Todd v. Tierney , 38 N.M. 15 ( 1933 )

The appellant, as county treasurer of Bernalillo county, appeals from a decree of the district court of said county permanently enjoining him from conducting a sale of real property for delinquency in the payment of taxes for 1931 and 1932, under the provisions of chapter 171, New Mexico Session Laws of 1933, known as S.B. 144, Acts of the Eleventh State Legislature. It was an admitted fact in the case that appellant was the owner of real estate upon which taxes were delinquent for the years mentioned.

The act in question is a new and comprehensive Code for the enforcement and collection of delinquent taxes, prescribing the duties of county treasurers in relation thereto, providing for the sale of real property upon which taxes are delinquent, the issuance of deeds to purchasers, and fixing the means of securing redemption from sales thereunder. It carries the emergency clause authorized by the Constitution, in language as follows: "That it is necessary for the preservation of the public peace and safety of the inhabitants of the State of New Mexico that the provisions of this Act shall become effective at the earliest possible time, and therefore an emergency is hereby declared to exist and this Act shall take effect and be in full force from and after its passage and approval." Section 44.

The sole attack upon the law, and the ground upon which its enforcement was sought to be enjoined, was that it had been suspended by the filing of petitions with the secretary of state within ninety days following adjournment of the Legislature, bearing the requisite number of signatures to require its submission to a vote of the people at the next general election, under the authority of section 1 of article 4 of the state Constitution, known as the referendum provision. The appellant by demurrer challenged appellee's position, and contended that the act assailed was within the class of laws expressly removed from operation of the aforesaid referendum provision. The basis of this contention is that the act is one providing for the preservation of the public peace, health, or safety, and that, the Legislature having so declared in the emergency clause attached thereto, the courts cannot review and impeach such declaration. The appellant having elected to stand upon the trial court's action overruling his demurrer, the injunction was made permanent, as hereinabove stated.

Actually, by its terms the order appealed from permanently enjoins the appellant as county treasurer from selling property or acting under the law involved, seemingly irrespective of whether upon a referendum it shall be approved or rejected. Certainly it could not properly go further than to stay action pending the referendum except as contingent upon the result thereof.

We have thus squarely presented the question whether the courts may review the legislative declaration that a given act provides or is necessary for preservation of the public peace, health, or safety, in determining whether it is subject to, or exempt from, the referendum provided by the Constitution.

The referendum as it exists in this state is to be found as section 1 of article 4 of the Constitution, and reads as follows:

"The legislative power shall be vested in a senate and house of representatives which shall be designated the Legislature of the State of New Mexico, and shall hold its sessions at the seat of government.

"The people reserve the power to disapprove, suspend and annul any law enacted by the legislature, except general appropriation laws; laws providing for the preservation of the public peace, health or safety; for the payment of the public debt or interest thereon, or the creation or funding of the same, except as in this constitution otherwise provided; for the maintenance of the public schools or state institutions, and local or special laws. Petitions disapproving any law other than those above excepted, enacted at the last preceding session of the legislature, shall be filed with the secretary of state not less than four months prior to the next general election. Such petitions shall be signed by not less than ten per centum of the qualified electors of each of three-fourths of the counties and in the aggregate by not less than ten per centum of the qualified electors of the state, as shown by the total number of votes cast at the last preceding general election. The question of the approval or rejection of such law shall be submitted by the secretary of state to the electorate at the next general election; and if a majority of the legal votes cast thereon, and not less than forty per centum of the total number of legal votes cast at such general election, be cast for the rejection of such law, it shall be annulled and thereby repealed with the same effect as if the legislature had then repealed it, and such repeal shall revive any law repealed by the act so annulled; otherwise, it shall remain in force unless subsequently repealed by the legislature. If such petition or petitions be signed by not less than twenty-five per centum of the qualified electors under each of the foregoing conditions, and be filed with the secretary of state within ninety days after the adjournment of the session of the legislature at which such law was enacted, the operation thereof shall be thereupon suspended and the question of its approval or rejection shall be likewise submitted to a vote at the next ensuing general election. If a majority of the votes cast thereon and not less than forty per centum of the total number of votes cast at such general election be cast for its rejection, it shall be thereby annulled; otherwise, it shall go into effect upon publication of the certificate of the secretary of state declaring the result of the vote thereon."

