*1 53 car instruction No. to his under control keep (proposed and his failure to instruc- 13); apply (proposed his brakes 14). tion No. theory
Each his party action is entitled have instructions, of the case to the presented jury by proper if reading there is it. Upon evidence support in their find they properly instructions we jury entirety, on all issues the case and jury plain advised limited on these argument tiffs’ counsel was not in his It trial is within the court’s discretion jury. issues instructions many necessary to determine how pre the case. Short v. Hoge, theory sent each fairly litigant’s (2d) (1961). 360 P. (2d) 58 Wn. judgment find no error. affirmed.
We J. Pro J., JJ., Ott, C. Rosellini, James, Hill concur. tern., 26, 1964.] En Banc. 37199. March
[No. Rousso, Petitioner, v. Victor A. Louis Meyers, al., et State Respondents. * (2d) *Reported 557. P. *2 Howard, S. & Hedrick and Willard for
Morrissey peti- tioner. Doran, Assistant, Robert General, J. Attorney Chief Austin, Assistant, H. respondents.
and Philip J . The instituted this action to petitioner Rosellini, acting of State and others under restrain him measure No. 34 on the No- from placing election Dr. Homer 1964, ballot. W. general vember as re- measure, of the intervened Humiston, proponént granted respondents’ spondent. The trial court motion dismissing summary judgment, pe- action, and the applied for and obtained a writ certiorari. titioner Washington § Amendment 2, 1, Art. of the Constitution provides: authority legislative Washington of the state of “The legislature, people . . . but the vested
shall be reserve to legislature, power propose laws, bills, to themselves polls, reject independent the same at the or enact power, option, reserve at their and also own polls any reject approve act, at the item, or section to part passed by legislature. any act law bill, “ power (b) . second reserved . may referendum, and it be ordered on act, bill, passed by legislature, any part except thereof law, or necessary preserva- for the immediate laws peace, safety, public support health or tion of existing public government and its institutions, state by petition either required signed by percentage *3 legislature the as other voters, bills are enacted. petitions “(d) against Referendum . . . measures legislature secretary passed shall the be filed with the ninety days adjourn- than after not later the final of state legislature passed of the the session which ment of the the referendum on which measure demanded. . . . petitions secretary be shall filed with the state, All general guided submitting laws in shall be who legislation people espe- until additional shall same cially provide self-executing, therefor. This section especially may legislation oper- enacted be to facilitate its ...” ation. changes signatures
Amendment number of re- petitions quired upon for initiative or referendum measures. authorization In accordance contained Amend- legislature provided procedural has certain ment obtaining steps steps followed referendum. to be These chapter pro- in RCW 29.79. forth RCW set 29.79.120 specified number of that, when vides petition may obtained, a been has submitted to voters filing; for of State and RCW 29.79.140 re- quires days that the be filed not later than 90 after adjournment the final of the session of the passed provisions pertinent the act. Other action are: secretary accepts RCW 29.79.190 “If the of state and petition upon being files an initiative or referendum filing, submitted for ... he shall forthwith . . . containing detach the sheets and cause them firmly printed copies all to be one or attached to more proposed initiative or referendum measure in such canvassing volumes will be as most convenient for filing, and shall number such volumes and file the same stamp filing.” each thereof the date of filing “Upon RCW 29.79.200 the volumes of an initiative petition proposing legisla- a measure for submission to the regular secretary ture forthwith in the session, at its next of state shall
presence person representing atof least one person representing opponents the advocates and one proposed present, measure, should either desire proceed voters thereon. than one registered to convass and count the names signed If he finds same name more reject petition he shall name as often as appears. ...” filing “Upon RCW 29.79.220 volumes of petition petition or an initiative of a submission measure people, secretary to the of state shall canvass the names days filing sixty pro- -within after and like ceedings provided be had thereon shall RCW 29.79.210.” 29.79.200and “If initiative RCW a referendum or 29.79.230 sufficient, of a measure is found submission certify county secretary of state . . to each titles of the auditor the numbers ballot several serial referendum measures to be voted at
initiative and the ensuing general special election or election next ordered legislature.” *4 secretary shall, of “The state while mak- RCW 29.79.240 ing appearing keep canvass, of all a record names on an registered petition which are initiative appearing once, all names thereon more than voters and of and shall prosecuting attorneys report same of to signed respective the names were the the counties where prosecutions such had for violations end that chapter.” of chapter 37, 1963, enacted of Laws
is entitled: relating operation and of maintenance “An Act bingo
certain devices, salesboards, machines mechanical equipment visions; governmental and cardrooms in certain subdi adding chapter 249, emergency.” new Laws of 1909 sections to chapter declaring RCW; 9.47 an emergency clause this court was declared invalid Meyers, (2d) in State ex rel. Humiston v. 61 Wn. (2d) day published,
P. 735. On the this decision was respondent necessary papers Humiston to initiate filed against chapter Secretary a referendum action 37, and filing of State thereafter as referendum identified Attorney measure No. 34. The General issued official bearing signatures petition ballot title, and thereafter sheets purported registered Secretary voters filed with the were days petition of State. The 90 within which such sheets expired could be 17, 1963, filed on June 1963. On June permanent registration completed division staff following procedural steps:
1. Sorted the in which the sheets counties signers resided; 2. Bound sheets, 137 volumes of each volume containing approximately sheets; page
3. each volume Numbered of each and numbered each volume; signatures upon page appearing
4. Counted the each posted page; at the total of each bottom signatures
5. Posted the total contained in number volume; each volume the cover each signatures grand 6. 82,955 that a total of Established had been in a total of 137 volumes. A filed contained advising letter was written to Dr. Humiston him that the grand of State’s office count revealed that signatures filed and 82,955 total had been canvass Accompanying July signatures 1,1963. would start report of State’s count this letter was showing many from how came each *5 county representing and the number of each volumes county. procedural step
