JUMPER V. CoLL-um. 837 • JUMPER V. MCCOLLUM. Opinion delivered . June 24, 1929. CONSTITUTIONAL LAW- EMERGENCY CLAUSE OF REFERENDUM AmEn■rnmEiNT. The existence and 'sufficiency of an emergency . clause authorizing withdrawal of an act from referendum under the Referendum Amendment of 1918; No. 13, § 4, involve legislative, not judicial, 'questions. 2. boNsTrrumoNAL LAIV EMERGENCY C LA USE-EFFECT—In the cave :-•!- Of :an emergency clause:in a statute,. if fair-minded and intelligent, men might reasonably differ as,to the sufficiency and truth thereo r i„the : courts are concluded by the legislative finding. . STATUT ES.= SUFFICIENCY OF EMERGENCY OLAusia.—Acts 1929, c. 64,- 23, declaring an emergencylSecabse of great danger to public peace, safety and health by reason of . inability under present ..laws to extend and repair waten-mainv and . plants, electric light . plants and sewers, etc.; held -sufficient to put the act into immediate effect under Referendum Arndt., 1918, No. 13, § 4. •• Appeal from Faulkner.Chancery Court ; W. E. Atkin-son ' ;. Chancellor affirmed.' J. Wendell H ' enry, for appellant.' R. W. Robins, J. C. Win: -J. Clark, for appellee. -'SivIiH;J:. • An act, No. 64,' was passed at the 1929 session of the General 'Assembly which effected sUbstantial change's : in 'the law gOVerning-the organization and admin-istration-. :of - local imprOvement districts in" cities and 46Wn§: :"A street improvement district 'was organized in ihe city 'of 'Conway, under* . the terrn§ of :this act,* within 'less than iiinety days after adjournment of the General As-seinbly Which passed it, and the validity of the district' depends`upon the question Whether act 64 was in force at the . time the district 'was organized, as the proceedings fen- thai pufpose did not conform -to the statute which act - 64'amendS. No otherquestion is involved on : this appeal.' The act contains the folloWing emergency clause : "SectiOn 23 It is ascertained and hereby declared that,-by 'reason of the inability, -under present laws, to extend -water !mains -and repair -Water plants,' there -iS great danger of conflagration, that, bY reason -of the inability to extend electric light plants, there is: great danger to
838 JUMPER V. McCoLhu.m. [179 the public peace and safety, owing to the darkness of the streets, and that, by reason of the inability to extend and repair sewers, there is great danger to the public health, and that, for these reasons, it is immediately necessary that this act should go into operation, and it is therefore declared that an . emergency exists, and this act shall be in force and effect from and after its passage." Appellant, as a property owner in the district, insists. (a) that the language used in the emergency clause of act 64 is not sufficient to state an emergency within the meaning of the Constitution, and (b) that there is, in fact, no such emergency as that stated. The original Initiative and Referendum Amendment provided that: "The second power (reserved to the people) 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 five per cent. of the legal voters, or by the legislative assembly as other bills are enacted." In construing this constitutional amendment in the case of Hanson v. Hodges, 109 Ark. 479, 160 S. W. 392, it was held that all acts of the General Assembly are subject_to the referendum except such laws as are necessary. for the immediate (preservation of the public peace, health and safety, but that it was a question exclusively for legislative • determination whether a statute was necessary for the immediate preservation of the public peace, health or safety. It was also held in the case cited that, while the existence of an emergency must be declared by the Legislature so as to exclude the referendum, it was not essential that this declaration be made in the exact words of the amendment, as other words of° similar import unmistakably showing the intention to declare that an emergency existed, were sufficient. At the 1918 general election a new Initiative and Referendum Amendment was adopted. Brickhouse v. Hill,167 Ark. 513, 268 S. W. 865. Section 4 of this amendment contains the following provisions in regard to emergency legislation:
ARK.] JUMPER V. MCCOLLUM. 839 "If it shall be necessary for the preservation of the public peace, health or safety, that a. measure shall be-com.e effective without delay, such necessity shall, be stated 'in one section, and if, upon a yea and nay vote, two-thirds of all the members elected to each house, or two-thirds of all the members elected to the city or town councils, shall vote upon separate roll-tall in favor of the measure going into immediate operation, such emergency measure shall become effective without delay. It shall be necessary, however, to state the fact which constitutes such emergency. Provided, however, that an emergency• shall not be declared on any franchise or special privilege or act creating any vested right or interest or alienating any property of the State. If a referendum is filed against any emergency measure, such measure shall be a law until it is voted upon by the people, and if it is then rejected by a majority of the electors voting thereon, it shall be thereby repealed. The provision of this subsection shall.apply to city or town councils." It is not sufficient, under this last amendment, for the legislation merely to declare that an emergency exists, but it is necessary to state the fact which eonstitutes such emergency. 