The first petition authorized, as will be noted, must be signed by not less than 10 per centum of the qualified electors of each of three-fourths of the counties and in the aggregate by not less than 10 per centum of the qualified electors of the state, as shown by the total number of votes cast at the last preceding general election. This petition may be filed at any time not less than four months prior to the next general election. The second petition authorized must bear signatures of not less than 25 per centum of the qualified electors under each of the foregoing conditions, and must be filed within ninety days following adjournment of the Legislature. In order to avoid useless repetition, and yet distinguish the two petitions, in this opinion we shall refer to petitions as signed either by 10 or 25 per centum of the qualified electors, as the case may be, without mentioning the other conditions attaching thereto, although a statement of such conditions is to be implied in each reference.

In Hutchens v. Jackson, 37 N.M. 325, 23 P.2d 355, 361, the question presented was whether the courts can go behind and overturn the legislative declaration of an emergency made in constitutional form, for the purpose of denying immediate effect to an act. We held the courts to be without such power, and, after an extensive review of the authorities, said: "It follows from what has been said that the trial court was correct in refusing to go behind the legislative declaration of an emergency contained in the act in question. That determination was final and conclusive and binding upon the courts."

But added: "It does not necessarily follow, and we are far from intending to suggest, that the same conclusiveness we accord to the legislative declaration in this case, involving only the immediate or postponed effect of the statute, is to be given such a declaration as precluding an attack by referendum, when the latter question shall be properly before us."

Our purpose in thus guarding against any misapprehension of the effect of our decision in the Hutchens Case was prompted by the fact that in such opinion we cited as authority and reviewed many cases wherein the courts declined to go behind the legislative declaration that a given act was a safety measure, even though the purpose of the claimed test was to determine its exemption from the referendum. It impressed us then, and still does, that courts giving finality to the legislative declaration in such cases, where the question involved was the important one whether the people had on a given measure reserved or denied to themselves the right of referendum, were high authority upon the somewhat analogous question whether it should be given finality as bearing upon the immediate or postponed effect of the act.

It would have been improper for us in the Hutchens Case to attempt by pure obiter dictum to foreclose or prejudge the case of the referendum now before us for the very potent reason that no such question was involved or presented. But, even had we felt disposed to indulge in dicta arguendo, as appellate courts are at times prone to do in the perhaps mistaken belief that strength is thereby added to positions taken, the effect of the differences, though slight, in phraseology of the referendum and emergency provisions of the Constitution, and the force of other arguments, not then pursued, coming to mind as applicable to a referendum case and not pertinent to a decision in the Hutchens Case, caused us to feel that the effect of the referendum decisions there cited might, when we should come to construe the referendum provision of our Constitution, be deemed without the force possessed in their application to the case then being considered.

In our hearing of the present appeal the distinction between the two cases has been strongly presented. The differences in the language of the two constitutional provisions have been stressed. We have had the benefit of illuminating arguments by able counsel, some appearing amici curiae, giving a clear exposition of their respective positions. We have given these arguments the most careful consideration, mindful of the importance and far-reaching effect of our decision, and have reached the conclusion that the right here asserted has not been reserved to the people, but, on the contrary, has been committed by thepeople themselves to a body of their own creation, the Legislature.

In view of the restrictions thrown around the exercise of the right of referendum, with particular reference to the somewhat high percentage and geographical spread of signatures required on a petition designed to prevent the operation of a law pending referendum, and the further requirement that the majority for rejection must be at least 40 per centum of the total votes cast at such election, we should be slow to deny the right claimed by so large a body of our voting citizenry unless based upon an abiding conviction that the reserved power asserted does not exist. That conviction we entertain.

We turn, first, to a comparison of the language of the referendum and emergency provisions of the Constitution. Section 1 of article 4 reserves to the people the power to disapprove, suspend, or annul any law enacted by the Legislature, except, among others, "laws providing for the preservation of the public peace, health or safety." Section 23 of article 4 provides that laws shall go into effect ninety days after adjournment of the Legislature enacting them, except general appropriation laws which shall go into effect immediately upon their passage and approval. But this section further provides: "Any act necessary for the preservation of the public peace, health or safety, shall take effect immediately upon its passage and approval, provided it be passed by two-thirds vote of each house and such necessity be stated in a separate section."

