I concur in the majority opinion in the following particulars: (a) That the title of the act does not violate Const., art. 3, sec. 16, except in the particulars pointed out in the opinion; (b) that the act is not unconstitutional in that it violates art. 7, sec. 5, in that said act attempts to levy a tax upon the sale of all tangible personal property, but unduly excepts sales of certain motor vehicle fuels; (c) that said act is not unconstitutional in that it attempts to exempt all sales of farm products or livestock when sold by the growers or producers thereof; (d) that said act is not unconstitutional for the reason that it is discriminatory in that it exempts all sales of tangible property made by religious, educational, charitable and eleemosynary institutions in the conduct of regular religious, educational, charitable and eleemosynary activities, for the reason as stated in the opinion.
I further concur in the opinion wherein it is held that the act is not in violation of the constitution in that it makes vendors tax collectors. The trial court did not err in refusing to declare the act null and void, inoperative and ineffective. In my opinion the court erred in holding, in conclusion number two, that the act was not subject to referendum vote and was correct in holding that the provisions of said law were not suspended or affected by the filing with the Secretary of State of the referendum petitions. Under the constitution and statute ten per cent of the electors of the state by referendum petition in regular form circulated, signed and filed in compliance with the provisions of the law, may have any act of the legislature referred to a vote of the people for approval or rejection. Const., art. 3, sec. 22, provides that laws for which there is no emergency shall not take effect until sixty days from the end of the session at which they are passed, but in case of emergency legislation, which emergency shall be declared in the preamble or in the body of the law, there is no constitutional restriction and it is left to the discretion of the legislature to fix the time when such legislation shall go into effect.
An act carrying an emergency clause, when approved by the Governor becomes a law effective upon the date of its approval or thereafter as fixed in the law. Why the legislature *Page 640 provided that measures referred to the people under the referendum statute should be voted on at the biennial regular election next succeeding the passage of the act instead of fixing an earlier date, thus affording the electors an earlier opportunity to accept or reject any act referred under the referendum statutes, affords no ready answer. However, it was within the power of the legislature, the act carrying an emergency clause, to provide that the act should go into effect when signed and approved by the Governor.
It seems to me that there is no way to escape holding that Session Laws 1933, chap. 210, sec. 3, p. 431, conflicts with the provisions of Const., art. 3, sec. 22, which provides no act shall take effect until sixty days from the end of the session at which the same shall have been passed, except incase of emergency, which emergency shall be declared in the preamble or body of the law. I am unable to bring myself to believe that the legislature surrendered its constitutional right to enact legislation to take immediate effect and to meet emergencies that might be acute and vital, or that it placed it within the power of ten per cent of the voters to suspend such "laws of immediate or pressing importance" and which laws might be "most wholesome and necessary for the public good," such as emergency appropriation measures for governmental, educational, penal, charitable and relief purposes. In other words, to have placed it within the power of ten per cent of the voters to suspend or hold in abeyance for a period of practically twenty months, or until the biennial election next succeeding the passage of the act, by referendum petitions, such emergency measures as well as ordinary acts or measures, the result could well be disastrous to the peace and welfare of the citizens of the state, in that governmental activities might be suspended.
In my opinion to hold the enforcement of the instant act suspended would be both in violation of Const., art. 3, sec. 22, and contrary to the intention of the legislative will, resulting in litigation and confusion.
The percentage that should be paid by the purchaser is not before us, no cross-appeal having been taken by the state.
There are other questions discussed in the opinion, in briefs of counsel and at the oral argument, involving the *Page 641 rights and remedies of the state in the enforcement of the act against collectors of the tax, as well as rights and remedies afforded the collectors of the tax. Until a concrete case is presented involving the construction of these particular sections of the act (which may or may not come before this court), the necessity of passing upon them is not apparent and as to those matters I express no opinion.