Carlson v. Cory

Decision Date07 February 1983
Docket NumberNo. A018984,A018984
Citation139 Cal.App.3d 724,189 Cal.Rptr. 185
CourtCalifornia Court of Appeals Court of Appeals
PartiesConstance CARLSON and Michel Willey, Petitioners, v. Kenneth CORY, Controller of the State of California, Respondent.

George Deukmejian, Atty. Gen., Richard D. Martland, Asst. Atty. Gen., Paul H. Dobson, Deputy Atty. Gen., for respondent.

SMITH, Associate Justice.

Petitioners, taxpayers and electors of Alameda County and the City and County of San Francisco, invoke the original jurisdiction of this court in a petition for writ of mandate 1 challenging the validity, under the California Constitution, of Propositions 5 and 6, 2 two initiative statutes enacted at the June 8, 1982 statewide election which have the effect of repealing inheritance and gift tax laws. We have concluded that our exercise of original jurisdiction is appropriate and have issued an alternative writ. (Cal. Const. art. VI, § 10; Cal.Rules of Court, rule 56; Brosnahan v. Brown (1982) 32 Cal.3d 236, 241, 186 Cal.Rptr. 30, 651 P.2d 274).

DISCUSSION

Petitioners urge that: 1) the Legislature's power to tax is subject only to constitutional limitation and, therefore, may be limited only by initiatives amending the Constitution, not those repealing tax statutes; 2) Propositions 5 and 6 impair the essential fiscal management functions vested in the Legislature; and 3) the statutory initiative cannot be used to circumvent the constitutional prohibition against referenda on tax levies. For the reasons set forth below, we find these contentions without merit.

Initially, we note that our state Constitution does not limit the subject matter of direct legislation proposed by initiative. (Cal. Const., art. II, § 8.) The referendum procedure is available to rescind all legislative enactments except "urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State." (Cal. Const., art. II, § 9, subd. (a).) In response to this broad constitutional reservation of power in the people, the courts have consistently held that the Constitution's initiative and referendum provisions should be liberally construed to maintain maximum power in the people. (Blotter v. Farrell (1954) 42 Cal.2d 804, 812, 270 P.2d 481; Hunt v. Mayor & Council of Riverside (1948) 31 Cal.2d 619, 628, 191 P.2d 426.) Any doubts should be resolved in favor of the exercise of these rights. (Brosnahan v. Brown, supra, 32 Cal.3d 236, 241, 186 Cal.Rptr. 30, 651 P.2d 274; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219, 149 Cal.Rptr. 239, 583 P.2d 1281.)

I.

Turning to the merits of petitioners' contentions, we address their first argument that the subject propositions are an unconstitutional limitation on the Legislature's power to tax.

It is true, as petitioners maintain, that, absent some constitutional limitation on the taxation power of the Legislature, its power to tax is supreme. (See Delaney v. Lowery (1944) 25 Cal.2d 561, 568, 154 P.2d 674; City of Crescent City v. Moran (1938) 25 Cal.App.2d 133, 136, 77 P.2d 281.) Article II, section 8 of the California Constitution, however, reserves to the people the power of the initiative, defined as the power "to propose statutes and amendments to the Constitution" without limitation. Our State Constitution clearly indicates that the power of the initiative is the separate and distinct power of the people to legislate: "The legislative power of this State is vested in the California Legislature ..., but the people reserve to themselves the power of initiative and referendum." (Cal. Const., art. IV, § 1; see also Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 42, 157 Cal.Rptr. 855, 599 P.2d 46.) This reservation of power by the people is, in the sense that it gives them the final legislative word, a limitation upon the power of the Legislature.

ARTICLE XIII, SECTION 33 OF OUR STATE CONSTITUTION3, which is cited by petitioners in support of their argument, does not compel a contrary conclusion. That section merely empowers the Legislature to pass laws regarding the taxation of property; it does not in any way limit the plenary power of referendum and initiative which has been reserved to the people in article II, sections 8 and 9.

II.

We next address petitioner's contention that the subject propositions impair the essential fiscal management function of the Legislature. Citing article II, section 10, subdivision (c) of the California Constitution which provides that the Legislature "may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors", petitioners maintain that repeal of a tax statute by the statutory initiative greatly impairs the Legislature's essential function of balancing the budget. 4

In Simpson v. Hite (1950) 36 Cal.2d 125, 134, 222 P.2d 225, our Supreme Court stated the rule that the initiative or referendum powers of local electors are not available where " '[T]he inevitable effect would be greatly to impair or wholly destroy the efficacy of some other governmental power, the practical application of which is essential ...'." (See also Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 143, 130 Cal.Rptr. 465, 550 P.2d 1001; Builders Assn. of Santa Clara-Santa Cruz Counties v. Superior Court (1974) 13 Cal.3d 225, 230, fn. 4, 118 Cal.Rptr. 158, 529 P.2d 582; Campen v. Greiner (1971) 15 Cal.App.3d 836, 843, 93 Cal.Rptr. 525; Chase v. Kalber (1915) 28 Cal.App. 561, 569-570, 153 P. 397.) In Simpson v. Hite, supra, 36 Cal.2d 125, 222 P.2d 225, this rule was based, at least in part, upon the premise that local legislation, whether by local legislative bodies or by the initiative and referendum, may not interfere with the state's system of regulation over a matter of statewide concern. (Id. at pp. 130-131, 222 P.2d 225; see also Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 596, fn. 14, 135 Cal.Rptr. 41, 557 P.2d 473; Galvin v Board of Supervisors (1925) 195 Cal. 686, 693, 235 P. 450.) In the area of taxation, "decisions invalidating initiative or referendum measures to repeal local tax levies have indicated a policy of resolving any doubts in the scope of the initiative or referendum in a manner that avoids interference with a local legislative body's responsibilities for fiscal management." (Birkenfeld v. City of Berkeley, supra, 17 Cal.3d 129, 143, 130 Cal.Rptr. 465, 550 P.2d 1001; see Geiger v. Board of Supervisors (1975) 48 Cal.2d 832, 839-840, 313 P.2d 545; Hunt v. Mayor & Council of Riverside, supra, 31 Cal.2d 619, 628-629, 191 P.2d 426; Campen v. Greiner, supra, 15 Cal.App.3d 836, 843, 93 Cal.Rptr. 525.)