Thus we find two things must concur to enable the Legislature to give immediate effect to an enactment. It must pass each House by a two-thirds majority, and there must be a legislative declaration in a separate section that it is necessary for the preservation of the public peace, health, or safety. For the purpose of determining the effective date of the same act here involved, we held in Hutchens v. Jackson, that the courts are powerless to concern themselves with the factual truth or reality of that declaration.

Facing the fact of the decision in that case and its effect as determining that the very law involved was given immediate effect by attaching the emergency clause, counsel for appellee contend, nevertheless, that it was automatically suspended upon the filing with the secretary of state of a referendum petition signed by 25 per cent. of the qualified electors in three-fourths of the counties of the state. In awarding a permanent injunction, the lower court necessarily concluded both that the law was referable and that the petition filed had the suspensory effect claimed for it. Upon no other theory can the decree of the lower court be explained. Passing for the moment a discussion of the referable character of the law, except as that question may be deemed interwoven with a consideration of its suspensibility, we shall at this point determine whether, fairly considered, the language of the referendum provision in our Constitution contemplates the suspension by petition of any law already given effect.

When we come to analyze the referendum provision, we find it operates in two ways dependent upon the timeliness of filing the petition and the number or percentage of signatures attached thereto. If it is a petition bearing the signatures of 10 per cent. of the qualified electors, and be filed not less than four months prior to the next general election after adjournment of the Legislature, it merely operates to invoke the referendum and require submission. It has no effect to suspend operation of the law in the meantime.

But what is the result if rejected at the polls? In such event, the Constitution says: "It shall be annulled and therebyrepealed with the same effect as if the legislature had then repealed it, and such repeal shall revive any law repealed by the act so annulled; otherwise, it shall remain in force unless subsequently repealed by the legislature." (Italics ours.)

On the other hand, if the petition be signed by 25 per cent. of the qualified electors and filed with the secretary of state within ninety days after adjournment of the Legislature at which the questioned law was enacted, the Constitution says: "The operation thereof shall be thereupon suspended and the question of its approval or rejection shall be likewise submitted to a vote at the next ensuing election."

It is urged upon us that the use of the language "the operation thereof shall be thereupon suspended" furnishes indisputable proof of an understanding by the framers of the Constitution that enactments bearing the emergency clause were not necessarily excluded from the referendum. For, they inquire, what laws other than those with the emergency clause can be the subject of suspension any time within ninety days after adjournment of the Legislature? If the language quoted stood alone, the argument advanced would have much force. But, construing all of the language of the provision together, as we must, and giving due weight to other considerations presently to be mentioned, we are satisfied the quoted phrase does not evidence the intent ascribed to it by counsel.

For instance, let us pursue the provision to its end and ascertain what results are contingent upon the rejection or approval of the law upon submission. It continues: "If a majority of the votes cast thereon and not less than forty per centum of the total number of votes cast at such general election be cast for its rejection, it shall be thereby annulled; otherwise, itshall go into effect upon publication of the certificate of the secretary of state declaring the result of the vote thereon." (Italics ours.)

This reflects strongly the view of the framers that the particular law thus approved by the electorate had never theretofore been in effect. For how can a law "go into effect" that has already been in effect. Observe the language does not say "shall go into effect again," or shall "resume effect," or "shall cease to be in suspense," but "shall go into effect," thus leaving the impression that, in the view of the framers of the Constitution, at least, the measure had never been "in effect."

But this is not the only consideration leading to the conclusion that the petition signed by 25 per cent. of the qualified electors was not intended to suspend the operation of a law already placed in effect; and that the distinctive purposes of the two petitions were, in the one case, to permit the repeal by referendum of a law already in effect, and, in the other case, to prevent an enacted law from coming into effect pending a referendum thereon.

As to the effect of rejection at a referendum initiated by a petition signed by 10 per cent. of the qualified electors, the framers of our organic law were careful to say that it should be "annulled and thereby repealed with the same effect as if the legislature had then repealed it." No such concern or solicitude is evidenced for the protection of rights arising under a rejected law theretofore in effect, but whose operation is "suspended" by the filing of a petition signed by 25 per cent. of the qualified electors. On the contrary, upon the rejection of such a law, the Constitution declares "it shall be thereby annulled." Proceedings thus initiated within ninety days after adjournment of the Legislature, if successful, repeal no law. They operate, on the contrary, to annul a law. Webster defines "annul" as meaning "to reduce to nothing; to obliterate" and "to make void or of no effect; to nullify; to abolish; to do away with."

