State ex rel. Humiston v. Meyers

• Citation: 61 Wn.2d 772,380 P.2d 735
• Decision Date: 11 April 1963
• Docket Number: No. 36998,36998
• Court: United States State Supreme Court of Washington
• Parties: The STATE of Washington on the relation of Homer W. HUMISTON, Relator, v. Victor A. MEYERS, as Secretary of State of the State of Washington, Respondent.

Page 772

61 Wn.2d 772

380 P.2d 735

The STATE of Washington on the relation of Homer W. HUMISTON, Relator, v. Victor A. MEYERS, as Secretary of State of the State of Washington, Respondent.

No. 36998.

Supreme Court of Washington, En Banc.

April 11, 1963.

Stouffer, Brown & Knight, Tacoma, for relator.

John J. O'Connell, Atty. Gen., Gene Godderis, Charles F. Murphy, Asst. Attys. Gen., Olympia, for respondent.

J. P. Tonkoff, Yakima, Bassett, Donaldson & Hafer, Samuel B. Bassett, Seattle, amici curiae.

WEAVER, Judge.

This is an original application for a writ of mandamus to compel the Secretary of State to accept, file, and process documents submitted to him for the purpose of implementing a popular referendum of Laws of 1963, chapter 37 (Senate Bill No. 360), in accordance with Article II, § 1(b) of the state constitution and RCW 29.79.

Respondent refused relator's proffered documents, stating:

'Petition for referendum refused March 15, 1963 because of emergency clause contained in section 9, Enrolled Senate Bill No. 360.'

Chapter 37, Laws of 1963, bears the title:

'An Act relating to the maintenance and operation of certain machines or mechanical devices, salesboards, bingo equipment and cardrooms in certain governmental subdivisions; adding new sections to chapter 249, Laws of 1909 and chapter 9.47 RCW; and declaring an emergency.'

The act, as passed by the legislature, adds nine new sections to the existing law. Four sections provide that '* * * it shall be lawful * * *' (1) to possess '* * * any machine or mechanical device which is not manufactured or equipped with an automatic payoff mechanism' (Section 1); (2) to possess '* * * any sales-board or sales ticket intended for trade stimulation purposes where merchandise only is dispensed' (Section 3); (3) to operate a '* * * public cardroom not to exceed eight tables wherein persons engage in games of skill * * *' (Section 4); (4) to possess and operate paraphernalia '* * * for use in the game of bingo * * *' provided the game is conducted for the benefit of certain enumerated nonprofit charitable organizations and '* * * the proceeds thereof are not to inure to the profit of any individual. * * *' (Section 5)

The practices and devices designated as lawful can only be employed and used if

'* * * located in any incorporated city or town, or all that portion of any county not included within the limits of incorporated cities and towns, where the same is licensed or taxed.' (Italics ours.)

Section 2 of the act makes it unlawful for the user of any mechanical device, described as lawful in Section 1, to receive anything of value except '* * * free plays and the playing of additional games. * * *'

Section 6 sets forth certain licensing criteria; section 7 is a licensing 'grandfather clause'; section 8 is a severability clause.

The question before us arises from section 9, which provides:

'This act is necessary for the immediate preservation of the public peace, health and safety, the support of the state government, and its existing public institutions, and shall take effect immediately.'

March 7, 1963, the act was passed by both houses of the legislature. March 11, 1963, the Governor vetoed the words 'or taxed,' ¹ and the licensing 'grandfather clause.' ² In his veto message to the senate, the Governor stated 'I will allow the remainder of the bill to become law without my signature, in accordance with the additional explanation appended to the bill and to this message.'

In the 'additional explanation,' the Governor said:

'I have deliberately refrained from vetoing an emergency clause contained in Senate Bill 360 in order to allow the constitutionality of this measure to be tested at once. This emergency clause permits the bill to take effect immediately; therefore, allowing a court test of the constitutionality of this bill at once by anyone who might desire to do so.'

The question for our determination is simply this: Is section 9--the emergency clause--valid so that the act becomes effective immediately, or, is the emergency clause invalid so that the act is subject to a possible referendum vote by the people?

