The Judges of the Supreme Court having certified to the Governor their disqualification to determine whether or not two certain proposed amendments to the Constitution of Arkansas, submitted by the joint and concurrent resolutions of both houses of the Legislature to the biennial election of 1924, were adopted, this court was appointed by the Governor, under authority of 9, art. 7, of the *Page 527 Constitution, to determine the two causes involving the proposed amendments, one of them coming by appeal from the circuit court and the other from the chancery court of Pulaski County.
One of the amendments, styled "Proposed Amendment No. 10," authorizes the Legislature to provide for two additional judges of the Supreme Court and fixes the salaries of the judges, until otherwise provided by law, at $7,500 per annum.
The other amendment, submitted as No. 11, authorizes counties, cities and incorporated towns to issue interest-bearing certificates of indebtedness, or bonds with interest coupons, to secure funds to pay outstanding indebtedness existing at the time of the adoption of the said amendment, and provides that no county, city or incorporated town shall make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made, nor issue any scrip or warrants in excess of the revenue for the current fiscal year, and makes a violation thereof a misdemeanor.
The regular court, in certifying its disqualification to try these cases, follows its decision in Ferrell v. Keel,103 Ark. 96. Also see the decision of the special court appointed by the Governor involving the construction of a portion of Amendment No. 10, as it is called, in Ferrell v. Keel, 105 Ark. 380, but the digester of statutes has designated said amendment as No. 7.
At the biennial election of 1924, proposed Amendment No. 10 received 52,151 votes as against 40,955; the proposed Amendment No. 11 received 57,854 votes, while 35,449 were cast against it. If the decision of these cases should rest upon the question whether the two proposed amendments received a majority of the votes upon the question, then they have been adopted and are a part of the Constitution of this State: but, if their adoption depends upon whether or not a majority of the electors voting at such election voted in favor of them, then they have not been adopted. *Page 528
Beginning with the vote on the Fishback Amendment, which was the first amendment to the Constitution, there was a difference of opinion as to the meaning of 22, art. 19, in which the following language is used: "And if a majority of the electors voting at such election adopt such amendment, the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time." The first record of a decision on this question is in Knight v. Shelton, 134 F. 223 (decided in 1905), holding that, before an amendment could be adopted, it was necessary that a majority of the electors voting at the election should vote in favor of the amendment. The next case was that of Rice v. Palmer, 78 Ark. 432, with Justices HILL, BATTLE and WOOD delivering the majority opinion, holding that it required a majority of the electors voting at the election to adopt an amendment to the Constitution. There were able dissenting opinions in this case, rendered by two of our great judges, McCULLOCH and RIDDICK. Both sides of the proposition were ably argued, and Vance v. Austell, 45 Ark. 400, was relied upon as sustaining the proposition that it required only a majority vote upon the question. The decision in Rice v. Palmer, holding that a majority voting at the election was necessary to adopt an amendment, was quickly followed by St. L. S.W. Ry. Co. v. Kavanaugh, 78 Ark. 468, in which the whole court joined in sustaining the majority opinion in the Rice-Palmer case.
In the consideration of these cases resort was had to the decisions of other States, and authorities were found on both sides of the question, and, since those decisions were rendered, there have been decisions of other States for and against the majority rule being confined to those voting upon the question. These decisions are referred to in the able briefs filed by counsel for both the appellants and the appellees in the present case, and it is deemed unnecessary to repeat the arguments advanced therein, as the question was settled by the two decisions thereon and remained settled until *Page 529 the adoption of the Initiative and Referendum at the biennial election of 1910 and designated as Amendment No. 7, as it appears in Crawford Moses' Digest of the Statutes (1921), but which is referred to as Amendment No. 10 in the case of Hildreth v. Taylor,117 Ark. 465. We are called upon now to determine whether Amendment Number Seven changed that part of the Constitution of 1874 laid down in 22, article 19, which provides "And if a majority of the electors voting at such election adopt such amendments the same shall become a part of the Constitution." Does that part of Amendment Number Seven of the Constitution which reads: "Any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon and not otherwise," apply to the adoption of amendments to the Constitution and supersede said 22 of article 19 of the Constitution. The decision of the question involves reconsideration of the opinion in the case of Hildreth v. Taylor, supra. It was held in that case that the words "any measure" pertained only to legislative acts referred to the people under the referendum, and that it did not apply to constitutional amendments and laws initiated by the people. It is also implied in the decision that constitutional amendments submitted by the Legislature were still farther removed from the operation of Amendment No. 7, and that such amendments proposed by the Legislature did not come within the meaning of the language, "measure referred to the people."