If it be suggested that the word "annulled" is employed in a narrower sense in declaring the effect of the rejection of a law referred under petitions bearing signatures of only 10 per cent. of the qualified electors, and hence cannot here have so broad a meaning as we attribute to it, the answer is that the restricted meaning there intended is manifested by the words immediately following its use. The provision reads that upon rejection the law "shall be annulled and thereby repealed with the same effect as if the legislature had then repealed it." Whereas the alternative to rejection stated immediately following the use of the word in declaring the effect of a law suspended by petition filed within ninety days after adjournment of the Legislature demonstrates just as strongly that the word is used in its broadest significance. If rejected, the law "shall be therebyannulled; otherwise it shall go into effect upon publication of the certificate of the secretary of state declaring the result of the vote thereon." It does not provide, as in its earlier use, that it shall be "annulled and thereby repealed" as of the date of the election, or as of the date of its suspension, if in fact it has ever theretofore been in effect, or that it shall be deemed repealed at all, but, on the contrary, that it shall be "thereby annulled." But, if instead of rejection it receives approval, "it shall go into effect" upon publication of the designated certificate of the secretary of state.

An examination of the referendum provision discloses two other significant circumstances. The first is the absence of authority for filing petitions during the legislative session designed to suspend operation of a law placed in immediate effect by use of the emergency clause. The provision reads: "Petitions disapproving any law other than those above excepted, enacted at the last preceding session of the legislature, shall be filed with the secretary of state not less than four months prior to the next general election."

And, if the petition be signed by 25 per cent. of the qualified electors, and be directed to a law passed at the "last preceding session" of the Legislature, it must be filed within ninety days "after adjournment of the legislature."

It is somewhat singular, if the last-mentioned petitions were intended by the Constitution to suspend operation of a law already effective, that it would not have conferred the right to bring about that suspension at the earliest moment the required number of signatures could be obtained, even if that time be during the very session enacting the questioned law.

In the second place, if within contemplation of the framers of the Constitution the right to suspend an existing effective law was to be conferred, why confine such right to a period of ninety days following adjournment of the Legislature? The longer a pernicious law operates, the greater the harm and evil which may flow therefrom. But a mere reading of the language of this provision cannot fail to impress that significance is attached to fixing as the dead line the ninetieth day after adjournment of the Legislature. The provision seems pointed to the ninetieth day. Why? Because it is upon that day that all laws not bearing the emergency clause, enacted at the last preceding session of the Legislature, become effective under another provision of the Constitution, section 23 of article 4.

The framers of the Constitution were thus careful to withhold the right to file petitions during the current session of the Legislature, the only purpose to be subserved by which would be to bring about an earlier suspension of a law already effective. They were careful to confine the suspensory effect of petitions bearing signatures of 25 per cent. of the qualified electors to the ninetieth day following adjournment of the Legislature, the effective date of all laws not given immediate effect by emergency declarations. And were just as careful to say that laws rejected under petitions filed after the ninetieth day from adjournment should be deemed merely repealed as of the date of their rejection at the polls, and not wholly abrogated.

Nor can we say that this studied concern and provision against the abrogation and nullification from its inception of a law given operative effect over an indefinite period following enactment was not fully warranted. As is well known, rights arise very quickly under duly enacted laws following their effective dates. Commercial and business transactions of the highest importance may be consummated; descent may be cast; testamentary dispositions made; family and personal relations become altered and valuable property rights acquired or changed, all upon the faith of laws in full force at the time of such transactions, yet later suspended under referendum petitions, and finally annulled through rejection at the polls.

The repeal through a referendum of a law previously in effect some seventeen months works no hardship or injustice, for until repeal it is a valid, existing law. Acts done and rights acquired thereunder are protected. Neither is the public interest prejudiced nor are private rights imperiled through the suspensory effect of petitions filed within ninety days after adjournment of the Legislature, thereby preventing an enacted measure from actually becoming a law. Rights could not be acquired, nor acts lawfully done under such an enactment. For it never was a law, nor will ever be, until after a favorable vote of the people and publication of the certificate of the secretary of state, declaring the result of the vote, whereupon "it shall go into effect." It then for the first time becomes a law.

