State ex rel. Pennock v. Coe

• Decision Date: 07 May 1953
• Docket Number: No. 32478,32478
• Citation: 42 Wn.2d 569,257 P.2d 190
• Parties: STATE ex rel. PENNOCK, v. COE, Secretary of State.
• Court: Washington Supreme Court

Page 569

42 Wn.2d 569

257 P.2d 190

STATE ex rel. PENNOCK, v. COE, Secretary of State.

No. 32478.

Supreme Court of Washington, en Banc.

May 7, 1953.

Sarah H. Lesser, Seattle, for relator.

Don Eastvold, Atty. Gen., E. P. Donnelly, Moksha W. Smith, Olympia, for respondent.

DONWORTH, Justice.

This is an original proceeding in mandamus to compel the secretary of state to accept the necessary documents tendered by relator for the referendum of §§ 7 and 36 of chapter 174, Laws of 1953.

Relator in his application for the writ alleges full compliance with the statutory and constitutional requirements to entitle his committee of legal voters to seek such referendum and that respondent refused to accept for filing the documents tendered because chapter 174 contained an emergency clause which provided it should take effect April 1, 1953.

Relator then asserts:

'* * * that by reason of such refusal, relator and the people of the State of Washington, are, and will be, deprived of the constitutional right reserved to the people of Washington to pass upon said sections of said bill at the next succeeding general election following the passage of such bill by the legislature.'

The final paragraph of relator's application reads:

'That neither Sec. 7 & 36 of said Substitute Bill No. 225 [Chap. 174], nor any part of the aforesaid Bill, on which relator and said committee desires to order the referendum are necessary for the immediate preservation of the peace, health or safety of the state, nor for the support of the state government and its existing institutions and that the refusal of the respondent, Secretary of State, to allow such referendum was and is wrongful, arbitrary, capricious and contrary to the Constitution and the laws of the State of Washington made and provided for such cases.'

Respondent has filed herein both a motion to dismiss and an answer. The motion is based on two grounds: (a) that relator's application does not contain facts sufficient to entitle him to any relief and (b) that relator is estopped from invoking the original jurisdiction of this court. Respondent's answer admits the material allegations of the application but denies certain legal conclusions.

The usual alternative writ having been issued, the cause was argued before department two of this court and again before the entire court sitting en banc.

With regard to the first ground stated in respondent's motion to dismiss, this is in substance a demurrer to the application which raises the legal issues hereinafter disposed of.

The second ground is supported by an affidavit of the acting director of the department of public assistance which states that the appropriation necessary to authorize the disbursement of funds for the care of the needy under chapter 174 is found in chapter 3, Laws of 1953, Ex.Sess. It is further stated that in compliance with these acts affiant performed all duties required thereby to make it possible for their operation to commence on April 1, 1953, as required by the legislature, and that he had no notice prior to the institution of this proceeding on March 30, 1953, that the effective date of any portion of these acts would be challenged. Affiant stated that many applications for assistance have been made and are being processed pursuant to the provisions of chapter 174 and chapter 3, above mentioned.

The statements made in this affidavit are not sufficient to support respondent's ground (b) of his motion to dismiss this proceeding on the theory of estoppel because of undue delay. Chapter 174 was signed by the Governor March 18, 1953, and chapter 3 (referred to in the affidavit) was signed March 25, 1953. The delay of a few days between these dates and March 30, 1953, when this proceeding was instituted, is insufficient to create an estoppel and respondent's motion to dismiss on that ground is denied.

The constitutional provision which we are called upon to interpret in this case is the following portion of paragraph (b) of the seventh amendment:

'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, either by petition signed by the required percentage of the legal voters, or by the legislature as other bills are enacted.'

We now come to the difficult legal question which has been before this court many times since the seventh amendment to the constitution was adopted by the people in 1912, to wit, under what circumstances is the legislature's declaration of emergency to be held valid with the result that the right of referendum which the people reserved in that amendment is thereby cut off?

We do not attempt here to reconcile several inconsistent statements of the rules of law applicable thereto stated in our prior decisions.