We will therefore first determine whether the Initiative and Referendum Amendment No. 7 includes proposed amendments to the Constitution initiated by the people depending for their adoption on the majority of votes case thereon and not upon 22, article 19, upon a majority voting at the election. This consideration involves proposed amendment No. 13, which was initiated by the people under the powers of the original I. R. No. 7 and voted upon in 1920. This measure (No. 13), under its comprehensive and enlarged provisions, so *Page 530 regulated the initiative and referendum principle as to remove the doubts which had arisen in judicial construction of the I. R. Amendment No. 7, and it was intended to be in substitution of Amendment No. 7. Therefore, if it was adopted at said election of 1920, it fixed a standard, the majority voting on the question, for determining whether the two amendments which had been proposed by the Legislature, No. 10 and No. 11, and voted upon in 1924, had been adopted. In other words, if Amendment No. 13 became part of the Constitution in 1920, under the Initiative, it follows that No. 10 and No. 11, by the same rule which was carried forward from the original I. R. Amendment No. 7 into No. 13, which was a majority voting upon the question, were adopted, and under proposed Amendment No. 13, the same rule is fixed for proposed amendments, a majority voting on the question, whether the amendment is proposed by the Legislature or initiated by the people.
Amendment No. 13 received 86,360 votes, and there were 43,662 votes cast against it. Without regard to whether the Speaker of the House declared its adoption, the court must take judicial knowledge of the vote upon the amendment and decide whether it became a law. Grant v. Hardage, 106 Ark. 506.
This brings us now to an analysis of said Amendment No. 7, and to determine whether Amendment No. 13, voted on at the election in 1920, became a law. Said amendment No. 7 reads as follows:
"Section 1. The legislative powers of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people of each municipality, each county and of the State, reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls as independent of the legislative assembly, and also reserve power, at their own option, to approve or reject at the polls any act of the legislative assembly. The first power reserved by the people is the initiative, and not more than 8 per cent. of the *Page 531 legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon.
"The second power is a referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety), either by the petition signed by 5 per cent. of the legal voters or by the legislative assembly as other bills are enacted. Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures referred to the people. All elections on measures referred to the people of the State shall be had at the biennial regular general elections, except when the legislative assembly shall order a special election. Any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise. The style of all bills shall be, `Be it Enacted by the People of the State of Arkansas.' This section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure. The whole number of votes cast for the office of Governor at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal votes necessary to sign such petition shall be counted. Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State, and, in submitting the same to the people, he and all other officers shall be guided by the general laws and the acts submitting this amendment, until legislation shall be specially provided therefor."
What is the meaning of the following language appearing in the second paragraph of the foregoing *Page 532 Amendment No. 7: "Any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise?" The opinion in Hildreth v. Taylor, supra, holds that the words "any measure" refer only to legislative acts, and that they do not change the law (22, art. 19, of the Constitution) with reference to the adoption of amendments to the Constitution as interpreted in Rice v. Palmer, supra.
It will be seen, in the first paragraph of Amendment No. 7, that the people reserve to themselves the power to propose laws and amendments to the Constitution, and the same are referred to as "any measure." In the next sentence it is said: "The first power reserved by the people is the initiative, and not more than 8 per cent. of the legal votes shall be required to propose any measure by petition. Then the amendment takes up the referendum in the statement, "and also reserve power, at their own option, to approve or reject at the polls any act of the legislative assembly." The amendment then proceeds to say that the first power reserved by the people is the initiative, and that not more than 8 per cent. of the legal voters shall be required to propose any measure by such petition, and that every such petition shall include the full text of the measure so proposed. Initiated petitions, it is stipulated, shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon. The next paragraph takes up the referendum again, stating that it may be ordered either by petition signed by 5 per cent. of the legal voters, or by the legislative assembly as other bills are enacted, and that referendum petitions shall be filed with the Secretary of State not more than 90 days after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. Then follows a provision that the veto power of the Governor shall not extend to measures referred to the people. It is then provided that all elections on *Page 533 measures referred to the people shall be had at the biennial regular general election, except when the legislative assembly shall order a special election. This is followed by the language specially under consideration: "Any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise." Following this is a provision with reference to the initiative: "The style of all bills shall be, `Be it Enacted by the People of the State of Arkansas;'" also, "This section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure." It is then provided that the whole number of votes cast for the office of Governor at the regular election last preceding the filing of any petition for the initiative or for referendum shall be the basis on which the number of legal votes necessary to sign such petition shall be counted, and that the petition and orders for the initiative and for the referendum shall be filed with the Secretary of State.
