State ex rel. Short v. Hinkle

Mackintosh, J.

This is an original proceeding in mandamus to compel the secretary of state to receive and file the proposal and affidavits of the relators for the referendum of Laws of 1921, ch. 7, p. 12, being an act entitled “An Act relating to, and to promote efficiency, order and economy in, the administration of the government of the state, prescribing the powers and duties of certain officers and departments, defining offenses and fixing penalties, abolishing certain offices, and repealing conflicting acts and parts of acts,” and commonly known as the administrative code.

Chapter 7 consists of 138 sections, the final section being:

“Whereas the revenues of the state are insufficient to support the state government and its existing public institutions as at present organized, and whereas it is necessary that the existing administrative agencies of the state government be consolidated and coordinated in order to bring the cost of supporting the state government and its existing institutions within the possible revenues of the state, therefore this act is necessary for the support of the state government and its existing public institutions, and shall take effect immediately.” Laws of 1921, p. 69, § 138.

Article 2, § 1, of the sthte constitution is as follows:

“The legislative authority of the State of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the State of Washington, but the people reserve to themselves the power to propose bills, laws and to enact or reject the same at the polls, independent of the legislature, and also reserve power, 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. . . .

“The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law or any part thereof passed by the legislature, 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, either by petition signed by the required percentage of the legal voters, or by the legislature as other bills are enacted. Six per centum, but in no other case more than thirty thousand, of the legal voters shall be required to sign and make a valid referendum petition.

“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. No act, law or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment. But such enactment may be amended or repealed at any general, regular or special election by direct vote of the people thereon.”

The respondent declined to accept and file the proposal and affidavits for the reason that § 138 does not permit of the act being referred. The relators’ position is that § 138 is of no effect for the reason that the act is not emergent.

The relators take their stand flatfootedly upon onr decision in the case of State ex rel. Brislawm v. Meath, 84 Wash. 302, 147 Pac. 11, that being a case which involved an act of the legislature passed in 1915 (Laws of 1915, ch. 6, p. 19) in relation to the board of state land commissioners, the act being an amendment of the prior law (Laws of 1909, p. 757, ch. 223). Under the law of 1909 the board was made up of the commissioner of public lands, the state fire warden, and the members of the state board of tax commissioners. The act of 2915 merely substituted for the state fire warden and the board of tax commissioners the secretary of state and the state treasurer, and to this amending act was added a section which stated that the act was necessary “for the immediate preservation of the public peace and safety and the support of the state government and shall take effect immediately.” This court, in passing upon this emergency clause, held that an emergency clause attached to an act was subject to review by the courts, and that the clause would be held unconstitutional where the act, on its face, shows that the declaration is false, but that if, from an examination of the act, it be doubtful as to whether an emergency exists in fact, that the question of emergency would be treated as a legislative question, and the act would be upheld. The court there further decided that, by reason of the fact that there were being merely substituted two officers on a board in the place of other state officers, that the court could determine, fropa its judicial knowledge, that there was no emergency, and that the final clause of the act was inoperative.

The alpha and omega of the relators’ argument is that ch. 7, of the Laws of 1921, p. 12, makes no more change in the theretofore existing plan of state government than did the act of 1915 in relation to the composition of the board of state land commissioners. It is unnecessary to review the reasons assigned by the majority and minority opinions in the Brislawn case, and it is unnecessary to determine whether the Brislmvn case was properly or improperly decided. It is sufficient to take that decision as it appears in the books and apply to it the facts in the instant case, facts obtained by an examination of Laws of 1921, p. 12, ch. 7, and not assertions based upon only a casual reading thereof. The fallacy of relators’ position lies in the unfounded premise, i. e., that ch. 7 is “nothing more than’a broad, comprehensive scheme for transferring the duties now performed by various state officers and subordinates under the present form and plan of state government to other officers and departments created by the act.” Grant the premise, and under the Brislawn case relators’ position may be"correct, hut the premise is found to he unwarranted upon a careful and exact analysis and understanding of the act. 'The act says that the revenues are insufficient to support the state government in its then existing form, and that in order for the state, as an institution, to continue to function its expenditures must he so reduced as to fall within the possible revenue, and to effect this purpose the act abolishes many offices, hoards and commissioners, provides against the duplication of duties and responsibilities in administration, coordinates the operation of the business of the state, classifies employees, provides for expenditures in cases of emergency, authorizes the exchange between state institutions of supplies, provides a cost accounting system, sustains building programs, and authorizes the preparation of estimates for appropriations. Without going into the act section by section it, in general, provides a more efficient method of carrying on the state government. The court is not concerned with whether—for the reason that it cannot know—the results anticipated by the new plan will be achieved. Under the Brislawn decision, the court can only hold § 138 invalid, if from its knowledge, which it possesses as a court, it can say that no necessity exists for such a change in the method of conducting the state government in the face of the legislative declaration that public funds were not sufficient to uphold the state government under the prior existing plan.