On June 21, 1963, as a final before the employee actual of canvass made, was to be an carefully every signature page checked in on each each beyond temporary volume for situations the evaluation of procedure, checks. aAs result of this it was found that compounded, a total of 45 names were in- is, person signed persons, stances, one had two or more example, “Mr. and A Mrs. Sam Jones.” check these compounded signatures instance, revealed that each one persons actually signed compounded of the named had signature; signature. and each of these was counted as one containing
On June 24, 1963,the theft of the 137volumes signature petition supporting all referendum sheets days measure No. later the 34, was discovered. Two Secre- tary 3, 1964, of State certified the measure to the November general state ballot, election and this action followed. superior Secretáry The court determined that upon State had made his certification sufficient evidence petitioner now asks and refused to disturb his action. Secretary that, of State this court to hold inasmuch as comply 29.79.220,230, of RCW did not quoted above, certification was invalid. his agreed a case of first all concerned that this is It is having diligent impression, failed of counsel research history a court was asked case in wherein to disclose attempt an to obtain to determine whether petitions. theft of the frustrated or initiative can be party court sustain his that the should maintains Each contending public policy, that to do position a matter of encourage of voters’ future thefts otherwise would be outrage gross petitions. that so assume We cannot dignity will ever rights of this state not be made to rest repeated, will and our decision supposition. impossibility presented question whether following, necessity the statu performance removed steps, there was before tory procedural when justify of State sufficient evidence to an ascertainment required him that number of contained signatures. court showed, valid The evidence and the trial making found, that, determination, pertinent State took into consideration three factors: (1) validity He considered that an inference of should *6 imposes drawn view of the fact that the law criminal (RCW upon signs sanctions one who a false name 29.79 .440), signs (RCW petition or more than one sheet 29.79 (RCW .450), signs 29.79.460), when he is not a voter (RCW statement to his residence 29 makes false .79.470). warning appears A on each of these sanctions petition sheet.
(2) past The records office of and files in his petitions beyond indicated a reasonable that doubt the petitions legal signatures. contained sufficient number of (The signatures required by minimum number of law was petition 48,630; the unofficial count showed that the con- signatures. past highest rejection 82,955 tained In the the per petitions rate cent, had been 20.21 and these could have per signatures rejected.) survived had 41.37 cent of the been (3) irregularities during proces- No discovered were the sing petition sheets. together,
We deem these when all factors, taken sufficient justify Secretary the determination made of State. petitioner However, the case of cites State ex rel. Evich Superior (2d) v. Court, 143, Wash. 61 P. and con- controlling tends that the decision of that case is here. - In that case, for an initiative measure were Secretary to the State, who certified submitted having completed measure to the without canvassing- signatures. signatures number of valid petition-, canvassed was sufficient to validate the al- though preliminary canvass had indicated there were 90,000 in excess of on the sheets. The Representatives, by Senate and the House of resolutions, expunged the from their measure records the reason improperly illegally certified, been had and re- Secretary alleged of State. The relator that, turned it.to the notwithstanding Secretary threat- facts, these of State certify ened that he would, restrained, unless measure county placed upon auditors the ballot to be to be voted at the next election. quoted court
This of Amendment initiative § 2, 1, Art. referred to fact that the section is self- executing legislation but authorizes facilitate execu- facilitating legislation tion, and observed that such had been legislation essentially proce- enacted. This embodied dure unable to follow State was granted petitioner, relief this case. We asked holding illegally that the had certified State county reaching auditors. In this de- the measure to partial canvass undertaken cision, we noted that not contain that the sheets did him had indicated signatures. requisite number of valid distinguishable course, there this, The case from canvassing was contention made that case that no impossible the act rendered had been *7 party. applicable the circum- was under a third statute legislature, providing procedure in the Here stances. question num- a sufficient of the whether the determination obtained, not take into ac- did has been ber might possibility be that referendum count the purloined. in the statute. There is thus hiatus preserve which
Those
constitution
liberally
right
construed to
are to be
of referendum
hampered
right may
facilitated, and not
be
that this
end
statutory provisions
con
technical
either technical
guard
necessary
fairly
than is
thereof, further
struction
against
in the exercise
mistake
and
fraud
Superior
right.
ex rel. Case v.
State
of this constitutional
ex
Howell v.
461; State
rel.
623, 143 Pac.
Court, 81 Wash.
569,
Furthermore, Amendment legislation may self-executing, en but that visions are operation. case especially to facilitate acted oper legislation facilitates the which is no us, there before provision. The circumstances the constitutional ation being they are, found himself of State has statutory guide; without a constitution itself sets procedure ascertaining forth no followed in whether required percentage signed. voters has We have no doubt that of State would every duty case, consider it in his canvass though required even he it, no statute this case was called to make a decision without benefit of knowledge exact reveal. If the canvass would of the he correctness decision which made were suggestion doubt, or if there were a of fraud mistake on part proponents, uphold we would hesitate to think, that decision. But we in view of the fact that the supporting undisputed evidence the decision over- was whelming, there no element of or mistake fraud purpose involved, the intent and framers of the reserving power constitution, referendum, can be given only effect if decision is sustained. his judgment is affirmed. J., JJ., C.
