State Ex Rel. Pennock v. Reeves , 27 Wash. 2d 739 ( 1947 )

I concur in the result arrived at by the majority, but on a different ground. I do not believe that there was an emergency.

Originally the people, as a representative government, enacted laws through the legislature. Art. II, § 1, of the state constitution provided:

"The legislative powers shall be vested in a senate and house of representatives, which shall be called the legislature of the state of Washington."

In 1912, the people enacted the seventh amendment to the constitution, by which they amended Art. II, § 1, reserving unto themselves the right to initiate legislation, and also to refer to themselves, for approval or rejection at the polls, "any act, item, section or part of any bill, act or law passed by the legislature." Judge Chadwick, in commenting on this amendment inState ex rel. Mullen v. Howell, 107 Wash. 167, 181 P. 920, said:

"It is well known that the power of the referendum was asserted, not because the people had a willful or perverse desire to exercise the legislative function directly, but because they had become impressed with a profound conviction that the legislature had ceased to be responsive to the popular will. They endeavored to, and did — unless we attach ourselves to words and words alone, reject the idea upon which the referendum is founded, and blind ourselves to the great political movement that culminated in the seventh amendment — make reservation of the power to refer every act of the legislature with only certain enumerated exceptions."

Knowing that emergencies might arise, making necessary the immediate taking effect of certain laws, the people wisely inserted in the amendment the provision that any act, bill, law, or any part thereof might be referred, "except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions."

Prior to the enactment of the amendment, all laws, except appropriations and emergencies, took effect ninety days after adjournment of the session. Art. II, § 31, of the constitution provided:

"No law, except appropriation bills, shall take effect until ninety days after the adjournment of the session at which it was enacted, unless in case of any emergency (which emergency must be expressed in the preamble or in the body of the act) the legislature shall otherwise direct by a vote of two-thirds of all the members elected to each house; said vote to be taken by yeas and nays and entered on the journals."

The amendment struck §§ 1 and 31 from Art. II, and inserted in lieu thereof the provisions mentioned. The emergency clause was re-enacted, although more specific language was used. Subd. (c) of Art. II, § 1, provides:

"No act, law, or bill subject to referendum shall take effect until ninety days after the adjournment of the session at which it was enacted. . . ."

So now, as before, under the constitution, no law shall take effect until ninety days after adjournment, unless some emergency exists which makes its immediate going into effect necessary. The emergency must be such that it must go into effect at the time of the passage of the law, rather than ninety days after adjournment.

I have been unable to find any case where this court was called upon to determine whether or not there was an emergency under the original § 31 of Art. II. But since the enactment of the amendment, the question of emergencies has been before us several times, and we have scrutinized the entire act in those cases to determine whether or not an emergency actually existed. We have done this because we felt it was our duty to protect the people in their constitutional right to refer laws passed by the legislature. The last two cases before this court involving an emergency, were State ex rel. McLeod v. Reeves, 22 Wash. 2d 672, 157 P.2d 718, and State ex rel. Kennedy v. Reeves,22 Wash. 2d 677, 157 P.2d 721. The first case involved the appointment of a state game commission, and the second, the creation of a state timber resources board. These two acts were passed by the 1945 legislature, upon the recommendation of Governor Wallgren, and both acts contained emergency clauses. It was held by this court that no emergencies existed, and that the people were entitled to a referendum in each case. In the latter case, we said:

"The case, of course, revolves entirely around the subject of emergency clauses and their effects. That there is a great deal of confusion of thought as to this subject, has been amply demonstrated by recent events, a confusion to which this court has in some measure contributed, as was acknowledged in the comparatively recent decision in State ex rel. Robinson v.Reeves, 17 Wash. 2d 210, 135 P.2d 75, in commenting on our former decision in State ex rel. Short v. Hinkle, 116 Wash. 1,198 P. 535. It would seem that we have arrived at a point where it is well to heed the admonition which the people, in adopting our constitution in 1889, attached to the first article of the instrument, which article is entitled ``Bill of Rights':

"``§ 32. A frequent recurrence to fundamental principles is essential to the security of individual rights, and the perpetuity of free government.' 1 Rem. Rev. Stat., p. 389.

"The very first section of that bill of rights is pertinent to our present discussion. It reads as follows:

"``§ 1. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.' 1 Rem. Rev. Stat., p. 347.

"In article II, sec. 1, of the constitution, the people created the legislature and made to it a full and complete delegation of their inherent legislative power: . . .

"But, in 1912, the people amended article II, § 1, and took back into their own hands a great deal of that power; in fact, a great deal more, we think, than has been generally realized.. . .

"We think it too clear to require argument that the legislature cannot defeat the constitutional right, reserved by the people in the introductory paragraph of amendment seven,

"``. . . at their own option, to approve or reject at the polls any act, item, section or part of any bill, act or law passed by the legislature,' (1 Rem. Rev. Stat., p. 519.) by merely inserting in an act the statement included in chapter 202, p. 579, Laws of 1945, which is assigned by the respondent as the ground for refusing to file the papers and documents presented to her for filing, to wit:

"``This act is necessary for the immediate preservation of the public peace, health and safety and for the immediate support of the state government and its existing public institutions and shall take effect immediately.'

"Such a label may obviously be utterly and completely false. It would be scandalous indeed if the constitutional right of referendum could be thwarted by the mere use of false labels. As was said in argument, ``If this can be done, the right of referendum is a dead letter in this state.'

"The court does not arrogate to itself the power of deciding whether or not an emergency clause is justified. It is forced to deal with, and decide, that question in the ordinary and regular performance of its duties. The instant case is an example. The relators assert that the people have the constitutional right to approve or reject chapter 202, Laws of 1945, at the polls, and that the exercise of that right is being denied them, and they ask the assistance of the court in enforcing it. It, therefore, becomes our judicial duty to decide whether they have that right, and, if we find that they have, to use the appropriate means to enforce it. Unless we can say that the act is, in fact, necessary for the immediate preservation of the public peace, or for the immediate preservation of the public health, or for the support of the state government and its existing public institutions, the relators are of right entitled to the writ prayed for. . . .

"In addition to arguments that the law is highly beneficial, which may very well be true, we have been confronted with general statements culled from former decisions as to the strength of the presumptions which should be indulged in in favor of legislative declarations of emergency. With all due respect, and with the earnest desire not to seem either censorious or facetious, we feel that we must say frankly and in all seriousness that the custom of attaching emergency clauses to all sorts of bills, many of which cannot by any stretch of the imagination be regarded as actually emergent, within the meaning of the test laid down in paragraph (b) of the seventh amendment, has become so general as to make it appear, in the light of recent experience, that a number of those statements can no longer be deemed controlling. It, of course, will never be presumed that the legislature deliberately intended to infringe upon a constitutional right."

Can we say that chapters 288 and 289 of the Laws of 1947 are,in fact, necessary for the immediate preservation of the public peace, or for the immediate preservation of the public health, or for the immediate support of the state government and its existing public institutions? Can we say that such an emergency exists which requires that these laws go into effectnow, and that we cannot wait until ninety days after adjournment? Obviously, no. There is no emergency.

Relator seeks to refer all of chapters 288 and 289, except the appropriations. He contends that, by so doing, the old laws will remain in effect until the election on the referendum, and that the appropriations can be used under the old laws. It is true that, under the constitution, the people can refer any act, item, section, or part of any bill. The appropriation provision for chapter 288, p. 1359, is as follows:

". . . and there is hereby appropriated from the general fund to the Department the sum of eighty-five million dollars ($85,000,000.00), or so much thereof as may be necessary, for the payment of Senior Citizen Grants:"

Had it stopped there, then the people could refer the body of the act, and the eighty-five million dollars ($85,000,000) could be used to administer under the old act, until the referendum was voted upon. But the legislature went further and added:

"Provided, That the total obligations or payments made from this appropriation during the six-month period immediately following the effective date of this act shall not exceed the sum of twenty-one million two hundred fifty thousand dollars ($21,250,000), and the total obligations or payments made during any succeeding three-month period shall not exceed an amount equal to the proportion of the unobligated balance of this appropriation which said three-month period bears to the remaining months in the biennium: Provided further, That any reduction in any grant to stay within the provisions hereof shall apply ratably to all grants of the same class." (A similar provision is found in chapter 289.)

When the legislature met, it was immediately called upon to appropriate $11,968,575 for social security because of a deficit then existing. This was done in Laws of 1947, chapter 7, p. 19. The social security department requested an appropriation of $147,862,250 for the coming biennium. The governor's estimate was $137,172,560. The legislature appropriated $109,000,000. An examination of the provisos in the appropriations for chapters 288 and 289 makes it manifest that the appropriations of $85,000,000 in chapter 288, and $24,000,000 in chapter 289, were to be paid out in the administration of the bills as written, and for no other purpose.

I believe that the people could, if they wished, refer the entire act, including the appropriation, and thereby force the calling of a special session to provide funds to administer under the old acts, while the matters were being referred. But when, in adopting the seventh amendment, the people reserved unto themselves the right to refer a part of a bill or act, they must have had in mind that the remainder of the act, not referred, would be operative.

Subd. (d) of the amendment provides:

"The filing of a referendum petition against one or more items, sections or parts of any act, law or bill shall not delay the remainder of the measure from becoming operative."

Here the appropriations are such an integral part of the acts that they cannot be separated from the remainders. To do so would render the acts inoperative. For that reason, I believe that the writs should be denied.