Summary
In State v. Thompson, 323 Mo. 742, 19 S.W.2d 642 (banc 1929), this Court severed a paragraph that appropriated fees to the state road fund without legislative action from an amendment authorizing an additional bond issue for the construction of state highways.
Summary of this case from Missourians to Protect Init. Proc. v. BluntOpinion
August 19, 1929.
1. CONSTITUTIONAL AMENDMENT: Bond Issue: Matters Connected with Subject. The general subject of the proposed constitutional amendment being the authorization of an additional bond issue for the construction of state highways, provisions therein stating the conditions and limitations in the use and application of the fund, imposed in connection with the grant of power to create the additional indebtedness, are matters properly connected with the subject of the amendment, and such amendment does not contravene Section 2 of Article 15 of the Constitution providing that no proposed amendment shall contain more than one subject and matters properly connected therewith.
2. ____: ____: ____: Legislative Appropriation: Severable Provision. In a mandamus to compel the registration of bonds issued under a constitutional amendment for the construction of state highways, it is not necessary to determine whether certain provisions in the amendment providing that, after the principal and interest of the bonds shall have been paid, motor vehicle registration and license fees and taxes shall stand appropriated without legislative action to the state road fund, are matters properly connected with the subject of the amendment, since such provisions are severable, and if eliminated the remainder of the amendment would still be complete in itself and sufficient to accomplish the purpose for which it was adopted.
3. ____: Legislative in Character. The question of how far a constitutional amendment may descend into particulars is one of policy only. That it contains provisions legislative in character will not affect its validity, if they consist only of restrictions and limitations upon the legislative power, and the amendment conforms to the existing constitutional requirement that "no proposed amendment shall contain more than one amended and revised article of this Constitution, or one new article which shall not contain more than one subject and matters properly connected therewith."
4. ____: Title: Clearly Expressed. Where ballot title of the constitutional amendment submitted for adoption was: "Proposition No. 3: Amending Article IV, Section 44a of the Constitution providing for an additional bond issue of $75,000,000 for construction of state highways," objections (a) that the subject of the amendment was not clearly expressed in the official ballot title and (b) that the ballot title did not give a true and impartial statement of the purpose of the amendment, are devoid of substance.
5. ____: Separate Publication. The statutes do not contemplate that a proposed constitutional amendment shall be published in every county of the State by both the Secretary of State and the county clerks; they do not mean that during the last two weeks preceding the election two such publications shall run concurrently in every county, one by the Secretary of State and the other by the county clerk.
6. ____: Publication: Official Ballot Title. The statutes (Secs. 4940, 4941, 4942, R.S. 1919, and Sec. 4819, as amended, Laws 1927, p. 184) are in pari materia, and the words "the official ballot title of" should be read into Section 4940 after the word "certify," since the publication to be made by the county clerks under Section 4819, as amended in 1927, is the copy of the official ballot that will be used at the election, and for every purpose of such a publication the official ballot title of the proposed constitutional amendment is all that is required.
7. ____: Ballot Title: Objection: Appeal: Service. If there is no appeal from the official ballot title framed by the Attorney-General for the proposed constitutional amendment, there is no occasion to serve a copy of the title upon the person offering the proposed amendment.
8. ____: Act of 1929: Subject to Referendum: Emergency Clause. The constitutional amendment adopted in 1928 authorizing the issuance of $75,000,000 bonds for state highway construction is a valid and subsisting constitutional amendment; but the legislative act passed in pursuance thereto did not, and could not, go into effect until ninety days after the adjournment of the General Assembly. It contains no provision which exempts it from the constitutional provision relating to the referendum of legislative acts, and the fact that the act was passed pursuant to the constitutional mandate, and the further fact that it contained an emergency clause which expressed no emergency of a constitutional character, does not exempt it from the referendum or put it in force until ninety days after the adjournment of the Legislature.
9. HIGHWAY BONDS: Registration: Inoperative Act: Later Action. The fact that the State Highway Commission and the Board of Fund Commissioners adopted resolutions certifying to the issuance of state highway bonds, before the legislative act authorizing and directing them to do so became effective, will not prevent them from re-adopting their resolutions and again presenting the bonds to the State Auditor for registration after said act goes into effect, which will be ninety days after the adjournment of the session of the Legislature at which the act was passed, unless before said ninety days have expired said act is referred to the people in the manner provided by law.
