State v. Howell

• Decision Date: 24 May 1919
• Docket Number: 15313.
• Citation: 181 P. 920,107 Wash. 167
• Court: Washington Supreme Court
• Parties: STATE ex rel. MULLEN v. HOWELL, Secretary of State.

181 P. 920

107 Wash. 167

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

No. 15313.

Supreme Court of Washington, En Banc.

May 24, 1919

Mandamus by the State of Washington, on the relation of Frank P Mullen, against I. M. Howell, Secretary of State of the State of Washington. Writ ordered to issue.

Parker Mitchell, Tolman, and Fullerton, JJ., dissenting.

P. C Sullivan, of Tacoma, John F. Murphy, of Seattle, Turner, Nuzum & Nuzum, of Spokane, and Theodore A. Bell, of San Francisco, for appellant.

L. L. Thompson and Glenn J. Fairbrook, both of Olympia, for respondent.

CHADWICK C.J.

At the general election held in 1912 the people of the state of Washington adopted as a principle of government the power to initiate laws, and to review at the bar of popular opinion all acts, bills, or laws passed by the Legislature of the state of Washington.

The right so to do is emphasized as a power reserved, and the terms of the amendment imply in the strongest possible way that the intention of the people was to reserve a right to review every act of the Legislature which might affect the people in their civil rights, or limit or extend their political liberties; for they wrote an exception, saying that a referendum may be ordered in all cases '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.' Amendment 7, art. 2, § 1. The writing of an exception specifying the things not reserved is an expression, within sound rules of construction, of a reservation to pass upon all things not so specified.

The court in passing directly upon the amendment, and in other cases arising under city charters, has held firmly to the principle of the referendum, and has consistently refused to limit it by construction.

In December, 1917, Congress proposed an amendment (Res. Dec. 19, 1917, 40 Stat. 1050) to the federal Constitution, providing that:

'Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

'Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.

'Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.'

It will be noted that the amendment does not pertain to matters within the original concept of the Constitution, to the definition or distribution of powers of public officers, but by its terms assumes to cover matters that are purely legislative, and which have hitherto been a subject of legislation by the several states under the police power. We understand that the federal government has no power to control the police power of the states except as such power may have been expressly granted, or as it may be necessary to maintain the acknowledged powers of the federal government.

This amendment was submitted to, and ratified by, the Legislature of the state of Washington by joint resolution passed January 13, 1919. On March 20, 1919, relator tendered a petition for a referendum to the respondent Secretary of State; he asked that it be filed and a ballot title be supplied.

Respondent refused to receive it upon the grounds (a) that, the amendment having been adopted by a joint resolution, and not by an act, bill, or law, it was not within the terms of the Seventh Amendment; and (b) that it was not a subject for referendum under article 5 of the Constitution of the United States.

Addressing ourselves to the first contention of the respondent, Is the resolution an act, bill, or law within the meaning of those terms as employed in our Constitution--whether the people intended an act, bill, or law to be statutes enacted by the Legislature, or whether they meant action by the Legislature which affected them as law?

No cases have been cited, and we may confidently say that there is none, holding to a rule of strict construction where the power of the whole people is in question. It is a rule, become axiomatic by long-continued reiteration, that no court will hold a law to be unconstitutional unless such holding is compelled; that a law will not be held to be unconstitutional by construction; that is to say, the power of the legislative body, or the people if exercising that function, will not be abridged by the courts, or suffered to be abridged by others, if the thing sought to be done is within the spirit of the policy enunciated in the provision under consideration. To this end the courts of the country have so addressed themselves that, without resort to the tedium of limitless authority, we may well adopt the language of Judge Cooley, who was an acknowledged master in the field of constitutional law, that constitutional provisions must be interpreted with reference to----

'the times and circumstances under which the state Constitution was formed--the general spirit of the times and the prevailing sentiments among the people. Every constitution has a history of its own which is likely to be more or less peculiar, and, unless interpreted in the light of this history, is liable to be made to express purposes which were never within the minds of the people in agreeing to it.' People v. Harding, 53 Mich. 48, 19 N.W. 155, 51 Am. Rep. 95.

'The safe way is to read its [the Constitution's] language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen, and then to construe it, if there be therein any doubtful expressions, in a way, so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted.' Maxwell v. Dow, 176 U.S. 581, 602, 20 S.Ct. 448, 456 (44 L.Ed. 597).

'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 to the substance of things, whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority.' Mugler v. Kansas, 123 U.S. 623, 661, 8 S.Ct. 273, 297 (31 L.Ed. 205).

The people, too, have directly charged us with a duty to be mindful of their sovereign rights.

'A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.' Const. State of Washington, art. 1, § 32.

Wherefore the purpose of the people in adopting the Seventh Amendment is a proper subject to be considered. Did they intend to grant any exceptions other than those enumerated in the Seventh Amendment? If this were an ordinary case of statutory construction, we have no doubt that we could all agree that we would look first to the old law, the mischief, and the remedy. It is more important in considering a question involving, the first of all, the sovereign rights of the citizen--the right to speak ultimately and finally in matters of political concern--that we should measure the power reserved by the former condition.

It is well known that the power of the referendum was asserted not because the people had a willful or perverse desire to exercise the legislative function directly, but because they had become impressed with a profound conviction that the Legislature had ceased to be responsive to the popular will. They endeavored to, and did--unless we attach ourselves to words, and words alone, reject the idea upon which the referendum is founded, and blind ourselves to the great political movement that culminated in the Seventh Amendment--make reservation of the power to refer every act of the Legislature, with only certain enumerated exceptions.

Guided by these considerations, we are satisfied that the people used the words 'act, bill or law' in no restricted sense, but in a sense commensurate with the political evil they sought to cure.

And why should not the amendment be a law within the meaning of the Seventh Amendment? No reason is assigned other than that 'law' as there used is synonymous with 'bill' or 'act.' We may well argue, and be within sound rules, that if the people had so intended they would not have used the word 'law' at all, as was done in the state of Oregon. We can conceive of no more sweeping law than the proposed amendment. Certainly no amendment has ever been proposed that goes deeper into the vitals of the American idea of government. It surrenders pro tanto the sovereignty of the state, gives to the federal government a right to enact laws and to enforce them through the federal courts, and it will deny the citizen the protection of some of those guaranties that we have written out of the travail of time into our own Bill of Rights. Upon construction we hold that the amendment to the Constitution of the United States is a law, within the meaning of the Seventh Amendment, and is subject to referendum.

But it is contended that, whereas the Legislature ratified the amendment by joint resolution instead of by act or bill, as it might have done, the resolution, being not eo nomine an act, bill, or law, is not subject to a referendum. This argument defeats itself, for it we are to be literal and exact in terminology, and so insistent upon 'scholastic interpretation' as to admit this premise, we must hold that the Legislature had no power to ratify the amendment except by act or bill; for we find no power granted in the Constitution to that body to act in matters...