State v. Meath

• Decision Date: 06 March 1915
• Docket Number: 12655.
• Parties: STATE et rel. BRISLAWN et al. v. MEATH et al.
• Court: Washington Supreme Court

147 P. 11

84 Wash. 302

STATE et rel. BRISLAWN et al. v. MEATH et al.

No. 12655.

Supreme Court of Washington, En Banc.

March 6, 1915

Original proceeding in quo warranto on the relation of J. W. Brislawn and others against Edward Meath and another. Writ issued.

Fullerton Morris, Crow, and Mount, JJ., dissenting.

W. V Tanner, of Olympia, for respondents.

CHADWICK J.

At the first session of the state Legislature (1889-90), several boards were created to administer the public lands of the state. In 1893 the several acts were amended so that an independent board, with full jurisdiction over state lands was provided for. The board consisted of the commissioner of public lands, ex officio member and chairman of the board and three members, to be appointed by the Governor. Session Laws 1893, p. 386. The act of 1893 was amended in 1895. The commissioner of public lands was made a member of the board, with two others to be appointed by the Governor. Session Laws 1895, p. 528. In 1897 the act was again amended. The board was made to consist of elective state officers, the commissioner of public lands, secretary of state, and superintendent of public instruction. Session Laws 1897, p. 229. In 1907 the act was again amended. The board was made to consist of the commissioner of public lands, state fire warden and forrester, and the state board of tax commissioners. Session Laws 1907, p. 290. This personnel was maintained in the amendatory act of 1909. Session Laws 1909, p. 757. The law defining the board of state land commissioners has been carried into Rem. & Bal. Code as section 6605. At its present session the Legislature passed an act (House Bill No. 54):

'Be it enacted by the Legislature of the state of Washington: Section 6605. The commissioner of public lands, the secretary of state and the state treasurer shall constitute the board of state land commissioners and shall have all powers and perform all duties with reference to the selection, appraisement and sale or lease of school, granted or other lands, except capitol building lands, the establishment of harbor lines and lease of harbor area which are not or may hereafter be vested in or required of the board of state land commissioners, the board of appraisers or the harbor line commission. And said board of state land commissioners shall be and serve as the commission and the board of appraisers mentioned in section one of article fifteen and section two of article sixteen of the state Constitution.

'Section 2. This act is necessary for the immediate preservation of the public peace and safety and the support of the state government, and shall take effect immediately.'

It will be seen that, for the state fire warden and forrester and the board of state tax commissioners, the secretary of state and state treasurer are substituted.

Section 2 of the act, the emergency clause, was vetoed by the Governor. The bill was passed over the Governor's veto. A new board was immediately organized, consisting of the three state officers mentioned in the act. It has assumed the function of administering the public lands of the state to the exclusion of the relators, the state tax commissioners and fire warden. These officers bring this proceeding in quo warranto, praying that the right of respondents be inquired into, and that they be ousted and enjoined from further intruding themselves into the office.

There is but one question to be decided: Whether the Legislature can declare an emergency in the instant case, so as to free the act of the restraints contained in the recent amendment to the Constitution, known as the initiative and referendum amendment.

When the people adopted the Constitution in 1889 it contained a provision:

'No law, except appropriation bills, shall take effect until ninety days after the adjournment of the session at which it was enacted, unless in case of any emergency (which emergency must be expressed in the preamble or in the body of the act) the Legislature shall otherwise direct by a vote of two-thirds of all the members elected to each house; said vote to be taken by yeas and nays and entered on the journals.' Const. art. 2, § 31.

This clause in one form or another is common to most of the states.

The Attorney General states the broad premise that a court will not, under any circumstances, review the discretion of the legislative body, and that a legislative declaration of an emergency has always been regarded as not open to judicial inquiry. He cites several cases, but inasmuch as they are taken from Cyc., which we cite below, we will not incumber this opinion by setting them out.