Corpus Juris-Cyc. References: Constitutional Law, 12 C.J., Section 18, p. 682, n. 78; Section 26, p. 691, n. 63; Section 29, p. 693, n. 95. Statutes, 36 Cyc., p. 1196, n. 41.
PEREMPTORY WRIT DENIED.
Edgar Shook, Carl Trauernicht and Benjamin H. Charles for relator.
(1) The official ballot title was legally sufficient. Sec. 4943, R.S. 1919. (a) The official ballot title for the proposed constitutional amendment had to be expressed in not more than twenty-five words. (b) The sufficiency of a constitutional ballot title is not measured by rules governing the titles of statutory enactments. The purpose of the constitutional ballot title is merely to enable the voter to identify a particular prosed amendment with the proposition upon which he is about to vote, so as to distinguish it from other propositions submitted at the same time. The ballot title is to advise the voter, when at the polls, as to the general subject of each proposition as numbered. The title, therefore, need refer to the general subject only, and should not attempt to descend into details, which may be impossible because of the statutory restriction upon the length of the title. Sec. 4943, R.S. 1919; State v. St. Louis, 5 S.W.2d 1084. There is no limitation upon the number of words which may be used in framing the title of a legislative bill. Sec. 28, Art. IV, Mo. Constitution. (c) But even if the rules as to the sufficiency of titles to legislative bills could be made applicable to mere ballot titles, such as this, the title certified by the Attorney-General is sufficient. State v. Whitaker, 160 Mo. 59; O'Connor v. Transit Co., 198 Mo. 622; Coffey v. Carthage, 200 Mo. 616; Nalley v. Ins. Co., 250 Mo. 452; State ex rel. v. Gordon, 261 Mo. 631; Booth v. Scott, 276 Mo. 1; State v. Thomas, 301 Mo. 603; State ex rel. Gentry v. Sewer District, 4 S.W.2d 467; Fahey v. Hackmann, 291 Mo. 378. (d) The various subjects alleged by respondent to have been included in Proposition No. 3 and not covered by the ballot title were incidents of, and depended for their effectiveness upon, the one major subject, namely, the issuance of road bonds, and this was clearly expressed in the Attorney-General's official ballot title. (c) The ballot title certified by the Attorney-General to the Secretary of State became and was conclusive by reason of not having been appealed from by any citizen within ten days after such certification. R.S. 1919, sec. 4943; 12 C.J. 693 (Note 83a); People v. Sours, 31 Colo. 369. (2) Section 44a, of Article IV, Missouri Constitution, is not violative of section 2. Article XV, of the Constitution, as amended (Laws 1921, p. 711), as containing more than one subject, (a) The subject is single, viz.: "Roads," or "The Construction of Roads and the Issuance of Bonds Therefor." All details which are covered are merely incidental and germane to that one thing. Gabbert v. Railroad, 171 Mo. 84; State ex rel. Otto v. Kansas City, 310 Mo. 542; Coffey v. Carthage, 200 Mo. 616; Nalley v. Ins. Co., 250 Mo. 452; State ex rel. v. Gordon, 261 Mo. 631; Booth v. Scott, 276 Mo. 1, (b) The fact that an amendment may make more than one change in the Constitution does not make it more than one amendment. Gabbert v. Railroad, 171 Mo. 84; State ex rel. Otto v. Kansas City, 310 Mo. 542. (3) The validity of Proposition No. 3 is not dependent upon the character of its subject-matter if the items therein dealt with are not violative of Section 2, Article XV, of the Constitution, as amended, Laws 1921, p. 711. There is no limitation upon the subject-matter nor the details thereof which the people may insert in their organic law. Whether or not various provisions of Proposition No. 3 were more properly subjects for the action of the Legislature than for inclusion in the Constitution is not a consideration determinative of the validity and the binding force of said amendment as the organic law. 1 Cooley's Constitution Limitations (8 Ed.) 91; 12 C.J. 702. (a) The Constitution itself assumes that it may be appropriate or even necessary to add to the main subject of an amendment "matters properly connected therewith." Sec. 2. Art. XV, Mo. Constitution, as amended Laws 1921, p. 711. (b) There is no rule by which the courts may declare a constitutional amendment void because of its being legislative in character. There is no provision of the Missouri Constitution prohibiting a constitutional amendment from being legislative in character, and there is no such principle of law outside the Constitution. (c) The courts have been unanimous in holding that it is not a proper exercise of the judicial function to inquire into the expediency of any provision of, or amendment to, a constitution. 