State v. Clausen

• Citation: 148 P. 28,85 Wash. 260
• Decision Date: 22 April 1915
• Docket Number: 12730,12732,12737.
• Court: Washington Supreme Court
• Parties: STATE ex rel. BLAKESLEE v. CLAUSEN, State Auditor. STATE ex rel. SCHWABACHER BROS. & CO., Inc., v. SAME. STATE ex rel. MARTIN v. SAME.

148 P. 28

85 Wash. 260

STATE ex rel. BLAKESLEE v. CLAUSEN, State Auditor.

STATE ex rel. SCHWABACHER BROS. & CO., Inc., v. SAME.

STATE ex rel. MARTIN v. SAME.

Nos. 12730, 12732, 12737.

Supreme Court of Washington, En Banc.

April 22, 1915

Mandamus by the State, on the relation of F. G. Blakeslee, on the relation of Schwabacher Bros. & Co., Incorporated, and on the relation of James Martin, against C. W. Clausen, State Auditor. Writ issued.

Fullerton J., dissenting.

W. V Tanner, of Olympia, for defendant in error.

CHADWICK J.

These cases depend upon the answer to the question whether items in appropriation bills, in so far as they affect the claims of the relators, are subject to the referendum, under the seventh amendment to the Constitution of this state.

The claim of the relator Blakeslee is for materials furnished to the highway department of the state of Washington. The claim of the relator Schwabacher Bros. & Co. is for food for young salmon hatched at the state fish hatcheries and bought by the fisheries department of the state of Washington. The claim of the relator Martin is for supplies furnished to the Agricultural Department of the state of Washington.

Inasmuch as all of these cases rest upon and must be determined by reference to the same principle, we will accept as the subject of our discussion the claim of relator Blakeslee.

At the 1913 session of the Legislature a general scheme of highway development was adopted. Session Laws 1913, p. 221. Appropriations were made and much work done under the supervision of the highway department of the state. Appropriations were made by the Legislature just adjourned to continue the general scheme, to maintain existing highways to finish those under construction, and to survey and construct new highways.

Those sections of the appropriation bill which are pertinent to our present discussion are as follows:

'Section 1. For the survey, construction and maintenance of primary and secondary highways of the state, there is hereby appropriated out of the public highway fund the sum of one million, nine hundred thirty-seven thousand, nine hundred eighty-five dollars ($1,937,985.00.) apportioned in the manner hereinafter provided: * * *

The Olympic Highway, for survey and construction, between Shelton and Quilcene $96,250.00'

Laws 1915, p. 182.

The relator sold certain supplies and materials to the highway department to be used in the survey and construction of that part of the Olympic Highway between Shelton and Quilcene. The State Auditor refused to audit his bill and draw a warrant, upon the ground that the emergency clause attached to the bill is not operative to carry the appropriation over the right of referendum reserved by the people in the seventh amendment to the Constitution of the state. Const. art. 2, § 1, subd. 'b.'

The emergency clause, with the exception of two words which in no way affect its sense, is in the language of the Constitution, § 2:

'Sec. 2. This act is necessary for the immediate preservation of the public peace, health and safety, [and the] support of the state government and its existing public institutions, and shall take effect April 1, 1915.' Laws 1915, p. 185.

Thereupon relator brought this proceeding in mandamus to compel the issuance of a warrant in payment of his bill, insisting that the appropriation is presently available. While an argument is made upon the theory that the appropriation is necessary for the immediate preservation of the peace, health, and safety, we are not disposed to follow it. Our judgment may be put upon surer ground.

