State v. Howell

• Decision Date: 22 April 1915
• Docket Number: 12719.
• Citation: 85 Wash. 281,147 P. 1162
• Parties: STATE ex rel. CASE v. HOWELL, Secretary of State.
• Court: Washington Supreme Court

147 P. 1162

85 Wash. 281

STATE ex rel. CASE v. HOWELL, Secretary of State.

No. 12719.

Supreme Court of Washington, En Banc.

April 22, 1915

Mandamus by the State on the relation of Lucy R. Case against I. M Howell, as Secretary of State, to compel the Secretary of State of file copies of an act together with an affidavit relating to the referendum. Writ denied.

James E. Bradford, of Seattle, for plaintiff.

W. V Tanner, of Olympia, and W. T. Dovell, of Seattle, for defendant.

ELLIS J.

This is an original application for a writ of mandate to compel the secretary of state to file five copies of an act of the recent Legislature, called the Renick bill together with the affidavit as provided by law relating to the referendum.

The respondent seeks to justify his refusal to file these papers on the single ground that the bill went into effect on its approval by the Governor on February 26, 1915, by reason of the declaration in the act that it is necessary for the immediate preservation of the public peace, health, and safety, and shall take effect immediately. The relator contends that the bill upon its face shows that it has no reasonable relation to these things, and is therefore subject to the referendum.

The act in question so far as here material is as follows:

'An act relating to cities of the first class, and prohibiting therein the diversion of revenues secured for special purposes to other funds or uses, and declaring an emergency. * * *

'Section 1. That whenever any city of the first class shall levy and collect moneys by sale of bonds or otherwise for any local improvement by special assessment therefor, the same shall be carried in a special fund to be used for said purpose, and no part thereof shall be transferred or diverted to any other fund or use. * * *

'Sec. 2. That whenever the issuance or sale of bonds or other obligations of any city of the first class shall have been authorized by vote of the people, as provided by any existing charter or laws, for any special improvement or purpose, the proceeds of the sale of such bonds, in cluding premiums, if any, shall be carried in a special fund to be devoted to the purpose for which such bonds were authorized, and no portion of such bonds shall be transferred or diverted to any other fund or purpose. * * *' Laws 1915, p. 43.

Section 3 declares that any ordinance, resolution, order, or other action and every city warrant or other instrument made in violation of the act shall be void, and every officer, agent, or employé of any such city and every private person or corporation who shall knowingly commit or aid in any violation of the act shall be liable to the city for all money so transferred, diverted, or paid out, which liability shall be enforceable against the official bond of any such officer, agent, etc.

'Sec. 4. This act is hereby declared to be necessary for the immediate preservation of the public peace, health and safety, and shall take effect immediately.' Laws 1915, p. 44.

The ultimate question for decision is that: Are the provisions of this bill so related to the immediate preservation of the public peace, health, and safety or the support of the state government or its existing public institutions as reasonably to fall within the exception to the reserved power of referendum as found in the seventh amendment to the state Constitution? The constitutionality of the act in other particulars is not in issue and will not be considered.

That amendment (section 1, art. 2, subd. 'c') declares:

'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.' Laws 1911, p. 136.

Subdivision 'b' of the same section declares:

'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.'

In order to simplify the discussion of the ultimate question it may not be amiss to indulge certain general observations as to the purpose and character of the exception to the power of referendum reserved to the people by that amendment. Much confusion will be avoided by recognizing the plain fact that this is not the usual general emergency provision, but an exception to the otherwise universal application of the reserved power of referendum.

The Constitution forbids the enactment of any law which shall deny to any citizen equal protection of the laws. That guaranty is as vital and mandatory as the guaranty of the right of referendum reserved by the seventh amendment, but no more so. But the power to make laws necessary to protect and promote the general welfare is an essential attribute of government. The Legislature may therefore enact laws which do in fact discriminate between citizens or classes of citizens whenever the given legislation bears a reasonable relation to the preservation of the public peace, health, safety or to the promotion of general welfare. Such laws are sustained as an exercise of the police power, which has been characterized as 'the power inherent in every sovereignty * * * the power to govern men and things.' State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 177, 117 P. 1101, 37 L. R. A. (N. S.) 466.

