Tesoriere v. District Court , 50 Nev. 302 ( 1927 )

I concur, but desire to express my views on the main question discussed in the majority opinion.

The measure proposed by the legislature of 1921, approved by the governor and submitted to the people of this state and approved by them at the general election of 1922, did not by referendum become enacted into a law which could not be amended except by a direct vote of the people, for three reasons, which are obvious from the provisions of sections 1 and 2 of article 19 of amendments to the constitution. These sections deal solely with the referendum and provide as follows:

"SECTION 1. Whenever ten per centum or more of the voters of this state, as shown by the number of votes cast at the last preceding general election, shall express their wish that any law or resolution made by the legislature be submitted to a vote of the people, the officers charged with the duty of announcing and proclaiming elections, and of certifying nominations, or questions to be voted on, shall submit the question of the approval or disapproval of said law or resolution to be voted on at the next ensuing election wherein a state or congressional officer is to be voted for, or wherein any question may be voted on by the electors of the entire state. * * *

"SEC. 2. When a majority of the electors voting at a state election shall by their votes signify approval of a law or resolution, such law or resolution shall stand as the law of the state, and shall not be overruled, annulled, set aside, suspended, or in any way made inoperative except by the direct vote of the people. When such majority shall so signify disapproval the law or resolution so disapproved shall be void and of no effect."

It will be observed from these provisions that three things must occur before a law is confirmed by the people so that it cannot be amended or repealed except by their direct vote: First, there must be a law; second, there must be the expressed wish of 10 per centum or more of the voters of the state that it be submitted to the vote of the people; and, third, a majority of the electors voting at a state election must signify approval of the law.

None of these essentials appeared in the procedure followed as prescribed by section 3 of said article 19 by which the said measure became a law. It was not a law when submitted, but a measure proposed by the legislature with the approval of the governor under the right conferred by section 3. It was not referred to the electors for their approval or rejection by the expressed wish of 10 per centum or more of the voters of the state, but by the legislature under said authority of said section 3. It was not approved by a majority of electors voting at a state election, but by a majority of the votes cast for and against the measure. Consequently it did not by referendum become enacted into a law that could not be amended by the legislature by reason of the prohibition of section 2 of article 19.

The law of 1922 came into force and effect by virtue of compliance with the method provided in section 3 of article 19, for a choice to be made by the people between a measure proposed by them and a different measure on the same subject proposed by the legislature. This section, omitting the provisions concerning counties and municipalities, reads as follows:

"The people reserve to themselves the power to propose laws and the power to propose amendments to the constitution, and to enact or reject the same at the polls, independent of the legislature, and also reserve the power at their option to approve or reject at the polls, in the manner herein provided, any act, item, section or part of any act or measure passed by the legislature, and section one of article four of the constitution shall hereafter be considered accordingly. The first power reserved by the people is the initiative, and not more than ten per cent (10%) of the qualified electors shall be required to propose any measure by initiative petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions, for all but municipal legislation, shall be filed with the secretary of state not less than thirty (30) days before any regular session of the legislature; the secretary of state shall transmit the same to the legislature as soon as it convenes and organizes. Such initiative measures shall take precedence over all measures of the legislature except appropriation bills, and shall be enacted or rejected by the legislature, without change or amendment, within forty (40) days. If any such initiative measure so proposed by petition as aforesaid, shall be enacted by the legislature and approved by the governor in the same manner as other laws are enacted, same shall become a law, but shall be subject to referendum petition as provided in sections one and two of this article. If said initiative measure be rejected by the legislature or if no action be taken thereon within said forty (40) days, the secretary of state shall submit the same to the qualified electors for approval or rejection at the next ensuing general election; and if a majority of the qualified electors voting thereon shall approve of such measure it shall become a law and take effect from the date of the official declaration of the vote; an initiative measure so approved by the qualified electors shall not be annulled, set aside, or repealed by the legislature within three (3) years from the date said act takes effect. In case the legislature shallreject such initiative measure, said body may, with the approvalof the governor, propose a different measure on the same subject,in which event both measures shall be submitted by the secretaryof state to the qualified electors for approval or rejection atthe next ensuing general election. The enacting clause of all bills proposed by the initiative shall be: `The people of the State of Nevada enact as follows.' The whole number of votes cast for justice of the supreme court at the general election last preceding the filing of any initiative petition shall be the basis on which the number of qualified electors required to sign such petition shall be counted. The second power reserved by the people is the referendum, which shall be exercised in the manner provided in sections one and two of this article. * * * If the conflicting measures submitted to the people at the next ensuing general election shall both be approved by a majority of the votes severally cast for and against each of said measures, the measure receiving the highest number of affirmative votes shall thereupon become a law as to all conflicting provisions. The provisions of this section shall be self-executing, but legislation may be especially enacted to facilitate its operation."

It will be observed that the italicized part of the section above quoted deals with proposed measures, one by the people through the initiative and the other proposed by the legislature with the approval of the governor as a substitute for the former, and not with any act or part thereof or measure passed by the legislature, which only are subject to referendum petition.

It is true, as stated in the majority opinion, that a law enacted by the people pursuant to section 3 is not subject to such petition.

Did the proposed measure become a law by reason of the initiative provisions of said article? If so, it was clearly subject to amendment by the legislature in 1927, for more than three years had expired from the date the act took effect. It was not a legislative-proof law by reason of the referendum clauses of the article, and if the method prescribed in said section 3 by which the legislative substitute became a law is not initiative in that the statute originated from the legislature instead of the people, it was within the power of the legislature to amend it at any time; for except where the right to legislate is withheld from the legislature by article 19, it has full authority therein by reason of section 1, art. 4, of the constitution, which provides:

"The legislative authority of this state shall be vested in a senate and assembly, which shall be designated `The legislature of the State of Nevada.' * * *"

For the reasons given I am of the opinion that the legislative substitute, Stats. 1923, pp. 389, 390, approved by the people at the election of 1922, was subject to amendment by the legislature when it was amended by Stats. 1927, p. 126.