12 C.J. 702. (d) The inclusion of detailed directions in a constitutional amendment has the effect of making the amendment self-enforcing, rather than rendering it void as being legislative in character. Fahey v. Hackmann, 291 Mo. 378. (4) The statutes no longer require the Secretary of State to certify to each county clerk the full text of each proposed amendment to the Constitution (except copies thereof for posting at the polls). (1st) Sec. 4940, R.S. 1919, must be read in connection with Section 4819, as amended by Laws 1927, p. 184, and also with Section 4820, as amended by Laws 1927, p. 185, and when so read, it is plain that it is not the full text of the amendment, but only the official ballot title, that the Secretary of State is required to certify to each county clerk, because: (a) The certification by the Secretary, as required in said Section 4940, must go to each county clerk "not less than twenty days before the election;" whereas, the Constitution requires publication of the full text of the amendment once a week for four consecutive weeks next preceding the election. Sec. 2, Art. XV. Constitution, Laws 1921, p. 711. Such publication for four consecutive weeks could not be made if the Secretary certified the proposition to the county clerks as late as twenty days before the election. (b) The publication required to be made by each county clerk is not the four weeks' publication required by the Constitution, but the seven-day publication, for two times, one of which shall be upon the last day upon which the newspaper is issued before the election. (c) The publication to be made by each county clerk is not made in the one newspaper designated by the Secretary of State, but is one which is to be made "in two newspapers representing each of the two major political parties, if such there be, and if not, then in two newspapers," etc. Sec. 2, Art. XV, Constitution, as amended Laws 1921, p. 711; Secs. 4940, 4942, 4944, R.S. 1919; Sec. 4819, R.S. 1919, as amended Laws 1927, p. 184; Sec. 4820, R.S. 1919, as amended Laws 1927, p. 185. (2nd) Sec. 4942, R.S. 1919, requires him to designate a newspaper in each county and in the city of St. Louis in which the text of the amendment is to be published; and it would be a useless addition to the official machinery to have the proposition go from the office of the Secretary of State first to each county clerk and then on to the designated newspaper, instead of directly from the Secretary to the paper. (3rd) Every qualified voter in Missouri was advised, by two different notices, as to first, the official ballot title, and secondly, as to the full text of the proposed constitutional amendment; and these two were linked together in these advertisements as "Proposition No. 3." (a) The Secretary of State complied with the statutory provision (Sec. 4942, R.S. 1919), with respect to publishing the text of this Proposition No. 3 by designating a newspaper in each county and in the city of St. Louis and by sending the full text of the amendment to each of these papers for publication for the four weeks required by the Constitution. Sec. 2, Art. XV, Constitution, as amended Laws 1921, p. 711. (b) He also complied with the requirements found in Sec. 4944, R.S. 1919, that he certify the official ballot title to each county clerk and to the proper officials in the city of St. Louis, for publication with the names of nominees for office, as required of the county clerks by Sec. 4819, R.S. 1919, as amended by Laws 1927, p. 184. (5) The act of the Fifty-fifth General Assembly of Missouri (Senate Bill No. 3), approved by the Governor on the 15th day of February, 1929, has been in full force and effect since the date of its approval (a) The facts stated in Section 14 of the act, are admitted as true by the respondent's return. (b) The facts, thus legislatively declared by the General Assembly, were and are based upon all of the facts surrounding the entire State road situation, as detailed in the application for the writ. (c) Section 36 and Section 57 of Article IV of the Constitution, are to be read together. State v. Sullivan, 283 Mo. 546; State ex rel. Pollock v. Becker, 289 Mo. 660; State ex rel. Harvey v. Linville, 300 S.W. 1066. (d) The emergency was properly stated on the face of the bill and is made clear and conclusive by all the facts before the court. State v. Sullivan, 283 Mo. 546.
Stratton Shartel, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.