Ott, Finley, Hunter, Hamilton, Hale, concur. (concurring result) J. in the —The Weaver,
opinion paints slightly with a than I would brush wider agree, only I use. in the therefore, result reached majority opinion, for I seem to a veiled sense conclusion statute, that since there in the is a hiatus it becomes judiciary challenge fill the I function void. validity of this thesis. thoughts
My expressed are so well in a recent address Supreme Justice Harlan of the United States of Mr. Court quote extensively I from his remarks.1 *8 capacity current notions that holds of the subtle “One judicial is a view of the function that for serious mischief increasingly coming vogue. into This is that all de- seems ficiencies society which have failed of correction our August 13, at 1Address delivered American Bar Center 1963. Jersey (September 1963); in 86 New Law Journal 505 Published (No. 10; October, 1963). Bar Association Journal 943 49 American principal other find cure in the The means should a courts. challenge validity theme of these of remarks will be to urge quick panaceas uncompromising . . . an for things say I at the that call for reform. venture to place judiciary outset is this view of the cosmic only principles inconsistent of American society integrity ultimately democratic but threatens judicial system itself. well-meaning people apparently “. . . some believe judicial political process that the likely lems. This is democratic rather than the is more thorny pressing prob- to breed better solutions or compliment judiciary of view is some times a untrue to but principle. point That judges ostensibly difficult to resist for it carries authentic judicial statutory hallmarks—-the function of construction power judicial Congress and the If the or a state review. inadequate passed why has statute should by judicial is not be revised construction? If the statute why manifestly unwise, harsh, out-of-date, one that is should or abrogated by power it not be exercise judicial review? . . . objections alluring deceptive plausibil-
“The to such deepseated might appear ities are more For than at first blush. in the end what would eventuate would be substantial legislative power A transfer of to the courts. function more they hardly imagined, judges can situated as illsuited to political be, from the arena be- are, aloof should for their conscientious conduct. holden to no one Such legislative denigrate process, would also since course having legislators account it would tend to relieve from inevitably would lessen- to the electorate. outcome ing, judicial independence hand, and, on the one on legislative responsibility, polluting the blood other, of thus system government. our should be on stream guard We of. folly. against any unwitting such deliberate or Rayburn Speaker of the House Sam once ob- “The late greatest statéments that was ever that ‘one of served ’ ju- by anybody A a minute.” ... was: “Just made simply impulse founded on the which is dicial decision ‘something further be done’ or which looks no than should likely ‘injustice’ particular ‘justice’ a . case is not lasting . Our scheme of ordered influence. to have enlightened liberty law, based, like the common uniformly principle, applied not on hoc notions ad wrong stability right particular in a case. what *9 pos- system flexibility at once that our constitutional having largely con- into carried over due to our sesses is approach adjudication common-law stitutional development.” opinion agree in the
I cannot statement outrage gross “. . . cannot assume that so We rights dignity people ever of this state will of the repeated, . . . assump- deny such an It is not our function to make or happened repeat performance has tion. A that which always possibility. remember cannot “Those who past repeat it.” condemned agree If used
Nor can I of the dissent. with the rationale upon premium judicial might place precedent as well incompetence and malfeasance.
My The this: concurrence in the is based result comply Secretary impossibility factual of State to ipso facto, render the constitu- not, with the statutes does provision nugatory. tional adopted, were there 1912, when Amendment was opposed legislation by referendum.
those initiative and who par- reading A careful discloses of the entire amendment purpose ticularity about of method that leaves no doubt system. proponents The amendment and intent of the provision con- not was to become an unenforceable 3), dependent upon (illustrated by § Art. stitution Const. legislature. provides that the It whim of of State hy general guided laws sub- “. . he . shall measures] to mitting the [initiative same especially pro- legislation until additional legislation self-executing,
vide therefor. section is This ” operation. . . especially facilitate its be enacted (Italics mine.) depend upon efficacy of Amendment 7 does implementation legislature. the trial court said: As only they insofar facilitate “The statutes are effective self-executing provisions.” constitutional the action of pattern The factual of the instant case is bizarre and fan- position tastic. We are in the same this court would have been pass implementing had the refused to legislation. sup- reasons advanced of State in
port of his certification I are, believe, sufficient support instant case to the trial conclusion; court’s but the *10 generis my decision is sui and not, should mind, con- be judicial precedent necessarily applicable sidered as to an analogous situation. J., concurs with Weaver, J.
