State ex rel. O'Connell v. Meyers

• Decision Date: 24 December 1957
• Docket Number: No. 34407,34407
• Citation: 319 P.2d 828,51 Wn.2d 454
• Court: Washington Supreme Court
• Parties: The STATE of Washington, on the Relation of John J. O'CONNELL, as Attorney General, Plaintiff, v. Victor A. MEYERS, as Secretary of State, Respondent.

Page 454

51 Wn.2d 454

319 P.2d 828

The STATE of Washington, on the Relation of John J.

O'CONNELL, as Attorney General, Plaintiff, v. Victor A. MEYERS, as Secretary of State, Respondent.

No. 34407.

Supreme Court of Washington, En Banc.

Dec. 24, 1957.

John J. O'Connell Atty. Gen., George N. Prince, Sp. Asst. Atty. Gen., for relator.

Marshall A. Neill, Lyle L. Iversen, Sp. Asst. Attys. Gen., for respondent.

Macbride, Matthews & Hanify, Seattle, for interveners Washington State Grange and A. Lars Nelson.

Brodie & Fristoe, Olympia, for interveners Washington State Farm Bureau Federation and Ralph T. Gillespie.

OTT, Justice.

This is an original proceeding in this court, in which the relator seeks a writ of mandamus compelling the secretary of state to perform his duties, with reference to redistricting the state, in accordance with Laws of 1957, chapter 5, p. 11 (Initiative No. 199), rather than Laws of 1957, chapter 289, p. 1147, contending that the latter enactment is unconstitutional and void.

The record contains no statement of facts; nevertheless, we take judicial notice of the following:

(1) Initiative No. 199 was approved by the voters of this state at the November 6, 1956, general election. December 6, 1956, the governor proclaimed the measure to be law. It was enrolled as chapter 5, Laws of 1957. (It will be hereinafter referred to as Initiative 199.)

(2) The state legislature, at its 1957 regular session, passed chapter 289 by a vote of more than a two-thirds majority of the members in each house. It became law, without the governor's signature, at midnight June 12, 1957.

Several contentions regarding the scope of this proceeding were made by relator, respondent, and interveners in their briefs and in argument before the court. In order that the scope of this action be clear, we define the issues as follows:

(1) In this proceeding, we are concerned solely with the constitutionality of the legislature's amendment to Initiative 199. Both Initiative 199 and chapter 289 were designed to comply with that portion of Art. II, § 3, of our constitution, which provides that the legislature periodically '* * * shall apportion and district anew the members of the senate and house of representatives, according to the number of inhabitants, * * *.' We are not here concerned with what the legislature did or failed to do since 1895, or with what the people, through their right of initiative, did or failed to do since 1912, concerning the matter of redistricting.

(2) The parties agree that, both by virtue of the constitution and by the basic concept of our representative form of state government, it is required that legislative districts be established according to the number of inhabitants. Likewise, it is conceded that the districts must be reasonably proportionate according to the number of inhabitants, in order to stand the test of the constitutional mandate.

(3) The constitutionality of Initiative 199, without the legislative amendments, is not before us. A law initiated and adopted by the people, as well as a law enacted by the legislature, is presumed to be constitutional. See Frach v. Schoettler, 1955, 56 Wash.2d 281, 280 P.2d 1038; Gruen v. State Tax Commission, 1949, 35 Wash.2d 1, 211 P.2d 651; State v. Brunn, 1945, 22 Wash.2d 120, 154 P.2d 826, 157 A.L.R. 1049. Therefore, for the purposes of our considerations in this proceeding, Initiative 199 is a constitutional act.

Whether a more equitable formula of representation would have been effected by the method provided by Initiative 199 or by chapter 289 is not an issue because (1) there are no facts or evidence in the record with which a comparison can be made, and (2), in the absence of such evidence, we must assume that either of the methods accomplished the purposes of the constitutional mandate.

With the scope of this mandamus proceeding defined, we consider the issues as joined by the pleadings.

Respondent contends that this court does not have jurisdiction of this proceeding, for the reason that the pleadings do not present a justiciable issue.

The governor, in permitting chapter 289 to become law without his signature, recognized that its enactment presented a legal issue that could be determined only by the court. The governor's message to the legislature is, in part, as follows:

"There exists in my mind a serious question as to whether or not Substitute Senate Bill No. 374 [chapter 289] merely amends Initiative 199 or whether it in effect repeals the Initiative. This represents a legal issue which under the Constitution can only be decided by the Supreme Court of this state." Laws of 1957, p. 1162.

Art. IV, § 4, of the state constitution, provides, in part:

'The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers, * * *' (Italics ours.)

The primary factor to be considered, in determining whether this court should assume or refuse original jurisdiction in mandamus to a state official, is whether the sovereignty of the state, its franchises, prerogatives, or the rights and interests of the general public are involved.

In State ex rel. Malmo v. Case, 1946, 25 Wash.2d 118, 123, 169 P.2d 623, 625, 165 A.L.R. 1426, this court adopted the following rule with reference to mandamus proceedings:

'* * * And in this connection the established rule seems to be that, as original jurisdiction is conferred in order that the court of highest authority in the state should have the power to protect the rights, interests, and franchises of the state, and the rights and interests of the whole people, to enforce the performance of high official duties affecting the public at large, * * * the court is vested with a sound legal discretion to determine for itself, as the question may arise, whether or not the case presented is of such a character as to call for the exercise of its original jurisdiction. * * *' 18 R.C.L. 101, § 15 (restated in 34 Am.Jur. 824, § 26).

By statute, the secretary of state is designated the chief election officer for all state, city, and town elections. RCW 29.04.070 [cf. Rem.Supp.1949, § 5147-2]. He is charged with the duty of publishing the election laws in force and distributing them to county auditors '* * * in sufficient number to place a copy thereof in the hands of all officers of elections.' RCW 29.04.060 [cf. Rem.Rev.Stat. §§ 5193, 5299]. Further,

'The secretary of state shall make rules and regulations not inconsistent with the state, city and town election laws to facilitate the execution of their provisions in an orderly manner and to that end shall assist local election officers by devising uniform forms and procedures.' RCW 29.04.080 [cf. Rem.Supp.1949, § 5147-3].

These statutory duties must be performed prior to elections. Statutory changes made in the geographic boundaries of legislative districts are of paramount public importance to the state at large, and involve substantial public rights. Definitive information regarding such changes in geographic boundaries is essential to legislative candidates, as well as to officials of political parties if they are to perform their functions properly.

Under the constitution and the rule announced in the Malmo case, supra, we find no merit in respondent's contention that this court lacks jurisdiction to resolve the questions posed in this proceeding. See, also, annotation, 165 A.L.R. 1431.

Relator contends that chapter 289 repeals Initiative 199, in violation of amendment 26 of the state constitution.

In the original text of the state constitution, exclusive lawmaking power was vested in the legislature. In 1912, the constitution was amended to provide for lawmaking power in the people by initiative and referendum. This amendment provided, in part:

'* * * 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.' (Italics ours.) Amendment 7, state constitution.

In 1952, the people, by constitutional amendment 26, removed this two-year limitation as follows:

'* * * 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: Provided, That any such act, law or bill may be amended within two years after such enactment at any regular or special session of the legislature by a vote of two-thirds of all the members elected to each house with full compliance with section 12, Article III, of the Washington Constitution, and no amendatory law adopted in accordance with this provision shall be subject to referendum. * * *' (Italics ours.)

The constitution, as amended, must be construed to carry out the intent of the people. State ex rel. Billington v. Sinclair, 1947, 28 Wash.2d 575, 183 P.2d 813. The intent must be determined from the express words in the amendment and the purposes for which it was adopted. State ex rel. Billington v. Sinclair, supra; State ex rel. Linn v. Superior Court, 1944, 20 Wash.2d 138, 146 P.2d 543.

It is clear that the people, by adopting amendment 26, intended to relinquish the two-year immunity from any action by the legislature, which previously existed under the 1912 constitutional amendment. It is likewise clear that the people recognized the propriety of removing the inflexibility which existed under the 1912 amendment, by permitting the legislature to amend any initiative measure adopted by the people. We must, therefore, conclude that the people determined that their rights were adequately protected by the requirement that an amendment of an initiative could be effected only by a two-thirds vote of all of the members duly elected to each house. This conclusion is stengthened by the fact that the...