State Ex Rel. Pollock v. Becker

¶1 (concurring). — 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 *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 lay which our brother has adopted as his views. For would we write at ail 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.

¶2 Obiter 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, wás obiter and was onty interesting “in view of the fact that the question might 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, *681 and it was written after full investigation, not only of all the cases cited, but of all that could be found. 'It w*as 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.

¶3 Adopted Provision. 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 the borrowing state adopted it in the light of such construction. This, however, is only a rule of 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: ■ .

¶4 “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 doubtful import 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 the opinion *682 that the foreign construction is erroneous, or that its application would lead to a denial’of a substantial right.”

¶5 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 the weight of authority.”

¶6 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 *683 cases can be gathered from the texts and notes thereunder which we have cited, supra.

¶7 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.

¶8 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 consta *684 bles 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 blinded 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.

¶9 (concurring). — Section 57 of Article IY of the Constitution provides, among other things:

¶10 ‘ ‘ The legislative authority of the State shall be vested ih a legislative assembly, consisting of a senate and house of representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve the 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. . . . The second power is the referendum, and it may be ordered ('except as to 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 the public schools) either” by petitions, etc.

¶11 At its regular session in 1921 the General Assembly passed certain acts which were intended to make changes in the system of justice of the peace courts in Kansas *685 City. Appended to one or more of these acts is the following: “Emergency. — This enactment is hereby declared to be necessary for the immediate preservation of the public peace, health and safety within the meaning of Section 57, Article 4, of the Constitution of Missouri.” No emergency clause under Section 36 of Article 4 was attached or passed, but the principal bill contains a clause to the effect that it “shall become effective” July 1,1921. Properly drawn petitions for the reference of these, signed by the requisite number of voters who possess the required qualifications, have been tendered to respondent for filing. He refused to file them because of the inclusion in the acts of the section which has been set out. This suit is brought to compel the filing of the petitions and the reference of the acts.

¶12 Pindiiw1VS I. It is urged that the inclusion in the acts of the clause that the “enactment is hereby declared to be necessary for the immediate preservation of the public peace, health and safety” is conclusive upon the question of fact whether the act is so necessary. Upon this question much has been said in the briefs, and in opinions prepared by my brethren, and much can be found in the decisions they cite. Both sides of the argument are presented with.vigor and learning. There is little thajt can be added. A few rather general observations may not be out of plgce.

¶13 General View. (1) In the circumstances the remarks of a learned annotator can properly be given place so that a general view of the question may be had at the outset. Iu the copious note to the decision in Hockett v. Licensing Board, 91 Ohio St. 176, 110 N. E. 485, which is found in 1917 B., L. R. A. (N. S.), at page 15 there appears (pp. 27-28) the following:

¶14 “According to the other line of authorities the legislative determination is not conclusive. The latter conclusion, that the legislative determination to declare an *686 emergency is not final, seems to be the correct one. The limitation upon the power of the. Legislature to declare an emergency that only laws of a certain class shall be so subject, or that all laws except the cláss shall be subject to the referendum, without expressly vesting in the Legislature power to determine what laws come within that class, leaves to the courts the power to determine the question. In other words, a law must be a law belonging to the excepted class before it can be declared free from the referendum. Where the law is of the prescribed character the legislative determination that it shall be free from the referendum is final; but its determination that the law belongs to the excepted class is not. In support of this theory it has been pointed out that the clause excepting the named laws from the referendum is not the usual general emergency provision, but an exception to the otherwise universal application of the reserved power of referendum; that the clear purpose of the exception is to preserve unimpaired the right of the Legislature to exercise the police power so far as it may be emergent; that the exception from the referendum includes only those certain, definite and unquestioned phases of the police power which, in their very nature, may be and usually are emergent. It is further stated, that, as the court exercises jurisdiction to determine whether an act of the Legislature is a valid exercise of the pólice-power,, it must be a judicial question whether the exercise by the Legislature of certain phrases of that power which are selected and made an exception to the constitutional guaranty of the referendum is a valid exercise of the power. ’ ’

¶15 Finaiity of Finding. (2) Section 57 of Article IV of the Constitution does not provide that an act of the Legislative Assembly shall be exempt from the referendum if the Assembly shall declare it to be “necessary for the immediate preservation of the public peace, health or safety.” On the contrary, the exemption is made to depend upon the fact that the act is so necessary. This, of course, is not and cannot be *687 disputed. The argument is not that the Constitution provides in terms that the legislative finding shall be conclusive. The argument is, in substance, that the effect of such a legislative finding of fact is final and conclusive on the courts in the very nature of the case.

