92 Wash. 16 | Wash. | 1916
Lead Opinion
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 relators in a certain cause begun and
“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.
“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., 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 ap*23 propriation 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.” Const., art. 2, §1.
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 sixty 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 fifty-five days before the election. Laws 1913, p. 433 (Rem. 1915 Code, § 4971-27).
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
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 essential morals or fundamental principles, in the modern complexity of human affairs and relations there is little legislation that can be said to be entirely fair. Legislative bodies, whether delegated or principals in mass, are not to be stopped from exercising the supreme function of making laws by such considerations. The sole question now to be determined is, Have they the power? Courts will not concern themselves with any questions of policy or hardship or expediency. Nor will they in any case intervene to hinder or influence the process of legislation in any of its steps. Were it a question of whether a delegated member of a legislative body of any kind could introduce to that body a “bill” or law of any kind, no matter how arbitrary, how novel, or how foolish, the answer at the very outset would unhesitatingly be that no other department of our triune form of government could in any wise interpose. We now have a dual system of legislation; one by a delegated, bi-cameral legislature, deliberative, maker of its own rules of procedure in general; the other by the legal voters of the state in mass. Here we have the question, Is the proponent of an initiative measure in any sense a legislator? And ancillary to that, Is the filing of a proposed bill or law a legislative step? A third and vital question then arises, Can the courts interfere?
As to the first question, we conceive that an initiator of a bill (which means the draft of an act or proposed law) is
Such a step has not the immunity of the old delegated, protected legislative act and privilege. One voting upon the final passage of an initiated or referred bill at the election could not claim the privilege of voting by any method he pleased. He could not go to the polls and cast his vote viva voce under our election system, and demand that it be recorded and counted. Nor could he electioneer or solicit votes within the polling place, for such is prohibited. Nor could he insert a new word or clause or expunge anything from the proposed measure. The voter on proposed or re
The legal right granted to the proponents is a private and a political right to propose a “bill, or law,” to be initiated by a petition if signed by the constitutional number of legal voters. Now, are proponents proceeding in their legislative capacity by the prescribed method? As private members of the legislative body in mass, certain legal political rights are conferred upon them to be exercised in a prescribed manner. These rights must be considered as no greater than the rights of other members of the legislative body in mass to oppose the proposed measure. It cannot be assumed that the right of one legal voter to attempt to obtain the enactment of a given measure is greater than the right of other legal voters to attempt to prevent its passage. All are equal before the law. There is no presumption that, because certain legal voters or legislators desire and propose certain legislation upon a certain subject, the same is desired by the voters in mass. In fact, it can be assumed as a safe postulate that other members of the voting mass will oppose it. It is the sole ground of relators here that they are entitled to interfere in the matter because they are voters and do oppose the proposed measure, irrespective of the merits of the measure and regardless of the reasons for their opposition, and that if the proponents of the measure are proceeding in accordance with the positive law, their only recourse is at the polls. This position is sound. This brings us to the precise question as to the legality of the procedure of the proponents.
They propose a purely amendatory bill or law upon a subject of legislation long recognized and acted upon in this state, the regulation of fishing in the public waters of the state and deriving a revenue therefrom. The territorial legislatures of 1877, 1879, 1881, the first legislature of the
In the entrance upon new fields of legislation, in order to justify the legislation “to the impartial consideration of mankind,” preambles are frequently adopted. Thus, the framers of the constitution of the United States explained their purpose to mankind by a preamble which for conciseness and brevity and general and comprehensive breadth of scope is unequaled. A preamble is defined in law to be:
“An introductory clause in a constitution, contract, or other instrument, reciting or declaring the motive or design of what follows.” New Standard Dictionary.
“The introductory part of a statute, which states the reasons and intent of the law.” Webster’s Unabridged Dictionary.
