I approach the writing of this concurring opinion with considerable diffidence. I freely admit that the writers of both the majority opinion and the foregoing concurring opinion may be right in their views, but, since it seems to me that there are certain dangers inherent in both the views expressed, I shall present my own, as briefly as possible.
The majority opinion gives the legislature more power than the seventh amendment to the constitution intended it should have; the concurring opinion limits the power of the legislature more than was intended.
I do not agree with the majority that the legislature can defeat the right of referendum by inserting in any measure an appropriation necessary for the maintenance of an existing public institution. The case of State ex rel. Short v. Hinkle,116 Wash. 1, 198 P. 535, relied upon by the majority, goes no further than to say that, if any section or *Page 751 portion of an act is emergent, the entire act cannot be referred to the people. The court there said:
"There is another reason why the relators must fail in their attempt to refer this act, and that is that they are seeking reference of the entire act, and if there is any section or portion of it of which the court can say there is an emergency their proceedings must fall. If it should be conceded that as to certain sections or portions of the act the court could say, from its judicial knowledge, that the changes made were not necessary for the support of the state government and its existing institutions, yet the relators are making a general attack and are not seeking to refer those sections only which the court might judicially declare not to be emergent."
The court there indicates that the decision in that case might well have been different had the relators been seeking a partial referendum.
I agree with the majority that we must give to the action of the legislature and its declaration of an emergency every favorable presumption. It is true that, in State ex rel. Kennedyv. Reeves, 22 Wash. 2d 677, 157 P.2d 721, we said:
"Unless we can say that the act is, in fact, necessary for the immediate preservation of the public peace, or for the immediate preservation of the public health, or for the support of the state government and its existing public institutions, the relators are of right entitled to the writ prayed for."
In that case, the emergency "label" was obviously and patently false, but I believe the statement quoted goes too far. The foregoing concurring opinion relies upon this case as authority for our right to say that, unless we can find that an act is, in fact, necessary for the immediate preservation of the public peace, or for the immediate preservation of the public health, or for the support of the state government and its existing public institutions, no emergency exists and the relators are entitled to the writ prayed for. It seems to me that we thereby substitute the supreme court for the legislature in determining whether or not an emergency exists. The presumption should be *Page 752 that the members of the legislature acted in accordance with their oath of office; but if the act is, in fact, not necessary for the immediate preservation of the public peace, or for the immediate preservation of the public health, or for the support of the state government and its existing public institutions, we should not hesitate to strike the false emergency clause and to hold the act subject to referendum. It never has been necessary for us to go further than that in any case which we have decided.
There is a vast difference between our determining that an act is, in fact, necessary for the immediate preservation of the public peace, etc., and our determining that an act is, in fact, not necessary for the immediate preservation of the public peace, etc. In the first situation, we legislate; in the second, we say to the legislature, you cannot make patently false declarations of fact.
Giving to the legislative declaration of emergency the presumption to which I believe it is entitled, and speaking only for myself, I cannot conscientiously say that some of the parts of chapters 288 and 289, Laws of 1947, which are sought to be referred, are not necessary for the support of the state government. The legislature was confronted with a Herculean task in its effort to balance the state budget. There were, seemingly, two or three claimants for every available dollar. Requests for appropriations had to be scaled down and economies had to be effected. Chapters 288 and 289 of the Laws of 1947 represent an attempt to effect certain savings in the operation of the old age assistance and the general assistance programs. Unless those savings could be effected, the appropriations made for those programs obviously were inadequate, and the financial structure of the state would be imperiled. If an attempt to secure new sources of revenue to balance the state budget makes a measure necessary for the support of the state government and its existing public institutions (State ex rel. Reiter v. Hinkle,161 Wash. 652, 297 P. 1071), an attempt to save money and decrease expenditures in order to balance the state budget should make a measure necessary for the *Page 753 support of the state government and its existing public institutions.
It should be, by this time, a matter of public knowledge that budgets can be balanced by reducing expenditures or by increasing income, and that, in many cases, there is no alternative. The wisdom of the method is not ours to review, but, if that was the purpose, we cannot say that it was not necessary for the support of the state government and its existing institutions, unless we are prepared to say that unbalanced budgets and deficit financing have nothing to do with the immediate support of the state government and its existing institutions.
I do not believe that the legislative declaration of emergency was patently false.