Where there is a declaration in the Constitution that no law shall take effect unless in a case of emergency to be declared by the Legislature, it may be truthfully said that the general rule is that a court will not review the declaration of the Legislature, but where the people have put upon the Legislature a limitation in the way of a specific definition of its power and an elimination of acts of a certain character, the rule is that the declaration of an emergency must conform to the constitutional requirement.

'In those jurisdictions in which, under the general rule, statutes do not take effect until some time subsequent to their passage and approval, it is commonly provided that, when an emergency exists, the Legislature may declare a statute in force from its passage. Under such provisions, the Legislature is the sole judge as to whether an emergency exists, and its declaration is not open to question by the courts. Where, however, such special provisions, permitting the Legislature to except certain statutes from the general rule, are found in the Constitution, the legislative declaration that an emergency exists must conform to the constitutional requirements, and must be clear, distinct, and unequivocal.' 36 Cyc. pp. 1193, 1194; Cooley on Const. Lim. (7th Ed.) 76.

At the general election held in November, 1912, the people of the state adopted the initiative and referendum amendment to the Constitution. By this amendment it was provided that no law or bill, subject to the referendum, shall take effect until 90 days after the adjournment of the Legislature at which it was enacted, and that all laws shall be subject to referendum, 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.

We shall assume, for it is not seriously contended that it is not so, indeed it could not be so contended, that in truth and in fact the amendment to section 6605, which does no more than to remove from the board one man or set of men and replace them with other men, is not in fact 'necessary for the immediate preservation of the public peace, health, or safety' of the state. It is the contention of the respondents that the provision for an emergency in the amendment is in no respect different from that contained in article 2, § 31, and that the courts are powerless to inquire into the act or discretion of the Legislature; that we are governed by the same rules and by the same considerations which have moved the courts since the establishment of our government to put no judicial restraints upon legislative discretion.

The contentions of the respondents have seemingly (we say seemingly for it is not entirely so) been upheld by the courts in Oregon, South Dakota, and Arkansas. Kadderly v. Portland, 44 Or. 118, 74 P. 710, 75 P. 222; Dallas v. Hallock, 44 Or. 258, 75 P. 204; Bennett Trust Co. v. Sengstacken, 58 Or. 333, 113 P. 863; Sears v. Multnomah County, 49 Or. 42, 88 P. 522; State ex rel. Labin v. Bacon, 14 S.D. 404, 85 N.W. 605; State v. Moore, 103 Ark. 48, 145 S.W. 199. While the Supreme Court of Michigan and the Court of Appeals in California have held, under a provision the same as ours, that there may be a judicial question to be reviewed by the courts. McClure v. Nye, 22 Cal.App. 248, 133 P. 1145; Attorney General ex rel. Lindsay, 178 Mich. 542, 145 N.W. 98. Oklahoma has held both ways. Okla. City v. Shields, 22 Okl. 265, 100 P. 559; In re Menefee, 22 Okl. 365, 97 P. 1014; Riley v. Carico, 27 Okl. 33, 110 P. 738.

There has been a wide inconsistency in the holding of the courts upon constitutional questions. They have declared that where the Legislature has said there is an emergency, although undefined, its declaration is final and conclusive upon all. At the same time, and in the same day, they have not hesitated to declare acts of the Legislature to be in derogation of the fundamental law or some legislative limitation of the Constitution.

The judicial aversion to a review of legislative discretion, in so far as it relates to emergency clauses, is no more thoroughly established than the equivalent declaration that courts have power to declare laws unconstitutional. Now there is no more reason for saying that a bill is an emergent measure, when upon its face it is not, and from the very nature of its subject-matter cannot be, just because the Legislature has said it is so, than there is for declaring a law to be unconstitutional when it has been passed by the Legislature with the Constitution and its limitations lying open before it. The sense and discretion of the Legislature, as well as its power to discriminate between an act falling clearly without and one falling clearly within the Constitution, should, if we are consistent, be given the same weight as a declaration that an act is emergent, but few courts have so held since Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60, although their inconsistencies have long been apparent to the lay mind. In the one case we have said that we will inquire, in the other we have said that we...