¶16 OTUNone (3) If respondent is right in the position he takes on this question, i. e., that the inclusion of the peace, health and safety clause in the acts now in question, is conclusive on the question of fact whether the acts are necessary for the immediate preservation of the public peace, health and safety and bars all investigati°u question by the courts, it cannot be denied that the same thing must be true as to all acts in which that clause has been or may hereafter be included. If it is final as to one, it must be so as to all. Neither the language of Section 57, nor the character of the .rule contended for, will admit of a classification of legislative acts with respect to the question of the finality of the legislative finding upon the question of exemptability from the referendum on the ground of necessity for the immediate preservation of the public peace, health and safety. It is final in the case of every act, or it is final, in the sense, contended for by respondent, with rqspect to none. This does not seem to be denied.

¶17 (4) If, as just pointed out, respondent’s proposition must be true as to all acts in which the peace, health or safety clause is incorporated, if true as to any, then it is proper in the light of this, to examine the result of upholding respondent’s contention. If the peace, health or safety clause can be employed by a majority of the Legislative Assembly-to exempt all acts (not otherwise exempted) from the referendum, then it may be employed to exempt laws passed in the exercise of the police power or pursuant to an attempt to exercise that power. The question is approached from this angle in order to avoid an apparent conflict of authorty upon the question whether the peace, health or safety clause is designed solely to exempt from the referendum *688 emergent exercise of the police power or whether it is broader than that. For the purposes of what is now to be written it makes no difference which contention is sound.

¶18 The police power aims directly to promote the “public welfare, and it does so by restraint and compulsion.” These are said by Mr. Freund in his work on Police Power, Section 3, to be the “two main attributes or characteristics which differentiate the police power.” It is well settled that the police power has its limitations. Generally, it is limited in its exercise to the enforcement of the maxim, “Sic utere tuo ut alienum non laedas.” [Tiedeman on Limitations of Police Powers, sec. 85, pp. 196-197.] For instance “in the exercise of the police power, personal liberty can be subjected to only such restraint as may be necessary to prevent damage to others or to the public.” [Ibid.] According to the same author it is also well established that while the exercise of a particular calling may be regulated or prohibited if it threatens damage to the public or other individuals, and while the Legislature has a discretion to impose regulations when a proper case arises, it is nevertheless “strictly a judicial question whether the trade or calling is of such a nature as to require or justify police regulations. The Legislature cannot declare a certain employment to be injurious to the public good, and prohibit it, when as a matter of fact, it is a harmless occupation.” The learned author quotes with approval from Beebe v. State, 26 Ind. 501: “The position, however, is taken on the part, of the State, that it is competent for the Legislature, whenever it shall deem proper, to declare the existence of any property and pursuit deemed injurious to the public, nuisances, and to destroy and prohibit them as such; and that such action is not subject to be reviewed by the courts. We deny this proposition. We deny that the Legislature can enlarge its power over property or pursuits by declaring them nuisances, or by enacting a definition of a nuisance that will cover them. Whatever it has the right by the Con *689 stitution to prohibit or confiscate, it may thus deal with, without first declaring the matter to be a nuisance; and whatever it has not a right by the Constitution to prohibit and confiscate, it cannot thus deal with, though it first declare it to be a nuisance.” It is also pointed out that it is a judicial question whether a police regulation “extends .beyond the threatened evil.” For instance, the author says, in substance, a regulation which would attempt to go further than to exclude ignorant and dishonest men from the medical profession would be invalid, though a broad discretion may be used in the choice of means to accomplish that purpose. The point is that the power to restrain and compel under guise of the exercise of the police power is not unlimited. It must not overrun constitutional prohibitions or infringe constitutional rights. It can impose only such restraints as in fact bear some relation to the public good, in a general sense. A calling which involves the public health may be regulated (State v. Smith, 233 Mo. l. c. 267), but its free exercise cannot be hampered with burdensome restrictions and regulations which do not in any sense have in them anything tending to remove an actual, or ward off an apprehended evil to the public, and the like. [Freund on Police Power, sec. 492, p. 531.] In this connection in this State, as well as elsewhere, “The question presented where the validity of such laws is called in question is no longer the power or authority of the Legislature to enact them ” (i. e., regulations affecting a calling which touches the public health) “but whether the occupation, calling or business ’ sought to be regulated is one involving the public health and interests.” [Ex parte Lucas, 160 Mo. l. c. 232, quoted in State v. Smith, supra.] This is the rule not only in Missouri, but generally. If this means anything it means that-it is a judicial question whether the calling upon which the regulation is imposed is, as a matter of fact one which “touches the public health.” This is one instance and there are many others of like character. The authorities are in accord, generally speaking, upon *690 the proposition that the question of fact whether a trade or calling is of such a nature as to render it subject to regulations or to particular regulations, under the police power, is strictly a judicial question. This has not yet been denied in this case. It therefore appears that there are acts which, upon the question of their validity, present to the court questions of fact. There are, in fact, many such acts. When such an act is presented and the court finds that the calling is not such that it touches the public good in such a way as to justify regulation or the particular regulation attempted, this court and all courts hold such attempted regulations invalid. This is done in the face of the fact that the very enactment of the regulatory act involves a legislative finding that existing facts justify the regulation. *

¶19 The purpose of what has been said is not to attempt to define the police power and cite all cases' Which come within it or announce any comprehensive rule concerning it, but to show that there are instances in which questions of fact are presented to and determined by the courts and in which the implied finding of fact by the Legislature has no binding or conclusive force.

¶20 Police Prior^o section 57. (5) Let us suppose the General Assembly, prior to the adoption of Section 57 of Article IY, had included in a regulatory act, which depended upon the police power for its vaildity, an express finding that a calling was subject to regulation under the police power and that the particular regulation enacted was necessary to secure the public peace, health or safety. Would this have bound the courts upon the question of fact which they would otherwise have determined for themselves and have thereby rendered valid a regulation which otherwise would have been invalid? Would the courts then have been compelled to uphold the regulation, though neither the calling nor the regulation imposed in any way touched the public welfare in such sense as to bring such calling or regulation within the police power? To'these questions the authorities cited above return negative answers. *691 If the answers are to be in the affirmative then by including in an act an express declaration, for instance, that a calling touched the public health and that the regulation prescribed protected the public health, the legislatures have- always had the power to widen and enlarge the police power and bind courts on questions of fact with respect to which text-writers and courts agree they are not bound by the finding implied in every regulatory act which is passed, and thus evade most of the limitations on the police power found in the general language of constitutions. It will hardly be claimed this could have been done prior to the adoption of Section 57 of Article IV. It is not necessary to discuss at length the character of the presumption of validity which attends legislative enactments. It is enough for this phase of the case that it is settled that such presumption is not conclusive.

¶21 PoUcePo-wer (6) With the law in this condition and the police power so limited by provisions in both State and Federal constitutions, Section 57 of Article IV was adopted. If respondent is correct, that section exempts from the referendum every legislative act in which the Assembly includes a finding that such act is necessary for the immediate preservation of the public peace, health or safety. With respect to restraints upon callings, which classes of acts have been selected to illustrate the argument, the finding that they • are necessary for the immediate preservation of the public peace, health or safety is necessarily a finding that the calling “touches” the public peace, health or safety. In other words, it is a finding upon the exact question of fact which heretofore has been held to be a question for the courts when they came to the question of validity of regulations under the police power. If the inclusion of the peace, health and safety clause in an act is, as respondent contends, conclusive upon the courts, then the result is that Section 57 empowers the Legislative Assembly to widen and extend the police power to include callings and regulations to which it could not have been *692 extended prior to the adoption of Section 57, and this by the simple nse of a form of words in acts it passed without regard to the character of the regulation and despite the fact that the regulation is concededly unconstitutional had not the peace, health and safety clause been included in the act imposing it. It would enable the Legislative Assembly to remove from the realm of judicial questions every question of fact such as that referred to in the quotation in Ex parte Lucas, supra, and thereby largely revolutionize the law concerning the scope and extent of the police power by virtue merely of a phrase which declares that to be true which is untrue. If this marked change in the law was intended to follow the adoption of Section 57, is it unreasonable to think that the section would have been couched in language which would have at least given some'hint of it? In the same article of the Constitution of which Section 57 became a part upon its adoption, appears Section 36, which pertains to the emergency clause required to put an act of the Legislative Assembly into immediate operation! This section expressly provides that the declaration of an emergency shall be put into the act intended to be put into immediate force thereby. The effect of this clause has, so far as is discovered, never been doubted. The language of Section 36 is markedly different from that of Section 57. Is it likely, that with an intent that Section 57 should, in effect, so far as the question here is concerned, have the same absolute force as Section 36, that those who framed and adopted Section 57 would have so carefully abstained from the use of a formula at hand in the very instrument they were amending, which formula would have accomplished, so far as legally possible, the purpose they had in view? Is not the avoidance of the approved formula particularly significant in view of the rather re-voluntary effect of their intent if it was that which respondent ascribes to them? The difference between the words used in these two sections is wide and is inexplicable if respondent is right in his present contention.

¶22*693 Further, the purpose of the referendum is to “reserve to the people” the power to pass upon acts of the Legislative Assembly. That reservation is founded upon a belief, that acts might be passed which would not be for the public good. In a sense it evidences a disbelief in legislative omniscience. Is it reasonable to think the people meant to reserve to themselves the power to refer acts of the Legislative Assembly because they feared that body might err in its. enactments and then intended to confer upon a bare majority of .the same Assembly, whose errors the referendum was designed to correct, full power • to defeat any and all references of any and every bill by the simple inclusion in such bills of a set form of words, even though these words, so used, were false on their face? It will not do to say the people would have their remedy at the polls and could punish legislators by defeating them. This was true before there was a referendum section proposed and adopted. The remedy by referendum was added to that available at the polls.

¶23 Legislatures, like courts, sometimes err. Tbe referendum has been thought designed to correct legislative errors. If respondent’s "position is tenable, then if the Legislative Assembly shall err and pass a bad law (in the belief that it is a good law) the error in passing this bad law is ‘not subject to the referendum, but is exempt from such correction upon condition only that the same Legislative Assembly shall commit one more error, i. e., find as a fact that the law is necessary for the immediate preservation of the public peace, health or safety and then put this erroneous finding into the bad law. Does one error plus one error equal no .error for the purposes of this case?

¶24 To ascribe such an intent to the people is to charge them with incorporating a remarkable absurdity in the organic law of the State. If the people desired that the same body whose enactments they wished to supervise by means of the referendum should have full power to prevent such supervision in every case, it seems reasonable to think they would have said so and, particularly, *694 W011I4 not have avoided so carefully a form of words already in the Constitution which would have been adequate to have effectuated this remarkable purpose.

¶25 Binding on F^derafcourts Alike. (7) Further, if the section means that the people intended to bind the State courts with respect to the question of fact whether an act is necessary for the immediate preservation of the public peace, health or safety, what did they intend concerning the same'finding when a case was presented to the Federal courts in which the validity of a police regulation was challenged because it in no wise affected or touched the public good but was merely an arbitrary restraint? Will respondent contend that the power of the courts of the United States to wipe out arbitrary and excessive impositions and restraints on a finding of their own that they are so (McLean v. Arkansas, 211 U. S. 530) is defeated by such a finding as the Legislative Assembly has incorporated in the acts before us? Unless he so contends, what is there in the language of Section 57 which indicates an-intent in the State jurisdiction which was not designed to apply to the Federal jurisdiction? The question suggested is not whether the respondent’s construction of Section 57 could not stand as to the State courts even though it should be denied by the" Federal courts. What is being examined is the question as to the intent of the people in adopting Section 57. The language of that section is quite general. On its face it applies to all cases in all courts. Ought it be given a construction which would clearly make it unconstitutional in some respects, when there is a more natural construction which gives effect to all of it? If it be conceded the legislative finding is not conclusive when an act is assailed as an invalid attempt to extend the police power beyond restrictions imposed by some of the provisions of the Federal Constitution, it is thereby conceded that some cases fall outside the rule for which respondent contends. But, as already pointed out, that rule, in its very nature, applies to all acts or none.