(1) The official ballot title for Proposition No. 3 fails to express all of the subject-matter embraced within its provisions, no less than ten of such subjects being dealt with therein which, although related to each other, were not included or referred to in said ballot title. Sec. 4943, R.S. 1919; Sec. 2, Art. XV, Constitution (Laws 1921, p. 711). (2) Said Proposition No. 3 was not properly submitted to the people, in that it contained more than one subject, in violation of Sec. 2 of Art. XV of the Constitution, as amended November 2, 1920 (Laws 1921, p. 711). State ex rel. v. Wilder, 217 Mo. 261; State ex rel. v. Gordon, 268 Mo. 321; Gabbert v. Railroad, 171 Mo. 84. (3) Said Proposition No. 3 was not properly submitted to the people as a constitutional amendment, in that by far the greater portion of the subject-matter thereof was purely legislative in character, and consequently not properly included in a proposed constitutional amendment. To so burden the Constitution is to violate Sec. 57 of Art. IV. State ex rel. Halliburton v. Roach, 230 Mo. 408; State ex rel. Drain v. Becker, 240 S.W. 229. (4) Said Proposition was not properly submitted, in that the Secretary of State failed to comply with Sec. 4940, R.S. 1919, and did not certify said proposed amendment to the county clerks of the various counties of the State, but instead certified only the ballot title thereof as provided by Sec. 5911, R.S. 1919. In this connection see also Sec. 4819, R.S. 1919, amended Laws 1927, p. 184. (5) Said Proposition 3 was not properly submitted, in that the Secretary of State failed to serve upon the persons offering said amendment a copy of the official ballot title thereof as directed by Sec. 4943, R.S. 1919. (6) The respondent, as State Auditor, had no power or authority to register the bonds in question because: First, The act of the Fifty-fifth General Assembly (Senate bill No. 3), approved by the Governor on the fifteenth day of February, 1929, having no foundation in constitutional authority, fails with the constitutional amendment, and there is consequently no authority for the registry of the bonds in question; Second, Said act of the Fifth-fifth General Assembly, by authority of which said bonds are sought to be registered, could not, in any event, become a law until ninety days after the adjournment of said General Assembly. There can be no emergency that will defeat the right of referendum except such as is calculated to preserve the public peace, health or safety. Sec. 57, Art. IV, Constitution; State ex rel. v. Sullivan, 283 Mo. 546; 36 Cyc. 1194; State ex rel. v. Becker, 233 S.W. 641; Fahey v. Hackmann, 237 S.W. 752.
Mandamus. Under and conformably to the authority purported to be conferred by Section 44a of Article IV of the Constitution, as amended at the general election held on the 6th day of November, 1928 (Laws 1929, p. 453), and an Act of the General Assembly approved February 15, 1929 (Laws 1929, p. 346), and pursuant to a resolution of the State Highway Commission duly certified to it, the State Board of Fund Commissioners prepared for issuance "Seven Million Five Hundred Thousand Dollars ($7,500,000) of the bonds of the State of Missouri, to be known and designated as State of Missouri Road Bonds, Series K, to be dated April 1, 1929, to bear interest at the rate of four and one-fourth per centum per annum payable semi-annually on the 1st day of October and of April in each year, and to be of the denomination of One Thousand Dollars each. Both principal and interest of the said bonds shall (to) be payable at the Chase National Bank in the City of New York and State of New York." Thereafter Bond No. 1 of the series so prepared for issuance, the same having been duly signed by the Governor, attested by the Secretary of State, contersigned by the State Treasurer and impressed with the Great Seal of the State, was presented by relator, State Highway Commission, to respondent, State Auditor, for registration in conformity with Section 3 of the Act of the General Assembly above referred to. The respondent refused to register the bond. The grounds for such refusal, as disclosed by his return to the petition herein (the issuance of the alternative writ was waived), were as follows:
"(1) That the act of the 55th General Assembly of Missouri, approved by the Governor on the ____ day of February, 1929, by virture and authority of which the State Highway Commission and Board of Fund Commissioners purport to act in the issuance of the road bond or bonds authorized by Section 44a of Article IV of the Constitution of Missouri, was not at the times mentioned in relator's petition, and is not now, a law of this State, and by reason of the provisions of Sections 57 and 36, Article IV of the Constitution, and Section 7062, Revised Statutes 1919, cannot become such law until after the 29th day of August, 1929, same being the ninetieth day after the adjournment of said 55th General Assembly.
"(2) That said Section 44a of Article IV of the Constitution of Missouri was and is null and void in that it contains more than one subject in violation of the provisions of Section 2, Article XV of the Constitution of Missouri, as enacted November 2, 1920 (Laws 1921, p. 711).
