With the conclusion of the court on the question discussed in its opinion, I am in accord. I have no doubt that a legislative enactment, which "shall apportion and district anew the members of the senate and house of representatives according to the number of inhabitants," is a law as that term is used in the state constitution, and that such a law may be enacted either by the legislative body itself or by the people through an initiative proceeding.
The proposed enactment, however, presents another question which I think is worthy of the consideration of the court before it is submitted to the electorate for enactment or rejection. It contains provisions which to my mind render it of doubtful constitutionality, and I fear that, if it is adopted by the electorate, the court may be compelled ultimately to say that it does not constitute a valid law.
I am aware of the contention that this is not an inquiry now open to the court. Indeed, the learned counsel who represent the proponents of the measure, anticipating that an objection might arise in the mind of the court as to its constitutionality, make an argument *Page 295 in attempt to show that the question is not now before it. But to me the argument is not convincing. In the first place, the question has been heretofore determined by this court contrary to the contention. In State ex rel. Berry v. Superior Court,92 Wash. 16, 159 P. 92, an initiative measure was proposed which was thought to contain matter inimical to the purposes of such measures. A proceeding was brought for the purpose of enjoining its submission to the people. The proceeding was instituted in the superior court, and that court dismissed it, holding that the question involved was not one within its jurisdiction to determine. This court reversed the decision of the trial court, holding that the measure could not be submitted without an elimination of its objectionable parts.
The question there involved was not the constitutionality of the measure, but the case is nevertheless in point in principle. Manifestly, if any cause is sufficient to warrant the court in refusing to permit an initiative measure to be submitted to the people, the failure of the proposed measure to constitute a law if approved is such a cause. In the second place, this court has never heretofore hesitated to inquire into the validity of an act, when its attempted enforcement would entail upon the state the expenditure of large sums of money. An illustrative case isState ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156,117 P. 1101, where we inquired into the constitutionality of the workmen's compensation act in a proceeding brought against the state auditor to enforce the payment of a claim incurred under the act, and which the auditor had refused to pay because he thought the act in violation of the state constitution.
The limited time at my disposal has not enabled me to give the proposed measure that intensive study a conclusive determination of the questions involved requires, *Page 296 but a mere reading of the measure suggests grave reasons for doubting its constitutionality. Some of these I will mention.
The constitution (Art. II, § 3) provides that the legislature "shall apportion and district anew the members of the senate and house of representatives," yet the proposed measure, while it may apportion the members of the senate and the members of the house of representatives, does not district them anew. On the contrary, in most instances the measure simply provides that in a given territory a certain number of districts shall be created, and vests in the secretary of state the duty of delineating and marking the boundaries of the districts. In my opinion, to district the state is a legislative power, a power which must be exercised by the legislature itself (in this instance by the electorate), and a power that cannot be delegated to a board or person.
The constitution (Amend. 7, subd. "c") provides that:
"No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following its enactment,"
yet the proposed measure contains the following provision:
"Provided, however, that the schedule of senatorial and representative districts as apportioned and districted anew by this act, shall not affect the members or the rights and duties of the state legislature assembling in January, 1931, during the period of its regular session and for ninety days following the final adjournment of said session; and in case the said legislature shall have enacted at said session a constitutional reapportionment law, substantially conforming to the schedule of districts and members prescribed in this measure, or prescribing a variant schedule more nearly *Page 297 in accordance with the number of inhabitants in the state and the several districts, as shown by the United States census enumeration of 1930, in such event said schedule and re-apportionment act of the legislature shall supersede the schedule of this initiative measure, but otherwise it shall be in full force and effect from and after ninety days following the date of final adjournment of the regular session of the state legislature opening in January, 1931."
The constitution (Art. II, § 6), after providing that senators shall be elected by single districts, further provides that "no representative district shall be divided in the formation of a senatorial district," yet, as I read the proposed measure, it proceeds in utter disregard of the quoted part of this provision.
The constitution (Art. II, § 3) provides that the state shall be apportioned and districted "according to the number of inhabitants," yet the act, with reference to King county, provides:
"And for the purpose of including or excluding the residence locations of incumbent senators and representatives, any district boundary may be modified as between two districts not exceeding four precincts from its normal location, and such delineation shall be deemed in fulfillment of the population proportion prescribed in the act and schedule of apportionment."
If this clause of the proposed measure has meaning at all, it means that, for the purposes of including or excluding the residence locations of incumbent senators and representatives, the secretary of state may delineate the boundaries of the precincts affected without regard to the number of inhabitants.
I have by no means exhausted the apparent conflicts between the measure and the constitution, but I do not feel that I need pursue the inquiry further. My purpose in pointing out these possible conflicts is to emphasize the thought that the court should set the cause *Page 298 down for argument on the constitutional questions the act suggests, and direct its submission to the electorate only after it determines that the proposed measure will be a valid law if enacted.
Because the constitutional validity of the measure is left undetermined, I cannot concur in the conclusion of the court.