These two causes were argued and submitted together. As they involve the identical legal question, they will be considered and decided in one opinion. The legal question therein presented is whether chapter 304 of the Statutes of 1937 (Stats. 1937, p. 665) is an urgency measure and, therefore, not subject to referendum petition under the terms of section 1, article IV, of the Constitution.
The title to this act is as follows: “An act relating to certain State lands and the production and disposition of oil, gas and other hydrocarbon substances therefrom, providing for the condemnation of real property, rights of way, easements and other interests therein for the purposes of this act, repealing all acts or parts of acts inconsistent or in conflict therewith, declaring the urgency thereof, and providing that this act shall take effect immediately. ’ ’
As indicated by its title, the act relates to certain lands owned by the state which are capable of producing oil, gas and other hydrocarbon substances. In section 1 of the act, these lands are referred to more definitely as “certain tide and submerged lands at Huntington Beach, Orange County ’ ’, and
In the proceeding against the secretary of. state, being L. A. No. 16472, the petitioner alleges the passage and approval of chapter 304 of the Statutes of 1937; that the director of finance has advertised for bids for leasing said lands;
In the proceeding against the state controller, L. A. No. 16473, petitioner alleges that said chapter 304 was enacted by the 1937 legislature; that in the performance of his duties under said statute he, as director of finance, has purchased certain supplies required by the terms of said statute for which he has filed with said respondent controller a claim against the state of California, and that said controller has refused to audit or allow said claim or any part thereof, and has refused to issue his warrant upon the state treasurer in payment of said claim. In this proceeding, petitioner seeks a writ of mandate commanding the respondent, state controller, to audit and approve said claim and to issue his warrant for the amount thereof upon the state treasurer.
A general demurrer was interposed to the petition in each of said proceedings, and the two causes have been submitted for decision upon briefs filed by the respective parties. In their briefs, the two respondents contend that chapter 304 of the Statutes of 1937 is subject to the referendum provision of the Constitution of this state (see. 1, art. IV), that an adequate and legal petition has been duly filed requiring said act to be submitted to the vote of the people of this state at the next general election for rejection or approval, and that said act does not go into effect until approved by a majority of the electors of the state voting thereon. Peti
Those portions of article IV, section 1, of the Constitution relative to the issues herein, are as follows:
“The second power reserved to the people shall be known as the referendum. No act passed by the legislature shall go into effect until ninety days after the final adjournment of the session of the legislature which passed such act, except acts calling elections, acts providing for tax levies or appropriations for the usual current expenses of the state, and urgency measures necessary for the immediate preservation of the public peace, health, or safety, passed by a two-third's vote of all the members elected to each house. Whenever it is deemed necessary for the immediate preservation of the public peace, health or safety that a law shall go into immediate effect, a statement of the facts constituting such necessity shall be set forth in one section of the act, which section shall be passed only upon a yea and nay vote, upon a separate roll-call thereon; provided, however, that no measure creating or abolishing any office or changing the salary, term or duties of any officer, or granting any franchise or special privilege, or creating any vested right or interest, shall be construed to be an urgency measure. Any law so passed by the legislature and declared to be an urgency measure shall go into immediate effect. ’ ’
It is well settled in this state, and in most other jurisdictions where the question has been the subject of judicial consideration, that the determination of the existence of a public necessity for the enactment of an urgency measure rests upon the judgment of the legislature. It is said to be purely a legislative question, the determination of which will not be interfered with by the courts, save in those few exceptional cases where it appears clearly and affirmatively from the legislature’s statement of facts that a public necessity does not exist.
(Hollister
v.
Kingsbury,
While the legislature is given the power to declare when the necessity exists for the enactment of an urgency measure, it is expressly provided in said section of the Constitution that: “No measure creating or abolishing any office, or changing the salary, term or duties of any officer . . . shall be construed to be an urgency measure.” Respondents contend that chapter 304 changes the duties of the director of finance and therefore under the referendum provision of the Constitution said statute “shall not be construed as an urgency measure”. Petitioner in answer to this contention argues that the statute does not change the duties of the director of finance or of any other officer of the state. As the duties of no other officer of the state are affected by this statute, except those of the director of finance, it will only be necessary to consider said act in so far as it affects the duties of such officer.
As indicated by the brief references to the various sections of said statute, the director of finance is given quite extensive powers by the terms of said act. Not only is he made the agent and representative of the state in the leasing of said oil-producing lands and as such given direct charge of all leases under the act, but in case no bids are received for the leasing of said lands, the director of finance, with the consent and approval of the governor, may “proceed immediately with the drilling of wells thereon for and on behalf of the state for the production, removal, and disposal of oil, gas and other hydrocarbon substances therefrom”. This drilling of said lands may be done under contract, or it may be carried on directly by the state. In either of such events, the director of finance represents the state in all such operations, and, furthermore, it is made his duty to sell to the highest bidder all oil, gas, or other hydrocarbon substances produced.
Not only did chapter 326 repeal and supersede chapter 325, but also, being a special act fixing the duties of the director of finance, it superseded the general duties imposed upon that officer by section 657 of the Political Code which, as we have seen, was enacted in 1927, and gave to the director of finance all the powers and duties vested in the department of finance. (23 Cal. Jur., p. 708.)
It might be well to make further reference to certain legislation respecting the leasing of tide and overflowed lands belonging to the state. The Mineral Land Act of 1921, section 8 (Stats. 1921, p. 408) gave to the surveyor-general the authority to lease such lands on a royalty basis. The director of finance subsequently succeeded to these powers. But by subsequent legislation these powers were suspended
That chapter 304 made a material and substantial addition to the duties of the director of finance over those existing and conferred upon him prior to the enactment of said statute cannot, we think, be successfully challenged. Prior to that date he had no duty to perform in reference to the leasing of the lands of the state for the production of oil, gas, or other hydrocarbon substances. In fact, he and all other officers of the state were prohibited from leasing any of the tide or submerged lands of the state for the drilling of oil and gas. By chapter 304 he is given extensive powers and corresponding duties not only in the leasing of the lands described in the act, but under certain conditions it is made his duty to proceed with the drilling of wells on said lands for and on behalf of the state for the production of oil and gas therefrom.
The word “change” has various shades of meaning depending upon the subject-matter to which it is applied. Petitioner contends that the mere addition of duties to those already imposed upon an officer is not a change in his duties. He cites the definition of the verb “to change”, as given in Webster’s New International Dictionary as follows: “to alter by substituting something else for; or by giving up for something else; to put or take another or others in place of; to make substitution of, for, or among”. As an illustration of this meaning we might refer to the use of the word “change” in the well-known legal term “change of venue”, which implies the substitution of another place of trial for the place of trial in which the action is pending. Other standard works are cited by petitioner giving to the word “change” the same meaning as given by Webster. Petitioner also cites authorities showing that the word “change” is frequently used as meaning “substitution”, “exchange”, or “to put one thing in place of another”. It is in this sense petitioner contends that the word “changing” is used in the section of the Constitution in which the people of the
Another meaning of the verb “to change” given by Webster is “to alter; to make different”. It is in this sense that the word is used when referring to a change in the by-laws or the articles of incorporation of a corporation. As so used, unquestionably any substantial addition to either of these instruments would certainly be deemed to be a change therein, and could only be made by the mode prescribed by law. It is in this sense the respondents contend that the word “changing” is used in said section of the Constitution.
An examination of the language of said section we think shows clearly that it is in this latter sense that the word “changing” is used in said section. The pertinent part of said provision reads as follows: “No measure . . . changing the salary, term or duties of any officer . . . shall be construed to be an urgency measure.” We think it will not be contended that the increase or decrease in the salary of an officer is not a change in his salary. It is equally apparent that any increase or diminution in the term of an officer is a change in his term. As the three words “salary”, “term”, and “duties” not only occur in the same sentence but grammatically are objects of the same participle, “changing” the same meaning must be given to the participle when applied to one of these objects as when applied to the others. It is clear, therefore, that when we look at the text in which this phrase appears, the word “changing”, when considered in its connection with the words “duties of any officer”, must mean any increase or addition to the duties of such officer. In our opinion, no other reasonable construction can be given the word “changing”, as used in said section of the Constitution.
The fact that the legislature has enacted many other statutes which change the duties of an officer and has purported to make such statutes emergency measures, cannot under the rule of legislative construction, avail the petitioner in these proceedings. The provision of the Constitution
We are also unable to agree with the contention of petitioner that a measure which the legislature has declared to be an urgency measure, but which in fact is not, goes into effect immediately upon its enactment and remains effective for all purposes even if a referendum petition is filed against it, until it is rejected by the voters of the state. This contention is against the plain terms of the Constitution which provides that a statute against which a referendum petition is filed, goes into effect upon a favorable vote thereon, five days after official declaration of said vote. Respondents, on the other hand, contend that any act passed by the legislature even though declared to be an urgency measure, and which is in fact such a measure, is subject to the referendum provision of the Constitution that it goes into effect immediately, but upon an adverse vote of the people, after a referendum petition has been filed against it, ceased to be of any effect. It is not necessary for us to pass upon this contention, for we are dealing with a statute which is not an urgency measure, and which, therefore, is subject to the referendum filed against it, and, therefore, is ineffective until there is a favorable vote thereon and a declaration of such vote by the secretary of state.
It is not for us to speculate as to the reason for the insertion in the Constitution of the provision which prohibits the legislature from enacting as an urgency measure a statute changing the salary, term, or duties of any officer. Whether the purpose of the legislature in proposing this section of the Constitution, or of the people who voted for its adoption, was to restrain “a complaisant legislature, subservient to powerful but evil influences”, from awarding “an unfaithful public servant”, or from punishing “one who was inexorably faithful to his trust”, as contended by peti
Neither can we in placing a construction upon this section of the Constitution consider the result of our decision upon the rights of those concerned in this litigation or upon the interest of the state, however vital those interests may be. The legislature determined, and the petitioner alleges, that owners of land adjacent to those belonging to the state and described in chapter 304 are by means of wells draining valuable oil and gas deposits from the state-owned lands, and that the state for that reason is daily suffering great loss and damage by being deprived of revenues which it would receive if permitted to lease said lands or otherwise develop the same under the provisions of said act of the legislature. We must assume that this determination of the legislature and these allegations of the petitions are true. The delay in the development of the state lands described in the statute and in pursuance thereof may result in daily loss to the state of a considerable proportion of its revenue. These considerations can have no bearing upon the duty of the court which is simply to declare the meaning of a provision of the Constitution regardless of the consequences that may follow. In this connection it might be stated that the power to lease these very lands was in 1929 withdrawn from any and all state officials, and these lands lay idle for eight years before the enactment of chapter 304 of the Statutes of 1937. It may be a source of regret that this condition, by reason of the limitation placed upon the power of the legislature to enact urgency measures, must continue for a few months longer.
Respondents have attacked chapter 304 upon other grounds than that discussed above. Our conclusion that the statute is not an urgency measure renders the discussion of these other grounds unnecessary.
Langdon, J., Waste, C. J., Shenk, J., and Edmonds, J., concurred.