'If therefore an act is passed which does not contain an emergency clause in which the fact is stated constituting the emergency, the act does not become effective until ninety days after the adjournment of the session of the General Assembly at which it was enacted. Gaster v. Dermott-Collins Road Imp. Dist., 156 Ark. 507, 248 S. W. 2. But does . this last amendment change the rule announced in the Hanson case, supra, that the existence and sufficiency of the emergency to withdraw , an act from the referendum 'clause of the Constitution is a legislative, and not a judicial, question? We think not. It was, no doubt, the intention of the last amendment to terminate the practice, into which the General 'Assembly had fallen, of placing the emergency clause indiscriminately . on much of the legislation, and, as a means to this end, two requirements were imposed to withdraw
840 JUMPER V. _MCCOLLum. [179 legislation. from the operation of the referendum:power of the people.. One was that it was made neceSsary for. the bill to state the fact which constituted the emergency. The other was to requiTe a separate and two-thirds vote of all the members elected to each.house of the General Assembly, in fayor of the .measure becomin w effective without delay.: •In this manner the members Of the .Gen-erat Assembly were permitted and required to . vote, first, whether the bill . should become a law, .and then to• .deter-, mine whether it should become effective without delay,. -Both these questions are, we think, legislative and not judicial. • . • Tti will not be denied that it is adegislative..question. 80tely to determine whether a bill shall become a law. If, tbe Legislature has any function- at all, it has this one ;: and, this being true, , it must .also , be true that it is , the province . .and function of the Legislature to determine when the-legislation . shall become effective. . If there is an emergency, the General Assembly must state the fact which-constitutes it, and must evidence the fact that they have found there was an emergency by a vote taken separate and apart from that taken on the - Passage of the bill itself. In this manner there is insured, theoretically; at least, the finding by tWo , . --thirds , of .the. General Assembly that the fact recited-e:xists and is true,. and that it , constituteS a sufficient reason . for making the act effective without delay. , . • • . • Of course, an emergency .clause• which did .not . state the fact - constituting the emergency • would . not . suffice; nor would a recited . fact -which-was so obviously and demonstrably inefficacious to constitute an emergency .that all -fair-minded and •reasonably intelligent men -iv . ould say to the contrary. But the converse of this proposition.is equally true. If the fact which . constitutes the emergency .recited, and if fairminded and intelligent men might reasonably differ as to the sufficiency and truth of -the fact assigned for (placing the. act in effect immediately upon its passage, the conrts .are concluded by the .finding. See the many cases under the. subhead, `.`Encroachnient on,
'ARK.] JUMPER V. MCCOLLUM. 841 Legislature," § 15 of the cha.pter on ConStitutional Law, volumes 1 and 5, Crawford's Digest of the Decisions of the SUpreme Court, and the same section and subhead of Crawford"s SUppleMent.. We conClude therefOre that the emergency clause to act 64 sufficed to put the act into immediate effecf, and, as the .decree appealed from accords with tbis view, it must be affirmekand it is so ordered. HUMPHREYS, J., (dissenting) . . • I•think the purpose of the new . Ithtiative and Referendum Arnendinent adopted at . the general election in 1918 not only terminated the iiractice, into which -the General- Assembly .had fallen, of placing the emergency clauses .indiscriminately on much 'o r f the legislation, but alsO bad the effect Of changing the rule announced in the ca ge of HanSOn v.' Hodges, 109 Ark. 479,• 160 8. W. 392, so as to make the sufficiency of the facts stated in an emergency clause a judicial and not .a legislative question. Dissenting opinion of Chief Justice HART in Cnmnock -V-. Little Rock, 168. Ark. 777,. 271 S. W. 476; Payne v. Graham, 118 Me. 251, 107 AtL 709, 7 A. L. 11.:516. The 'language in tbe 'amendment is very plain-and emphatic, • and it was never intended by the people, in voting for the amendment, that facts might be stated-in an emergency clause which are insufficient to support the declared 'emergency.. The language.in the amendment iS as follows : "It shall . be necessary, however, to -state the fact .which constitutes such . emergency." To . place any other construction upon this language than I have placed Upon it will not . remedy the.eVil which the people intended to correct. The people intended to say by the amendment that, unless an emergency for . the immediate operation of u law really existed, they . did notintend to_ be .d.e7 iiiived of referring the la:W , to themSelves for apprOvaIOr disappreval before same is pui in force or effeet I think the facts set forth inthis emergency clanse to support the eniergenc y. . areinstifficient;., . • - • For the rOasons sttOcl . I Jake thiS opPortunity:Of registering my dissent . fronifthe majOrity opinion in thiS ease.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.