A cursory reading of the proposed preamble must convince any one that it contains much that is more than merely
The proposed amendments, while important, are not novel, original, or subversive. They are in harmony with the long settled and recognized policy of the state. No monopoly in its fish was ever legalized by the state any more than that conferred by the licensing of certain persons coming within the permission of the law who would pay the required license
Notwithstanding the obvious, the proponents insist that it is their right to include any declarations of purpose in a proposed measure, under the constitution and the law, and that the courts have no right to interfere with a legislative procedure or a political right. They illustrate by citing the declaration of purposes as a preamble to our “Workmen’s Compensation Act” (Laws 1911, ch. 74, p. 345; Rem. 1915 Code, § 6604-1 et seq.), reciting long existing and recognized mischiefs and an avowéd purpose of subverting a long established system of private compensation and trial by jury for injuries to workmen. Here was a most manifest need for a preamble containing a declaration of new principles to supplant the old, withdraw the right of trial by jury, and remedy a general condition.
The “Employment Agencies Law,” passed by the people in 1914 and containing a declaration of purpose to bring a new class of occupation within the scope of the police power of the state and regulate or abolish it; and the Oregon “Ten Hour Law,” containing a preamble of the same nature, are also cited as illustrations. As to the last mentioned law, it is argued that, on appeal to the supreme court of the United States to test its constitutionality, a “brief” has been written to demonstrate the facts set forth in the preamble, consisting of two large volumes of one thousand pages, and that if the supreme court of the United States sustains the law, it will sustain it by reason of the statements contained in the preamble and the demonstration contained in the “brief” that the facts recited in the preamble
It is also urged by respondents that we have declared in regard to the “Workmen’s Compensation Act,” (State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466), and in regard to the “Employment Agencies Law” of 1914 (Huntworth v. Tanner, 87 Wash. 670, 152 Pac. 523), that a preamble is a most necessary and important constituent part of a law.
In the Hams case, a mere recital was made (p. 169) of the declared mischiefs to be remedied and purpose of the new law, a law entirely novel and original here, in that it takes away the right of trial by jury in large classes of cases and from large numbers of employers and employees and substitutes another remedy. In the Huntworth case, the preamble was resorted to as a source of interpretation of the true scope and intent of a prohibitive and highly penal law, and as a designation of the persons to be brought within the protection of the law, the declaration in the preamble of purpose and mischiefs to be remedied being, “a declaration of a policy to advance the police power into a new fieldand the preamble was more than a mere preamble,
Both in England and in this country it was at one time a common practice to prefix to each law a preface or preamble stating the motives and inducement to the making of it; but it is not an essential part of the statute and is now generally omitted. It is not only not essential and generally omitted, but it is without force in a legislative sense, being but a guide to the intentions of the framer. As such guide it is often of importance. In this sense it is said to be a key to open the understanding of a statute. The preamble is properly referred to when doubts or ambiguities arise upon the words of the enacting part. It can never enlarge. It is no part of the law. Sedgwick, Construction of Statutory & Constitutional Law (2d ed.), pp. 42, 48; 1 Story, Constitution (5th ed.), book 8, ch. 6; Edwards v. Pope, 3 Scam. (Ill.) 465; Bouvier’s Law Dictionary. If it is no part of the law, proponents have no constitutional right to propose it as a law under art. 2 as amended.
In the instant case, there is no.need or place for the alleged declaration of purpose, and it is simply and purely the especial argument advanced by the proponents in advocacy of the measure. Its proper place is in the publicity pamphlet to be issued by the secretary of state under the “facilitating” law, and paid for pro rata by the proponents.
The principal question remains yet to be decided: Can the judicial department interfere with the legislative and enjoin the publication at the expense of the state of the proposed preamble as a part of a “bill” or proposed law? This we approach with considerable concern.
