(concurring) — I concur in the foregoing opinion and would do so even if I had dissented in the Brislawn case. The decision in that case, until it shall have been reversed, is the law of this state. Believing that the parties interested in this action are entitled to the opinion of each *276member of this court upon the question whether the act here involved falls within the exceptions to the reserved power of referendum contained in the seventh amendment to the constitution, with the decision in the Brislawn case as a factor, I desire to express my concurrence in this opinion on that as well as other grounds.
Fullerton, J. (dissenting) — The opinion of the court in this case, and the opinions in the companion cases of State ex rel. Case v. Howell, post pp. 281, 294, 147 Pac. 1162, 1159, but emphasize, to my mind, the error into which the court fell in the case of State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 Pac. 11. If any general conclusions or rules may be gathered from these opinions, they are these: (1) The court has power to inquire whether an act declared emergent by the legislature is or is not emergent; (2) that, in making such inquiry, the court will not enter into an examination of extrinsic evidence, but will determine the fact of emergency from the face of the act, tested in the light.of those matters of public concern of which it may take judicial knowledge; and (3) that, if it finds, on making such inquiry, that doubt exists as to the fact of emergency, it will uphold the law, otherwise the law will be declared invalid.
I cannot accept these conclusions as sound in principle. I may, with reference to the first, premise by saying that I do not deny the power of the court to inquire into the constitutionality of an act of the legislature as that power has heretofore been understood and exercised by the courts. While the power has been somewhat vehemently denied, especially within recent years, I am not of the number who have taken that view. The reasoning of Marshall, in the case of Marbury v. Madison, 1 Cranch 137, and the reasoning of Webster, in his reply to Hayne, not to mention more recent instances, demonstrate to my mind the existence of the power as conclusively as anything can be demonstrated which is incapable of yardstick measurement. What I mean to deny *277is that the question here presented is the question ordinarily-presented when it is claimed there is a conflict between an act of the legislature and the constitution. Plainly the questions are not the same. An act of the legislature, as is recalled in the majority opinion, is a rule of action. So, in the same sense, is a provision of the constitution. When, therefore, a rule of action prescribed by the legislature conflicts with a rule of action prescribed by the constitution, and persons whose rights are affected call upon the court to determine which rule of action shall prevail, the court, in determining the question, but exercises its function of determining between the litigants what the law is; it but determines a question of law. But when the legislature enacts a law and declares that the law so enacted is necessary for the immediate preservation of the public peace, health or safety, support of the state government, or its existing institutions, it does not, by the declaration, prescribe a rule of action or enact a law. It but makes an assertion of fact; it but declares that certain facts exist which make it necessary that the rule of action already prescribed by it should take effect earlier than it would otherwise take effect but for the existence of the facts. When, therefore, the court determines whether the declaration is true or untrue, it determines a question of fact, or, at best, a mixed question of law and fact; it determines whether a fact asserted by the legislature does or does not exist.
It is this question of fact that I contend the court is without power to determine. The seventh amendment to the constitution vests the power to determine it in the legislature. It has given the courts no power to pass upon it in review. When, therefore, the court assumes that power, it, in my opinion, usurps its functions. No new principle in legislation is here involved. To make the rights of individuals depend upon certain facts, and vest the power to determine the existence of the facts in some board or person to the exclusion of the courts, is a common pi'actice. Our own de*278cisions furnish abundant instances of it. For illustration I need but call attention to the cases of State ex rel. Megler v. Forrest, 13 Wash. 268, 43 Pac. 51; Bellingham Bay Imp. Co. v. New Whatcom, 20 Wash. 53, 54 Pac. 774; Wiseman v. Eastman, 21 Wash. 163, 57 Pac. 398; Lawrence v. Potter, 22 Wash. 32, 60 Pac. 147; State ex rel. Abbott v. Ross, 62 Wash. 82, 113 Pac. 273. If the legislature may in itself establish a tribunal to determine facts independent of the courts, I see no reason why the people in the constitution may not do so.