The clear purpose of the exception to the reserved power of referendum is to preserve unimpaired the right of the Legislature to exercise this police power, but only in so far as it may be emergent. As pointed out in State ex rel. Brislawn v. Meath, 147 P. 11, the exception does not extend to all things touching the general welfare. It does not extend to things relating to mere public expediency or public convenience. It is not as broad as the police power, which is so broad and so variant with time and circumstance that its limits cannot be defined.

'To say that the police power can only be exercised in given cases, and then call a halt, would be to fix a limitation which, from the very nature of the power itself, cannot be done.' Bowes v. Aberdeen, 58 Wash. 535, 544, 109 P. 369, 30 L. R. A. (N. S.) 709.

See, also, Tacoma v. Boutelle, 61 Wash. 434, 443, 112 P. 661; State v. Mountain Timber Co., 75 Wash. 581, 135 P. 645; Commonwealth v. Alger, 7 Cush. (Mass.) 53, 85; Slaughterhouse Cases, 83 U.S. (16 Wall.) 53, 85; 62, 21 L.Ed. 394; Stone v. Mississippi, 101 U.S. 814, 818, 25 L.Ed. 1079; Champer v. City of Greencastle, 138 Ind. 339, 351, 35 N.E. 14, 24 L. R. A. 768, 46 Am. St. Rep. 390.

Many acts of the Legislature touching things directly relating to the general welfare, and hence falling unquestionably within the broad police powers, are in no sense emergent. A conspicuous exemple in this state is presented in the act of March 14, 1911, known as the Workmen's Compensation Act (Laws 1911, p. 345), which is as farreaching and pervasive an exercise of the police power as can be found. Another is the act of March 20, 1913, known as the Trading Stamp Act (Laws 1913, p. 413), which was passed subsequent to the adoption of the seventh amendment to the Constitution, and was sustained solely on the ground that it was a proper exercise of the police power. State v. Pitney, 79 Wash. 608, 140 P. 918. But neither of these acts contained any declaration of an emergency, and obviously they were not emergent in any sense. Manifestly, many acts involving the exercise of the police power in its broad sense relate to matters of public policy, which are of all laws the very kind most appropriate to be referred to the people, and which the people would most desire to pass upon, because they are put forth in the interest of the general welfare 'in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion.' Noble State Bank v. Haskell, 219 U.S. 104, 111, 31 S.Ct. 186, 55 L.Ed. 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487.

The framers of the seventh amendment to our state Constitution and the people by its adoption, have therefore selected and excepted from the operation of the referendum, only laws invoking those certain, definite, and unquestioned phases of the police power which in their very nature may be and usually are emergent--in general terms 'such laws as may be necessary for the immediate preservation of the public peace, health, or safety,' and, specifically, such measures as are essential to the preservations of these things, in that government is so essential, namely, laws necessary for 'support of the state government and its existing public institutions.' While this last phase of the exception may include some revenue laws and some appropriation laws, that is not the line of cleavage. The clear intention was to include within the exception any and all laws, and only such, as may be necessary for such support.

It is obvious that, had the courts at the start abdicated the power to pass upon the constitutionality of any act asserted by the Legislature to be an exercise of the police power, every guaranty of the Constitution, whether relating to life liberty, property, or the equal protection of the laws, might long since have been overridden and made a dead letter by mere legislative fiat. Happily no court has done so, but all courts of review, both state and federal, have uniformly and consistently held that whether a given act is in reality a proper exercise of the police power is in its ultimate a judicial, not exclusively a legislative, question. Neither the character of the police power nor the necessity for a judicial check upon its exercise is changed by the mere fact that certain phases of the power are selected and made...