The analysis of these two paragraphs, constituting Amendment No. 7, shows that the initiative as well as the referendum are both provided for in the first paragraph. It is also shown that the second paragraph refers alternately to the initiative and to the referendum. It cannot therefore be said that the first paragraph is devoted solely to the initiative nor that the second paragraph is devoted solely to the referendum. The law governing each must be found, not in one of these paragraphs, but in the consideration of both. The learned judge, in delivering the opinion in Hildreth v. Taylor, started out with the proposition: "One of the convincing things which leads to that conclusion (that the majority vote prescribed by the amendment did not apply to constitutional amendments) is that the language of the amendment was in substance, nay, almost literally, borrowed from a constitutional amendment adopted by the people of another State, Oregon, 1902, and that there is a presumption that the construction of it in *Page 534 that State was also borrowed." The opinion then proceeds to say that the people, in 1906, in Oregon amended the initiative and referendum law providing that a proposed amendment to the Constitution initiated by the people could be adopted by a majority of those voting on the question. We do not think that the fact that the people of Oregon adopted an amendment to supplement and make plain the meaning of the first draft of the initiative and referendum should receive the interpretation of the court that is given in this case. We recognize that, where there are judicial decisions interpreting a statute which we adopt, we take the statute with its construction as fixed by those decisions, but what some people may have thought necessary to do in resubmitting an amendment, we do not think is binding upon the courts of Arkansas in the interpretation of the plain provision of Amendment No. 7, which says that any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon.
We have been referred to the case of Farrell v. Port of Columbia, 50 Or. 169, 93 P. 254 (decided in 1908), which seems to have an important bearing, showing that the majority rule was created in the I. and R. Amendment of 1902, from which we quote as follows:
"It is insisted, however, for the first time, that the amendment of 2, art. 11, of the Constitution, adopted in June, 1906, prohibiting the Legislature from creating corporations by special laws, was not legally adopted, because it was not twice submitted to and approved by the people. By 1, art. 4, as amended in 1902, the people reserve to themselves the power to propose amendments to the Constitution and enact or reject them at the polls, independent of the legislative assembly. This section provides that, upon a petition of not more than 8 per cent. of the legal voters of the State, proposing any measure, being filed with the Secretary of State not less than four months before the election at which *Page 535 such measure is to be voted upon, the same shall be submitted to the people, and, if approved by the majority of the votes cast thereon, shall become operative."
It is stated in Hildreth v. Taylor: "It is earnestly insisted that this view of the matter (the language under discussion with reference to the majority required) leaves Amendment No. 10(7) without any specification at all as to the number of votes necessary to enact or adopt an initiated bill. That is true, but it does not follow that that feature of the amendment would, in the absence of enabling legislation, fail because there is not such specification. This is a government of majorities, or, rather, of plurality of the votes cast on any given question, unless there is some contrary specification in the organic law; and, when the framers of the amendment provided for the exercise of the initiative and the submission of laws to the people through that agency, they necessarily meant that the majority of those voting on any particular question should control. That, however, does not apply to the adoption of amendments to the Constitution, for the obvious reason that the Constitution itself provides another rule, and the framers of this amendment are presumed to have omitted any other provisions in recognition of the force of that provision."
The majority of the special court fails to see soundness in that argument, since such an interpretation simply means that the I. and R. Amendment contains a useless sentence, viz: "Any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise." By that interpretation it was useless to prescribe that a majority should be required on legislative acts referred to the people, since this is a country of majorities. On the other hand, it is the opinion of the majority of the special court that the sentence quoted includes constitutional amendments and laws initiated by the people. It has been held that Amendment No. 7 is complete within itself in that it is self-executing. Arkansas Tax Commission v. Moore, 103 Ark. 48. *Page 536
There is another statement in the opinion in Hildreth v. Taylor which is worthy of consideration:
"It would therefore be doing violence to the design of the framers of the amendment to attribute to them an intention to require a less number of votes to adopt an amendment proposed by the people through the power of the initiative than one submitted by the General Assembly."
