State v. Hinkle

• Decision Date: 26 May 1921
• Docket Number: 16353.
• Citation: 198 P. 535,116 Wash. 1
• Parties: STATE ex rel. SHORT et al. v. HINKLE, Secretary of State.
• Court: Washington Supreme Court

198 P. 535

116 Wash. 1

STATE ex rel. SHORT et al. v. HINKLE, Secretary of State.

No. 16353.

Supreme Court of Washington

May 26, 1921

In Banc.

Original application for mandamus by the State, on relation of William M. Short and others, against J. Grant Hinkle, Secretary of State, to compel the respondent to receive and file proposal and affidavits for referendum of Laws 1921, c. 7, relating to the promoting of efficiency, order, and economy in the administration of the state government. Writ denied.

Holcomb Tolman, Main, and Mitchell, JJ., dissenting.

P. M. Troy, of Olympia, and Geo. H. Rummens and Tracy E. Griffin, both of Seattle, for respondent.

MACKINTOSH J.

This is an original proceeding in mandamus to compel the secretary of state to receive and file the proposal and affidavits of the relators for the referendum of chapter 7, Laws 1921, being an act entitled 'An act relating to, and to promote efficiency, order and economy in, the administration of the government of the state, prescribing the powers and duties of certain officers and departments, defining offenses and fixing penalties, abolishing certain offices, and repealing conflicting acts and parts of acts,' and commonly known as the 'administrative code.'

Chapter 7 consists of 138 sections, the final section being:

'Whereas the revenues of the state are insufficient to support the state government and its existing public institutions as at present organized, and whereas it is necessary that the existing administrative agencies of the state government be consolidated and co-ordinated in order to bring the cost of supporting the state government and its existing institutions within the possible revenues of the state, therefore this act is necessary for the support of the state government and its existing public institutions, and shall take effect immediately.' Article 2, § 1, of the state Constitution, is as follows:

'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. * * * 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. Six per centum, but in no case more than thirty thousand, of the legal voters shall be required to sign and make a valid referendum petition. No act, law, or bill, subject to referendum, shall take effect until ninety days after the adjournment of the session at which it was enacted. No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment. But such enactment may be amended or repealed at any general, regular or special election by direct vote of the people thereon.'

The respondent declined to accept and file the proposal and affidavits for the reason that section 138 does not permit of the act being referred. The relators' position is that section 138 is of no effect for the reason that the act is not emergent.

The relators take their stand flat-footedly upon our decision in the case of State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11, that being a case which involved an act of the Legislature passed in 1915 (chapter 6, Laws 1915) in relation to the board of state land commissioner, the act being an amendment of the prior law (Laws 1909, c. 223). Under the law of 1909 the board was made up of the commissioner of public lands, the state fire warden, and the members of the state board of tax commissioners. The act of 1915 merely substituted for the state fire warden and the board of tax commissioners the secretary of state and the state treasurer, and to this amending act was added a section which stated that the act was necessary 'for the immediate presentative of the public peace and safety and the support of the state government and shall take effect immediately.' This court, in passing upon this emergency clause, held that an emergency clause attached to an act was subject to review by the courts, and that the clause would be held unconstitutional where the act, on its face, shows that the declaration is false, but that if, from an examination of the act, it be doubtful as to whether an emergency exists in fact, that the question of emergency would be treated as a legislative question, and the act would be upheld. The court there further decided that, by reason of the fact that there were being merely substituted two officers on a board in the place of other state officers, that the court could determine, from its judicial knowledge, that there was no emergency, and that the final clause of the act was inoperative.

The alpha and omega of the relators' argument is that chapter 7 of the Laws of 1921 makes no more change in the theretofore existing plan of state government than did the act of 1915 in relation to the composition of the board of state land commissioners. It is unnecessary to review the reasons assigned by the majority and minority opinions in the Brislawn Case, and it is unnecessary to determine whether the Brislawn Case was properly or improperly decided. It is sufficient to take that decision as it appears in the books and apply to it the facts in the instant case, facts obtained by an examination of chapter 7, Laws 1921, and not assertions based upon only a casual reading thereof. The fallacy of relators' position lies in the unfounded premise, i. e. that chapter 7 is 'nothing more than a broad, comprehensive scheme for transferring the duties not performed by various state officers and subordinates under the present from and plan of state government to other officers and departments created by the act.' Grant the premise, and under the Brislawn Case relators' position may be correct, but the premise is found to be unwarranted upon a careful and exact analysis and understanding of the act. The act says that the revenues are insufficient to support the state government in its then existing form, and that in order for the state, as an institution, to continue to function, its expenditures must be so reduced as to fall within the possible revenue, and to effect this purpose the act abolishes many offices, boards, and commissioners, provides against the duplication of duties and responsibilities in administration, co-ordinates the operation of the business of the state, classifies employees, provides for expenditures in cases of emergency, authorizes the exchange between state institutions of supplies, provides a cost accounting system, sustains building programs, and authorizes the preparation of estimates for appropriations. Without going into the act section by section it, in general, provides a more efficient method of carrying on the state government. The court is not concerned with whether--for the reason that it cannot know--the results anticipated by the new plan will be achieved. Under the Brislawn decision, the court can only hold section 138 invalid, if from its knowledge, which it possesses as a court, it can say that no necessity exists for such a change in the method of conducting the state government in the fact of the legislative declaration that public funds were not sufficient to uphold the state government under the prior existing plan.

The Legislature possessed the opportunity (and is conclusively presumed to have availed itself of that opportunity) to know the facts and has declared that a precarious financial condition prevails. We are asked to say that the solemn statement of the Legislature is false, and to say so, not because we are possessed of any knowledge upon the subject, but because we are ignorant upon it. We can take no testimony; we have no machinery with which to gather the facts, which the Legislature is presumed to be possessed of, but, totally in the dark, we are asked to substitute our personal prejudices, predilections, and preconceptions for the presumably enlightened judgment of those deputed by the Constitution of the state to inquire into and determine these factual problems. It is only when the court, following the Brislawn Case, can say, from its judicial knowledge, that a patent contradiction exists upon the face of a legislative enactment, that, in law or in reason, it can deny the legislative declaration of emergency. As Judge Parker says in the case of State ex rel. Reclamation Board v. Clausen, 110 Wash. 525, 188 P. 538:

'It may well be doubted that there has ever come to the American courts any more vexatious question than that of determining whether or not a particular purpose for which public funds were sought to be raised by taxation and expended is a public purpose, when the particular purpose in question lay within that twilight zone wherein the minds may reasonably differ as to such purpose being a public one; the bounds of which zone are ever changing with the passing of time, and within which now problems of public welfare always first appear. That such a question, when arising in the courts, has proven so vexatious is, we apprehend, because of its inherent nature, in that, in

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