On Motion for Rehearing. Appellee's motion for rehearing and accompanying brief present nothing which we had not fully considered before announcing the decision, and we are not moved to vary our respective conclusions. The motion for rehearing is accordingly denied.
This may well be the occasion, however, as suggested by the learned Attorney General, somewhat to clarify the result to which our varying conclusions have brought the court as disclosing the present state of the law. *Page 47
By majority we hold that the presence of the emergency clause does not of itself defeat the right of referendum, and hold that, when and if the referable character of the act becomes a judicial question, it is to be determined by the courts independently of the legislative declaration employed in giving the act immediate effect. By a majority differently constituted, we hold that the right to suspend the operation of a statute by filing petitions does not extend to an act which is already in effect.
Applying those holdings to this case: The statute in question was, at the time its enforcement was enjoined, and is now, in full force and effect. The filing of the 25 per cent. petition did not disturb its present validity or operation. But, though unavailing to suspend the operation of the statute, it was and is efficient as a 10 per cent. petition to invoke the referendum, subject to a possible judicial determination hereafter that the act is of a nonreferable character.
There can be no reasonable doubt, therefore, as to the result which may hereafter attend popular disapproval of the statute. It will not be "annulment" in the sense of annihilation or avoidance ab initio which follows disapproval of an act whose operation has been suspended. It will be "annulled and thereby repealed with the same effect as if the legislature had then repealed it," with the additional effect that "such repeal shall revive any law repealed by the act so annulled."
SADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur.