State ex rel. Berry v. Superior Court , 92 Wash. 16 ( 1916 )

Ellis, J.

(dissenting) — The majority opinion gives intrinsic evidence of most careful and conscientious study, but it seems to me that the result reached is unsound for several reasons:

I. It seems to be conceded, as it must be conceded, that the judiciary has no power to interfere with, construe, or pass upon any bill or law while it is undergoing any phase of the legislative process. This is as true of bills initiated by the people as it is of bills in the legislature.

“The appellant concedes that the courts are powerless to restrain a member of the Legislature from introducing any measure, valid or invalid, for the reason that the courts cannot interfere with the action of the legislative department. What legal warrant has a court to enjoin the Secretary of State from certifying a measure whether valid or invalid? Is not the initiative petition also a step in the process of legislation? For the Secretary of State, or the courts, to assume in advance the power and right to decide whether the proposed measure was invalid would be tantamount to claiming the power of life and death over every initiated measure by the people. It would limit the right of the people to propose only valid laws, whereas the other lawmaking body, the Legislature, would go untrammeled as to the legal soundness of its measures.” State ex rel. Bullard v. Osborn, 16 Ariz. 247, 143 Pac. 117, 118.

As said by the supreme court of Ohio in Pfeifer v. Graves, 88 Ohio St. 473, 104 N. E. 529, in which it was sought to restrain the secretary of state from submitting a proposed initiative bill to the electors:

“There is another indisputable and imperative reason why the remedy they invoke must be denied. We cannot intervene in the process of legislation and enjoin the proceedings of the legislative department of the state. That department is free to act upon its own judgment of its constitutional powers. We have not even advisory jurisdiction to render opinions upon mooted questions about constitutional limitations of the legislative functions and we will not presume to control the exercise of that function of government by the General Assembly, much less by the people, in whom all the power abides.”

If, as held by the majority, the filing of the bill is no part of the legislative process of proposing and passing laws, which right is reserved by art. 2, § 1, of the constitution as amended, then the legislature had no power to provide for such filing, since its power in the premises is expressly limited by the constitutional amendment itself to legislation “especially to facilitate its operation,” that is, to facilitate the operation of the constitutional amendment. It would seem to be begging the question to say that the initiator of a bill is not, under this system of direct legislation, a legislator and that “he is merely given the license or privilege of proposing and filing a proposed measure;” that “this is a preliminary step in the process of 'legislation;” and that “it may be dispensed with, but is nevertheless provided for in furthering or ‘facilitating’ the system.” The argument answers itself. The legislature can no more confer a right in the premises than it can take away a right. The right to propose direct legislation is conferred, or more correctly speaking, reserved by the constitution itself. The legislature can only provide the process or procedure “facilitating” the exercise of that right. Whatever it provides is, therefore, part of the legislative process or procedure, since it has no power under the constitution to provide for anything else. In State ex rel. McNary v. Olcott, 62 Ore. 277, 125 Pac. 303, largely relied upon by the majority, this question is but meagerly argued, and the fundamental consideration which I have attempted to point out is wholly overlooked. As applied to our constitution, that decision is basically unsound.

The other case most strongly relied upon by relators, State ex rel. Halliburton v. Roach, 230 Mo. 408, 130 S. W. 689, 139 Am. St. 639, in so far as it seems to sustain the the majority, is ably and, it seems to me, conclusively answered by the dissenting opinion of Judge Woodson. But, in any event, it is not apposite on the question here presented. That case involved a proposed amendment to the state constitution of Missouri by an initiative petition. The proposed amendment provided for dividing the state into senatorial districts. The court held that this proposed amendment to the constitution was not in its nature a constitutional amendment at all, but was merely a legislative enactment of a temporary nature in the guise of a constitutional amendment. Furthermore, the court found a sufficient reason for the result reached, in that the whole text of the measure was not included in the petition as required by the initiative provision of the Missouri constitution itself. It seems to me that the very fact that the legislature has provided this procedure makes it ipso facto a part of the legislative process or procedure. If this be true, it is elementary that the judiciary has no right to interfere.

II. Reduced to specific terms, the basic idea of the majority opinion seems to be that the last paragraph of the constitutional amendment in question imposes a mandate upon the legislature to provide by statute that no argumentative matter shall be included in any initiative bill or measure. That paragraph reads as follows:

“The legislature shall provide methods of publicity of all laws or parts of laws, and amendments to the constitution referred to the people with arguments for and against the laws and amendments so referred, so that each voter of the state shall receive the publication at least fifty days before the election at which they are to be voted upon.” Const., art. 2, §1.

