I concur in the law announced by our brother WOODSON in this case. He adopts what the writer said in Paragraph Five of the opinion in the case of State ex rel. Westhues et al. v. Sullivan, 283 Mo. l.c. 584, et seq. We there ruled, upon what appeared to us to be the weight of authority and the very reason of the matter, that the Legislature, under Section 57 of Article IV of our Constitution, could not close judicial *Page 680 determination as to the real character of any law by saying that such law was "necessary for the immediate preservation of the public peace, health or safety" of the State. We further said that this court could examine the face of the legislative act, and if in fact it was not for "the immediate preservation of the public peace, health or safety" of the State, we could and would declare the legislative declaration to the effect that it was "necessary for the immediate preservation of the public peace, health or safety" of the State, void, and of no effect, as being in conflict with said constitutional provision, and the spirit thereof. We shall not reargue this naked principle of law which our brother has adopted as his views. Nor would we write at all in this case, but for the fact that our learned associate has not discussed the character of the legislative acts before as at this time. He sets out an outline of them, and ordinarily this would, or should suffice. In this record we find that learned counsel for respondent insist (1) that we borrowed our constitutional provision from Oregon, and are bound by the construction which the Supreme Court of that State placed upon it before our adoption, and (2) that the laws here involved are in fact necessary for the "immediate preservation of the peace, health or safety" of Missouri. The questions are seriously presented and should be seriously considered. In their order we shall consider them, and such other contentions as may require notice.
I. It has been suggested that the views of the writer, expressed in Paragraph Five of the opinion in State ex rel. Westhues v. Sullivan, 283 Mo. l.c. 584, was obiler and was only interesting "in view of the fact that the question mightObiter. arise in futuro." It is true that a majority of my brothers were of opinion that such case was decided before reaching that question, but counsel, on both sides, conceived the question to be thoroughly in the case, and on that theory briefed and vehemently argued it. What was written was in response to that insistence, *Page 681 and it was written after full investigation, not only of all the cases cited, but of all that could be found. It was written in exact coolness and deliberation, and far from a battle line, such as surrounds the instant case. But even obiter may express good law, and we think this alleged obiter does express the law, as well as the common sense of the question.
II. The general rule is that where a statute or a constitutional provision is borrowed from another State, and has received a construction in the initial state by the highest court of that state, the presumption is that theAdopted borrowing state adopted it in the light of suchConstitutional construction. This, however, is only a rule ofProvision. statutory construction, and the exceptions to the rule are as ancient as the rule itself. When we say "general rule" above, we mean that such is the frequent expressions of the courts. This court has often given similar expressions, where the question was under consideration. We have likewise given expression as to the exceptions. Nowhere are these exceptions more concisely stated than in 25 R.C.L. 1073, whereat it is said:
"The general rule just stated as to the construction of adopted statutes is by no means absolute, or imperative on the courts of the adopting state, but is subject to numerous exceptions. The rule that the adoption of a foreign statute carries with it the prior construction in the originating state has been held to be applicable only where the terms of the statute are of doubtfulimport so as to require construction. So the rule has been declared to be inapplicable where radical or material changes are made in the statute; where the statute had been materially changed by amendment, after the decisions construing it and before adoption; where the foreign construction is not in harmony with the constitution of the adopting state, or is contrary to the spirit and policy of the jurisprudence of the adopting state;or where the courts of the adopting state are clearly of theopinion *Page 682 that the foreign construction is erroneous, or that itsapplication would lead to a denial of a substantial right."
To like effect is 36 Cyc. 1154-5: "Where the Legislature enacts a provision taken from a statute of another state or country, in which the language of the act has received a settled construction, it is presumed to have intended that such provision should be understood and applied in accordance with that construction. This rule of construction, however, while recognized by all the courts, is subject to a number of limitations. The construction placed upon the statute by courts of the state from which it was adopted is regarded as persuasive, and indeed as entitled to very great weight, with the courts of the adopting state, but not as conclusive; and it will not be applied where it would be inconsistent with the Constitution of the adopting state, or contrary to the spirit and policy of its laws, or is regarded as unsound in principle and against theweight of authority."
In each of the foregoing quotations the italics are ours. Under the rule the court's interpretation to be considered is the interpretation given before the adoption. It could not be otherwise, because there could be no presumption that a given construction had been adopted, with the adoption of the statute, unless the construction preceded the adoption. The cases all so hold, and had to so hold by the very reason of the thing. In the early case of Pratt v. Miller, 109 Mo. 78, this court, through BRACE, J., found that we had borrowed an English statute, which had been previously construed in a given way — not once, but several times — before our adoption. This court refused to follow those constructions, because not consonant with the better reasoning of later cases. Some states do not recognize the rule at all, because a statute transplanted from one state system of laws to another state system of laws must be made to harmonize with the latter rather than the former. Many states hold that the previous construction is very persuasive, but not binding. The *Page 683 cases can be gathered from the texts and notes thereunder which we have cited, supra.
The exception to the rule uppermost in our mind is that expressed in the terms "or where the courts of the adopting state are clearly of the opinion that the foreign construction is erroneous, or that its application would lead to a denial of a substantial right." The Kadderly case from Oregon does not announce sound doctrine. The Washington court repudiated it, and their constitutional provision was not adopted until four years after ours, aind long after the Kadderly case. Our Constitution provides both for a legislative referendum, and a referendum by the people. It is absolutely against all reason to rule that the Legislature can, by trick and chicanery, through a declaration against the very face of the bill, cut the people off from the constitutional rights to refer all measures, and yet retain the legislative right. In what we ruled in Sullivan's case we had in mind all rules of statutory construction, as well as all exceptions to such rules. We have recognized the exceptions before (109 Mo. 78, supra) and but exercise the same privilege in that case. As said there, to hold that the Legislature could by the use of a declaration to the effect that the given bill was "necessary for the immediate peace, health or safety" of the State, when in fact the bill itself showed no emergency would be to destroy the constitutional provision. Neither court nor Legislature should so construe a Constitution as to make it self-destructive. But after all, the section of the bill making this declaration of great emergency must be construed with all the other provisions of the bill, and if when so construed by a court, it fails to measure up to the spirit of the Constitution, it must fail. We said enough in Sullivan's Case, and will not further reiterate.
III. Of these bills, which change in a way the system of justices courts in Jackson County, and cut down the number of such courts, and the number of the constables *Page 684 thereof, it is urged that they really go to the immediate preservation of the peace, health and safety of the great State of Missouri. Courts are not supposed to be blimled bats. Of current history courts take judicial knowledge. What all know, the courts must judicially know. The current history shows the real purpose of these laws, and we need not state that history. It is known to every member of the Legislature, every judicial officer of the State, and every lawyer and citizen, who has read and kept abreast with the current history, made and now being made. To say that the purpose of these bills was to protect Missouri in some great, impending emergency relative to her peace, health or safety, is not only in the face of the bills themselves, but in the face of what her citizens know. We need not go further. James T. Blair, C.J., and Walker, J., concur.