Hill, (concurring specially) signed J. I have Hill, —While Judge concurring opinion, Weaver’s it me seems to that analysis of the Initiative and Referendum Amendments (7, 36) 26, 30, and and our statutes should be made to indi- changes necessary, cate where or additions are at least so far as are referendums concerned. petition by accepted
When a referendum has been days legislature of State within the 90 after the adjourned,2 operation has it seems clear that suspended. measure to be referred must be period only suspension clear in one of the contingencies numerous to which references are herein- approved i.e., if made, after at the election the measure is by majority a if of the votes cast thereon and the total equals vote cast on such measure one-third of the total goes election, votes cast at such the measure into effect on day after This and after the 30th said election. is what Wynand Depart- says,3 court, v. the constitution submitting or referendum to the time for initiative 2“The secretary filing is as follows: of state for ordering directing “(1) petition whole referendum A by legislature parts passed part referred of an be or some or act general rejection ensuing approval people their or at the next special legislature, must be sub- or a election ordered election ninety days adjournment after the final not more than mitted 29.79.140(1) passed act;” session of the RCW (amendment 7(d))) (Const. 2, 1 Art. § Any people or to the 3“. . measure initiated referred . provided people if take and become the law it as herein shall effect 805, 809, ment Labor & Industries (2d) (1944), Wn. approval suggestion 153 P. (2d) rejected on which it effective as of date by the became referendum. if no been effective there had been would have of suspen- the period which involve contingencies if clarification is deemed that, sion listed herewith so it can legislation, further amendment necessary by all at one time and not piecemeal. done lack A. The petition suffi- found referendum after valid days the 60 cient within (presumably for canvassing,4 allowed State filing supreme superior the additional time for reviews courts5). Provided, approved That thereon: of the votes cast equal question one-third vote cast or measure shall total Such measure votes cast at such election and not otherwise. day operation the election at
be in on and after the thirtieth after approved. (amendment 7(d))) (Const. which it is . Art. § .” 4“‘Upon filing an initiative the volumes of secretary people, of measure submission *11 sixty days petition state shall canvass names of within after filing proceedings may provided as and like shall and had thereon 29.79.200 and 29.79.210.” 29.79.220 RCW RCW 5“Any secretary citizen dissatisfied with the determination of of state that an initiative or referendum contains or not does requisite registered may, contain the number of of voters days apply superior determination, within court five after such secretary county requiring of Thurston for a state to citation of examination, submit of said court a writ compelling petition, mandate or certification measure injunction prevent legislature, for an certification thereof to the application proceedings as the case be. Such and all had there precedence speedily under take over other cases and shall be heard and determined. superior granting refusing grant “The decision court or injunction may supreme the writ of mandate be reviewed days court on a writ of certiorari sued within out five after the decision superior court, supreme and if the court decides a writ injunction, may be, issue, of mandate as the case should it shall secretary state; otherwise, issue writ directed it shall proceedings. supreme dismiss the The clerk of the court shall forthwith notify secretary supreme of state of the decision of the court.” RCW 29.79.210 effective, When does the there measure become
Quaere: being no valid referendum? being stolen, B. The or de- lost
stroyed checked, before Secretary 1. The of State certifies that there were suffi- signatures. present case, cient valid This is the and whether un- the measure ever becomes effective will be determined der C and D. The there not
'2. State certifies that were signatures. sufficient happens
Quaere: What and when does the measure be- come effective? that he cannot tell The certifies
3. State signatures. there whether were sufficient happens; the measure become effec- What does Quaere: tive, and when? having gone vote and the votes to a referendum,
C. equaling one-third the total votes such measure cast on election, at cast such majority approves measure; it effective becomes
A1. days after the election. after 30 on and goes disapproves majority measure; it never 2. A into effect. having gone vote and the votes to a
D. The referendum equaling the total one-third measure such cast election, cast at such votes majority approves the measure.
A1. effective? it become Does Quaere: language that it would indicate the constitution situation, have, effective. We not become does by majority approved passed act yet, the result is same and, iton voted of those who against C-2 it under the situ- though voted had *12 proviso should be whether wonder but We can ation. applicable to referendums. (Actually, disapproves there measure. majority
A2. D-2.) D-l and in result between no difference myself, seem speak it would Attempting one but for no provisions a referen- present constitutional our under that petition having Secretary dum State, been filed operation sought the suspended of the measure to be referred remains (it supra
until either A, is determined that petitions adequate signatures), supra, lack C-l, voter or majority (The approve of the voters the measure. votes equaling on the cast measure one-third of the total votes election.) at cast (concurring specially) Despite J. three- Finley, — high rating
alarm context and the of the dissent, decibel despite legal argumentation contrary and other to the ma- jority, signed opinion. presents my I have in It judgment basically acceptable jur- rationalization of the isprudential problem appeal. involved this In other proceeding slightly general words, particular, ever from the so to the elaborating perhaps briefly, the obvious necessary, proper I think the sound, decision is a one. particular particular It is case; decided on the facts probabilities, quite furthermore, in terms of it seems to me likely generis. sui this decision is foregoing
The me, should and the matter for would end except possible I am concerned about some loose ends generated by things said, inferences some and others perhaps opinions disposition unsaid, in the written appeal. of this opinion Judge written for the Rosellini legislation
states that there ais hiatus in the enacted to implement provisions the referendum of the state constitu- implied provided tion. It is that should have practical some alternative and formula for the certifying of State to follow in as number of voters’ legal efficacy of referendum subsequently State, filed with the stolen, prior completion case, in the instant the mechanical process counting canvassing. majority opinion in effect concludes that the courts legislative permit
will not negative omission or hiatus to self-executing defeat interpreted opinion constitution. state This *13 by Judge result) (concurring Weaver in the as a statement legis- the that this the court can will fill and Judge (apparently joined lative void hiatus. Weaver Hill) by Judge very strong sugges- exception takes possibility; hand, but, tion the other con- curring by majority, in the result without reached states hesitation:
“My in the is concurrence result based this: impossibility Secretary comply factual of State to ipso not, facto, with the statutes does render constitu- nugatory. provision tional Secretary “The reasons of State in advanced support are, I in believe, his certification sufficient support conclusion; but the instant case to decision sidered as the trial court’s generis my mind, not, is sui and be con- should necessarily applicable judicial precedent to an analogous situation.” saying
In other in words, J., effect, seems to Weaver, petitions stolen; it is in have been referendum comply Secretary impossible ex- fact State counting plicitly canvassing, re- and certification with quirements existing respecting referendum statutes inescapable inference 34. No. But clear Secretary does circumstances, the of State that, under the is statutory existing explicitly comply not have provisions, that the certifica- articulated and a conclusion is Secretary is sufficient. State tion as made opinion should and must reached adds that the conclusion particular particular in case. facts this limited to the applicable is, course, not, articulated Whether recognized theory ac- in the now well inherent limiting cepted statement Such of stare decisis. doctrine certainly orthodoxy judicial good caution, sound judicial popular discourse forms of more terms of just case; I have also taken the employed about opening principle in the precaution this sound to assert paragraph herein. Weaver, J., point me, it seems so to is, or
But thing J., Rosellini, saying precisely same slightly language. Judge different em- Rosellini’s statement phasizes inadequacy specific or relates to the or absence of legislation justify to authorize or the action taken certifying State, 34 in No. Judge emphasizes instant case. Weaver’s statement or re- longer lates to the fact that the are no extant, consequently, and that the State, cannot com- ply existing thereupon with the statutes; and it is concluded *14 permit or decided that the courts should not this to defeat right people’s pertinent to referendum under the state provisions. approach opinion constitutional Neither nor suggest, possible application mentions, but both concept compliance relating of substantial to the certifica- existing tion action State and the statu- tory requirements. opinions, obviously, Both reach an identical conclusion—that the trial court and this court judicial interfering should not exercise discretion, with and enjoining certifying the action of the of State in legal adequacy petitions. as to the of the referendum So, only reasoning not is the end result the same, but the and legal argumentation employed or characterization seem no description more to me than a of two sides of the same coin, praiseful quoting comment, citation and of Mr. Justice contrary notwithstanding. Harlan to the tempted In the latter connection I am to confess some glittering generalities disenchantment with the of the Har- quotation, lan and to observe that its last sentence seems quotation, to me inconsistent much of the rest of the portions ostensibly significant opus. other and with of this quotation The last sentence of the reads: “ stability flexibility ‘. . The and our that constitu- system possesses largely tional having at once due to our adjudication carried over into constitutional the common- ” approach legal development.’ law to recognition First, this sentence ais in- at least some consistency opposing dynamics stability in the terms flexibility working legal concepts, ju- when considered as qualities dicial touchstones, or constitutional and charac- sentence, teristics. or out of context, is reminiscent admittedly perhaps paradoxical more forth- Pound’s, right, yet stable, it cannot statement that the law must be suggests problem posed philosophical stand still. It art “The the statement North that Alfred Whitehead change progress preserve preserve is to order amid change applied paraphrased could be order,” amid process, judicial I think. Cer- the nature of the describe tainly, carrying into con- the Harlan comment over about approach adjudication common-law stitutional possible development ex- to fall somewhat short seems anything analytically depreciate pectations. It does majority opinion case; is, if in the in the instant said significance of the common-law the real we conscious of methodology approach devel- in the evolution and opment of the law.6 original go my statement. I conclusion, will back contrary legal argumentation
Despite the and other dissent basically, opinion signed majority, because, I have necessary proper in my judgment, terms sound, thinking reiterate; I think the judicial I also and action. generis. appeal problem presented is sui *15 agree (dissenting) with am unable to J. —I Donworth, Basically majority opinion below. reasons stated for the proposition courts my disagreement that on is bottomed reading legislation by an into supply in omissions cannot might included provisions have which act legislature had an- case, if the In this omitted. therein but peti- possibility the referendum ticipated theft of of a dealing provision with might made some tions, have problem. concurring judges result, in the as opinion of those The agrees my position, with the but in accord with it, I is read only their decision it holds that majority’s because result necessarily as generis not be considered and should sui is holding disagreement that precedent. in I am judicial later. stated reasons Little, Tradition. Boston. 6Llewellyn, Common Law N. The Karl 1960. Brown.
I
Harlan
with the remarks of Mr. Justice
heartily agree
that his
in the
but believe
(quoted
concurring opinion),
ideas about the
function
judicial
apply
limitations
Therefore,
statutes.7
constitutional
as well as to
I
dissent,
in the latter
of this
discuss
impact
portion
2,
in Art.
which states:
(as amended)
provision
§
“.
but
self-executing,
legislation
. This section is
...”
may be enacted
to facilitate its
especially
operation.
that,
The
hold
since the theft
majority
the con-
made
of State with
compliance by
foregoing
written,
has
Mr. Justice Harlan
7Since the
sentence was
Wesberry
Sanders,
dissenting opinion
v.
U. S.
filed a
in
the case of
February
1964)
(2d) 481,
(decided
in
11 L. Ed.
I think (most quoted in the ma- applicable of which statutes pinpointed. opinion) jority should be providing for the 7 to the state constitution Amendment referendum) (the people power reserved second this sentence: contains (d) § ] [Art. 2, 1, is self- section subd. . This “. . legislation may especially
executing, enacted operation. ...” facilitate people adopted
Amendment was above-quoted legislature, in accordance with the chapter 29.79. now RCW enacted what authorization, through approval of an initiative electorate, Later (RCW registration permanent act measure, enacted the 29.07). duty it the makes 29.79.200
RCW the names of the count canvass and to forthwith State registered with him. initiative filed voters duty, a referendum it his whenever makes RCW 29.79.220 petition him, to canvass the filed with initiative or an days, “like and states within on the names provided in” thereon as be had proceedings 29.79.210. 29.79.200 RCW provides: 29.79.230
RCW for submission or initiative “If a secretary people sufficient, is found measure a state shall county certify ...” auditor . to each . general at the next be voted that it shall election. *17 sufficient” in the
The words “found section last referred in connection with the to must be construed in registration (RCW .130), permanent act 29.07.090and which read follows: registering any registration
“At the time voter, each require sign him officer shall his name a third card registrar upon which the his has entered surname followed given county his name or names and the name of the city post town, with office and address, and the name or number street and precinct, in which the voter is registered.” RCW 29.07.090. kept file “The third cards shall be on as in the office
secretary of in manner will state such be most convenient purpose checking the sole for, referendum of, and for initiative and petitions mailing pamphlets required and for constitutional amendments and the initiative and refer- procedure. They open public inspec- endum shall not be any purpose.” for tion or be used other RCW 29.07.130. (RCW 29.07) pari These two acts 29.79and are materia pursuant (d) §2, and were enacted to Art. 1, subd. operation.” “to facilitate its constitution Superior ex rel. In State Evich v. Court, 188 19, Wash. (2d) (1936), perma- we 61 P. discussed the effect of the registration saying: act, nent “By permanent registration § 13 the terms of law
