Gottstein v. Lister

• Decision Date: 10 December 1915
• Docket Number: 12995.
• Citation: 153 P. 595,88 Wash. 462
• Parties: GOTTSTEIN et al. v. LISTER, Governor, et al.
• Court: Washington Supreme Court

153 P. 595

88 Wash. 462

GOTTSTEIN et al. v. LISTER, Governor, et al.

No. 12995.

Supreme Court of Washington, En Banc.

December 10, 1915

Appeal from Superior Court, Thurston County; D.F. Wright, Judge.

Action by J.L. Gottstein and others, and by Griffin & Mork and others, interveners, joining as plaintiffs, to enjoin Ernest Lister, Governor, and others, state and county officials from enforcing the provisions of an initiative measure prohibiting the manufacture, keeping, etc., of intoxicating liquors. Judgment for defendants dismissing the action, and plaintiffs and interveners appeal. Affirmed.

Preston & Thorgrimson, Dudley G. Wooten, Donworth & Todd, T.D. Rockwell, and Piles, Howe & Carey, all of Seattle, for appellants.

W.V Tanner, of Olympia, John H. Powell, of Seattle, and L.L Thompson, of Olympia, for respondents.

PARKER J.

The plaintiffs, J.L. Gottstein and others, and the interveners, Griffin & Mork and others, seek to have the state and county officials enjoined from enforcing the provisions of initiative measure No. 3, prohibiting the manufacture, keeping, sale, and disposition of intoxicating liquors, except in certain cases, approved by vote of the people at the general election of November 3, 1914. The cause was submitted to the superior court upon the pleadings and a statement of facts agreed upon by counsel for the respective parties. After hearing argument of counsel upon the record so made, the superior court rendered judgment in favor of the defendants, dismissing the complaints of the plaintiffs and interveners, from which they have appealed to this court.

The contentions made in the superior court by counsel for appellants, as they are also made here, are in substance: (1) That the seventh amendment to our state Constitution, providing for the initiative and referendum, was not legally submitted to and adopted by the people, and is therefore not a valid part of the Constitution so as to furnish any authority for the adoption of initiative measure No. 3 by vote of the people; (2) that, if the seventh amendment to the Constitution be a valid part thereof, initiative measure No. 3 was not legally submitted to and adopted by the people so as to become an existing law, aside from the constitutionality of its provisions; and (3) that initiative measure No. 3 is unconstitutional and void, especially in that it violates the equal privileges and immunities and equal protection of the laws guaranties of the state and federal Constitutions, and also in that it interferes with interstate commerce.

Appellants Gottstein and others are now, and for many years past have been, lawfully engaged in the wholesale liquor business in Seattle, and have a large stock of goods on hand and a large amount of capital invested in their business. If enforced, the provisions of initiative measure No. 3 will compel the discontinuance of their business in this state and result in large financial loss to them. They prosecute this action in behalf of themselves and all others similarly situated who may desire to join as plaintiffs therein. Appellants Griffin & Mork and others are severally the owners of and engaged in operating hotels in several of the cities of this state, being members of a voluntary organization known as the "Washington State Hotel Association." They come into the cause by complaint in intervention, in which they all join as plaintiffs, alleging facts relative to their business, their investments therein, their lawfully dealing in intoxicating liquors as a part thereof, and the compelling of the discontinuance of that portion of their business, resulting in their large financial loss if the provisions of initiative measure No. 3 be enforced, substantially as alleged by the original plaintiffs and appellants, J.L. Gottstein and others. No contention is made by counsel for respondents that the existing business and property interests of appellants here involved and the threatened financial loss to them by the enforcement of initiative measure No. 3 is not such as entitles them to the relief prayed for in this form of action if their contentions touching the merits of the controversy be well founded.