"(3) That said Section 44a of Article IV of the Constitution of Missouri, as amended and adopted at the general election held November 6, 1928, was and is null and void in that the subject of the said proposed constitutional amendment was not clearly expressed in the official ballot title; that the official ballot title by which said proposed constitutional amendment was submitted to the electorate of the State was in the following words:
"`PROPOSITION 3: Amending Article IV, Section 44a of the Constitution, providing for an additional bond issue of $75,000,000 for construction of State highways.'
"That said official ballot title covered, included and referred to one subject only, namely, an additional bond issue of seventy-five million dollars ($75,000,000) for construction of state highways; whereas, the said proposed amendment covered, included and referred to subjects other than an additional bond issue of seventy-five million dollars ($75,000,000) for construction of state highways, namely: (1) Not more than three hundred miles of additional state roads; (2) Roads to State Parks; (3) The widening of roads in the vicinity of St. Louis and Kansas City; (4) The distribution of surplus money to each county for supplemental state highways; (5) The restriction on motor vehicle fuel taxes to two cents per gallon for a period of ten years; (6) A restriction of motor vehicle license fees to the present rates for a period of ten years; (7) The completion of the state highway system as provided by existing law; (8) A provision for supplemental state highways; (9) For refunds to special road districts and to counties; (10) and that all motor vehicle fuel taxes and motor vehicle license fees shall be expended exclusively on roads.
"(4) That said Section 44a of Article IV of the Constitution of Missouri, as amended and adopted at the general election held November 6, 1928, was null and void in that the ballot title in and by which said proposed constitutional amendment was submitted to the electorate of the State did not contain and give a true and impartial statement of the purpose of the proposed constitutional amendment as required by Section 4943, Revised Statutes 1919.
"(5) That said Section 44a of Article IV of the Constitution of Missouri, as amended and adopted at the general election held November 6, 1928, was and is null and void, in that certain of the provisions of said Section 44a were and are legislative in character and should not have been submitted as a part of the proposed constitutional amendment, nor as an amendment to the organic law of the State of Missouri; and the respondent further avers that all of the provisions of said Section 44a, other than the provision for the issuance of bonds, were legislative in subject-matter as distinguished from constitutional in subject-matter; that by reason thereof the Legislative Assembly of Missouri is deprived of the right reserved to it to propose any measure upon the same subject, which is in violation of that part of Section 57, Article IV, of the Constitution providing that the initiative and referendum `shall not be construed to deprive any member of the Legislative Assembly of the right to introduce any measure.'
"(6) For further return to the alternative writ the respondent alleges that the Secretary of State of the State of Missouri did not comply with the provisions of Section 4940, Revised Statutes 1919, requiring said Secretary of State, not less than twenty days before the election at which a proposed constitutional amendment is to be submitted to the people of the State, to certify the same to the clerk of each county court of the State; that instead of certifying Proposition No. 3 to the clerk of each county court, as required in said Section 4940, the Secretary of State did, in compliance with Section 5911, Revised Statutes 1919, certify to the county clerks of the several counties certified copies of the ballot title and the number of said Proposition No. 3, which was the proposed amendment to said Section 44a of Article IV of the Constitution of Missouri, as submitted to the electorate of the State of Missouri at the said general election held November 6, 1928.
"(7) For further return to the alternative writ the respondent alleges that the person offering such proposed constitutional amendment to the Secretary of State, with the initiative petitions therefor, did propose a form of official ballot title for consideration by the Attorney-General; that with certain changes made by the Attorney-General and agreed to by the person offering the said proposed constitutional amendment, the said ballot title so proposed, in not exceeding twenty-five words, became the official ballot title certified by the Attorney-General to the Secretary of State. But respondent further avers that no copy of the said official ballot title as thus certified was ever served by the Secretary of State upon the person offering said proposed constitutional amendment or filing the initiative petitions therefor, as required by said Section 4943, Revised Statutes 1919."
This proceeding was instituted to compel respondent to register the bond, notwithstanding the grounds urged by him as justifying his refusal to do so.