Respondents cite, and his Honor below relied largely upon, State ex rel. Crawford v. Dunbar, 48 Ore. 109, 85 Pac. 337, to the effect that courts of equity have no jurisdiction to interfere in political matters where no property rights are af
We have no hesitancy in saying that, if the opponents of the measure under consideration could induce the secretary of state to include in some way in the proposed ballot their arguments against the measure, however brief, the proponents would forthwith demand and be entitled to the interference of the courts to prevent it as in violation of their rights. Nor can it be doubted that, if the opponents could induce the secretary of state to print and distribute their arguments against the proposed measure at the expense of the state and without expense to the opponents, the proponents would demand and be entitled to equity’s interference to restrain su,ch unlawful expenditure of public money. How then can it be
We have said that public officers will be restrained from the threatened illegal expenditure of public money. Rickey v. Williams, 8 Wash. 479, 36 Pac. 480; Krieschel v. Board of Com’rs, 12 Wash. 428, 41 Pac. 186. We have said that we will no longer in this state draw any fine distinctions between personal and property rights, unless it may be in favor of personal liberty. Huntworth v. Tanner, 87 Wash. 670, 152 Pac. 523. It is impossible to foresee all the exigencies of society which may require the aid and assistance of courts of equity to protect rights or redress wrongs. The jurisdiction of such courts is manifestly indispensable in a great variety of cases for the purposes of social justice,- and therefore should be fostered and upheld by a steady confidence. 2 Story, Equity Jurisprudence (13th ed.), p. 263.
In State ex rel. Mohr v. Seattle, 59 Wash. 68, 109 Pac. 309, we held that an injunction against the enforcement of a city ordinance, at the suit of one who had no interest except as a voter and signer of a referendum petition, should be granted. In State ex rel. Kiehl v. Howell, 77 Wash. 651, 138 Pac. 286, we assumed jurisdiction to determine the political question whether the secretary of state could refuse to proceed with an initiative measure filed more than ten months prior to a regular election. We entertained jurisdiction to determine the political question and right of relator to have the secretary of state file, print, and distribute, at the expense of the state, the arguments presented in favor of an initiative measure, in State ex rel. Chamberlain v. Howell, 80 Wash. 692, 142 Pac. 1.
The present situation seems in some measure to be an attempt to evade the plain provisions of the statute regarding the publication of arguments and the payment of the expense thereof, and the decision in the last cited case. Ordinarily the reason for an enactment lies wholly in its enact
Reversed, and remanded with instructions to grant the injunction. The proponents may, however, at their election, expunge from the proposed measure all of § 1 after the clause, “This act shall be known as the ‘Fisheries Code of Washington’,” and have the remainder of the proposed act submitted under the ballot title prepared by the Attorney General, the proponents to furnish the arguments in support of their measure separately to the secretary of state for distribution. Relators will recover costs.
Dissenting Opinion
(dissenting) — The majority opinion gives intrinsic evidence of most careful and conscientious study, but it seems to me that the result reached is unsound for several reasons:
I. It seems to be conceded, as it must be conceded, that the judiciary has no power to interfere with, construe, or pass upon any bill or law while it is undergoing any phase of the legislative process. This is as true of bills initiated by the people as it is of bills in the legislature.
“The appellant concedes that the courts are powerless to restrain a member of the Legislature from introducing any measure, valid or invalid, for the reason that the courts cannot interfere with the action of the legislative department. What legal warrant has a court to enjoin the Secretary of State from certifying a measure whether valid or invalid? Is not the initiative petition also a step in the process of legislation? For the Secretary of State, or the courts, to assume in advance the power and right to decide whether the proposed*36 measure was invalid would be tantamount to claiming the power of life and death over every initiated measure by the people. It would limit the right of the people to propose only valid laws, whereas the other lawmaking body, the Legislature, would go untrammeled as to the legal soundness of its measures.” State ex rel. Bullard v. Osborn, 16 Ariz. 247, 143 Pac. 117, 118.
As said by the supreme court of Ohio in Pfeifer v. Graves, 88 Ohio St. 473, 104 N. E. 529, in which it was sought to restrain the secretary of state from submitting a proposed initiative bill to the electors:
“There is another indisputable and imperative reason why the remedy they invoke must be denied. We cannot intervene in the process of legislation and enjoin the proceedings of the legislative department of the state. That department is free to act upon its own judgment of its constitutional powers. We have not even advisory jurisdiction to render opinions upon mooted questions about constitutional limitations of the legislative functions and we will not presume to control the exercise of that function of government by the General Assembly, much less by the people, in whom all the power abides.”
If, as held by the majority, the filing of the bill is no part of the legislative process of proposing and passing laws, which right is reserved by art. 2, § 1, of the constitution as amended, then the legislature had no power to provide for such filing, since its power in the premises is expressly limited by the constitutional amendment itself to legislation “especially to facilitate its operation,” that is, to facilitate the operation of the constitutional amendment. It would seem to be begging the question to say that the initiator of a bill is not, under this system of direct legislation, a legislator and that “he is merely given the license or privilege of proposing and filing a proposed measure;” that “this is a preliminary step in the process of 'legislation;” and that “it may be dispensed with, but is nevertheless provided for in furthering or ‘facilitating’ the system.” The argument answers itself. The leg
The other case most strongly relied upon by relators, State ex rel. Halliburton v. Roach, 230 Mo. 408, 130 S. W. 689, 139 Am. St. 639, in so far as it seems to sustain the the majority, is ably and, it seems to me, conclusively answered by the dissenting opinion of Judge Woodson. But, in any event, it is not apposite on the question here presented. That case involved a proposed amendment to the state constitution of Missouri by an initiative petition. The proposed amendment provided for dividing the state into senatorial districts. The court held that this proposed amendment to the constitution was not in its nature a constitutional amendment at all, but was merely a legislative enactment of a temporary nature in the guise of a constitutional amendment. Furthermore, the court found a sufficient reason for the result reached, in that the whole text of the measure was not included in the petition as required by the initiative provision of the Missouri constitution itself. It seems to me that the very fact that the legislature has provided this procedure makes it ipso facto a part of the legislative process or procedure. If this be true, it is elementary that the judiciary has no right to interfere.
II. Reduced to specific terms, the basic idea of the majority opinion seems to be that the last paragraph of the
“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.” Const., art. 2, §1.
It seems to me that this language is capable of no such construction. It certainly does not so provide in terms, and it is working implication to the fag-ends to say that the power conferred to provide methods of publicity of such laws with arguments for and against them implies, either necessarily or at all, any power to say what shall or shall not go into any initiative bill or measure. When this plain fact is clearly grasped, the case of State ex rel. Crawford v. Dunbar, 48 Ore. 109, 85 Pac. 337, clearly sustains the position that the question here is a political one of which a court of chancery has no jurisdiction. Even after the legislature of Oregon had provided a remedy by injunction to prevent the filing of defective ballot titles, the supreme court held that the question was political and that the remedy by injunction could only be invoked by the state through its proper law officer. Friendly v. Olcott, 61 Ore. 580, 123 Pac. 53. The court said:
“The plaintiff does not show that he will be injured in any property or civil right by the contemplated action of the secretary of state in certifying the ballot title to the county clerks. Neither will his political right to vote on the measure at the election be infringed. He’ can then, as always, exercise his electoral franchise unaffected by anything shown in his bill. If he can enjoin the secretary of state now, he can sue out a writ the day before that officer would certify the ballot title, and thus balk the whole people in the exercise of their constitutional reserve power to reject at the polls any law*39 passed by the legislative assembly. The principle is sound and well settled that as against public officers, where their action involves purely public or political rights, the drastic remedy of injunction can be invoked only by the state acting through its proper law officer. In some instances a suit may be maintained in the name of the state on the relation of a citizen who.can show some special injury to his civil or property rights but this case is not in that category. To sustain plaintiff’s suit when he shows no injury to his private rights would be a pronounced example of government by injunction.”
In my opinion, to confer such power of censorship upon either the legislature or court, at the suit of a private party, would require a-further amendment to the constitution.
III. But, even conceding that the legislature has the power to say what the proposed bill or measure shall or shall not contain, the legislature has not exercised, nor attempted to exercise, any such power. It has merely fixed the length of the arguments to be published with the bill and declared that the parties interesting themselves for or against a bill shall pay for printing their respective arguments. It is a far cry from this to a declaration that the bill itself shall be subjected to censorship and purged by the courts of all argumentative matter whether found in the preamble or distributed throughout the various sections of the bill, as it easily might be. If it is the duty of the court to so purge the preamble, it is equally its duty to so purge every section. Every preamble is in its nature essentially argumentative, and every law carries in its provisions an argument for its own existence. Assuming the power, it is difficult for me to believe that either the people, when they adopted the constitutional amendment, or the legislature, when it passed the facilitating act, ever intended that the courts should so scan and rewrite initiative bills as to purge them of argumentative matter.
The argument of the majority touching the exclusion by the facilitating act of argumentative matter from the title
The majority also concede, as of course it must be conceded, that the preamble, though not a necessary or operative part of a bill or law, is at least a proper part often performing a very important function as a “guide to the intentions of the framer.” The preamble in the legislative sense is defined:
“Preamble. A clause at the beginning of a constitution or statute explanatory of the reasons for its enactment and the objects sought to be accomplished.” Black’s Law Dictionary (2d ed.), 927.
While it is sometimes said that the preamble is “no part of the law,” the very definition and the authorities cited in support of that statement in the majority opinion show that this language is used in the qualified sense that it is no part of the law as an operative rule of action, but that it may be a very important part in determining that rule of action.
“The importance of examining the preamble, for the purpose of expounding the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs which are to be remedied and the objects which are to be accomplished by the provisions of the statute.” 1 Story, Constitution (5th ed.), Book 3, ch. 6, § 459, p. 350.
IV. The assertion of the majority that it is unfair to permit argumentative matter in the preamble to be published at the expense of the state while the opponents of the bill must pay for publishing their own arguments offers no excuse for this court to legislate in the premises. This court has already decided that this is a legislative question. In State ex rel. Chamberlain v. Howell, 80 Wash. 692, 696, 142 Pac. 1, this court said:
“The constitution appears to make no distinction between the publicity of the initiative measure itself and the publicity of the arguments for or against such measure or proposed law. But there is nothing in the constitution prohibiting the legislature from requiring a fee for filing, printing, or binding either the proposed measure, or the arguments. It is clear that, where the constitution does not prohibit the legislature from requiring a fee in such case, it is within the power of the legislature to require a fee. This is elementary and no authority is needed to sustain it.”
This is direct authority, if authority for a thing so obvious were needed, that the legislature has the same power to provide that the proposers of a bill shall pay for its publication that it has to provide that the persons whether opposed to or in favor of a bill shall pay for publishing the separate arguments. A law exercising that power would furnish a complete remedy for any supposed abuse of the preamble. The argument of the majority opinion on this.
Y. Finally, even assuming that all that I have said in the foregoing is unsound, and that the court has a discretionary power to review and revise initiative bills, it seems to me that the bill here in question presents no such flagrant violation of the rule or law against argumentative matter evolved by the majority as to invoke the supposed discretion. I invite a reading of the preamble here presented in comparison with that involved and set out in the opinion in the case of Huntworth v. Tanner, supra. A candid comparison will demonstrate that the one is not a whit more argumentative, nor a priori false or insidious in its premises, than the other. Yet in the Huntworth case this court employed the very argument of the preamble to control, circumscribe and limit the broader language of the operative part of the act. No one would have said in advance of a concrete case that the plain words of the operative part of that bill required the use of a preamble to construe them, and no one can say in advance that the operative parts of the bill here involved may not require the aid of the preamble to determine whether they apply to concrete cases until the cases arise. Suppose, for example, it were argued in some future concrete case that the prohibited use of given fishing apparatus in given waters had no tendency to conserve or pre
In any view of this case, I cannot agree with the majority. I therefore dissent.