adopted at the November election in 1932 13), p. (chapter § 12, Laws of the voter, when registration registering required local with the officer, containing sign upon a his name card information neces- sary duty identification, for his and is made the registrar secretary of voters to transmit these cards to the filing together office, his of state with a certificate original the cards so transmitted are the cards filed appear whose thereon, the voters names and that duly registered precincts in the voters and from the provided shown. The cards for in addresses this section “ kept . on file in the ‘. shall office of the secre- tary such manner as state, will be most convenient purpose checking of, sole for, and initiative and mailing pamphlets containing and referendum and initiative amendments and constitutional referendum arguments against for inspection, the same, measures open public not be used for other purposes.’ (Sup.), § § [P. 2321- Rem. Rev. 5114-13 C. Stat. 23].” only way can State determine the number valid
whether contains equal per to 4 centum of the voters registered voting for the office of number of voters gubernatorial preceding regular the last elec- Governor at (as required by 30) compare the tion signatures amendment is to regis-
on the those on the voters’ *18 Again, secretary’s on file in the office. refer- tration cards said, case, is made to the Evich where this court ence secretary: regarding the duties of the noted, certificate of the reference the “It will signers secretary reported he the of state, of that number precincts had been certified the various from rural registration that being provision for certification officers, such then force. secretary duty inquiring “Now, of state into the (Sup.), § 5411 § [P. 2764], C. we Rem. Rev. Stat. under ‘proceed the canvass and count names that he is to see petition,’ legal if, and at the on such of voters ... count, the conclusion of canvass “ petition appear that such bears the . . ‘. legal secretary requisite the voters, of of number names copy proposed of a certified transmit state shall opening legislature at the of its session to the measure relating filing together of the facts the a certificate with thereof.’ and canvass of such legal the number of names of voters “He is to ascertain manifestly by compari- petition, and the standard on the registration to him cards in his office certified the son with registration officers, accordance with local registration pro- permanent act, § of 13 of registration deposited viding him cards are that these purpose of the sole “ petitions, checking and referendum initiative . ‘. containing mailing pamphlets amend- constitutional measures,’ etc. ments, initiative signatures compare secretary of state must “That the Rev. Stat. petition, evidenced Rem. is further on the requiring quoted § 2765], above, him (Sup.), [P. § 5412 C. appearing on the keep names record of all report prose- registered them to the persons voters attorneys. cuting respondent’s legis- “It is obvious that certificate comply requirement
lature did not with the the statute, provision nor, matter, with the constitution, embodying specific which, while no for the method ascer- requires signatures requisite fact, tainment of the petition. number tificate Indeed, voters cer- negatives any suggestion compliance. of full ...” present secretary only In the case, the counted the total signatures together, county from each and added them grand peti- which made a on 82,955 total of proponent by tions, and advised letter that canvass begin July (He 1, would on 1963. also cor- signed rected 45 instances where husband or wife had Mrs.) secretary Mr. and affidavit, his stated impossible it was for him on to canvass the names petition forms because of theft. 24,
June 1963, the theft of the discovered, was and June 26, of State certified the county placed measure to the to be auditors ballot general for the state election to be held November 1964. doing, secretary, In so the evidence showed that the certifying signatures, the measure without canvass of the took into consideration three factors:
(1) signatures peti- The inference that the 82,955 on the tions are valid is drawn from the fact that is a criminal it sign offense to such a awith false name or residence sign address, not a voter, when or to more than one petition sheet. my opinion, secretary’s the if execution his certifi- on inference,
cate to be based this there would be no require for the need all. canvass at Without comparing signatures petitions signa- the on the the with registration secretary on cards, tures the voters’ the could simply assumption on the make his certificate based that signers of the number would not violate substantial prosecution.8 applicable because of fear criminal statutes (2d) 821, (2d) (1963), only Patric, Wn. 389 P. 292 8State v. 63 is the appeal this court involved case that has come which an from a before alleged judgment on based violation of and sentence RCW 29.79.440- 470.
Furthermore, that in one evidence shows instance past per signatures rejected 20.21 cent were secretary comply for failure these statutes. signers Apparently, in that number instance a substantial warning violating were not deterred from the law prosecution printed petitions. criminal on (2) The inference which the secre- second factor was the tary relating to deduced from his office records his previous highest petitions. These that the show rejection per during the cent, that, rate 20.21 but last was years, average rejection per 7.71 cent rate has been signatures.
Using secretary on estimated, based vernacular, the past present experience, “the were” that the chances (48,630 petitions valid were contained sufficient needed), unlikely this more case because was percentage per than this 41.37 were invalid. Unless cent valid this exceeded, have been were would if legally as the result a canvass. fact had been determined might “guessing” permissible, abe If were but, deduction, under constitution reasonable secretary’s thereby, can- certificate statutes authorized prognostications, conjecture, upon speculation, not rest secretary findings after on made be based must petitions. on canvass during (3) irregularities no were discovered That processing the last factor considered surprising secretary. limited fact is not because the procedure This above) (as place would described took example, except, irregularities “Mr. disclose July begin and, signatures. was The canvass Mrs.” signa- many completed, how no one knew was until that to be invalid. be found tures would foregoing con- factors, when that the holds justify altogether, evidence to sufficient constituted sidered *20 canvassing signatures the secretary, the without the provides for the which certificate petitions, his make to the 1964 34 on the ballot for No. placement of referendum general election. following disagree
I the reasons: admittedly comply 1. There has been a failure to legislation mandatory the which the constitution authorized legislature operation to enact “to facilitate” (which 1).§2, Amendment Const. Art. Seventh amended self-executing, provided that This amendment this section legislation permitted especially to facili- enacted operation. tate its
Upon adoption in 1912, Seventh Amendment prior facilitating legislation, there enactment prescribed required no manner which official was was particular to determine whether a was referendum signed required by pre- percentage as voters, by that amendment. scribed by
This void filled was later, few months acting pursuant to the authorization contained in the amend- legislation. facilitating provision ment to enact This is con- chapter requires tained in 29.79, RCW which of State shall canvass the names on the certify, and, he sufficient, etc. if found plain to me, It seems on the face of the record secretary admittedly (through case, that has failed part) pe- no on his fault to canvass the on the making prior tition his certificate.
The state there was sufficient evidence secretary justify certifying his before the (described three above) ballot because factors slight- he relied. None of which these indicated in the except by degree, speculation, required est whether petitions 48,630 him number of the on before registered facilitating legislation voters. those of were prescribes manner in this vital fact shall be de- secretary only legal termined method is —the signatures. comparison majority state that there is a hiatus in the statute provide what peti- shall be it does done if because being before canvassed. are stolen This is tions true. Neither what provided in the statute should be done if earthquake (such destroyed fire, we had *21 1949), April, by by in the bomb, blast of an atomic other enemy. public act of God or in the theAll statute states facilitating provision reserving the the constitutional to right signatures the is the of referendum that be the canvassed measure shall for the be certified before ballot. by right majority people’s
It further is stated the that of referendum reserved the constitution should be liber- ally right may not construed so that this facilitated and be hampered technical or technical statutes construction My gave legis- thereof. answer is that the constitution right might authority provide lature the to how this legislature by saying facilitated and has done so “You the voters’ of State: canvass causing placed the measure to be on before the ballot.” nothing procedure. my opin-
I In see technical about (technical requires no or other- ion, the statute construction ambiguity. majority wise) wording It is the free from . Its is change mandatory seeking clear statute’s that to guess permitting meaning by for work the substitution legislature anticipate not precision. did The fact that the procedure provide in newa the theft of justify supply- my opinion, court in in not, such case does condoning to fill ing, use a substitute method of, in hiatus. distinguish attempt case Evich to above) the failure of the secre-
(quoted in case that because impossible tary not made was canvass the present party, it case while of a third the act legislature specifi- did not impossible made was so any procedure be followed such event. cally provide agree a valid distinction. Since this is I do mandatory en- statutes amendment constitutional provided operation implement facilitate acted exception, signatures in all cases without canvassing the secretary read courts into the stat- nor the neither might provided they have think utes what present it in mind was situation when if had had legislating subject. on this holding, my opinion, effect, there no basis mandatory compliance with a
there is or can be substantial provision or of the enacted the constitution statutes operation thereof. must facilitate the Such fully. complied with Supreme applicable
The rule here is well stated N. C. Patterson, Court of North Carolina in State v. *22 (1887), page follows, 662: 4 E. 350 as at S. present particularly, purpose,
“More when the prescribes and terms, Constitution directs in or neces- sary implication, particular power that a shall be exercised specified way, thing particular in a or a done be government particular Leg- a of coordinate branch the—as particular officer officers, islature —or or class of and way doing prescribes the and manner of it—such direction disregarded be due cannot observance of it essential, is —a provides, provisions because the Constitution not and so its are trifling in vain moment. It is or not of the nature government provide constitutions to non-essentials— unimportant may disregarded useless details —such as dispensed they organic— and said, with. As have we are upon sovereign made ity, solemn consideration author- general, and contain essential —details important avoided, unless deemed Non-essential —essential. details are left to the discretion of those who exercise powers government. administer If this so, were not why prescribe way Why and manner? not leave these things authority charged to convenience with the power? Why Why exercise of the direct them? restrict may disregarded, ignored, them? And if directions suspended respects, in then some to in what extent and what respects? government, If one co-ordinate branch of the why may officers, so, one class of do not another, and respectively directly all, as to duties devolved them by the Constitution? questions “The be, answer to these and like must requirements prevail of the Constitution shall and be ob- prescribes particular thing served; and it when that a act way specified, in a shall be done and manner such direction command, must be treated as a essential to the an observance it thing of the act or effectiveness be done. to thing complete Such act cannot be not effectual is —such way prescribed.” until done in the and manner so It must be that in this them- remembered case thereby gave adopted selves Amendment Seventh legislature operation authority facilitate by legislation legislature specially done enacted. has plain language. my opinion, effect, so in in can, no court provisions solely nullify statutory amend or these because unanticipated has situation arisen. Finally, majority opinion effect, stated, it in any guide provide that, since failed secretary’s in a where the duties case have procedure forth stolen, and Amendment sets no been since ascertaining required percentage regis- whether signed petition, the court should con- have tered voters stating, provision in Amendment “This section sider self-executing ...” majority then states: Secretary of no that the State would doubt have “We every duty his to canvass consider required though it, no statute this case even case, upon make decision without benefit he called was knowledge would If canvass reveal. the exact *23 he decision which made in the were of correctness the suggestion of fraud or any mistake if there were doubt, uphold proponents, part we would hesitate the of on the think, view of the fact that the But we that decision. undisputed supporting decision was and over- evidence fraud or whelming, no element of mistake there is purpose framers of the involved, intent power reserving referendum, can be constitution, only given his decision is sustained.” if effect secretary’s supporting certificate (How evidence overwhelming undisputed when, as can described mandatory provisions of the above, pointed out admittedly complied with, facilitating were statutes comprehend.) I am Unable judges concur in the opinion who result those disagreement foregoing expresses
quotation. Their concurrence the result is based on the view that: efficacy depend upon
“The of Amendment 7 does not legislature. implementation As the trial court said: only they ‘The statutes are effective insofar as facilitate self-executing provisions.’ the action of constitutional pattern “The factual of the instant case is bizarre and position in the fantastic. We are same this court would pass implement- have ing legislation.” in had the refused to been important question This statement raises the proper interpretation self-executing clause in the applied constitution as to the facts of this case. purposes
For question discussion of the constitutional legislation raised, thus I will assume there is no which applicable problem us. before nothing I can find in the words “This section is self- executing” justifies ignoring the remainder of the provisions whereby constitutional people reserved to power themselves the of referendum.
