State v. Howell

• Decision Date: 22 April 1915
• Docket Number: 12720.
• Citation: 85 Wash. 294,147 P. 1159
• Parties: STATE ex rel. CASE v. HOWELL, Secretary of State.
• Court: Washington Supreme Court

147 P. 1159

85 Wash. 294

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

No. 12720.

Supreme Court of Washington, En Banc.

April 22, 1915

Mandamus by the State on the relation of Lucy R. Case against I. M Howell, Secretary of State, to compel the Secretary of State to accept and file papers for the referendum of a statute. Demurrer sustained, and writ denied.

Hugh C Todd, of Seattle, Ashton Dovell, of Tacoma, and Thomas Corkery, of Spokane, for plaintiff.

W. V Tanner, of Olympia, for defendant.

HOLCOMB J.

The Legislature of the state at its session just closed passed an act entitled:

'An act relating to and regulating common carriers of passengers upon public streets, roads and highways, providing for the issuance of permits, prescribing penalties for violations, and providing when this act shall take effect.'

Section 1 of the act provides that it shall be unlawful to engage in the business of carrying or transporting passengers for hire in any motor propelled vehicle along any public street, road, or highway within the corporate limits of any city of the first class, without having first obtained the permit as mentioned in the subsequent sections. Section 2 provides that every person, firm, or corporation, desiring to engage in the business of carrying or transporting passengers for hire in any motor propelled vehicle over and along any public street, road, or highway in any city of the first class, shall apply to the secretary of state for a permit so to do. For each motor vehicle intended to be operated the applicant shall deposit and keep on file with the secretary of state a surety company bond, running to the state of Washington, in the penal sum of $2,500, to be approved by the secretary of state, conditioned for the faithful compliance by the principal with the provisions of the act, and to pay all damages which may be sustained by persons injured by reason of any careless, negligent, or unlawful act on the part of the principal, his agents, or employés in the conduct of his business in transporting passengers, and this section further provides for the payment of a fee of $5 to the secretary of state. Section 3 provides that every person injured by the careless, negligent, or unlawful act of any person or corporation operating under such permit, or his personal representatives named in the act, shall have a cause of action against the principal and the surety upon the bond for the amount of damages sustained. The liability of the principal, however, is expressly limited to the amount of the bond. Section 4 provides that every person or corporation operating any motor propelled vehicle without the requisite permit shall be guilty of a gross misdemeanor. Section 5 provides that, if any part of the act is held invalid by any court, the remainder of the act shall nevertheless be valid. Section 6 provides:

'This act is necessary for the immediate preservation of the public safety, and shall take effect April 10, 1915.'

The relator in this case claims the right to have this act referred to a vote of the people. To that end, as she alleges in her application, she has offered to the secretary of state, for filing, the requisite affidavit. The secretary of state, believing that the legislative declaration that the immediate preservation of the public safety requires that the act shall take effect April 10, 1915, is operative, and results in the act not being subject to a referendum vote, declined to receive and file the documents tendered. This action in mandamus is prosecuted to compel the secretary of state to accept and file the proffered documents. The secretary of state has demurred to the affidavit on the ground that it fails to state facts sufficient to constitute a cause of action. Without waiving the demurrer an answer has been interposed.

(1) In State ex rel. Brislawn v. Meath, 147 P. 11, we held:

'The true rule is, the referendum cannot be withheld by the Legislature in any case, except, it be where the act touches the immediate preservation of the public peace, health, or safety. * * * If the act be doubtful, the question of emergency will be treated as a legislative question, and the doubt resolved in favor of the declaration of emergency made by the legislative body.'

The relator contends that the act in question nowhere touches any of the conditions justifying the emergency clause.

An act of the Legislature of a state is only to be overthrown by virtue of some specific limitation or prohibition in the paramount law. Forsythe v. City of Hammond (C. C.) 68 F. 774; Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann. Cas. 765. It, as laid down in the Brislawn Case, it manifestly appeared on the face of the act that there was no touching of the public peace, health, or safety, then such legislative dissimulation would not support a mere declaration thereof, for it is only in cases of obvious and undoubted legislative dissimulation as regards the police power that such legislation cannot and should not be upheld by the courts. State ex rel. Brislawn v. Meath, supra; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Sentell v. New Orleans, etc. R. Co., 166 U.S. 698, 17 S.Ct. 693, 41 L.Ed. 1169; Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780.

And, as was stated in Mugler v. Kansas, supra:

'The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty--indeed, are under a solemn duty--to look at the substance of things whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.'

On the other hand, however, it is equally well settled that the courts should not declare a law repugnant to the Constitution without a strong conviction divested of all reasonable doubt. Ah Lim v. Territory, 1 Wash. 156, 24 P. 588, 9 L. R A. 395. ...