I. Section 44a, adopted in 1920, was an amendment of Section 44 of Article IV of the Constitution. Section 44 denies the General Assembly power to contract any debt or liability on Subject: behalf of the State, except in certain cases which are Connected there enumerated. Section 44a created an additional Matters. exception. At the general election held in 1928, Section 44a was itself amended, and that is the amendment in question in this case. It will be hereinafter referred to as the Amendment.
The Amendment is first challenged on the ground that it contains more than one subject. Section 2 of Article XV of the Constitution provides, among other things, that "no proposed amendment (to the Constitution) shall contain . . . more than one subject and matters properly connected therewith." [Laws 1921, p. 711.] The Amendment is quite lengthy and for that reason an extended analysis of its provisions will not be attempted. A careful reading of it, however, discloses that it has but one principal objective — one general subject: the authorization of an additional bond issue of $75,000.000 for the construction of state highways. It is true that it covers many things which are ordinarily regarded as matters of legislative detail. It specifies with some particularity the kind, character, locations and apportionment of the state highways for which the authorization is given, and invests the State Highway Commission with large discretionary powers in connection therewith; it provides the maximum period for the authorized bonds to run before maturity and the maximum rate of interest which they shall bear; it designates who shall determine, within a maximum named, the amount of bonds to be issued, from time to time, and by whom they shall be issued; it names the body under whose directions, and the specific purposes for which, the proceeds of the bonds shall be expended; and it declares and defines with particularity the sources from which the revenue shall be obtained to pay the interest and create a sinking fund for the retirement of the bonds, and in the same connection provides for the disposition annually of the excess of such revenue, if any, over and above the bond requirements. But it is clear that these provisions are all "properly connected" with the subject of the Amendment; they are the conditions and limitations imposed in connection with the grant of power to create an additional indebtedness of $75,000,000 for state highway construction.
What has just been said is applicable to all the provisions of the Amendment, except possibly those contained in the Severable following paragraph: Matters.
"After the principal and interest of all of said bonds shall have been paid, all state motor vehicle registration fees, license fees or taxes, authorized by law, on motor vehicles (except the property tax on motor vehicles and state license fees or taxes on motor vehicle common carriers) and also all state taxes on the sale or use of motor vehicle fuels, authorized by law, less the expense of the collection of such registration fees and license taxes on motor vehicles and taxes on the sale or use of motor vehicle fuels and less also the cost of maintaining the state highway department and the state highway commission and the cost of administering and enforcing any state motor vehicle law or traffic regulation, shall be and stand appropriated without legislative action to the state road fund, to be administered and expended under the direction and supervision of the state highway commission for the purposes and in the manner hereinbefore set forth."
Whether the provisions of this paragraph are "matters properly connected" with the subject of the Amendment need not be determined. It is sufficient to say that the paragraph is severable, and that if eliminated, the remainder of the Amendment would still be complete in itself and sufficient to accomplish the purpose for which it was adopted. Under familiar principles the excision of the questionable paragraph would not affect the validity of the remaining provisions of the Amendment.
II. The validity of the Amendment is next attacked on the ground that it is legislative in character. This contention is largely disposed of by what has been said in the preceding paragraphs. At the time of the adoption of the Legislative Constitution of 1875, and ever since, the people in Character. of this State have manifested great unwillingness for the Legislature to exercise unrestrainedly the power of creating indebtedness on behalf of the State: the power has been carefully limited and hedged about. The provisions complained of are in line with such policy, being merely limitations on the specific power released: they relate to the organic law. In any event the question of how far a constitutional amendment shall descend into the particulars of government is one of policy only. [1 Cooley's Const. Limitations (8 Ed.) p. 91.] With respect to matters of details, as affecting its validity, it is only necessary that such amendment conform to the requirement of said Section 2, Article XV of the Constitution, namely: "No proposed amendment shall contain more than one amended and revised article of this Constitution, or one new article which shall not contain more than one subject and matters properly connected therewith." And this we hold the Amendment does.
III. The further questions raised as to the validity of the Amendment all relate to its submission at the 1928 election. They are as follows: (1) The subject of the amendment was not clearly expressed in the official ballot title; (2) the ballot Title. title did not give a true and impartial statement of the purpose of the amendment; (3) the Secretary of State did not certify the proposed amendment to the county clerks as required by Section 4940, Revised Statutes 1919; and (4) no copy of the official ballot title as certified by the Attorney-General was ever served upon the person offering the amendment as required by Section 4943, Revised Statutes 1919.
