State ex rel. Robinson v. Reeves
| Decision Date | 17 March 1943 |
| Docket Number | 29019. |
| Citation | 135 P.2d 75,17 Wn.2d 210 |
| Parties | STATE ex rel. ROBINSON et al. v. REEVES, Secretary or State. |
| Court | Washington Supreme Court |
Original action by the State of Washington, on the relation of Kinsey M. Robinson and others, against Belle Reeves, as Secretary of the State of Washington, for a writ of mandamus to compel respondent to accept and file relators' petition for a referendum on Initiative Measure, No. 12, Laws 1943, c. 15 pertaining to public power resources and public utilities and acquisition and operation thereof by public authorities and municipal corporations. On demurrer to the affidavit in support of the petition.
Alternative writ made peremptory.
Paine, Lowe, Davis & Russell and H. E. T. Herman all of Spokane, and Holman, Sprague & Allen and McMicken Rupp & Schweppe, all of Seattle (Laing, Gray & Smith, of Portland, Or., of counsel), for relators.
Fred E. Lewis, Atty. Gen., Acting Atty. Gen., R. Max Etter, Asst. Atty. Gen., and Simon Wampold, Jr., of Olympia, for respondent.
Houghton, Cluck & Coughlin, Edward E. Henry, and Mervyn F. Bell, all of Seattle, George F. Yantis, of Olympia, E. K. Murray, of Tacoma, Don Abel, of Chehalis, E. E. Boner, of Aberdeen, David Rhea, of Port Townsend, Underwood & Campbell, of Davenport, Clarence J. Coleman, of Everett, and Brown & Millhouse, of Bellingham, amici curiae.
The relators comprise a committee whose purpose it is to invoke a referendum on Initiative Measure No. 12 to the legislature, Laws of 1943, chapter 15, entitled: 'An Act pertaining to public power resources and public utilities and acquisition and operation thereof by certain public authorities and municipal corporations; authorizing public utility district commissioners to create joint commissions; relating to composition, government, powers, funds, business and properties thereof; applying certain public utility district laws thereto; empowering them to acquire electrical properties solely by issuing revenue bonds and warrants; requiring deposit of funds with State Treasurer and audit of accounts by State Auditor; taxing their operations instead of property; permitting their union; offsetting earnings against interest on certain condemnation awards; declaring emergency and that act take effect immediately.'
To that end, they filed a petition with the secretary of state, complying in all respects with the provisions of Rem.Rev.Stat. §§ 5400, 5403. The secretary of state declined to accept the petition on the ground that the act took effect immediately upon its passage by reason of the fact that it contained a declaration of emergency.
The relators here seek a writ of mandamus to compel the secretary of state to accept and file the petition to the end that the act be referred to the people at the general election to be held in November, 1944. An alternative writ was issued, and the cause is now Before us on demurrer to the affidavit in support of the petition.
The petition is in double aspect. The relators ask initially that the act be declared a nullity. They contend that the act is rendered abortive because the secretary of state did not, as required by the terms of § 1(a) of the seventh amendment to the constitution, 'transmit the same to the legislature as soon as it' convened and organized. We think it unnecessary to discuss or even state the grounds for this contention, for, obviously, it is an attack upon the constitutionality of the act, which we will not consider upon an application of this character.
In its other aspect, the petition presents the question as to whether the act (notwithstanding it carries a declaration of emergency) is subject to referendum under § 1(b) of the seventh amendment, which, so far as pertinent to our discussion, provides: '* * * 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.)
Section 15 of the act provides:
In this quotation we have used italics to dissociate surplusage from the vital portion of the declaration of emergency; in other words, the italicized sentence and phrase cannot enlarge the categories of acts excepted from the referendum by the terms of the constitutional provision.
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 Ann.Cas.1916B, 810, 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, Ann.Cas.1916A, 1231, 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...
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CLEAN v. State
...time and circumstance that its limits cannot be defined.[ 10 Howell, 85 Wash. at 285, 147 P. 1162. State ex rel. Robinson v. Reeves, 17 Wash.2d 210, 135 P.2d 75, 146 A.L.R. 280 (1943) struck down the emergency clause in a statute that was passed to purchase several large utility companies. ......
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