Randles v. Washington State Liquor Control Bd.

• Decision Date: 03 June 1949
• Docket Number: 30962.
• Citation: 33 Wn.2d 688,206 P.2d 1209
• Parties: RANDLES v. WASHINGTON STATE LIQUOR CONTROL BOARD et al. (WASHINGTON STATE DISPENSERS, Inc., et al., Interveners).
• Court: Washington Supreme Court

206 P.2d 1209

33 Wn.2d 688

RANDLES v. WASHINGTON STATE LIQUOR CONTROL BOARD et al. (WASHINGTON STATE DISPENSERS, Inc., et al., Interveners).

No. 30962.

Supreme Court of Washington, En Banc.

June 3, 1949

Action by Caroline I. Randles against the Washington State Liquor Control Board and its members to enjoin enforcement of the 1949 initiative measure authorizing the board to issue licenses to restaurants, hotels, etc., to sell liquors at retail for consumption on the premises, in which the Washington State Dispensers, Incorporated, and its officers and board members intervened.From a judgment of dismissal plaintiff and interveners appeal.

Appeal from Superior Court, Thurston County; John M. Wilson, judge.

Brodie & Brodie, Olympia, for plaintiff-appellant.

Kennett and McCutcheon, Seattle, for interveners-appellants.

Smith Troy, Joseph P. Lavin, Olympia, for respondents.

McMicken Rupp & Schweppe and Mary Ellen Krug, Seattle, amici curiae.

GRADY Justice.

This action was brought by Caroline I. Randles against the Washington State Liquor Control Board and its members to enjoin the enforcement of InitiativeNo. 171, enacted by the voters at the general election held November 2, 1948, on the ground the act is unconstitutional.The Washington State Dispensers, Inc., and its officers and board members were allowed to intervene in the action.Their complaint follows the general pattern of the amended complaint, and they seek substantially the same relief.The attorney general filed demurrers to both complaints, the two principal grounds being that neither the plaintiff nor in interveners had the legal capacity to maintain their suits and the complaints did not state facts sufficient to constitute causes of action.The court entered a general order sustaining the demurrers.The plaintiff and interveners refused to plead further, and by the same order the action was dismissed with prejudice.This appeal has been taken by the plaintiff and interveners.

The appellants contend that InitiativeNo. 171 is invalid and unconstitutional because (a) the secretary of state did not transmit by mail to each voter in the state a copy of the pamphlet for voters within the time prescribed by statute; (b) the ballot title and the act title are defective; (c)Section 5 of the act is discriminatory in that a Class H licensee may purchase any spirituous liquor item saleable under such license from the Board at a discount of not less than fifteen per cent from the retail price fixed by the Board, together with all taxes; (d)the act provides that Class H licenses shall be granted upon the basis of the last available Federal census; (e) no standard to be followed by the Liquor Control Board in the allocation of Class H licenses is fixed by the act; (f)the act excludes from eligibility for Class H licenses operators of those restaurants in which only fry orders or such food as sandwiches, hamburgers or salads might be served; (g)the act is discriminatory in that Class H licensees are prohibited from selling liquor to women, except when seated at tables, when no such restriction is made with respect to the sale of liquor to men.

Initiative MeasureNo. 171 is Chapter 5 of the Laws of 1949 and is amendatory of and supplemental to Rem.Rev.Stat.(Sup.), Sec. 7306-1 et seq., as amended byRem.Supp.1941, Sec. 7306-23M et seq., known as the Washington State Liquor Act.We shall refer to the former as Initiative 171 and the latter as the Act of 1933.

The substance of Initiative 171, in so far as is necessary to a discussion of the questions Before the court, is as follows:

The Washington State Liquor Control Board, hereinafter referred to as the Board, is authorized to issue licenses for the sale of beer, wine and spirituous liquor by the individual glass, and beer and wine by the open bottle, at retail for consumption on the premises, including mixed drinks, and cocktails compounded or mixed on the premises only.The licenses are designated as Class H and may be issued only to bona fide restaurants, hotels and clubs, to dining, club and buffet cars on passenger trains, to dining places on passenger boats and airplanes, and to such other establishments operated and maintained primarily for the benefit of tourists vacationers and travelers as the Board shall determine are qualified to have, and in the discretion of the Board should have, a Class H license under the provisions and limitations of Initiative 171.The total number of Class H licenses issued can not in the aggregate at any time exceed one license for each 1500 of population in the state determined according to the last available Federal census.Each licensee shall be entitled to purchase any spirituous liquor items saleable under such Class H license from the Board at a discount of not less than fifteen per cent from the retail price fixed by the Board, together with all taxes.No Class H licensee is permitted to sell liquor to women, except when seated at tables.