Petitioners, however, cite no case, and we are aware of none, where this rule has been applied to statewide measures. Assuming, for the purpose of discussion, that the rule is so applicable (see Brosnahan v. Brown, supra, 32 Cal.3d 236, 259, 186 Cal.Rptr. 30, 651 P.2d 274), petitioners' argument must nevertheless fall. Propositions 5 and 6 do not either destroy or severely limit the power of the state Legislature to tax or to balance the budget. Unlike local bodies whose power to tax is more limited, the state Legislature has broad powers to tax as well as considerable discretion to limit spending in order to achieve a balanced budget. It is significant that the Legislature has itself repealed the inheritance and gift taxes effective January 1, 1983. (Stats.1982, ch. 1535, §§ 14, 16.)

III.

Petitioners lastly maintain that the statutory initiative cannot be used to circumvent the constitutional prohibition against referenda on tax levies. They urge that this may only be accomplished by constitutional amendment.

"The referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State. (Cal. Const., art. II, § 9, subd. (a).) The referendum procedure permits 5 percent of the voters by petition to suspend a state law enacted by the Legislature before it becomes effective and to require submission of the newly enacted measure to a popular vote. (Cal. Const., art. II, § 9; Assembly v. Deukmejian (1982) 30 Cal.3d 638, 654-656, 180 Cal.Rptr. 297, 639 P.2d 939.) The evident purpose of the above-cited limitations on the referendum power is to prevent a small percentage of the electorate from disrupting the legislative process by causing a delay in the implementation of laws which need to be given immediate effect. (See Geiger v. Board of Supervisors, supra, 48 Cal.2d 832, 839-840, 313 P.2d 545; Hunt v. Mayor & Council of Riverside, supra, 31 Cal.2d 619, 629, 191 P.2d 426.)

"The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them." (Cal. Const., art. II, § 8, subd. (a).) The only limitations on the use of the initiative are that an initiative measure may not embrace more than one subject, name any individual to office or appoint any private corporation to perform any function or have any power or duty. (Cal. Const., art. II, §§ 8, subd. (d) and 12.) Since an initiative measure becomes law only after approved by a majority of the electorate (Cal. Const., art. II, §§ 8 and 10, subd. (a)), there was no reason for the Legislature in drafting the 1911 amendment to the state Constitution which reserved the initiative and referendum powers to the people to except from the initiative power the types of measures excepted from the referendum power. Our Supreme Court recognized this distinction when, in holding that a referendum on a proposed tax ordinance was not available under a city charter excluding certain taxes from the...

To continue reading

Request your trial
30 cases
  • Armstrong v. County of San Mateo
    • United States
    • California Court of Appeals Court of Appeals
    • 26 Agosto 1983
    ...in the sense that it gives them the final legislative word, a limitation upon the power of the Legislature." (Carlson v. Cory (1983) 139 Cal.App.3d 724, 728, 189 Cal.Rptr. 185.) [146 Cal.App.3d 629] There is, therefore, no reason to be solicitous of the Legislature's perception of ambiguity......
  • Briggs v. Brown
    • United States
    • California Supreme Court
    • 24 Agosto 2017
    ...178, quoting Legislature v. Deukmejian (1983) 34 Cal.3d 658, 675, 194 Cal.Rptr. 781, 669 P.2d 17 ; see also Carlson v. Cory (1983) 139 Cal.App.3d 724, 728, 189 Cal.Rptr. 185.) Under article IV, section 1 of the California Constitution, "[t]he legislative power of this State is vested in the......
  • American Federation of Labor v. Eu
    • United States
    • California Supreme Court
    • 27 Agosto 1984
    ...confined by any state constitutional restrictions upon its scope or use. (See Cal. Const., art. II, §§ 8, 9; Carlson v. Cory (1983) 139 Cal.App.3d 724, 728, 189 Cal.Rptr. 185 [repeal of state inheritance and gift taxes].) As Carlson observes, "there is nothing in our state Constitution whic......
  • Rossi v. Brown
    • United States
    • California Supreme Court
    • 6 Marzo 1995
    ...to repeal a tax. In the most recent case to consider the use of the statewide initiative power to repeal a tax, Carlson v. Cory (1983) 139 Cal.App.3d 724, 731, 189 Cal.Rptr. 185, the court affirmed the people's power. In Carlson, the validity of initiative statutes which repealed the state'......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT