187 P. 641 | Mont. | 1920
Lead Opinion
delivered the opinion of the court.
At the general election held in November, 1906, the people adopted an amendment to section 1, Article Y, of the state Constitution, which, by executive proclamation, became a part of the Constitution December 7, 1907. Said section 1 of Article Y, as amended, in so far as it is pertinent here, reads as follows:
“The legislative authority of the state shall be vested in a legislative assembly, consisting of a senate and house of representatives; but the people reserve to themselves power to propose laws, and to enact or reject the same at the polls except as to laws relating to appropriations of money, and except as to laws for the submission of constitutional amendments, and except as to local or special laws, as enumerated in Article Y, section 26, of this Constitution, independent of the legislative assembly; and also reserve power at their own option, to approve or reject at the polls, any Act of the legislative assembly, except as to laws necessary for the immediate preservation of the public peace, health or safety, and except as to laws relating to appropriations of money, and as to laws for the submission of constitutional amendments, and except as to local or special laws,*149 as enumerated in Article Y, section 26, of this Constitution. The first power reserved by the people is the initiative and eight per cent of the legal voters of the state shall be required to propose any measure by petition; provided, that two-fifths of the whole number of the counties of the state must each furnish as signers of said petition eight per cent of the legal voters in such county, and every such petition shall include the full text of the measure so proposed. # * * The second power is the referendum, and it may be ordered either by petition signed by five per cent of the legal voters of the state; provided, that two-fifths of the whole number of counties of the state must each furnish as signers of said petition five per cent of the legal voters in such county, or by the legislative assembly as other bills are enacted.”
At the general election of 1912 the people, in the exercise of the power so reserved to them, initiated a direct primary law. (Session Laws 1913, p. 570.) July 29, 1919, the legislative assembly met in extraordinary session to consider matters connected with the drought conditions, and, on request of that body, the governor specially empowered them to take action with reference to the primary election laws. Under this power the legislature amended the primary election law of 1912 in certain particulars, as will be hereafter noted. (Chap. 28, Laws of Extra. Session 1919.) Section 13 of this Act reads as follows: “This Act is declared to be an emergency law, and a law necessary for the immediate preservation of the public peace and safety.”
A referendum petition was thereafter circulated, and, those from a number of the counties having been filed with the secretary of state, this action was instituted in the district court of Lewis and Clark county to prevent the filing of further petitions. A demurrer was interposed and overruled, judgment entered, and a writ of prohibition issued against appellant. This appeal is from the judgment.
1. It is urged by respondent that the declaration by the legislature of an emergency is conclusive upon the courts, and in support of this petition counsel cites: Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222; In re Menefee, 22 Okl. 365,
In certain of the eases cited, however, the courts were not called upon to construe constitutional provisions such as we now have under consideration, while in others, as will be hereinafter shown, the decisions have been overruled or superseded by later opinions announcing a different rule.
The referendum is a comparatively modern institution, and has been adopted in less than a fourth of the states of the Union, and, consequently, but few of the courts have been called upon to determine the question here involved, and, as is perhaps natural on entering a new field in which an absorbing interest is taken, a great diversity of opinion has been expressed, not only as between the courts of the several states where the provision has been construed, but also as between the learned judges composing those courts. However, a careful analysis of the authorities will, we believe, disclose the fact that conflicting and contradictory opinions expressed are not so much the result of disagreement as to the general rule applicable, as to the application thereof to particular statutes, and a mistaken assumption on the part of many jurists that the same principle applies to the question here involved as to the questions arising upon statutes and constitutional provisions providing for the declaration of an emergency for the mere purpose of abridging the time in which Acts of the legislature shall go into effect, which class of provisions and litigation existed prior to the adoption of the initiative and referendum provisions in any of the states.
The attorney general suggests that a law initiated by the
Prior to the adoption of the initiative and referendum amendment to our Constitution, the people of the state, in whom, originally, all power is vested, had delegated to their representatives, the legislative body, the exclusive authority to make laws for the government of the state, subject only to such restrictions as were found in the Constitution and the exercise of the executive veto. By the adoption of the amendment the people did no more than recall that exclusive authority, and reserve to themselves the power to propose laws, and to accept or reject them at the polls, on any subject, save those subjects enumerated in the excepting clauses contained in the amendment. Thereafter, on those subjects not excepted, either the people or the legislature may act at will — their power is coextensive; when an Act is passed by either method, it becomes the law7 of the state, no more and no less. “Laws proposed and enacted by the people under the initiative clause of the amendment are subject to the same constitutional limitations as are other statutes, and may be amended or repealed by the legislature at will.” (State ex rel. Evans v. Stewart, 53 Mont. 18, 161 Pac. 309; Kadderly v. Portland, 44 Or. 146, 74 Pac. 710.)
2. The question of the propriety of the writ of prohibition to control the action of the secretary of state is not raised in this action, and will not be disposed of in this opinion.
3. Taking up the analysis of the authorities cited, the first to be considered is that of Kadderly v. Portland, supra. It would, seem from the statement of facts that the city of Portland previously organized an improvement district. The original assessment was adjudged invalid for failure to comply with the requirements of the city charter in force. Later, in January, 1903, the legislature passed an Act “for the incorporation of the city of Portland,” attached thereto an “emergency clause,”' which reads as follows: “Whereas, there, are several bridges
We are also convinced that the learned writer of that opinion fell into the error of confounding the question involved with that in the decisions’ dealing with enactments under which the emergency clause did no more than to abridge the time within which laws should take effect. In support of this statement, we call attention to the cases cited in aid of the conclusion reached.
The case of Biggs v. McBride was decided in 1889, long before Oregon adopted the initiative and referendum amendment, and, in fact, before such an amendment was adopted in any state in the Union. It was there held that the determination of an emergency, in order to permit an Act to take immediate effect, is “political, and not judicial, and when the legislature has declared an emergency, their act is not reviewable elsewhere, and is conclusive upon the courts. ’ ’
In neither Indiana nor Illinois did they have a referendum, and the question here considered, and involved in the Kadderly Case, was not, therefore, passed upon.
The case of State v. Bacon will be hereafter considered.
The distinction we draw between the two classes of emergency legislation is clearly expressed in the leading case opposed to the “Oregon rule,” of State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 Pac. 11, as follows: “Where there is a declaration in the Constitution that no law shall take [immediate] effect unless in a case of emergency, to be declared by the legislature, it may
In the case of Van Kleeck v. Ramer, cited by counsel, three of the members adopted the “Oregon rule,” while two dissented; Justice Scott writing a vigorous and somewhat humorous dissenting opinion, in which he had this to say of the Kadderly Case: ‘ ‘ The question we are considering * * * was no more than incidentally considered by the Oregon court, and not there fully nor fundamentally reasoned, in the light of the new principle in popular government [the referendum]. The holding in that case has been blindly followed and as hastily considered by those courts which have adopted the conclusion, viz., Arkansas, Oklahoma, and North Dakota, and now by the majority opinion in this case. No one of these courts, including the present case, has offered any additional reason, but have complacently adopted the false premise there assumed. I take it that the Oregon court was misled by previous judicial consideration of emergency legislative constitutional provisions, and the failure to distinguish as between these and the language and principle involved in the initiative and referendum emergency provisions.” "We note that the writer refers to North Dakota; that is, perhaps, a stenographic or clerical error, as the state of North Dakota had not at that time passed upon the question, while South Dakota had disposed of the question in the manner indicated. The question was not raised in North Dakota until the case of State v. Crawford, supra, was decided April 28, 1917.
It might be suggested here, also, that the Oregon court may have been driven to an erroneous declaration of the law by the necessity for the inevitable conclusion reached. As suggested by Justice Scott, there were many important questions to be deter
The ease of Sears v. Multnomah County, cited, is not in point, as the question here involved was not considered. While it cites the Kadderly Case, it was merely in connection with the relation of the initiative and referendum amendment to the provision of their Constitution as to the time when Acts should become effective, and, if an authority on the one side or the other, was rather against respondent, as the court there set aside the attempt of the legislature to cause the Act in question to be immediately effective.
4. It is suggested by respondent that, “the constitutional
State v. Bacon and State v. Summers, cited, were long since, in effect at least, overruled by State v. Whisman, 36 S. D. 260,
So in the Oklahoma eases of In re Menefee, cited, though the Oregon rule was adopted, and later followed in Oklahoma City v. Shields, 22 Okl. 265, 100 Pac. 559, the court did not hesitate to declare, in the ease of Riley v. Carico, 27 Okl. 33, 110 Pac. 738 (1910), the legislative declaration that an Act was “necessary for the immediate preservation of the peace, health, and safety unconstitutional and void,” where it clearly appeared that the legislature had obviously exceeded its constitutional authority.
The supreme court of North Dakota has, within the last few days, held an attempt of the legislative assembly to declare certain legislation “emergency legislation,” by the passage of a separate Act, unconstitutional and void. (State ex rel. Langer v. Olson (N. D.), 176 N. W. 528.)
We will proceed, then, to the consideration of those cases announcing rules under which the court will consider and determine the question before it.
In this class of eases we believe there are two rules: The first, making no distinction between those emergency Acts which affect merely the time wdthin which Acts shall become effective, and those falling within the exceptions contained in the referendum provisions, and applying to the question the old rules of constitutional and statutory construction; the second, recognizing a clear distinction between the two classes of legislation, and declaring that as to the latter the old rules do not apply.
The question has been -more fully considered by, and more often in, the supreme court of Washington than in any of the states, and the leading case opposed to the Kadderly Case is that of State ex rel. Brislawn v. Meath, referred to while considering the Oregon doctrine. There the Washington case is cited with approval, and all the declarations of their Chief Justice accepted. Commenting' on the Kadderly Case, the Washington court says: “The learned justice who wrote the opinion in the Kadderly Case is in error when he says the obvious answer to the question, ‘What remedy will the people have if the legislature, either intentionally or through mistake, declares falsely or erroneously that a given law is necessary for the purposes stated?’ is ‘that the power has been vested in that body, and its decision can no more be questioned or reviewed than the decision of the highest court in a ease over which it has jurisdiction. ’ * * * On the contrary, power has been withheld, in so far as a withholding-
It is trae the court, having thus stated the true rule and emphasized the fact that the doubt should be resolved in favor of the reserved right of the people, attempted to state the rale concisely, and in doing so’ seems to have contradicted its direct statement, logically reasoned while stating it; for we find in the opinion this statement: “The true rule is the referendum cannot be withheld by the legislature in any case except it be where the Act touches the immediate preservation of the public peace, health, or safety. * * * If the Act be doubtful, the question
While the determination of the question was not necessary to a decision, the supreme court of Ohio also declared against the position taken by respondent, as follows: “Manifestly the legislature’s judgment in that behalf, as shown by the Act itself and the records touching the same, is not conclusive. The people’s right to a referendum on any Act of the legislature may be asserted, in a proper proceeding and at a proper time, notwithstanding the action of the general assembly.” (Miami County v. City of Dayton, 92 Ohio St. 215, 110 N. E. 726.)
The supreme court of California has had the question before it in a number of cases, and, while we may not agree with-it on the determination of facts in certain cases, particularly that of Ex parte Hoffman, 155 Cal. 114, 132 Am. St. Rep. 75, 99 Pac. 517, we agree with its reasoning and with the rule of law adopted.
In McClure v. Nye, 22 Cal. App. 248, 133 Pac. 1145, the court said: “The said legislative declaration has no greater effect and is no more binding upon the court than if the legislature had declared that a certain measure is or is not constitutional. In such contingency that question would still remain for the courts to determine. The question before us is simply one of construction or interpretation of an Act of the legislature and of a provision of the Constitution, and that is a judicial question.” “This amendment to the Constitution provides a scheme for the exercise of what is known as the initiative and referendum, and, of course, if possible, the language should be construed so as to make effective this reservation of power on the part of the people. It was clearly their purpose, except where the exigency of the public
And in Rigdon v. Common Council, 30 Cal. App. 107, 157 Pac. 513, the same court says: “We do not find it argued on behalf of appellants that the mere fiat of the council, expressed in the repealing ordinance, to the effect that the public health and safety demanded that the repealing ordinance should take immediate effect, is of any force or virtue whatever.”
And in Ex parte San Chung, 11 Cal. App. 511, 105 Pac. 609, the court held: “While, in general, it is for the legislature to determine what laws and regulations are needed for the public health, safety, and comfort, statutes attempted to be sustained as: an exercise of police power must have some relation to these ends, and if, under guise of police regulation, an attempt is made to violate personal or property rights, they will be overthrown by the courts.”
In Nebraska the court has declared that the mere fact of declaring an Act an “Emergency Act” does not make it such. (State v. Pacific Exp. Co., 80 Neb. 823, 18 L. R. A. (n. s.) 664, 115 N. W. 619; and three other cases against express companies, disposed of by the same opinion, and reported in 80 Neb. 838, 115 N. W. 625.)
While Hamilton v. Kentucky Distilleries, etc. (17. S.), 40 Sup. Ct. Rep. 106, holds that the court may not pass upon the necessity of the exercise of a power possessed, such a declaration is not controlling here, as it is not the question under consideration. Here we are considering, not the exercise of a discretion by the legislature, but the attempted abrogation by the legislature of a power reserved to the people. • If the Act.
In the case of Mugler v. Kansas, 123 U. S. 623, 661, 31 L. Ed. 205, 8 Sup. Ct. Rep. 273, 297, the supreme court of the United States has this to say on the subject: ‘ ‘ The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended * * 0 its authority. If, therefore, a statute purporting to have been adopted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”
The question has never been before this court, but a somewhat analogous ease is found in State ex rel. Ford v. Schofield, 53 Mont. 502, 165 Pac. 594, in which Mr. Justice Holloway, writing the opinion, declares that, upon the question as to who shall
Here, as in the Schofield Case, we may say that the decisions are in hopeless conflict; but a careful analysis of all of the authorities cited by appellant and respondent, together with others disclosed by independent research, has convinced us that there is not so great a conflict as would appear from a superficial examination of the authorities. Much of the confusion arises from the assumption, on the part of the courts, that there is no distinction in principle between those cases treating of legislative declarations dealing with emergency clauses, which merely abridge the time in which statutes or ordinances shall go into effect, and consequently raise merely the question as to the propriety of the legislative action under consideration, and that class of cases dealing with the preservation of the public peace, health and safety, and which infringe upon the reserved power of the people to refer the Act under consideration. As to the first class of cases, we concede that the strict rules of constitutional and statutory construction, laid down in the Michigan case cited, to-wit: “Every intendment should be taken in favor of
We hold, therefore, to the rule laid down in the case of State ex rel. Brislawn v. Meath, cited that “When, therefore, the question comes whether the legislature has a right to declare an
The declaration that the Act is necessary for the immediate preservation of the public peace and safety has no more binding force than would the declaration in an Act that “this Act is constitutional,” or “this is a general and not a local or special Act.” (State ex rel. Brislawn v. Meath, supra; Ex parte
In this country the power once vested in a king vests in the people, and the courts sit as their representatives. (Bridges v. McAlister, 106 Ky. 791, 90 Am. St. Rep. 267, 45 L. R. A. 800, 51 S. W. 603.) Under the federal Constitution, the duty of determining and declaring the constitutionality of an Act by the courts is imperative. (U. S. Const., Art. YI.) Whenever, therefore, a legal controversy arises over the constitutionality of an Act, or as to whether a given Act is within or without the authority of the legislature, the determination of that fact is essentially a judicial question, to be determined by the courts. (McClure v. Nye, supra; Ex parte Hoffman, supra; State ex rel. Brislawn v. Meath, supra.)
5. We proceed, then, to the consideration of the Act itself, shorn of the superfluous conclusion of the legislature that the Act is “necessary for the immediate preservation of the public peace and safety.”
• With the expediency, utility, justice or the necessity for the
“The people said to the legislature: Make such laws as you will, but you may not legislate so as to take away our right to pass upon the laws you have enacted, ‘except such laws as may be necessary for the immediate preservation of the peace, health, and safety.’ * * * To hold that the old rule of construction applies is to write this reservation out of the Constitution. * * * The reservation in the amendment is a declaration of ‘thou shalt not,’ except it be for the safety or support of the state.” (State ex rel. Brislawn v. Meath, supra.)
Having arrived at the conclusion that from the modem trend of the authorities on the comparatively new question, and from reason and logic, the rule we should adopt is that the declaration by the legislature is not final nor conclusive, nor is to be considered merely as a contemporaneous declaration or expression of the legislature, and that the question must be determined by the courts as arbiters between two equally powerful bodies of the same branch of the government, and in that determination the doubt as to whether the Act in question is or is not immediately necessary for the purpose named, if any there be, shall be resolved in favor of the people, in whom the power originally vested and who have reserved the power to themselves to refer any Act, except in those instances enumerated, we will seek to apply the rules laid down to the matters set forth.
In this determination the utmost that we can take into
We find from the face of the Act that the original primary election law was “initiated and passed at the general election of
1. Changes the time of holding primaries so that in a presidential election year we shall have but one primary election.
2. Provides for rotation of names on the primary ballot.
3. Prohibits a candidate, defeated in the primary, from appearing on the ballot in the general election, except under certain conditions.
4. Changes the primaries from “open” to “closed” primaries.
We find from contemporaneous declarations of the legislature, through the joint committee report, that “the operation of the present primary law, during the years it has been in force prior to the election of 1918, resulted in so much complaint of the interference by others than members of the party in the primary of the party, and of the expense attendant upon holding two primary elections in presidential years, and criticism directed at other features of the law, that” both the Republican and the Democratic parties “paid heed” to the criticisms, and declared in favor of amending the law; that in response to these declarations the legislative assembly of 1919 passed an Act amending the law, which Act was, however, to be submitted to the people at a special election to be held September 2, 1919. (Chap. 113, Laws of 1919.) We find further from this report that the purpose in submitting the Act to the people at a special election, rather than to wait until the general election of 1920, was that it “would enable them [the people] to decide upon such amendments, without having the question confused or obscured by being voted upon at a general election, where a multitude of other important questions and the selection of many candidates for various offices might tend to preclude a careful consideration of the law so submitted.” Certain persons having attempted to subject the referendum measure to a referendum by petition, the secretary of state, on advice of the attorney general, attempted to halt the special election, and the committee, deeming the time too short to determine the matter, recommended fui’ther action
As to the duplication of primary elections in presidential election years, the matter was called to the attention of the court, and by this court called to the attention of the people in Decent her of 1915, by the opinion of this court, speaking through Mr. Justice Sanner, in State ex rel. Taylor v. Duncan, 52 Mont. 69, 155 Pac. 1111, where the court said: “That these [the primary election] laws are an attempt by the people to enact in this state the general features of the primary law of Oregon cannot be open to doubt, and it must likewise be conceded that the effort to adapt the provisions of that law to the legislative and other conditions of this state has been most unskillfully performed. # # # The Oregon law * * * constituting one law, the effect of which is to require but one primary election in presidential years. Had it been the intention to so provide in this state, the Oregon law as a whole would doubtless have been enacted in one law. This was not done.”
The court will take judicial notice of the fact that between
Finally, we have the contemporaneous declaration of the legislature contained in the Act itself, that “this Act is declared to be an emergency law, and a law necessary for the immediate preservation of the public peace and safety.” (Sec. 13, Chap. 28, Laws Extra. Session 1919.)
The two Acts under consideration — that is, the originally initiated primary election law and the amendments thereto, which
Of the policy of the Act we have nothing to say; it is not for us to pass upon, but is a question between the people and the legislature; and certainly the people have not given to the legislature plenary power to determine questions of policy, and thus preclude the mass of the people from passing upon the same.
Three elections had been held under the old primary law; all the present state and county officials, district judges, and members of the supreme court, except as to those appointed to fill vacancies, and every member of the legislature making the declaration above, were nominated for the office to which they were afterward elected. No sudden emergency, no extraordinary event, no immediate necessity arose between the adjournment of the regular and the convening of the special session of the legislature in 1919. Why, then, the declaration of necessity at the later date? Or, if conditions were the same then as they had been during several years prior thereto, and at the time of the holding of former primary elections, why the necessity at all? Can it be said that under such conditions the legislature was justified in declaring that the delay incident to a referendum would be an immediate menace to the public peace and safety ? We think not.
Whether those states which still adhere to the system of vesting all legislative power in the legislature, or those which have adopted the initiative and referendum, and whether, in the latter class, those which have the open primary or the closed primary, have followed the more correct system, is not for us to determine. In this state it is the fundamental law that the people
In considering the Act before us we are apt to think only of the Act of the legislature, and forget that we are construing the Act of the people, the constitutional amendment providing for the initiative and referendum, and that the authority of the legislature to pass Acts without subjecting them to the referendum is subordinate to the greater question of the right of the people to refer all Acts, unless they come within that classification of subjects on which the public interest requires immediate action. Therefore the rules of constitutional and statutory construction apply primarily to the constitutional provision under discussion, and, if they conflict with the application of the rules to the Act under consideration, the latter must give way to the former. For example: In construing an Act the intention of the law-making body should be ascertained and given effect; in this instance, the intention of what law-making body? The answer is, the intention of the sovereign people in
To hold that the courts are powerless to act, or to hold that, having assumed authority, they can go no further than to inquire as to whether, from the face of the Act, it appears that “it is inevitable that the Act does not fall within the classification,” is to thwart the intention of the people in the adoption of the initiative and referendum amendment, and to declare that the legislature, created by the people, is more powerful and entitled to greater consideration at the hands of the courts than its creator.
If we adopt the Michigan rule strictly, as declared by Justice Brooke and approved by a divided court in that state, we might as well go all the way, and adopt the Oregon rule; for we may apply that test to nine out of every ten enactments of the legislature in either regular or special session, and we must then declare that “we cannot say that it is inevitable that the Act does not fall within the classification.” Applying that test, we are but testing the necessity of the enactment under any circumstances, not the immediate necessity, required to warrant the extraordinary action preventing referendum to the people.
Applying the rule contended for to its logical conclusion, the interpretation becomes absurd. As illustrative of the lengths to which a legislature might go, if the courts are not permitted to review their action, we wish to quote from State v. Crawford, supra, where, after stating that, of the 273 Acts of the legislative assembly of 1914, 64 were passed with the emergency clause attached, the writer continues: “As the Laws of 1917 have not yet been published, I cannot give so definite a statement regarding the emergency clauses — many of them are framed under section 67, and others under the peace, health and safety section: Thus, the Sabbath bill declares it necessary for the peace, health and safety that the bill should take effect and be in force from and after its passage. A bill appropriating $1,500 for railroad commissioners declares it necessary for the peace, health and safety; and so of a bill appropriating a few dollars for the school
Clearly the Act in question, stripped of the superfluous
Under our system of government the people rule, and that rule is by the majority; it is the duty of the minority to bow to the edict of the majority in matters of policy and procedure. To say that the Act must stand without submission to the people, out of fear that they will not adopt the amendments, is to overthrow the rule of the majority and substitute that of the minority.-
We find that the Act amending the primary election law does not come within the purview of the exception, and is subject to the referendum as provided by the constitutional provision; and therefore the judgment of the lower court is reversed, the writ of prohibition set aside, and the cause is remanded, with direction to dismiss the proceeding.
Dissenting Opinion
I dissent. While it is incumbent upon this court to maintain the referendum amendment to our Constitution in its utmost vigor, the referendum itself is not all inclusive. In adopting it the people particularly excepted from, its operation “laws necessary for the immediate preservation of the public peace, health and safety,” and this exception is as vital a part of the Constitution as is the referendum itself,
1. Neither reason nor authority supports the view that the terms “public peace,” “health” and “safety’’have to do only with extraordinary occurrences arising out of public calamity, such as insurrection, pestilence, invasion or rebellion. In Mugler v. Kansas, 123 U. S. 623, 662, 31 L. Ed. 205, 8 Sup. Ct. Rep. 273, 297 [see, also, Rose’s U. S. Notes], the supreme court of the United States said: “We cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety may be endangered by the general use of intoxicating drinks.”
Throughout the legislative history of Montana, from its organization as a territory to the present time, the term “public peace” has been used as synonymous with good order in society; to denote quiet, and freedom from agitation or disturbance. (6 Words & Phrases, 5806.) “Public safety” means public security, and relates to matters affecting the stability and orderly and efficient administration of government, and the general welfare of the people as indicated in the Mugler Case, above.
There is no mathematical rule by which to determine whether election laws do or do not affect the public peace or safety; but I undertake to say that no other subjects are more intimately ■connected with the public peace and security than honesty and integrity in politics, which are sought to be secured by our election laws. But if there is any reasonable doubt, however, as to whether the Act in question bears a real or substantial relation
The legislature of this state possesses plenary law-making power, except in so far as it is limited by the state Constitution and by the supreme law of the land (State ex rel. Evans v. Stewart, 53 Mont. 18, 161 Pac. 309); and this rule was not affected in the least by the adoption of the initiative and referendum amendment. As a corollary of this is the rule that a statute will not be declared unconstitutional unless its nullity is placed beyond reasonable doubt. (State ex rel. Hay v. Alderson, 49 Mont. 387, Ann. Cas. 1916B, 39, 142 Pac. 210.)
It cannot be said that the Act in question bears no reasonable relationship to the public peace or safety, and the effect of the majority opinion is to render the exception to the referendum amendment a dead letter.
2. Whether an emergency existed which made it necessary that the Act should be effective immediately involves only a question of fact; and it is elementary that whenever the right-to enact a particular law depends upon the existence of facts, it will be presumed that the legislature, in the exercise of its appropriate functions, found the facts, and no authority is conferred upon the courts to consider evidence to impeach the legislature’s findings. (Stevenson v. Colgan, 91 Cal. 649, 25 Am. St. Rep-
The pronouncement by the majority that the finding that an emergency existed is “the unwarranted declaration of the legislature” rests only on the bare ipse dixit.
It is said that the “facts are controlling and not the declaration of the legislature,” and the controversy is determined asoné of fact; but the conclusion is made to depend upon only such evidence as is furnished by the documents referred to. Whatever other evidence may have been before the legislature to justify its finding that an emergency existed is not known to this court, and, from the very nature of the case, could not be known.
Conceding, for the sake of argument, that in this instance the court may consider extraneous matters, it is, to say the least, a most extraordinary proceeding to determine the controversy upon a portion of the evidence only.