Most, if not all, of the cases holding that the courts have a right to review a legislative declaration of emergency proceed upon the theory that the Legislature is powerless to give immediate effect to a referable law. The decisive question thus becomes: When did the law take effect? If it had immediate effect (and the decision whether it did is based upon the Legislature's power as distinguished from its effort to give it such effect), its nonreferable character is conclusively established.

In State ex rel. Westhues v. Sullivan, 283 Mo. 546,224 S.W. 327, 335, one of the cases relied upon by counsel appearing amici curiae, the controlling influence of this consideration is clearly pointed out in the opinion by Mr. Justice Graves, as follows: "That an act may take effect under a general emergency clause, and yet be subject to the referendum, is clearly contrary to the intent of the amendment, and would produce disastrous results. The clause in the amendment which reads, ``Any measure referred to the people shall take effect and become the law when it is approved by a majority of the votes cast thereon, and not otherwise,' clearly means that a law upon which the referendum is invoked cannot take effect prior to its approval by the vote; and consequently no act that is subject to the referendum can be made to go into operation for 90 days after the adjournment of the session or its approval by vote."

In Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S.W. 199,201, the court was dealing with a constitutional referendum provision which excepted from its operation only "laws necessary for the immediate preservation of the public peace, health or safety." The court held the question of necessity to be one exclusively for legislative determination, and that such determination alone could bring it within the exception and power of the Legislature to give it immediate effect and thus remove it from the general class of laws upon which the people reserved the right to order the referendum. In its opinion this court also gives decisive consideration to the effective date of the law as placing it within or without the referendum. It said:

"Under this initiative and referendum amendment, only ``laws necessary for the immediate preservation of the public peace, health or safety' are excepted from its provisions, and no power is reserved by the people to pass directly upon such laws. All other laws are subject to its operation; and, 90 days being given by its terms from the final adjournment of the session of the Legislature which passed them in which to demand or order the referendum thereon, they cannot take effect or go into operation till the expiration of 90 days after such adjournment, nor thereafter until approved by the people, if the referendum is ordered or invoked.

"It was not intended that an act passed by the Legislature should take effect conditionally and subject to the referendum, and continue in force from its passage, if the referendum was not ordered, or that an act once in force should be suspended by the referendum till its approval by the people."

The "disastrous results" which the opinion of the Missouri Supreme Court in the Sullivan Case apprehends would be produced would become a living reality in New Mexico, should we hold that the operation of a law already in effect could be suspended by the referendum. We already have held in Hutchens v. Jackson, supra, that the very law now before us was placed in immediate effect upon its passage and approval by the emergency declaration carried as one section thereof. That effectiveness continues to date unless suspended by the filing of the referendum petitions involved in this appeal.

Giving due weight to all of the considerations mentioned, we are unable to see in the phrase "the operation thereof shall be thereupon suspended," used in declaring the effect of filing the petitions prescribed within ninety days after adjournment, an intendment or understanding on the part of the framers of our Constitution that the power to suspend a law already in effect had been conferred.

Nor, standing alone, would the use of this language necessarily carry the meaning urged for it. A measure duly passed by the Legislature and approved by the Governor is not wholly without operative effect, even though not declared emergent. It has constantly increasing potentiality toward complete effectiveness as a law. Nothing but the end of time or the filing of the referendum petition required within ninety days after adjournment of the Legislature enacting it can prevent it becoming a law at a time certain. From the day of its enactment such a measure through the agency of passing time is operating toward a given effective date. The filing of the petition now discussed automatically places the measure in suspense, postpones its possible effective date to the time of the next general election, and interposes a new condition to its ever becoming a law; namely, a vote of approval in such election. It is in this sense only that operation of the law is suspended. Its operation as a potential, impending law, not as an effective, existent law, is suspended.

