State ex rel. Kennedy v. Reeves, 29625.

• Decision Date: 02 April 1945
• Docket Number: 29625.
• Citation: 22 Wn.2d 677,157 P.2d 721
• Parties: STATE ex rel. KENNEDY et al. v. REEVES, Secretary of State.
• Court: Washington Supreme Court

157 P.2d 721

22 Wn.2d 677

STATE ex rel. KENNEDY et al. v. REEVES, Secretary of State.

No. 29625.

Supreme Court of Washington, En Banc.

April 2, 1945

Original application by the State, on the relation of Kathryn H Kennedy and others, for a writ of mandamus against Belle Reeves, to compel respondent, as Secretary of State, to accept for filing certain papers designed to initiate a referendum as to Laws 1945, c. 202. An alternative writ issued, and respondent filed motion to quash and general demurrer.

Writ granted.

Simon Wampold, Jr., Atty. Gen., for respondent.

ROBINSON Justice.

The relators allege that they are legal voters of the state of Washington, and constitute a committee known as 'Committee for Referendum of Chapter 202 of Laws of 1945.' The respondent is the duly elected, qualified, and acting Secretary of State of the state of Washington.

On March 17, 1945, the committee filed an application in this court for a writ of mandamus to be directed to the respondent in her official capacity commanding her to accept for filing certain papers and documents designed to initiate a referendum as to Chapter 202, Laws of 1945. Attached to the application, and by reference made a part thereof, is an affidavit by Kathryn H Kennedy, which states, in substance, that the relators, on March 17th, being desirous of subjecting Chapter 202 of the Laws of 1945 to referendum, offered for filing in the office of the respondent secretary of state typewritten copies of the act, together with copies of a petition for referendum setting forth therein such facts as are required by law, duly authenticated under oath. A copy of this petition is attached to the application, marked as Exhibit 'B,' and it is further alleged that relators requested and demanded of the respondent that she receive the papers and documents so tendered, file them in her office, give the measure a serial number, and transmit to the attorney general of the state of Washington a copy of such measure, bearing its serial number, for such action by the attorney general as is prescribed by law; and that, notwithstanding such request and demand, the respondent wholly refused to comply therewith, stating that she did so, and would continue to do so, because of a provision included in the act which reads a follows: 'This act is necessary for the immediate preservation of the public peace, health and safety and for the immediate support of the state government and its existing public institutions and shall take effect immediately.'

Affer examination of the application, with its attached, incorporated exhibits, the court entered the following order:

'It is hereby ordered that an Alternative Writ of Mandamus issue herein and the above named Belle Reeves, Secretary of State of the State of Washington, respondent herein, is hereby commanded, immediately upon service of this writ upon her, to accept the said papers and documents so offered for filing in her office by the relators and to take the steps required of her by law with respect to the submission of said Act of the Legislature of the State of Washington to a referendum of the people, or, in the alternative, that the said respondent show cause Before this Court at the Courtroom thereof in the Temple of Justice at the City of Olympia, Thurston County, State of Washington, on the 2nd day of April, 1945 at 9:00 a.m. at the opening of Court on that day why she has not done so.'

Subsequently, with the assent of all parties, the return day was advanced to March 30th. On that day, the respondent made no effort to show cause why the writ should not be granted, other than by challenging the application for want of facts to warrant the relief prayed for, or any relief, making the challenge both by motion to quash and by general demurrer, thereby admitting, for the purpose of the hearing, all factual allegations.

The case, of course, revolves entirely around the subject of emergency clauses and their effects. That there is a great deal of confusion of though as to this subject has been amply demonstrated by recent events, a confusion to which this court has in some measure contributed, as was acknowledged in the comparatively recent decision in State ex rel. Robinson v. Reeves, 17 Wash.2d 210, 135 P.2d 75, 146 A.L.R. 280, in commenting on our former decision in State ex rel. Short v. Hinkle, 116 Wash. 1, 198 P. 535. It would seem that we have arrived at a point where it is well to heed the admonition which the people, in adopting our constitution in 1889, attached to the first article of the instrument, which article is entitled 'Bill of Rights':

'§ 32. A frequent recurrence to fundamental principles is essential to the security of individual rights, and the perpetuity of free government.' 1 Rem.Rev.Stat. p, 389.

The very first section of that bill of rights is pertinent to our present discussion. It reads as follows:

'§ 1. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.' 1 Rem.Rev.Stat. p. 347.

In Article II, § 1, of the constitution, the people created the legislature and made to it a full and complete delegation of their inherent legislative power:

'§ 1. The legislative powers shall be vested in a senate and house of representatives, which shall be called the legislature of the state of Washingtion.' 1 Rem.Rev.Stat. p. 390.

But, in 1912, the people amended Article II, § 1, and took back into their own hands a great deal of that power; in fact, a great deal more, we think, than has been generally realized. We quote the first paragraph of Amendment 7 to the state constitution:

'The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature and also reserve power, at their own option, to approve or reject at the polls any act, item, section or part of any bill, act or law passed by the legislature.' 1 Rem.Rev.Stat. p. 519 (Italics ours.)

It is with the italicized portion of the foregoing quotation that we are directly concerned. The relators desire to exercise the power therein reserved. They are here asserting the right to exercise the option therein granted. In other words, they are asserting a constitutional right which it would seem that they are prima facie entitled to enforce, unless some lawful exception to that all-inclusive reservation be made to appear.

There are exceptions defined by general language in a later paragraph of the amendment which will be stated in due course. Necessarily, there had to be exceptions; for, a statewide election under a referendum system cannot be held without considerable delay, and, in the meantime, the state government and its existing public institutions must be supported. As shown by paragraphs (c) and (d), it was deemed necessary to allow ninety days for filing a referendum, and it is provided in paragraph (d):

'All elections on measures referred to the people of the state shall be had at the biennial regular elections, except when the legislature shall order a special election.' 1 Rem.Rev.Stat. p. 520.

Hence, unless a special ression of the legislature be called, and, having been called, orders a special state-wide election, a bill passed this last session subjected to referendum, cannot...