(1) and (2). Said Section 2 of Article XV provides that "the amendments proposed . . . shall be submitted to the electors of the State for their approval or rejection, by official ballot title as may be provided by law." In said Section 4943, this provision is found:
". . . whenever any constitutional amendments shall be filed with the secretary of state, proposed by the initiative petition, he shall within five days thereafter transmit to the attorney-general of the state a copy thereof, and within ten days thereafter the attorney-general shall provide and return to the secretary of state an official ballot title for such proposed constitutional amendments. The official ballot title may be distinct from the legislative title of such proposed constitutional amendment and shall express in not exceeding twenty-five words the purpose of such proposed constitutional amendment. In making such official ballot title the attorney-general shall, to the best of his ability, give a true and impartial statement of the purposes of the proposed constitutional amendment, and in such language that such official ballot title shall not be intentionally an argument likely to create prejudice either for or against such proposed constitutional amendment."
It will be noted that the purpose of the proposed amendment must be expressed in not exceeding twenty-five words. The official ballot title in question was as follows:
"PROPOSITION No. 3: Amending Article IV, Section 44a of the Constitution providing for an additional bond issue of $75,000,000 for construction of state highways."
It is apparent that respondent's contentions (1) and (2) are so devoid of substance that they require no further consideration; they are disallowed.
(3) The question under this head requires the consideration of four related sections of the statutes (R.S. 1919); Sections 4940, 4819 (as amended, Laws 1927, p. 184), 4941 and 4942. The pertinent portions of each are as follows:
Sec. 4940. "Whenever a proposed constitutional amendment or other question is to be submitted to the people of the state for popular vote, the secretary of state shall duly, and not less than twenty days before the election, certify the same to the clerk of each county court of the state, and the clerk of each county court shall include the same in the publication provided in section 4819."
Sec. 4819. "At least seven days before an election to fill any public office, the clerk of the county court of each county shall cause to be published in two newspapers . . . the nominations to office certified to him by the secretary of state, and also those filed in his office. He shall make . . . two such publications in each of such newspapers before the election . . ."
Sec. 4941. "All amendments proposed to the constitution . . . shall be published . . . in some newspaper . . . in each county in the state for four consecutive weeks next preceding the general election then next ensuing . . ."
Sec. 4942. "The secretary of state shall designate in what newspaper in each county said proposed amendments shall be published, and the claim due the publisher of such newspaper for such publication and the costs of publishing the copies of the amendment hereinbefore provided for shall be certified by the secretary of state to the state auditor, who shall draw his warrant on the state treasurer therefor, payable out of any money in the treasury not otherwise appropriated."
We take these sections as they are, disregarding their historical settings: they are plainly in pari materia and must therefore be read and construed together. It is manifest that it is not the intention of the Legislature that proposed constitutional amendments shall be published in every county in the State by both the Secretary of State and the county clerks; that during the last two weeks preceding the election at which they are to be submitted two such publications shall run concurrently in every county, one by the Secretary of State and one by the county clerk. The publication to be made by the county clerks under Section 4819 is neither more nor less than that of a copy of the official ballot that will be used at the election. [Sec. 4820, amended Laws 1927, p. 185.] For every purpose of such a publication the official ballot title of a proposed constitutional amendment is all that is required. The words, "the official ballot title of," should be read into Section 4940, following the word "certify," in order to give expression to the plain legislative intention. As so construed the section was fully complied with in respect to the amendment in question.
(4) Said Section 4943 provides that "any citizen who is dissatisfied with the official ballot title provided by the attorney-general for any proposed constitutional amendment may appeal from his decision to the circuit court." As a part of the procedure to be followed in taking such an appeal there is a requirement that a copy of the official ballot title be served "by the secretary of state or the clerk of the court" upon the person offering the proposed amendment. No appeal was taken from the decision of the Attorney-General relative to the official ballot title in question; there was never any occasion therefore for making the statutory service just mentioned.
IV. The final contention of respondent is that the Act of the General Assembly approved February 15, 1929, is not yet in force, and will not go into effect until ninety days after the adjournment of the Legislature — August 27, 1929. The act contains an emergency clause, as follows:
"The necessity for the early completion of the state highway system provided by law, the reimbursement of counties and other subdivision of the State of moneys expended by them on permanent parts of the state highway system, the relief from congestion of traffic in the areas adjacent to the cities of St. Louis and Kansas City and the beginning of a system of supplementary state highways in each and every county of the state create emergencies within the contemplation of section 36, article IV of the Constitution of the State of Missouri, wherefore, this act shall be in full force and effect from and after the date of its passage and approval."