The people having thus studiously refrained, as we hold, from reserving to themselves the power to suspend by referendum petitions the operation of any law already given immediate effect through an emergency declaration, what weight is to be attached to this significant circumstance? Upon this question the members of the court do not see alike. Mr. Chief Justice WATSON and Mr. Justice ZINN are in agreement with Mr. Justice HUDSPETH and the writer of this opinion that the claimed power to suspend does not exist. But they attach no peculiar significance, as do we, to the circumstance that the Legislature is permitted by the Constitution to give immediate effect (and thus place beyond the power to suspend), only to that class of laws, i.e., safety measures, which the same instrument expressly exempts from the referendum. Mr. Justice BICKLEY, while disagreeing with all of us in our conclusion that the power to suspend does not exist, holds with Mr. Chief Justice WATSON and Mr. Justice ZINN that the referable character of the law is still open for determination by the courts, even though suspension pending referendum be denied.

What the framers of the Constitution intended as disclosed by the language employed is, of course, the interpretation properly to be given the instrument. That intent must be arrived at by construing together its various pertinent provisions and giving to each the meaning which its language most naturally suggests when considered in proper relationship to the others. We should, as nearly as we may, endeavor to look at the instrument from the vantage point of the framers the better to understand their view of the matter and the meaning likely intended. And certainly no proper construction can be adopted which fails to attach proper significance to the practical sameness of the language employed in exempting from the referendum laws "providing for the preservation of the public peace, health or safety" as that used in authorizing the Legislature to give immediate effect to laws "necessary for the preservation of the public peace, health or safety."

As bearing upon the framers' then view of the matter, we must credit them with an assumption that the use by the Legislature of the emergency clause would not be abused. They circumscribed its use by the requirement that at least two-thirds of the voting members of each house should concur in the declaration that the measure sought to be given immediate effect was in fact necessary "for the preservation of the public peace, health or safety."

We are unable to believe that the framers of our Constitution in stating the conditions upon which an emergent measure might be given immediate effect were devising a mere formula for ready use, irrespective of the realities. We cannot feel that they considered the emergency provision, although a resounding phrase worthy of a great purpose, as a mere rhetorical flourish wanting in intended use commensurate with the solemnity of expression and weightiness of diction employed.

We think the framers took a different view of the matter. If they believed, and had a right to believe (and we insist that they did and that we must so assume), that the emergency clause would be used to place in immediate effect only such laws as were actually necessary for preservation of the public peace, health, or safety, and shown so to be by a two-thirds vote in each house, then the declaration was not to be made for any purpose apart from the referable character of the law, but, when made in good faith, as the framers had a right to expect it should ever be, is made for the sole purpose of giving immediate effect to a law of the very kind declared by the Constitution to be exempt from referendum.

If we can or should assume as meaningless or foreign to its stated purpose the use of this high-sounding phrase by the framers in describing the kind of laws which could be given immediate effect, then our argument fails. But, mindful that the Constitution itself gives immediate effect to but one kind of law, i.e., general appropriation bills, and gives it into the hands of the Legislature to give immediate effect to laws of but another single class, i.e., safety measures, "laws necessary for the preservation of the public peace, health or safety," we are unable to believe that the framers dissociated in their minds the kind of laws which could be given immediate effect from the kind they had exempted from the referendum. They must have considered that any law which a good-faith exercise of the power to make emergent had given immediate effect fell within the class of exempted laws. And we must assume they expected a good faith exercise of the power to make emergent. Either that or concede they were using solemn and high-sounding phrases, carrying an entire emptiness of meaning.

Furthermore, the view that the emergency provision is a mere formula furnished the Legislature by the Constitution to enable it to give immediate effect to legislation without necessary regard to its referable character seems to ignore the circumstance that under the language of the Constitution the sole and only condition which can make the immediate effectiveness of a law desirable is the fact of its necessity for preservation of the public peace, health, or safety. It subordinates and renders secondarily important the paramount fact the existence of which is indispensable before the legislative judgment upon the timeliness of an act's effective date is even invoked. This construction as we feel "lets the tail wag the dog."

Is it not passing strange, if the framers of the Constitution in their deliberations did not carefully correlate the emergency and referendum provisions of the Constitution, and regard the former with the seriousness which its language imports, that the members of this court in deciding the question before it have been compelled to devote so much time and discussion to a proper analysis of these two provisions and an exposition of their correlative or distinctive functions, as the respective view may be.

