State ex rel. Mullen v. Howell , 107 Wash. 167 ( 1919 )

Fullerton, J.

(dissenting)—While I concur in the conclusion reached by Judge Parker, I do so for a very different reason than the reason given by him. I am of the opinion that there has been no valid ratification of the proposed constitutional amendment. If this view be sound, it follows, as matter of course, that there is nothing to submit under the referendum clause of the constitution to the vote of the electorate.

I need not state at length the reasons which lead me to think there has been no valid ratification of the amendment. It is sufficient to say that, in my opinion, the term “legislature,” as used in the fifth article of the Federal constitution, has reference to the legislative power of the state, not to that part of the legislative power technically designated in the constitution as the legislature. The two houses of the legislative branch of the state government cannot, therefore, ratify a proposed amendment to- the Federal constitution by a joint resolution; this for the reason that they do not constitute the sole legislative power. The governor, by his right of approval or disapproval of legislative enactments, and the people, through the referendum, constitute a part of that power, and the participation of the one in every instance; and the participation of the other if it so desires, is necessary to the passage of laws. That the ratification of the proposed amendment is the enactment of a law seems to me only necessary to be stated to- be conceded. It is a surrender of a part of the sovereignty of the state, and it makes that law in the state which was not law before. The state constitution points out the procedure for the enactment of laws. That procedure has not been followed in this instance; hence my conclusion that there has been no valid ratification of the amendment.

I am aware that the majority meet my objection by arguing that the power to amend the constitution of the United States emanates from that constitution, and since it prescribes no form for state action, any suitable form may be adopted which expresses the will of the state. But this line of reasoning overlooks the language of the constitutional provision authorizing amendments. As shown in both the majority and dissenting opinions, the Congress, in submitting proposed amendments to the constitution for ratification by the states, may adopt either one of two methods for such ratification; it may submit the amendment to the legislatures of the several states, or it may submit it to conventions of the several states.

If the majority contention be sound, a submission to the legislature would be legally ratified if ratified by a convention, and if submitted to a convention, would be legally ratified if ratified by the legislature. This form of reasoning is, to my mind, unsound.

I think, instead of waiving form, form is expressly insisted upon; and since the submission is in, this instance to the legislature, the legislature must act in the manner it is empowered to act by the laws creating it, else there is no valid ratification.

That I am not alone in this view is shown by the cases supporting it cited by the majority. I cannot agree with the majority, however, in thinking them unsound. To my mind, the reasoning upon which they are founded is unanswerable.

I think the writ should be denied.