Although we do not agree with the statement in State ex rel. Robinson v. Reeves, 17 Wash.2d 210, 135 P.2d 75, 77, 146 A.L.R. 280, that this court has 'very consistently and clearly (except in one instance) marked the cleavage' between emergency acts subject to referendum and those not subject thereto, we begin our consideration of this problem by quoting rather extensively from that decision because it contains an excellent summary of the state of the law in 1943. In that case we said:

'So, as it finally resolves itself, the question is whether this act is necessary for the immediate preservation of the public peace, health, and safety, and support of the state government and its existing public institutions?

'In approaching this question, we must, of course, give great weight to the legislative declaration of emergency. Acts excepted from the referendum fall into two categories: (1) Those in exercise of the police power; and (2) those providing for the financial support of the state and its existing institutions. If, upon any fair inference, this act may be said to fall in either category, it is not, by reason of the declaration of emergency, subject to the referendum; otherwise, it is.

'In its decisions, this court has very consistently and clearly (except in one instance) marked the cleavage between acts which are and those which are not subject to the referendum. It has upheld legislative declarations of emergency where the acts could, by reasonable inference, be said to be an exercise of the police power or in financial support of the state government or its existing institutions: State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 P. 28, relating to the construction of highways; State ex rel. Case v. Howell, 85 Wash. 281, 147 P. 1162, relating to the financing of local improvement districts (which, of course, include sewer districts); State ex rel. Case v. Howell, 85 Wash. 294, 147 P. 1159, relating to the regulation of common carriers on the streets and highways; State ex rel. Anderson v. Howell, 106 Wash. 542, 181 P. 37, motor vehicle code; State ex rel. Hamilton v. Martin, 173 Wash. 249, 23 P.2d 1, relating to the issuance of state obligations in order to alleviate conditions of want and distress caused by widespread unemployment; and State ex rel. Reiter v. Hinkle, 161 Wash. 652, 297 P. 1071, relating to excise taxes on butter substitutes. Obviously, the acts under consideration in these cases were in exercise of the police power or in support of the state government and its existing institutions. In some instances, they fall in both categories; consequently, it was held they were not subject to referendum.

'On the other hand, where acts could not, by any fair inference, be said to be in exercise of the police power nor in support of the state government and its existing public institutions, the court has held legislative declarations of emergency abortive. State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11, relating to a change of the personnel of the board of state land commissioners; State ex rel. Mullen v. Howell, 107 Wash. 167, 181 P. 920, relating to the prohibition amendment. State ex rel. Satterthwaite v. Hinkle, 152 Wash. 221, 277 P. 837, relating to the substitution of a director of highways for the department of highways; and State ex rel. Burt v. Hutchinson, 173 Wash. 72, 21 P.2d 514, relating to horse racing and betting by the pari-mutuel system. The acts under consideration in this group of cases, falling in neither category, were held subject to the referendum.

'The exception in the course of the court's decisions heretofore noted is found in the case of State ex rel. Short v. Hinkle, 116 Wash. 1, 198 P. 535. That case involved the administrative code. Notwithstanding that what was effected by that code was only a change in the state administrative agencies, the court upheld a legislative declaration of emergency. The decision is not in harmony with the principles upon which all the other cases we have referred to were decided and is in direct conflict with the decisions in State ex rel. Brislawn v. Meath, supra, and State ex rel. Satterthwaite v. Hinkle, supra. It should therefore be overruled.'

In the Robinson case the emergency declaration involved was held to be invalid because the act to which it was attached related to a long-range program for the acquisition of private power plants by public utility districts if and when they might elect to proceed thereunder. The act was correctly held not to come within the exception contained in paragraph (b) of the seventh amendment.

Two years later this court held in each of two cases that the emergency declaration in each act under consideration was not valid as against an attempted referendum.

State ex rel. McLeod v. Reeves, 22 Wash.2d 672, 157 P.2d 718, involved an act to change the method of appointment and removal, and tenure of office, of commissioners under the state game code. The amendatory act was held...