We are satisfied that the emergency provision was inserted as section 23 of article 4 solely to enable the Legislature to give immediate effect to the very kind of laws and none other declared in section 1 of article 4 to be exempt from the referendum. And we think when the framers wrote in section 23 of article 4 they neither ignored, forgot, nor were oblivious to the significant circumstance that the language being used to state the condition for giving immediate effect to a law was practically identical with, and necessarily embracive of, that employed in the same article only a short time previously for stating the condition exempting a law from the referendum.

We have spoken often in this opinion of the viewpoint of the framers of the Constitution and of what they intended by the language employed. And whenever we refer to the framers that term is to be taken as embracing the people who adopted it. We are not unmindful of the rule of construction applicable to a Constitution that its language is to be taken in its common and ordinary sense and as likely understood by the people who adopted it. But there is nothing here to suggest any different meaning for the language employed than that in which it is commonly and ordinarily understood, except in so far as the view is advanced that the emergency provision by reason of an acquired use as a formula was not employed by the framers in the seriousness which its language imports.

It can have had no such acquired use in New Mexico since prior to statehood our territorial Legislatures were unfamiliar with its use, being without occasion to employ it. And, if the framers did intend it only as a formula, as we assert they did not, but on the contrary contemplated its bona fide use, the rule of construction mentioned enjoins that we should interpret it as the common, ordinary meaning of the language employed would give it understanding to the people adopting it.

So interpreting the referendum and emergency provisions of the Constitution in their relation to each other, and mindful of the condition imposed upon the use by the Legislature of the latter, i.e., a two-thirds vote in each house, the conclusion seems to us inescapable that the emergency declaration when made bears an intended finality. We hold that it does. It thus becomes perfectly obvious that the reason the Constitution so carefully guards against suspension by referendum petitions of laws already in effect is due to a conception on the part of its framers that the essential fact whose existence the Legislature alone can determine, when found and declared by it, would automatically place the law involved in a class exempted from the referendum.

We think it was not intended by the Constitution that there should ever be a referendum upon any measure given immediate effect by the Legislature as necessary for the preservation of the public peace, health, or safety. We hold further that a measure bearing the legislative declaration that it isnecessary for the purposes named must by the courts be conclusively presumed to provide for such purpose. A law may reasonably provide for preservation of the public peace, health, or safety without being necessary to their preservation. But we can conceive of no law as being necessary to their preservation without providing therefor.

And this brings us to another argument advanced by counsel for appellee and those appearing amici curiae. It is urged, as we have just suggested, that, since laws providing for the public peace, health, or safety are excluded from the right of referendum, an attempt might be made to refer such a law not bearing the emergency clause; that, if such attempt were resisted, it would clearly become the duty of the courts to pass upon and determine whether or not subject to the referendum. And along the same line our attention is called to the fact that all laws excluded from the referendum are listed together in the same paragraph of the Constitution, i.e., general appropriation laws; laws providing for the preservation of the public peace, health or safety; for the payment of the public debt or interest thereon, or the creation or funding of the same; for the maintenance of the public schools or state institutions, and local or special laws.

What as to any of said laws (except general appropriation laws given immediate effect upon passage by the Constitution itself) not bearing the emergency clause when drawn in question, ask counsel? Would the courts not be called upon, they inquire, to say, for instance, whether a given act does "provide" for payment of the public debt, or for maintenance of the public schools or state institutions, or whether it is a local or special law? Is the mere omission of an emergency clause to expose to the referendum laws clearly excepted? And, if the law be one such as is obviously excluded, would not the courts have the power so to declare?

We answer all of these questions affirmatively. It would be the duty of the courts, and they would have the power, under the contingency named, to pass upon and determine the question. But it is one thing for the courts to claim and exercise such power where the Legislature has remained silent and quite another thing to do so where the Legislature has spoken through a solemn declaration of emergent necessity. In any event, the "question" to be determined would be the legal one whether the act involved provided for the specified objective and was thus excluded from the referendum. The determination of that question, however resolved, would neither invade nor overturn a legislative finding and declaration of necessity made for the purpose of giving immediate effect to the law as a safety measure, thus placing it within a class of laws to which we hold the Constitution fairly interpreted gives a conclusive presumption of providing for the objects for which they have been declared necessary.

In arriving at these conclusions, it has not been necessary for us to go beyond a careful analysis of the language of our own Constitution. But, when we seek aid to proper construction from the decisions of other jurisdictions, we are confirmed in the conviction that the question presented is correctly decided. It is not our purpose in this opinion to enter upon an extended citation and review of the authorities. Practically every case of importance upon either side of the proposition will be found cited and discussed in Hutchens v. Jackson, supra, to which reference may be made for a collation of the authorities pro and con.