The contention of counsel for appellants first in natural order is that the proposal by the Legislature of the seventh amendment to the Constitution, providing for the initiative and referendum, was not lawfully evidenced by proper entries on the journals of the senate and house of representatives as provided by article 23 of the Constitution, relating to amendments thereto. This contention, we think, requires but little notice here, since the entries made on the senate and house journals of the proposal of this amendment were substantially the same as those made in the proposal of the eighth amendment to the Constitution, providing for the recall, which was held by us in Cudihee v. Phelps, 76 Wash. 314, 136 P. 367,

to comply with the requirements of article 23 of the Constitution. The question was reviewed at length in that decision, and we adhere to the conclusion there reached that entries made on the journals, referring to a proposed amendment in the language of the title to the proposing act, the title being sufficient as such, satisfies the requirements of article 23 of the Constitution, without copying in the journals such proposed amendment in full. We conclude that the seventh amendment did not fail of lawful adoption for want of proper entries on the senate and house journals.

Did the seventh amendment to the Constitution fail of legal adoption because of its proposal and submission to the people as one amendment? It is so contended by counsel for appellants. Section 1, art. 23, of the Constitution reads in part as follows:

"Any amendment or amendments to this Constitution may be proposed: * * * Provided, that if more than one amendment be submitted, they shall be submitted in such a manner that the people may vote for or against such [each] amendment separately. * * * "

The seventh amendment purports to amend directly only section 1 of article 2 of the Constitution, the whole of which prior to the amendment read as follows:

"The legislative powers shall be vested in a senate and house of representatives, which shall be called the Legislature of the state of Washington."

This language is repeated, in substance, in the seventh amendment and is qualified by additional provisions therein providing for the exercise of legislative power directly by the people through the initiative and referendum, which amendment also withholds the veto power of the Governor from "measures initiated by or referred to the people." Laws of 1911, p. 136. These, it is insisted, are three, or at least two, subjects, so separable each from the other that they constitute, in substance, as many different amendments, and hence must "be submitted in such manner that the people may vote for or against such amendments separately," to the end that the provisions of article 23 of the Constitution be not violated. Section 3 of the act proposing the amendment provides for the submission thereof to the people as a single amendment. Laws of 1911, p. 140.

There is then presented in this branch of the case the question: Did this proposal of the Legislature involve more than one amendment, within the meaning of the provision of article 23 of the Constitution, above quoted? The argument of counsel for appellants proceeds largely upon the theory that the initiative and referendum are separate subjects and look to the attainment of separate objects, and the fact that an elector might consistently favor one and oppose the other is controlling as to their separateness of subject-matter and purpose. Now, since the Constitution does not in terms prescribe what shall be regarded as one amendment for the purpose of enabling the electors to vote thereon separately, the question is manifestly to be answered by a consideration of the inherent nature of any given proposed amendment. The logic of counsel's contentions would seem to lead to such a minute subdivision of matters liable to become the subject of constitutional amendment as to practically refine out of existence the power of the people to amend the Constitution. Almost any conceivable amendment to the Constitution is capable of being subdivided into separate propositions of such nature that an elector might consistently favor the adoption of some and the rejection of others. As we proceed, we think it will be found that the singleness of a given proposition beyond division is not the ultimate test, but that the question must be viewed in a broader aspect as one largely of common sense, and in a spirit of deference to the discretion of the Legislature, much as we defer to legislative discretion in restricting a bill to one subject and expressing such subject in the title thereof, as required by section 19, art. 2 of the Constitution, though possibly the latitude of the Legislature is hardly so broad in determining what constitutes one amendment to the Constitution.

The question of what constitutes one amendment within the meaning of a constitutional provision like ours, of which there are many in the Union, seems to have been first considered by the Supreme Court of Wisconsin in 1882, in State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N.W. 785. There was drawn in question in that case a constitutional amendment the provisions of which are summarized by the court on page 326 of 54 Wis., on page 786 of 11 N.W., as follows:

"It first provides that members of the assembly shall be chosen biennially by single districts, on the Tuesday succeeding the first Monday of November after the adoption of this amendment; secondly, that the senators are to be chosen at the same time and in the same manner as the

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