Perhaps a history review of the constitutional on this subject may helpful. 1889, From when the constitution adopted, legislative was authority until Washington exclusively state of legis- was vested in the lature. adopted. Amendment 7 was This amendment legislative authority legislature,
continued in provision: added the “ . . . but the reserve power to themselves the propose bills, [this . . power refers to initiative with which we are not here concerned] and also power, option,
reserve at their approve own reject polls any at the part act, item, section or bill, act passed by legislature.” or law question then arises, how, in applicable the absence of *24 legislation, people go exercising do the about this reserved power provided of referendum? The answer is in Amend- by 7, ment wherein it petition signed is said “either percentage legal required legis- voters” or lature. legal question percentage
The then is: of What is sign petition people may who voters must before the power respect exercise the reserved of referendum with any legislature? 1912, to act of the In the answer was: per thirty centum, “Six in no case more than legal required sign thousand, of the voters shall be petition.” make a valid referendum changed required number was as follows: legal “Hereafter, the number of valid of required petition upon a voters for initiative measure eight equal per centum of of shall be number voters governor registered voting for of at the the office last gubernatorial preceding regular Hereafter, election. legal required upon voters valid number of of any petition part an act of referendum of equal per centum number thereof, shall four of voting governor registered voters office of of at regular preceding gubernatorial election. These the last specified supersede requirements in section amendment amended the seventh of this article as (Italics (Amendment 30) this state.” the Constitution of mine.) required specific the constitution conditions Thus people may complied with before must be power be sum- the reserved exercise marized as follows: signed by legal equal in voters must
A registered per voters cent of the to 4 number pre- governor the last office of at for the voted state who required present ceding case, the number In the election. legal 48,630. voters problem In the assumed absence then is: question determined? self- legislation, vital this how is specify executing provision 7 does not who Amendment permanent question fact, but the vital determine 29.07.130), (RCW registration enacted act voters’ ascertaining whether provides a method signatures valid requisite number contains *25 designation In the of a constitutional of a voters. absence duty, perform state officer to this vital this vital factual competent juris- a court of issue could determined be any portion event, the of diction. In underscored Amend- above) completely ignored, (quoted cannot ment 30 be has in this case. been done
It clear me that the words in the seems constitution stating self-executing” that section is do not mean “This petition signatures that on a referendum are self- canvassing. opinions judges of concurring in the result do not take notice of the vital people placed constitutional limitation which themselves precedent in the Amendment as a condition Seventh to the power referendum, exercise of the reserved of wit, that petition signatures “the must contain number of valid legal (italics mine) equal per voters” to 4 centum of registered voted number voters who for the office governor preceding at the last election. being (i.e. this vital fact Without determined whether petition signatures 48,630 contains at least valid legal voters), proceeding people the whole is void. Since the in their amendment to the constitution have said that the power only upon of referendum reserved be exercised express condition, and, since this condition has not present complied case, been with in the there can be no (Referendum chapter of Laws of submission 34) people. a vote Measure No.
It is stated will should not be regard felon, the act of a I it thwarted a much more thing compliance for a court to serious waive with a mandatory9 precedent constitutional condition to the power exercise of the reserved of referendum. procedure approved,
If the followed in this case is that, hereafter, whenever means are lost, de- stroyed, any proponent circumstances, under or stolen signed petition requisite filed a referendum who has (whether persons or not it number of contains the valid mandatory of our constitution are 9All state unless they express are declared to be otherwise. Art. words 29. § signatures legal voters) required can number cause the involved to submitted referendum measure be single signature at the next voters election without registra- having compared thereon those on the been certainty, Speculation can tion books. be substituted canvassing requirement and the statutory entirely. ignored it, can As I see if these safeguards ignored, are to there constitutional and/or having danger less than the is as much requisite voters of valid will number *26 the electorate that valid in the future as be submitted objective. petitions attain their will fail to thing regardless of hard- means the same The constitution compliance impossibility ship, inconvenience, or even noncompliance its can excuse with it, with and no court mandatory provisions. Langlie, (2d) 82, 273 P. 45 ex rel. Lemon v. Wn. State following
(2d) approval (1954), quoted with we § Law, 44, Am. Constitutional statement from 11 Jur. regarding of a state constitution: the function
“
only the direct and basic
‘A
not
written Constitution is
sovereign
rule of
gov-
expression
will,
absolute
of the
departments and offices of
action and decision for all
respect
must
covered
it and
matters
ernment
to all
with
changed
it shall be
until
control as
is -written
government can
authority
it. No function
that established
disregard
opposition
discharged
to, the funda-
of, or in
be
a
is the mandate of
Constitution
mental
law.
state
representatives. No
sovereign people
to its servants
disregard
ignore
mandates;
right
its
a
of them has
one
judiciary
legislature,
officers, and the
the executive
and the
beyond
lawfully
of such Consti-
the limitations
act
cannot
”
109)
(p.
tution.’
majority opinion regard
in the
the statement
With
will
a theft
cannot assume
the court
not
again,
the court should
think that
I
ever occur
applicable
upholding
of either
violation
a
led into
assump-
provisions on that
statutory
the constitutional
quoted
supra,
ex
from State
rel.
we
case,
tion. In the Lemon
(1927), in
Clausen,