The real controversy revolves around the words 'support' and 'public institutions.' The relator contends that 'support' means any appropriation designed to promote or effectuate any of the admitted functions of the state, and that a 'public institution' is any branch or department of the state government to which any of its functions may have been delegated by the Legislature; that the highway department, and an established road, are at once existing institutions within the meaning of the Constitution. The Attorney General contends that the word 'support' must be taken in a literal and restricted sense and means 'the continuing regular expenditures of the various state offices and departments for the maintenance of such offices and departments. Under this interpretation, the term would include salaries, fuel, current repairs, supplies, printing, and other current expenses of like character.' In other words, he contends that the words 'support of the state government and its existing institutions' mean no more than 'current expenses.' To sustain this construction, he relies mainly upon the case of McClure v. Nye, 22 Cal.App. 248, 133 P. 1145. It may be said, if the McClure Case is not an apt authority, there is no authority to sustain the attitude of the respondent. It would probably be enough to say that the exception reserved by the people of the state of California is enough to distinguish that case; the exception being appropriations for 'current expenses,' whereas we have no such limitation. However, inasmuch as counsel for the respondent is apparently serious in his contentions, we shall endeavor to show wherein the McClure Case has no bearing on the cases at bar. The word 'support' may have either meaning. Our duty is to find the legislative intent in passing the amendment and the like intent of the people in adopting it.

While we think the language of the Constitution is plain and unambiguous and calls for no construction, it there be any doubt there is no better rule (indeed, there is no other rule to which we can refer) than the purpose of the amendment as it may be gathered from the history of such legislation. with its contemporaneous construction and discussion.

In all matters involving an inquiry into political questions, especially so where they relate to a change in accepted forms and fundamental theories, courts must take notice of such changes, the sentiments which sustain them, the reasons urged for or against them, the old condition, and the purpose of the change. If it were not so, there could be no rule of construction. There can be no resort to precedent, except in the way of analogy, for the question is one of first inquiry, and precedent is no more than a former decision or accepted practice applying a settled principle to a new or existing condition.

Let us then briefly consider the new order, popularly known as direct legislation. The idea did not come from South Dakota or Oregon. It is as old as government. It was considered by the framers of the federal Constitution. They found that the right of the people to compel responsive legislation would be sufficiently secured by frequent elections. In later years the idea was revived. Following an agitation sustained by a persistent propaganda, the plan was framed in words and adopted as a part of the fundamental law in several states of the Union. The state of Washington, though not the first to adopt an amendment to its Constitution, did not borrow the idea from any of the states which had adopted it. The agitation in its favor did not ripen quite so soon in this state. But at the time other states adopted it the idea of direct legislation was a live question, which, like most questions of great public interest, became so persistent that it could be settled only by adoption or rejection.

It must be kept in mind that the theory of direct legislation and the referendum is a thing neither new or original. On the other hand, the purpose, the limitations on the Legislature, and reservations of the people attending its exercise are to be gathered from the words, context, subject-matter, reason, and spirit of the enactment just as any other law or declaration of fundamental right is to be ascertained. In ascertaining the purpose and its limitations and reservations, we may well look to the form in which the idea has been fashioned in other states and their experiences, assuming that the Legislature and the people had these in mind, and, if evil, that they intended to avoid them; if good, that they intended to adopt them.

'Moreover, it must not be overlooked that this legislation is experimental. Even in construing the terms of a statute, courts must take notice of the history of legislation, and out of different possible constructions select and apply the one that best comports with the genius of our institutions, and therefore most likely to have been the construction intended by the lawmaking power.' Texas & P. Railway v. Interstate Com. Com., 162 U.S. 197, 16 S.Ct. 666, 40 L.Ed. 940.

'Courts, in construing a statute, may with propriety recur to the history of the times when it was passed; and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it. Aldridge v. Williams, 3, How. 24; Preston v. Browder, 1 Wheat. 120.' United States v. Union Pacific R. R. Co., 91 U.S. 72, 23 L.Ed. 224.

'And it may recur to the general state of opinion--public, judicial, and legislative--at the time of the enactment. End. Interp. St. § 29.' United States v. Oregon & C. R. Co. (C. C.) 57 F. 426.

'If the words of the law seem to be of doubtful import, it may then perhaps become necessary to look beyond them in order to ascertain what was the legislative mind at the time the law was enacted; what the circumstances were under which the action was taken; what evil, if any, was meant to be redressed; what was the leading object of the law; and what the subordinate and relatively unimportant objects.' Maryland Agricultural College v. Atkinson, 102 Md. 557, 62 A. 1035.

'Statutes are but public sentiments enacted into laws, and frequently the policy of such legislation is the

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