This assumes that the Initiative and Referendum did not change 22 of art. 19, of the Constitution of 1874, which requires a majority of all votes cast at an election before an amendment is adopted. If it is true that said section of the Constitution is in effect, then there remain two criterions for determining whether an amendment has been adopted or not one applying to amendments that are proposed by the Legislature and governed by 22, art. 19, and the other applying to amendments initiated. And, if it be true that the people did not intend to have two rules governing the decisions on amendments, then the old rule would have to give way to the new.
The majority have reached the conclusion that the initiated Amendment No. 13 was adopted in 1920 by reason of the existence of that provision of Amendment No. 10 (No. 7) which we have under discussion, providing that any measure referred to the people shall take effect and become a law when it is approved by a majority of the votes cast thereon, and not otherwise. We have further concluded that Amendments Nos. 10 and 11, now under consideration, became a part of the Constitution by reason of the fact that a majority of the qualified voters voting upon the question of their adoption voted in favor of the same, being controlled by certain provisions of Amendment No. 13 (Acts 1919, p. 484), under the head of "general provisions," from which we quote:
"Definition. The word `measure' as used herein includes any bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any kind." *Page 537
This language sets at rest the controversy, or rather the difference of opinion, which had theretofore existed as to whether or not amendments to the Constitution offered by the Legislature were embraced within the term "measure submitted to the people," and therefore the language above quoted embraces Amendments Nos. 10 and 11.
We quote further from said Amendment No. 13 (p. 485), as follows:
"Majority. Any measure submitted to the people as herein provided shall take effect and become a law when approved by a majority of the votes cast upon said measure, and not otherwise," and shall not be required to receive a majority of the electors voting at said election. Such measure shall be operative on and after the thirtieth day after the election at which it is approved, unless otherwise specified in the act."
We have been considering this case for a number of days and have had two full days of oral arguments, in which many of the leading lawyers of the State have taken part and filed elaborate briefs for the purpose of giving the court their best efforts in order to reach a correct determination on one of the most important cases which has come before the Supreme Court. We have been impressed with the delicacy and gravity of the situation. This court is overruling a decision of the regular court, and we have reached our conclusion only after a thorough consideration of the conditions and circumstances which sometimes do arise in the course of legal procedure justifying the overruling of a case. We are also alive to the unusual situation of the special court, whose duties will be performed within a short time, taking the responsibility upon itself of establishing a rule different from that supported by a decision of the regular court. When the special justices assumed the obligations resting upon them by virtue of their commissions in these cases, the responsibility then became theirs to act as they believed the regular court would have acted upon full reconsideration *Page 538 of the Hildreth v. Taylor, supra, case, and, being charged with this duty and responsibility, the special court is under obligation to exercise independent thought and judgment, with full power to do what justice requires in the grave issues here involved.
In our effort to interpret the meaning of the amendments which have been discussed we have endeavored to follow well-known rules and canons of construction. No better rule can be found, we think, than that followed by the special Supreme Court in Ferrell v. Keel, 105 Ark. 384, in which the court said:
"The correct decision of the case involves nothing but the application of rules of law that must govern the court in the construction of the amendment. By what rules of law should we be governed? More than sixty years ago, in the case of State v. Scott, 9 Ark. 270, Mr. Justice WALKER, in a case involving the construction of an amendment to the Constitution, said: `In determining the intention of the framers of the amendment, we must keep in view the Constitution as it stood at the time the amendment was made, the evil to be remedied by the amendment, and the amendment proposed, by which the evil is to be remedied. No interpretation should be allowed which would conflict with any other provision of the Constitution, or which is not absolutely necessary in order to give effect to the proposed amendment. On the contrary, such construction should be given as will, if possible, leave all the other provisions in the Constitution unimpaired and in full force."
In the case of the State v. Donaghey, 106 Ark. 61, Mr. Justice KIRBY, speaking for the court, said:
"The people are the source of all political power, and it has never been doubted that, according to the institutions of this country, the sovereignty of every State resides in the people of the State, and they can alter or change their form of government at their own pleasure. Whether they have done so, is a question to be settled by the political power, and, when that power *Page 539 has decided, the judiciary can but follow and sustain its action."
I am authorized to say Mr. Special Justice CRAVENS approves this opinion.