohibition will lie only to *241restrain the exercise of a power either not conferred at all or in excess of that which is conferred.

Another reason why the restraining power of a circuit court cannot he invoked to prevent the holding' of this election is that this court held, in Power v. Ratliff, 112 Miss. 88, 72 So. 864, Ann Cas. 1918E, 1146, that the courts will not restrain the holding of an election under the provisions of section 33 of the 'Constitution, for the reason that the judicial department of the government should not interfere with the exercise by the political department of purely political powers. It is true that that case arose in the chancery court,-and the one at bar in the circuit court; but the ground on which the decision there turned is equally applicable to a case originating in the circuit court. The holding in that case is in accord with other decisions of this court, particularly in Gibbs v. McIntosh, 78 Miss. 648, 29 So. 465, wherein the court said that: “The trend of judicial thought in this state is that elections of all sorts are not to be interfered with by the courts.”

An examination of the cases referred to by counsel for the appellee, wherein the courts have restrained the holding of an election, other than Simpson County v. Buckley, 81 Miss. 474, 33 So. 650, will disclose that they were cases in which an appeal to the courts was expressly provided by the statute under which they arose, or was held to lie under the general statute regulating appeals to the circuit court from judgments rendered by other tribunals. There can be no merit in the distinction sought to be made between valid and invalid elections, in so far as the question of the court’s jurisdiction is' concerned. The question of the validity vel non of an election can arise only after a court has assumed jurisdiction of the cause in which that question is presented for decision.

Coming, now, to the jurisdiction of a circuit court under section 91, Code of 1906.(section 73, Hemingway’s Code), which provides that it may review the judgments of inferior tribunals by means of a writ of certiorari, it is clear that no such jurisdiction can be here entertained. That *242statute provides only for a review by the circuit court of “judgments” rendered in a judicial proceeding and not of mere administrative orders, even though the person or tribunal- making such orders must have investigated and decided questions of fact in so doing. Board of Supervisors v. Melton, 123 Miss. 615, 86 So. 369. And, as hereinbefore pointed out, no judgment in a judicial proceeding is here involved. But if I should be mistaken in this, and the court below had jurisdiction under the statute last referred to, the judgment rendered does not conform to the requirements of section 90, Code of 1906 (section 72, Hemingway’s Code), for the trial of causes removed to the circuit court by the writ of certiorari.

Under this statute a cause is not tried in the circuit court on pleadings there filed, but on the record removed from and made in the inferior court. Board of Supervisors v. Melton, 123 Miss. 615, 86 So. 369. And unless an error appears on the face of that record the inferior court’s judgment should be affirmed. But, if such an error appears, then the judgment that should be rendered by the circuit court is either that which it appears from the face of- the record to be proper, or the cause may be tried anew on its merits. The court below evidently proceeded on the theory that, unless the allegations of the appellee’s petition were denied by a plea or answer, no issue was presented for decision, and that judgment must be rendered for the appellee in accordance with the prayer of his petition, without a trial on the merits:

Conceding, but merely for the sake of the argument, that the secretary of state erred in not hearing the evidence offered by the appellee in support of his objections to the sufficiency of the petition, and that that error appears from the face of the record,.then the court below should have set aside the order made by the secretary of state (if he in fact made any order at all within the meaning of that term), and tried the objections of the appellee to the sufficiency of the petition on their merits, on which trial, under the express language of the Constitution, the bur*243den of proof would have been on the appellee. That the appellant may not have insisted on this course being pursued is wholly immaterial, for the question here is one of power, and not of procedure, and in passing it may not be amiss to say that such an objection by him would, of itself, if sustained, have defeated his purpose in contesting the appellee’s objections to the petition; for any trial thereof on their merits would have in all probability been 'necessarily still in progress when the day for the holding of the election at which the proposed statute was to be submitted arrived.

But my brethren say that no judgment could have been properly rendered permitting the secretary of state to proceed with the election, for the reason that the Initiative and Referendum Amendment to section 33 of the Constitution, which was submitted to and adopted by the qualified electors of the state, is void, because it violates section 273 of the Constitution, under which amendments thereto are submitted to the qualified electors for ratification, in that it contains “more than one amendment” to the Constitution.

In State ex rel. Howie v. Brantley, State Game and Fish Commissioner, 113 Miss. 786, 74 So. 662, Ann. Cas. 1917E, 723, this court passed upon this objection to the amendment, and after, as will appear from an examination into the history of that case, the most careful consideration decided that the amendment was not subject thereto, but is valid, and that Brantley, the state game and fish commissioner, had been legislated out of office by the adoption of a law by the qualified electors of the state under the provisions of the amendment. It is true that two of the judges then composing the court dissented from the conclusion reached in that case; nevertheless the question presented was as effectually decided as though all of the judges had ■concurred therein. I will not reproduce the reasoning by which the majority of the court supported its decision, but will simply again point out, as was there done, that a determination of the question will depend upon whether *244a Constitution should be given a liberal or a strict and narrow construction.

Whether a Constitution should be construed in the one way or the other has been a much-mooted question in American political and judicial history, but the . tendency of modem thought, both political and judicial, is that such an instrument should be liberally construed, to the end that the will of the people as therein expressed may be carried out. If the court in the Brantley case had adopted a strict and narrow construction, such as my brethren now adopt, the amendment would have been declared' void, and Brantley would have remained in office. But it adopted, as it had the right to do, and which under the rule of stare decisis should be now followed, a liberal construction, under which the amendment was necessarily held to be valid. Whether a Constitution shall be liberally or strictly construed will depend upon the school of thought to which the person who is called on to construe it belongs, and all that can be said with reference to the correctness vel non upon the constmction placed upon the amendment here in question in the Brantley case is that the court could have reached either conclusion as to the validity of the amendment; but it cannot be said that the decision is manifestly wrong — that is, that all' men at first blush would so say— and as I understand the rule of stare decisis a court should adhere to a decision once made, when the questions therein involved afterwards arise, unless the decision is manifestly wrong, has not become fixed in the jurisprudence of the state, involves no rule of property, and is mischievous in its results.

The mischief which will result from following the decision in the Brantley case can only be that the people will have an opportunity to continue to exercise the right to initiate laws themselves and to pass upon those enacted by the legislature. Whether the existence of such a power is to be held as detrimental to the people depends upon what school of thought the person deciding the question *245belongs; but, if it is, as to wbicb I am not called on to express an opinion, it can be easily surrendered in another election, while, on the other hand, the confusion that will arise by overruling the Brantley case can probably not be remedied. As the matter now stands, no one can say with confidence whether the amendment is a part of the Constitution or not; for, unless the rule of stare decisis is to be followed, the decision here made may also be hereafter overruled.

If the present decision should be adhered to, the fish and game law, which was held in the Brantley case to have been repealed, is and has always been in full force and effect, in so far as the law by which it was said to have been repealed is concerned, and an amendment to section 206 of the Constitution, adopted under the amendment to section 38, after the Brantley case was decided, is void. Under this amendment to section 206 the legislature has appropriated and the administrative department of the state government has spent several millions of dollars, and what protection the statutes under which they acted will now afford these administrative officials may be a serious question.

The rule of stare decisis is probably that feature of the common law which differentiates it from other legal systems, and the growth and symmetry of that system was made possible only by the adherence of the courts to that rule, and. this is peculiarly a case in which it should be followed.