In view of the many overtones that have been developed by counsel and amici curiae, we point out that this case does not involve the constitutionality of the act or the efficacy of the Governor's item veto, nor do we have before us the question of how or when the constitutionality of the act may be tested. The expediency of the act is, of course, not justiciable; expediency is a legislative problem.

The people are the genesis of all political and legislative power. ³

Article II, § 1, of the state constitution provides:

'The legislative authority of the state * * * shall be vested in the legislature, * * * but the people reserve to themselves the power to propose * * * laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power * * * to approve or reject at the polls any act, item, section or part of any * * * law passed by the legislature.

'(a) Initiative: The first power reserved by the people is the initiative. * * *

'(b) Referendum. 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, * * *.' (Italics ours.)

The peoples' reserved right to exercise the initiative and referendum was placed in the state constitution by amendment 7, adopted in 1912. Its political history and the impact of the amendment upon the law of this state have been discussed, exhaustively, in State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11 (1915); State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 P. 28 (1915); and State ex rel. Case v. Howell, 85 Wash. 281, 147 P. 1162 (1915).

We believe it self-evident that, by the adoption of amendment 7, the people intended to mark a line between laws that might be emergent and those that clearly are not, reserving to themselves the right to pass upon legislative acts that affect public measures and policies; that they fixed a limit beyond which the legislature cannot go without doing violence to the will and voice of the people; that the legislature has no right to tack an emergency clause onto an act in order to prevent the people from exercising their right of referendum, unless that act is clearly within the exception set forth in the emendment.

In State ex rel. Howell v. Superior Court, 97 Wash. 569, 577, 166 P. 1126, 1129 (1917), Judge Parker, writing the court's majority opinion, stated:

'Whatever divergence of opinion there may be among the courts touching the meaning of constitutional or statutory provisions relating to the initiative and referendum, we think it safe to say that all courts that have spoken upon the subject agree that such provisions are to be liberally construed, to the end that these popular legislative rights of the people reserved in the several Constitutions where found may be preserved and rendered effective.' (Italics ours.)

A review of all of the decisions of this court upon the question prompts two observations: first, Judge Parker's reference to 'liberal construction' was over-optimistic; and second, there is a most delicate balance between the emergent powers of the legislature and the people's right of referendum. The latter observation is buttressed by the fact that in almost every prior decision on this point, the court was divided, or there was a concurring opinion based on reasons different from those expressed by the majority.

On at least 11 occasions this court has upheld the efficacy of emergency clauses ⁴; on 7 occasions we have struck them down. ⁵

The question before us is one of construction or interpretation of an act of the legislature and of a provision of the constitution; this is a judicial question.

By what rule shall the question be tested? It would be inaccurate to say that our former decisions have been consistent in discussing and announcing the rule to be applied.

In State ex rel. Hoppe v. Meyers, 58 Wash.2d 320, 326, 363 P.2d 121, 125 (1961) (the most recent opinion on the question), the court said:

'With regard to the weight to be given such clauses, the rule to which this court has most consistently adhered, is that most recently stated in State ex rel. Pennock v. Coe, 42 Wash.2d 569, 257 P.2d 190, 195, quoting from State ex rel. Pennock v. Reeves, 27 Wash.2d 739, 179 P.2d 961:

"'* * * such legislative declaration of emergency and necessity for the enactment is conclusive and must be given effect, unless the declaration on its face is obviously false; and, in determining the truth or falsity of the legislative declaration, we will enter upon no inquiry as to the facts, but must consider the question from what appears upon the face of the act, aided by the court's judicial knowledge. State ex rel. Hamilton v. Martin, 173 Wash. 249, 23 P.2d 1. We must give to the action of the legislature and its declaration of an emergency every favorable presumption."'

The touchstone of the rule is '* * * what appears upon the face of the act, aided by the court's judicial knowledge.'

The face of the act is patently devoid of any facts relating to an emergency (with the exception of the emergency clause itself). The act repeals nothing; it appropriates nothing; it taxes nothing. In nowise is the act comparable to the act considered by the court in State ex rel. Hamilton v. Martin, 173 Wash. 249, 23 P.2d 1 (1933), wherein the act recited facts showing an emergent situation, which facts were, for the most part, capable of judicial knowledge. We do not indicate that the inclusion of a legislative declaration of policy in an act would, ipso facto, remove the emergency clause from the ambit of the court's constitutional duty...