The respondents have challenged the capacity of appellants to maintain this action.The power of the Board has been questioned.Privileges under Initiative 171 are now being exercised by licensees.Because of the interests of the general public as well as those directly affected by Initiative 171 and of the conclusions we have reached upon the constitutional questions raised, we shall assume, without deciding or intimating any opinion thereon, that appellants are entitled to maintain an action of the kind set forth in their complaints.

We shall discuss the questions raised in the order above enumerated.

(a) The seventh amendment to the constitution providing for the enactment of legislation by the initiative contains the following paragraph:

'The legislature shall provide methods of publicity of all laws or parts of laws, and amendments to the constitution referred to the people with arguments for and against the laws and amendments so referred, so that each voter of the state shall receive the publication at least fifty days Before the election at which they are to be voted upon.'

Pursuant to this mandate the legislature enacted Chapter 138 of the Laws of 1913 providing for the printing in pamphlet form of the information contemplated by the amendment, Sections 27and29 of which, Rem.Rev.Stat. §§ 5423 and 5425, read respectively in part as follows:

'At least sixty days prior to any election at which any initiative or referendum measure is to be submitted to the people, the secretary of state shall cause to be printed in pamphlet form a true copy of the serial designation and number, the ballot title, the legislative title, the full text of and the argument for an arguments against each such measure, including amendments to the Constitution proposed by the legislature, to be submitted to the people in the foregoing order, and shall cause all of such measures to be printed and bound in a single pamphlet * * *.'

'Not less than fifty-five days Before any election at which initiative or referendum measures are to be submitted to the people, the secretary of state shall transmit, by mail with postage fully prepaid, to every voter in the state whose address he has, or can with reasonable diligence ascertain, one copy of the pamphlet hereinabove provided for, * * *.'

It is alleged in the amended petition and admitted by the demurrers that the secretary of state did not transmit by mail not less than fifty-five days prior to November 2, 1948, a pamphlet in compliance with the foregoing provisions of the statute, and as a result the voters were not able to receive such pamphlet at least fifty days Before the election at which the initiative was to be voted upon.This same question was Before this court in Gottstein v. Lister,88 Wash. 462, 153 P. 595, Ann.Cas.1917D, 1008.The court met the problem by stating that the official records relating to the submission of the initiative, and of which the court would take judicial notice, pointed unerringly to the due submission of the enactment; that the court knew judicially that the measure was initiated by petition; that it was submitted to and voted upon by the people at the general election; that it was approved by a majority of the electors voting upon the measure; that the canvass of the election returns showed this result, and thereafter the governor pursuant to statute issued his proclamation proclaiming such result to the people of the state.The court then concluded by saying:

'We are of the opinion that due publication of initiative measure No. 3, prior to the election of 1914, at which it was voted upon, must now be conclusively presumed to have been made as the constitution and statute require, and that it has not failed of lawful adoption because of want of such publicity.'

The opinion of the court upon this question and the authorities cited indicate that the basis of indulging in a conclusive presumption is that when a self-executing constitutional provision provides that a measure initiated by the people or referred to them shall take effect and become the law if it is approved by the required number of votes cast thereon, the courts are not called upon and it is not their province to supervise and direct the action of the legislative department of government in the process of making laws and that its records will import absolute verity and the courts are precluded from going beyond such records to impeach them.If such a rule is not adopted and followed, then laws enacted by the lawmaking bodies are open to scrutiny by the courts to see if every official having any duty to perform in the course of the enactment of the statute did as directed, and if it is found he failed in any respect the courts must approve his frustration of the will of the...