We are quite satisfied that the weight of judicial authority holds final and conclusive and binding on the courts a legislative declaration that a given act is necessary for the preservation of the public peace, health, or safety, whether the question for determination be the immediate or postponed effect of an act or its exclusion from a referendum sought thereon. The earliest leading cases on either side of the proposition from the standpoint of their importance are Kadderly v. City of Portland,44 Or. 118, 74 P. 710, 75 P. 222, holding the legislative determination final, and State ex rel. Brislawn v. Meath,84 Wash. 302, 147 P. 11, supporting a right of review in the courts.

It is conceded by all that whether a given measure is necessary for the preservation of the public peace, health, or safety is a question of fact. And the authorities on both sides of the proposition agree that it is a factual question for legislative determination in the first instance. Repeatedly in the decisions is the query put: Who is to decide finally the question of necessity? And as often as asked the fact is adverted to that the particular Constitution is silent as to which, the courts or the Legislature, shall have the final determination. The same is true of our Constitution. It is silent on the subject.

This circumstance alone should furnish the answer in this state to the question so often put. For section 1 of article 3 of our Constitution dealing with the distribution of powers between the three governmental departments enjoins that: "No person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exerciseany powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted." (Italics ours.)

The absence of an express bestowal of such power in the present instance is the fact just adverted to. Thus the courts would clearly be exercising a power properly belonging to the legislative department, in overturning the latter's solemn declaration that the necessity declared in fact exists without being able to find in the Constitution any express provision giving them the right thus to sit in judgment upon the exercise of this purely legislative function.

If the Legislature does not conceive, resolve, and indeed factually find that occasion exists to provide for preservation of the public peace, health, or safety, there will never be brought into being in the first instance any act purporting so to provide. There would be nothing to submit, if such a measure were subject to submittal.

Unquestionably, the Legislature must in the first instance make the factual finding of necessity. The question is: How conclusive is it? Is it under our scheme of government any less conclusive than its deliberate judgment evidenced by a failure to enact that occasion for so providing does not exist. From the latter there is no appeal, no right of review, nor a remedy, except in the ballot box. And there and there alone, under our Constitution as written, is to be found the relief against a careless, an unwise, or even bad faith exercise by a Legislature of the power vested in it under the Constitution to declare measures emergent, and thus place them in a class of laws excluded from the referendum.

An argument frequently urged against the existence of this power in the Legislature is that it may be abused. Real or imagined instances of an absurd exercise of the power are often cited in support of the contention that bestowal of such power was not intended. The answer to such argument is to be found in the uniform holdings of this and other courts that it is no test of the existence of a power to assert that it may be abused. Hutchens v. Jackson, supra.

The fact that the chief executive of a state or the nation could do the wholly unthinkable yet conceivably possible thing of pardoning every prisoner confined in the penal institutions within his jurisdiction does not argue even persuasively that the executive is or should be without the constitutional power to pardon. The people in their organic law have conferred and distributed powers upon the necessary hypothesis that the donees thereof will act as honest, normal, reasonable human beings in the execution of those powers. Upon no other basis can the regulation of human affairs be provided for.

While disagreeing with the conclusion of our brethren of the court, comprising a majority, on the effect to be given the legislative determination of necessity, we have not failed to give their ably presented views, for which we have always the highest regard, our most serious consideration. But, for the reasons given, we feel the nonreferable character of the law is conclusively established by the solemn legislative declaration that it is necessary as a safety measure.

The resultant of our opinions as a whole leaves still open the question whether this statute is of the referable class within the meaning of article 4, § 1. It must remain open for the present for two reasons: First, an answer is not necessary to the decision of this injunction case which falls with the holding that the statute was actually in effect and had not been suspended; second, the points and arguments of counsel do not cover the question, appellant having rested content with the proposition that the legislative declaration is conclusive.

According to the views of the majority, as herein and herewith expressed, the judgment appealed from should be reversed and the cause remanded, with a direction to the trial court to sustain appellant's demurrer and dismiss the complaint.

It is so ordered.

HUDSPETH, J., concurs.