But I think the rule laid down for determining the existence of the fact less defensible than the rule permitting an inquiry into the fact’s existence. The constitution does not, in the seventh amendment or elsewhere, require that the facts which give rise to the necessity for the immediate taking effect of an act. be set forth in the body of the act. It is sufficient, even under the rule of the majority, to raise the inquii’y of necessity if the legislature merely makes a declaration of necessity. It is manifest, therefore, that facts may exist which will give rise to the necessity of an immediate taking effect of an act which are not expressed on the face of the act, and are not of such public notoriety that the courts may take judicial notice of them. This being true, it seems to me to follow conclusively that the court, under the rule it has adopted, may declare acts not to be emergent which are gravely so and may declare acts to be emergent which have no emergency feature whatsoever.
An illustration may make the point more clear. Let us suppose that an insurrection exists against the authority of the state, and that the head of the revenue department of the state (“A” for example) is participating therein; that his participation is not generally or publicly known, but is suspected by the highest executive officer of the state, who makes his suspicions known privately to the legislature because some controlling reason exists for not making it publicly known; and that the legislature passes an act which *279“says no more than that ‘A’ shall give place to ‘B’ ” in the revenue department, and “does not show wherein . ‘A’ if continued as a member would incite breaches of the peace or jeopardize the safety of the state, or that the presence of ‘B’ will give support to the state government.” The act would contain all that the constitution requires it to contain, and the gravest necessity would exist for its taking effect immediately, yet the court would, under the rule it has adopted, at the suit of the offending officer, declare the act not emergent. On the other hand, the officer may be performing his duty loyally, with great ability, yet unfounded rumor, widespread because of the excitement of the times, falsely accuse him of disloyalty. Should the legislature under these conditions pass an emergency act removing him from office, the court would, under its rule, uphold the act, to the injury of a loyal citizen and to the detriment of the state.
A rule which will work these incongruous results, is, to my mind, in itself dangerous to the state. The court should either make no inquiry at all, or it should make the inquiry full and complete, even to the taking of testimony when necessary to ascertain the entire truth.
The third rule needs no comment. It is but the corollary of the other rules, and is unquestionably sound if they are sound. The existence of the state government, the peace, health and safety of the people, are paramount considerations, and laws passed with the view of their maintenance should be upheld if their validity is only merely doubtful.
But, without further pursuing this inquiry, and passing to the immediate question before the court, it will be observed that the court has determined that each of these five several acts present emergent conditions and that the legislature correctly so declared. Limited by the rule announced by the majority, I cannot accept these conclusions in their entirety. In my opinion, the act relating to motor propelled vehicles is clearly not emergent. The act is limited in its operation *280to cities of the first class. The emergency declared is “the immediate preservation of the public safety.” The act, as shown in the majority opinion, is not regulative in any sense that can be said to be conducive to the public safety. The act does not limit the speed at which the vehicles mentioned may be driven on the streets, it does not limit the number that may be operated, it does not require that the vehicles be run on regular routes or at regular intervals, it contains no provision against overloading, nor does it contain any provision directly designed to secure competency in the individuals who operate them. In fact, the act was not intended to be regulative in this sense. It was intended to provide a solvent fund from which persons injured by the negligent operation of the vehicles could recover damages. There may be a necessity for this, looking at it from the standpoint of the individual, but I am unable to understand how the creation of this fund can, in the remotest degree, contribute to the safety of the state.
The act relating to the division of revenues in cities of the first class, is likewise, in my opinion, not emergent. It was thought by the legislature to be necessary “for the immediate preservation of the public peace, health and safety.” It simply prevents cities of the class named from diverting funds collected for one purpose to uses for other and different purposes. The act on its face gives no hint of any danger to the peace, health or safety of the public which makes it necessary that this act take effect immediately; and I confess to being ignorant of any conditions of which I may take judicial knowledge which so make it necessary. I can but conclude, therefore, that the court is in error in holding the act emergent.
The questions suggested and decided in the opinion to which this is attached differ from the questions presented in the opinions just noticed. These relate to clauses in the general appropriation bill, and it is held, as I understand' it, that appropriations for the maintenance of the state and the *281state institutions are always emergent regardless of any declaration the legislature may make on the question. If this is the rule intended to be announced, I cannot subscribe to it. I think the people have the right of referendum against any act carrying an appropriation, whether for the support of the state and its institutions or otherwise, which is not in fact emergent. On this principle, the fund against which the claim of Blakeslee is presented is clearly not emergent. The others may or may not be so, depending upon facts not disclosed by the record. In my opinion, therefore, only the latter two ought to be held to be emergent.