The legislature possessed the opportunity (and is conclusively presumed to have availed itself of that opportunity) to know the facts and has declared that a precarious financial condition prevails. We are asked to say that the solemn statement of the legislature is false, and to say so, not because we are possessed of any knowledge' upon the subject, but because we are ignorant upon it. We can take no testimony; we have no machinery with which to gather the facts, which the legislature is presumed to be possessed of, but, totally in the dark, we are asked to substitute our personal prejudices, predilections and preconceptions for the presumably enlightened judgment of those deputed by the constitution of the state to inquire into and .determine these factual problems. It is only when the court, following the Brislawn case, can say, from its judicial knowledge, that a patent contradiction exists upon the face of a legislative enactment, that, in law or in reason, it can deny the legislative declaration of emergency. As Judge Parker says in the case of State ex rel. Reclamation Board v. Clausen, 110 Wash. 525, 188 Pac. 538:

“It may well be doubted that there has ever come to the American courts any more vexatious question than that of determining whether or not a particular purpose for which public funds were sought to be raised by taxation and expended is a public purpose, when the particular purpose in question lay within that twilight zone wherein the minds may reasonably differ as to snch purpose being a public one; the bounds of which zone are ever changing with the passing of time, and within which new problems of public welfare always first appear. That such a question, when arising in the courts, has proven so vexatious is, we apprehend, because of its inherent nature, in that, in its last analysis, it is not one of exclusive legal logic, but is one more or less of policy and wisdom, properly determinable in the light of public welfare, present and future, in a broad sense; and hence is not a pure judicial law question, except in those cases clearly outside of the twilight zone we have alluded to. . . .

“Plainly, since a correct solution of our present problem, because of its inherent nature, calls for the consideration of something more than pure legal principles, suggests that we exercise a great degree of caution to the end that we shall not usurp powers which do not constitutionally belong to us. This court has adhered steadfastly to the general rule, in common with other courts of our country, that a statute cannot be declared unconstitutional unless it clearly so appears. Is not this rule of peculiar force in its application to the question of whether or not a legislative act authorizing the levy of a tax and the expenditure of public moneys so raised is for a public purpose? We are decidedly of the opinion that it is.”

When the court speaks of the determination of the validity of a section such as 138 being a judicial question, it is meant that courts will inquire into the fact as to' whether a necessity exists, an inquiry necessarily based upon proof, but proof, limited by law, to so-called judicial knowledge. But to resolve the immediate problem, obviously its intricate and complicated nature requires the exertion and application of an amount of expert knowledge, experience and judgment, necessarily without the scope of the restricted doctrine of judicial knowledge, and, as we have intimated, properly commanded only by the legislature. In its nature, the attenuated theory of judicial knowledge, in the presence of so considerable a mass of fact as the administrative code, cannot afford proof sufficient to overcome the declaration of the legislature, even though that declaration were naked and unsupported by the presumption of verity. To apply judicial knowledge to the resolution of peculiarly factual problems would “amount to turning the supreme court into an irresponsible House of Lords, ’ ’ as Theodore Roosevelt said, in referring to the Bakeshop cases, “a position which the people of the United States would never stand.”

Relators speciously argue that the declaration of the legislature that some change in the method of administration is necessary in order to bring the cost of operating the state government within its revenues is, ipso facto, false, for the reason that the state always possesses the power of taxing in any amount that is necessary to perpetuate any form of administration which may be in existence. This is an enamelled argument which might be brightly attractive to those fortunate citizens who contribute nothing by way of taxes to the support of the state. Although the state possesses unlimited power of taxation such unlimited power does not produce unlimited revenue and a point is attainable^—-and the legislature declares it is already reached —where additional taxation produces nothing but defaulted realty and personalty in the hands of the collector, and when the levy of additional taxes creates burdens which parch the source of revenue, the levies tend to destroy rather than support the state government. It is certain, as was said in the case of State v. Pitney, 79 Wash. 608, 140 Pac. 918, Ann. Cas. 1916 A 209:

“If a state of facts can reasonably be presumed to exist which would justify the legislation, the court must presume that it did exist and that the law was passed for that reason. If no state of circumstances could exist to justify the statute, then it may be declared void because in excess of the legislative power. ’ ’

In State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 Pac. 28, Ann. Cas. 1916 B 810, the court said, in reference to “support”:

“The intent and purpose of the people, as gathered from the words of the constitution and the circumstances attending the adoption of the seventh amendment, impels the holding that the people intended to use the word ‘support’ in its fullest sense. When so considered ‘support’ includes appropriations for current expenses, maintenance, upkeep, continuation of existing functions, as well as appropriations for such new buildings and conveniences as may be necessary to meet the needs and requirements of the state in relation to its existing institutions.

“In Webster’s New International Dictionary, the word ‘support’ is given the following definitions: ‘To furnish with funds or means for maintenance; to maintain; to provide for, to enable to continue; to carry oil.’

“In the absence of an express reservation, it would be a usurpation on the part of any court to say that an appropriation directed to the maintenance of the existing activities of the state is subject to the referendum. The first right of government is the right of self-preservation, and to say that the people intended, in the absence of an express reservation, to allow the government or its institutions to be crippled or embarrassed in any way would be to say that the people intended that the government could not sustain itself through the mediumship of the ordinary and recognized methods of legislation.”

See, also, State ex rel. Anderson v. Howell, 106 Wash. 541, 181 Pac. 37; State ex rel. Case v. Howell, 85 Wash. 281, 147 Pac. 1162.

If the purpose of the act is to give the government and its existing public institutions the greatest benefit from the revenues which were actually received, and also to protect the resources of 'the state from which those revenues derive, then the act is properly one for the support' of the government.

There is' another reason why the relators must fail in their attempt to refer this act, and that is that they are seeking reference of the entire act, and if there is any section or portion of it of which the court can say there is an emergency' their proceedings must fall. If it should he conceded that as to certain sections or portions of the act the court could say, from its judicial knowledge, that the changes made were not necessary for the support of .the state government and its existing institutions, yet the relators are making a general attack and are not seeking to refer those sections only which the court might judicially declare not to.be emergent. There are, however, many separate sections which the court in the exercise of its judicial knowledge must know are emergent, and, as we have already indicated, from our judicial knowledge we canhot say that the act as a whole is not emergent. Those sections referring to the protection of agriculture, game and fish are, from their very nature, concerned with things necessary for the support of the state and its existing institutions. Those sections dealing with labor and industry show a necessity exists to overcome the conflict of jurisdiction and inefficiency of the existing form of administration of which the court has judicial knowledge from the many cases coming before it involving these questions. One instance of this conflict is the difference existing between the commissioner of labor and the state safety board, to which this court has devoted its attention. State ex rel. Younger v. Clausen, 111 Wash. 241, 190 Pac. 324. instances might be multiplied of where the act in itself contains evidence of the necessity which the judicial knowledge of this court confirms.

To summarize then our conclusions: Taking the Brislawn case as the law, we find that in that case the court had before it a scheme.which merely changed the personnel of one of the state commissions and between that change of membership of a minor board and the support of the state government there was no natural connection. In the act before us there are certain facts which, if they were considered by themselves, are similar to the facts in the Brislawn case, but these facts are only a part of an entire plan proposed to reorganize the administration of the state’s business, upon what, the legislature deems, are businesslike principles. This court is not called on to consider the act section by section, disregarding the act as a- whole, especially since the relators are not maldng specific attack upon any special sections but are attacking the act as a whole. Moreover this case differs from the Brislawn case in that in the Brislawn case the legislature merely stated that a necessity existed, and this was but a conclusion by the legislature that it was engaged in a constitutional proceeding. This court refused that legislative dictum in the light of the facts of which the court had judicial knowledge. In the act before us, however, the legislature makes a specific statement of fact that the revenues of the state are not sufficient to support the state government .or its existing institutions as they were then organized, and that it was necessary to coordinate the affairs of the state, “in order to bring the cost of supporting the state government and its existing institutions within the possible revenues of the state.” This is a declaration of fact and unless the court from its judicial knowledge can say this fact does not exist it must be taken as true. State ex rel. Govan v. Clausen, 108 Wash. 133, 183 Pac. 115; State ex rel. Lister v. Clausen, 108 Wash. 146, 183 Pac. 120. For the reasons stated, the writ is denied.

Parker, C. J., Fullerton, Bridges, and Mount, JJ., concur.