¶26*695 conclusiveness and coui-ts. (8) It might be argued that the legislative finding is conclusive upon the question whether an act is exempt from the referendum, but not conclusive on the same question of fact when the courts shall be called upon to consider the validity of the same act. It is but fair to respondent to say he advances no such argument. He does not deny that an act, to be exempted from the referendum, must in fact be necessary for the immediate preservation of the public peace, health or> safety — as Section 57 provides. What he contends is that when the Legislative Assembly puts the peace, health and safety clause into an act it thereby conclusively determines that fact to be true and no court or person can be heard to deny the truth of that finding. So far as his argument is concerned, we do not understand him to suggest the distinction referred to in the first sentence of this paragraph. We think that in refraining from doing so he exhibited sound judgment. If, when applied to an act of the class selected above to illustrate the case, the Legislative Assembly has found the act to be necessary for the immediate preservation of the public health, for instance, and if th’at finding necessarily includes a finding that ’the calling regulated “touches the public health,” and if that finding binds the courts with respect to the matter of exempting the act from the referendum, it is difficult to see how it could be held that the people, in adopting Section 57, intended that the conclusiveness of the same finding could be evaded when the validity of the same act was drawn in question in the courts. It is the same act or law and it is the same finding. It is a finding that a particular fact in fact exists. It is not a finding that the Legislative Assembly is of opinion that the fact exists, nor a finding that it exists solely with reference to the power to exempt the act from the referendum. Section 57 requires the fact of necessity actually to exist before the exemptive power arises. The finding is that it does in fact exist. There is nothing in Section 57 which suggests that whatever finding, if any, is author *696 •ized, is one thing for one purpose and another thing for another purpose. Such an intent would have been well expressed by words which would have vested directly in the Legislative Assembly power to declare the act exempt from the referendum whenever it thought proper to do so. No such words are found in the section. Did the people intend that the court should hold the same finding of fact conclusive, in one breath, and inconclusive in the next? Unless they did so intend the argument first adverted to constitutes no obstacle to the application of what has been said in preceding paragraphs. An easily conceivable result of the acceptance of the argument as true would be, that with respect to the same act, the same court would be compelled to hold the act was not referable because (being bound by the legislative finding) in truth and fact the act was within the police power, and subsequently compelled to hold that the act was not within the police power because the fact found by the Legislative Assembly was not a fact at all. Ought the people to be convicted of perpetrating such an absurdity unless they have made their intent to do so ve];y clear? It is quite clear from the language they used that they intended nothing of the kind. The ease with which a purpose to permit the reference of laws to be defeated by a legislative declaration of something which might or might not be true could have been made evident and the careful avoidance of any expression which would evidence such a purpose are worthy of consideration in this connection. We decline to hold that those who framed and adopted this amendment did not mean what they' said, but meant something which is excluded by what was said.

¶27 tín^nishsd II. State ex rel. v. Hackman, 275 Mo. l. c. 646, and Ex Parte Renfrow, 112 Mo. l. c. 594, are cited as supporting the proposition that the finding of the Legislative Assembly is conclusive. It will hardly be contended these decisions hold. that a legislative finding such as those discussed in the preceding paragraphs with respect to the applicability of the *697 police power to particular callings or activities, is final. Those eases did not involve that question. This sufficiently distinguishes them so far as concerns what appears herein.

¶28 Fact.tl0n °f III. The contention that the acts in question are in fact necessary for the- immediate preservation of the public peace, health or safety is sufficiently considered in other opinions in this case.. The argument that the courts would be without means to determine the question of fact alluded to, in case it be held that it is open to them.to pass upon it, is made. No greater difficulty would be likely to be presented than those presented when the courts do pass upon questions of fact in determining whether police regulations are valid .or invalid.

¶29 Foreign Construction: Exception. IV. The effect of the Oregon construction prior to our adoption is also well disposed of in other opinions in the case. The question upon which we followed such a construction in the case of State ex rel. v. Sullivan, was one which fell within the , , TT . ,. general rule. Upon such a question, one within the general rule, it is immaterial whether it is said that it is very persuasive, or that the adopting State is presumed to have adopted it, or that the courts of^the adopting State are bound by it. In either case, on a question within the general rule, the previous construction is adopted. The question in this case falls within several exceptions to the general rule. This is too clear to require argument and other opinions in the case make that fact plain. The insistence that the rule in the Kadderly case must be adopted in this ease, because j.t preceded our adoption of Section 57, assumes that the question in this case falls within the general rule upon the subject of the adoption of previous constructions and that it does not fall within any of the exceptions thereto. That this assumption is contrary to the fact will be apparent from a reading of the rule and of the exceptions to it. *698 The rule and its exceptions are discussed in one or more concurring opinions and can he found there.

¶30 For these reasons 'and others given in other opinions filed the alternative writ should be made peremptory.