The question involved is whether the act is subject to referendum under Section 57 of Article IV of the Constitution. If it is, it will not go into effect until August 27th; if it is not, it is, and since February 15, 1929, has been, in full force.
Under the constitutional provisions just referred to all laws are referable, except "laws necessary for the immediate preservation of the public peace, health or safety and laws making appropriations for the current expenses of the state government, for the maintenance of the state institutions and for the support of public schools." The law in question is not one "making appropriations for the current expenses of the state government" or "for the maintenance of the state institutions and for the support of public schools:" and the Legislature did not declare, nor set forth any finding of facts from which it would appear, that it is "necessary for the immediate preservation of the public peace, health and safety." The act, whether considered as a whole or with reference to a single one of its provisions, cannot be regarded as an emergent police measure. The early completion of the state highway system, the reimbursement of counties for money expended on the state highway system, the relief from congestion of traffic in areas adjacent to St. Louis and Kansas City and a beginning of supplementary state highways in counties, are all desirable, and when accomplished will no doubt greatly contribute to the public welfare, and indirectly promote the public peace, health and safety. But it cannot be affirmed that any of these things are necessary for the immediate preservation of the public peace, health or safety. [State ex rel. v. Sullivan, 283 Mo. 546, 224 S.W. 327; State ex rel. v. Becker, 289 Mo. 660, 233 S.W. 641; State ex rel. v. Linville, 300 S.W. 1066.]
The fact that the act in question was passed pursuant to a constitutional mandate does not exempt it from the referendum. [Fahey v. Hackmann, 291 Mo. 351, 237 S.W. 752.]
The real ground upon which relator asks this court to uphold the emergency clause of the act is disclosed by the following excerpt taken from its printed argument:
"The court will take cognizance of the fact that the State Highway Department is one of the largest, if not the largest, department operating under the State Government at this time. The work of the department probably has a more direct contact with every section of this State than any other department of government. The importance of its work in the construction of highways and bridges throughout the State, and the magnitude of its responsibilities, will be recognized at once. Its program involves the expenditure of millions of dollars and the employment of thousands of skilled and unskilled laborers, in addition to its extensive staff of engineers and other employees. The necessity for keeping the department supplied with funds with which to carry on its work, readily suggests itself. Any cessation, even though it be temporary, might disrupt a thoroughly organized, trained and efficient organization. The lack of funds would of necessity compel the disintegration of the Highway Department's organization, and, as well, would prevent the making of further contracts for the doing of other and additional work until such time as funds therefor might become available. These arguments were all made and considered in the campaign which resulted in the constitutional amendment known as Proposition No. 3. It was for the very purpose of preventing the occurrence of any lapse in activities of the Highway Department that the people of Missouri authorized this amendment to the Constitution."
It is said that, unless further contracts can be let and work commenced under them before the approach of the winter season, relator's road construction program will be delayed some months — possibly a year.
If the matters just suggested could be properly considered as reasons for holding the act now in effect, they are without persuasive force. Although the act was approved February 15, this case, filed for the purpose of having this court determine whether "all of the conditions of the law have been complied with" with respect to the issuance of the bonds, was not finally submitted until July 25th. It is probable that before the opinion goes down the act will have gone into effect under the ninety day clause of the Constitution. A ruling that the emergency clause is void, and that the act will not take effect until August 27th, would not delay road construction for a day; it will only be necessary for the Highway Commission and the Board of Fund Commissioners, respectively, to re-adopt their resolutions and again present the bonds to the State Auditor for registration.
To recapitulate: Section 44a of Article IV of the Constitution, as amended at the general election held in November, 1928, as to both its content and matters relating to its adoption, is, and since the 6th day of December, 1928, has been, a valid and subsisting constitutional amendment. The Act of the General Assembly approved February 15, 1929, authorizing the issuance of $75,000,000 in bonds for state highway construction, will not take effect or go into force until ninety days after the adjournment of the session of the Legislature at which it was enacted.
It follows that a peremptory writ of mandamus must be denied. It is so ordered. All concur, except Walker and Frank JJ., absent.