It seems to me that this language is capable of no such construction. It certainly does not so provide in terms, and it is working implication to the fag-ends to say that the power conferred to provide methods of publicity of such laws with arguments for and against them implies, either necessarily or at all, any power to say what shall or shall not go into any initiative bill or measure. When this plain fact is clearly grasped, the case of State ex rel. Crawford v. Dunbar, 48 Ore. 109, 85 Pac. 337, clearly sustains the position that the question here is a political one of which a court of chancery has no jurisdiction. Even after the legislature of Oregon had provided a remedy by injunction to prevent the filing of defective ballot titles, the supreme court held that the question was political and that the remedy by injunction could only be invoked by the state through its proper law officer. Friendly v. Olcott, 61 Ore. 580, 123 Pac. 53. The court said:

“The plaintiff does not show that he will be injured in any property or civil right by the contemplated action of the secretary of state in certifying the ballot title to the county clerks. Neither will his political right to vote on the measure at the election be infringed. He’ can then, as always, exercise his electoral franchise unaffected by anything shown in his bill. If he can enjoin the secretary of state now, he can sue out a writ the day before that officer would certify the ballot title, and thus balk the whole people in the exercise of their constitutional reserve power to reject at the polls any law passed by the legislative assembly. The principle is sound and well settled that as against public officers, where their action involves purely public or political rights, the drastic remedy of injunction can be invoked only by the state acting through its proper law officer. In some instances a suit may be maintained in the name of the state on the relation of a citizen who.can show some special injury to his civil or property rights but this case is not in that category. To sustain plaintiff’s suit when he shows no injury to his private rights would be a pronounced example of government by injunction.”

In my opinion, to confer such power of censorship upon either the legislature or court, at the suit of a private party, would require a-further amendment to the constitution.

III. But, even conceding that the legislature has the power to say what the proposed bill or measure shall or shall not contain, the legislature has not exercised, nor attempted to exercise, any such power. It has merely fixed the length of the arguments to be published with the bill and declared that the parties interesting themselves for or against a bill shall pay for printing their respective arguments. It is a far cry from this to a declaration that the bill itself shall be subjected to censorship and purged by the courts of all argumentative matter whether found in the preamble or distributed throughout the various sections of the bill, as it easily might be. If it is the duty of the court to so purge the preamble, it is equally its duty to so purge every section. Every preamble is in its nature essentially argumentative, and every law carries in its provisions an argument for its own existence. Assuming the power, it is difficult for me to believe that either the people, when they adopted the constitutional amendment, or the legislature, when it passed the facilitating act, ever intended that the courts should so scan and rewrite initiative bills as to purge them of argumentative matter.

The argument of the majority touching the exclusion by the facilitating act of argumentative matter from the title to be prepared by the Attorney General may be passed with the simple observation that the legislature has covered the matter of title in terms. The title and the body of the act, including the preamble, are wholly different matters. The framing of a title in order to cover succinctly, yet sufficiently comprehensively, the contents of the act is a matter requiring certain technical skill. There is a reason why it should not be argumentative, but terse and complete, which cannot be applied to the body of the act without in effect taking away from the people the power to propose bills or laws. The preparation of the title is facilitation. The rewriting of the bill is usurpation.

The majority also concede, as of course it must be conceded, that the preamble, though not a necessary or operative part of a bill or law, is at least a proper part often performing a very important function as a “guide to the intentions of the framer.” The preamble in the legislative sense is defined:

“Preamble. A clause at the beginning of a constitution or statute explanatory of the reasons for its enactment and the objects sought to be accomplished.” Black’s Law Dictionary (2d ed.), 927.

While it is sometimes said that the preamble is “no part of the law,” the very definition and the authorities cited in support of that statement in the majority opinion show that this language is used in the qualified sense that it is no part of the law as an operative rule of action, but that it may be a very important part in determining that rule of action.

“The importance of examining the preamble, for the purpose of expounding the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs which are to be remedied and the objects which are to be accomplished by the provisions of the statute.” 1 Story, Constitution (5th ed.), Book 3, ch. 6, § 459, p. 350.

As authority for the view that, in this broader sense, the preamble is not only a part of the law but sometimes a most important part, whether enacted by the legislature or initiated by the people, we have' only to consult our own comparatively recent decisions, notably, State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466; Huntworth v. Tanner, 87 Wash. 670, 152 Pac. 523; and the recent decision of Stertz v. Industrial Insurance Commission, 91 Wash. 588, 158 Pac. 256. In these cases, and especially in the Huntworth case, the preamble was resorted to not merely to explain what was ambiguous, but to limit the operative part of the law in which but for the preamble there was not a shadow of ambiguity. In all modesty I would suggest that it is no sufficient answer to say that in these statutes the preambles were important parts because they were statutes exercising the police power in new fields. The bill here in question, if it ever becomes a law in any form, will be an exercise of the police power, and whether in a new field or an old one, the preamble in such legislation is peculiarly important as determining the intended scope of the operative part of the law as a rule of action. Indeed, the comparatively recent extending of the exercise of the police power seems to have worked a necessary revival of the formerly waning use of the preamble as an aid to intention. How can any court know until concrete cases arise under any law exercising the police power, touching either a new or' an old field, whether or when or where, in the practical operation of the law, an ambiguity or doubt may arise as to the intention and scope of the law requiring a resort to the preamble for its solution ? If the courts are to be required to remodel, reform and purge the preamble of all argumentative matter not necessary to solve ambiguities in the operative part of the law, then the courts must in every instance either say that there shall be no preamble, thus abrogating the admitted power of the lawmakers to define their intentions, or scan the entire act as to its every provision without the aid of briefs and determine in advance every ambiguity that might arise in every possible case which a reference to the preamble might be necessary to solve. Aside from the intolerable burden which the latter course would necessarily impose upon the courts, its performance in most cases would be manifestly impossible. It can hardly be doubted that of all bills or laws, initiative measures will be as a rule the most inartificially drawn and the most open to the charge of ambiguity. It would seem, therefore, that of all laws, those initiated by the people most require the aid of a preamble as a key to the intention of the proponents.

IV. The assertion of the majority that it is unfair to permit argumentative matter in the preamble to be published at the expense of the state while the opponents of the bill must pay for publishing their own arguments offers no excuse for this court to legislate in the premises. This court has already decided that this is a legislative question. In State ex rel. Chamberlain v. Howell, 80 Wash. 692, 696, 142 Pac. 1, this court said:

“The constitution appears to make no distinction between the publicity of the initiative measure itself and the publicity of the arguments for or against such measure or proposed law. But there is nothing in the constitution prohibiting the legislature from requiring a fee for filing, printing, or binding either the proposed measure, or the arguments. It is clear that, where the constitution does not prohibit the legislature from requiring a fee in such case, it is within the power of the legislature to require a fee. This is elementary and no authority is needed to sustain it.”

This is direct authority, if authority for a thing so obvious were needed, that the legislature has the same power to provide that the proposers of a bill shall pay for its publication that it has to provide that the persons whether opposed to or in favor of a bill shall pay for publishing the separate arguments. A law exercising that power would furnish a complete remedy for any supposed abuse of the preamble. The argument of the majority opinion on this. point might well be addressed to the legislature. It certainly should not move this court to invade the legislative province as this court itself has so recently defined it. This also disposes of what seems to me the groundless fear that, unless the courts, as legal knights errant, come to the rescue, one thousand page briefs may hereafter become a part of the preamble. It may be, as stated by the majority, that there is a growing popular distrust of the representative system of legislation, but the courts have no constitutional power to entertain that distrust and proceed to supply legislation, however much needed, on a matter within the admitted province of the legislature through fear that the legislature may not supply it.

Y. Finally, even assuming that all that I have said in the foregoing is unsound, and that the court has a discretionary power to review and revise initiative bills, it seems to me that the bill here in question presents no such flagrant violation of the rule or law against argumentative matter evolved by the majority as to invoke the supposed discretion. I invite a reading of the preamble here presented in comparison with that involved and set out in the opinion in the case of Huntworth v. Tanner, supra. A candid comparison will demonstrate that the one is not a whit more argumentative, nor a priori false or insidious in its premises, than the other. Yet in the Huntworth case this court employed the very argument of the preamble to control, circumscribe and limit the broader language of the operative part of the act. No one would have said in advance of a concrete case that the plain words of the operative part of that bill required the use of a preamble to construe them, and no one can say in advance that the operative parts of the bill here involved may not require the aid of the preamble to determine whether they apply to concrete cases until the cases arise. Suppose, for example, it were argued in some future concrete case that the prohibited use of given fishing apparatus in given waters had no tendency to conserve or preserve the food supply of this state. Without the preamble it might be successfully answered that the act evinced no purpose to conserve that supply. With the aid of the preamble the argument, if founded in demonstrable fact, would be unanswerable under the doctrine of the Huntworth case. The supposed case is by no means impossible, and in such a case the cancellation of the preamble by the majority of this court would clearly prove to be legislation, pure and simple. To sanction the preamble as a controlling part of the law in one case and cut it out as no part of the law in another smacks of caprice.

In any view of this case, I cannot agree with the majority. I therefore dissent.

Bausman, Parker., and Fullerton, JJ., concur with Ellis, J.