State v. Superior Court In and For Thurston County

• Decision Date: 05 July 1916
• Docket Number: 13421.
• Citation: 159 P. 92,92 Wash. 16
• Court: Washington Supreme Court
• Parties: STATE ex rel. BERRY et al. v. SUPERIOR COURT IN AND FOR THURSTON COUNTY et al.

159 P. 92

92 Wash. 16

STATE ex rel. BERRY et al. v. SUPERIOR COURT IN AND FOR THURSTON COUNTY et al.

No. 13421.

Supreme Court of Washington, En Banc.

July 5, 1916

Proceedings on the relation of Frank Berry and others, to review the proceedings and judgment of the Superior Court of Thurston County and D. F. Wright, Judge thereof, dismissing relator's petition for injunction. Reversed and remanded with directions.

Ellis Bausman, Parker, and Fullerton, JJ., dissenting.

C.J. France, of Seattle, and W. V. Tanner, of Olympia, for respondents.

HOLCOMB, J.

This is a proceeding to review the proceedings and judgment of the superior court, in holding that it had no jurisdiction, and entering a judgment of dismissal and for costs against the relators, in a certain cause begun and tried therein, wherein the relators were plaintiffs and the secretary of state and certain other persons as 'The Joint Legislative Committee' and as individuals were defendants, to enjoin the defendants from preparing or causing to be printed blank petitions for proposed initiative measure No. 22, and from printing and attaching to such petitions arguments for said pretended measure No. 22, and from circulating or attempting to obtain signatures of legal voters upon such petitions. A copy of section 1 of initiative measure No. 22, as filed by the joint legislative committee in the office of the secretary of state, is as follows 'Section 1. Section 1 of the Fisheries Code of Washington is amended to read as follows:

'Section 1. Short Title and Declaration of Purposes.

'This act shall be known as the 'Fisheries Code of Washington.'

'The prosperity and happiness of all of its people are hereby declared to be the highest aim of the state and the protection and utilization of its great natural resources, to the end that all the functions of government may be economically carried on without burdensome and confiscatory taxation being placed upon the home builders and real producers of the state, is paramount. Protection and conservation of the great sources of food supply are necessary that they shall not be monopolized by the few to the detriment and discomfort of the many, and inasmuch as it has been legally determined that the fish in waters of the state of Washington are the property of said state, it is hereby declared that the purposes of this act are to foster the propagation, protection and development of this source of food supply and to create a revenue therefrom by retaining a portion of the value of its own property from those who are hereby allowed to appropriate the same, under the regulations hereinafter set forth, the proceeds of which shall be turned into the state treasury for the general support of the state government, to the end that the burden of taxation on its people may be thereby reduced.'

The trial judge held, in effect, that the question raised was political, and therefore a court of equity could not interfere.

During the last 40 years of the Nineteenth Century there arose and grew in democratic republics and commonwealths a powerful distrust and dislike of their parliaments. They became tired of the representative system. In the latter part of that period the people of the democracies submitted to their representative Legislatures only under the pressure of stern necessity. The growing distrust and contempt for legislative bodies, municipal state, and federal, and the tendency to restrict them, culminated, with the beginning of this century in numerous returns by states to the primitive system of direct legislation, modified by modern systems of election. In this state, after enabling legislation, an amendment to article 2 of the Constitution relating to legislative powers, which established a dual system of legislation, was adopted by vote of the electors in 1912. It was by that amendment provided that:

'The legislative authority * * * shall be vested in the Legislature, * * * 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,' etc.

Under the further provisions of this constitutional amendment----

'the first power reserved by the people is the initiative. Ten per centum, but in no case more than fifty thousand, of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the secretary of state not less than four months before the election at which they are to be voted upon, or not less than ten days before any regular session of the Legislature. If filed at least four months before the election at which they are to be voted upon, he [the secretary of state] shall submit the same to the vote of the people at the said election. If such petitions are filed not less than ten days before any regular session of the Legislature, he shall transmit the same to the Legislature as soon as it convenes and organizes. Such initiative measure shall take precedence over all other measures in the Legislature except appropriation bills and shall be either enacted or rejected without change or amendment by the Legislature before the end of such regular session.'

It is further provided that the veto power of the Governor shall not extend to measures enacted by the people, either upon initiative or upon the second power reserved to the people and designated the 'referendum.' It also further provided that the reserved powers of the people 'shall be self-executing, but legislation may be enacted especially to facilitate its operation.' It is finally peremptorily commanded by this amendment that:

'The Legislature shall provide methods of publicity of all laws or parts of laws, and amendments to the Constitution referred to the people with arguments for and against the laws and amendments so referred, so that each voter of the state shall receive the publication at least fifty days before the election at which they are to be voted upon.'

In obedience to and furtherance of the above mandate, the Legislature at its 1913 session enacted a facilitative measure, providing for regular processes of initiating measures, and for publicity and arguments for and against them at the expense of the persons filing arguments in support of or against such measures respectively, prohibiting the circulation of more than two arguments in support of, and more than three in opposition to, any initiative measure, and providing for the arrangement of ballot title by the Attorney General, the printing of arguments upon the proposed measure by the secretary of state at least 60 days prior to the election at which they are to be submitted, and the transmission of same by him to every voter in the state not less than 55 days before the election.

The facilitating act above partially outlined was not only a complete delegation of power to the Legislature, but a positive command of the paramount law to be produced. Without it the self-executing provisions of the Constitution as amended could be followed, but might result in confusion and disorder in many instances. There can be in such a vast state no assemblage of all or a majority of the voters to propose and vote upon measures or to reject measures already enacted. It is possible for an act, if very brief and concise, to be proposed and voted upon at regular elections in identical form by every voter, but very uncertain. Hence the people provided that their reserved powers of legislation should be facilitated and promoted, but not curtailed or hindered, by a legislative act providing a comprehensive scheme to facilitate the employment of the legislative powers reserved by the people in mass. The facilitating act carefully provides certain steps to be taken in order to prevent unfairness and fraud and confusion and disorder. It provides that any legal voter or committee or organization of legal voters may 'propose' any measure to be submitted to the Legislature or to the people. Upon filing such proposed measure within certain periods prior to a regular election or session of the Legislature, the Attorney General shall prepare the ballot title to such measure. It is carefully provided that the ballot title so prepared shall be of----

'not to exceed one hundred words,' and 'shall express, and give a true and impartial statement of the purpose of such measure, and shall not be intentionally an argument, or likely to create prejudice, either for or against the measure.'

Provision is made for an appeal to the courts from the action of the Attorney General in preparing the ballot title. The act provides for the utmost publicity of the proposed measure within the state, and for not more than two arguments in favor of and three against the proposed measure, the publication of the arguments to be paid for, not by the state but by the parties submitting the arguments. This requirement of the law was sustained in State ex rel. Chamberlain v. Howell, 80 Wash. 692, 142 P. 1. It is now asserted by appellants that this requirement of the facilitating act is violated and evaded by the proponents of the present measure by a pretended 'preamble,' which is neither necessary nor proper, and is mere argument and false statements in support of the proposed measure, which, if permitted, will enable the proponents to have their arguments printed by the public at no expense to the proponents under the guise of part of the bill or proposed law, and give undue advantage to proponents and work irreparable injury to the opponents of the measure.

To establish that the procedure questioned is unfair is not sufficient. Any law or proposed law may be, and often is unfair to some. Except when dealing with...