State ex rel. Berry v. Superior Court

Holcomb, J.

This is a proceeding to review the proceedings and judgment of the superior court in holding that it had no jurisdiction, and entering a judgment of dismissal and for costs against relators in a certain cause begun and tried therein, wherein the relators were plaintiffs and the secretary of state and certain other persons as “The Joint Legislative Committee” and as individuals were defendants, to enjoin the defendants from preparing or causing to be printed blank petitions for proposed initiative measure No. 22, and from printing and attaching to such petitions arguments for said pretended measure No. 22, and from circulating or attempting to obtain signatures of legal voters upon such petitions. A copy of section 1, of initiative measure No. 22, as filed by the joint legislative committee in the office of the secretary of state, is as follows:

“Section 1. Section 1 of the Fisheries Code of Washington is amended to read as follows:

“Section 1. Short Title and Declaration of Purposes.

“This act shall be known as the ‘Fisheries Code of Washington.’

“The prosperity and happiness of all of its people are hereby declared to be the highest aim of the state and the protection and utilization of its great natural resources, to the end that all the functions of government may be economically carried on without burdensome and confiscatory taxation being placed upon the home builders and real producers of the state, is paramount. Protection and conservation of the great sources of food supply are necessary that they shall not be monopolized by the few to the detriment and discomfort of the many, and inasmuch as it has been legally determined that the fish in waters of the state of Washington are the property of said state, it is hereby declared that the purposes of this act are to foster the propagation, protection and development of this source of food supply and to create a revenue therefrom by retaining a portion of the value of its own property from those who are hereby allowed to appropriate the same, under the regulations hereinafter set forth, the proceeds of which shall be turned into the state treasury for the general support of the state government, to the end that the burden of taxation on its people may be thereby reduced.”

The trial judge held, in effect, that the question raised was political and, therefore, a court of equity could not interfere.

During the last forty years of the nineteenth century there arose and grew in democratic republics and commonwealths a powerful distrust and dislike of their parliaments. They became tired of the representative system. In the latter part of that period the people of the democracies submitted to their representative legislatures only under the pressure of stem necessity. The growing distrust and contempt for legislative bodies — municipal, state, and Federal, and the tendency to restrict them culminated, with the beginning of this century, in numerous returns by states to the primitive system of direct legislation modified by modern systems of election. In this state, after enabling legislation, an amendment to art. 2, § 1, of the constitution relating to legislative powers, which established a dual system of legislation, was adopted by vote of the electors in 1912. It was by that amendment provided that:

“The legislative authority . . . shall be vested in the legislature . . ., but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature,” etc., etc.

Under the further provisions of this constitutional amendment,-

“The first power reserved by the people is the initiative. Ten per centum, but in no case more than fifty thousand, of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the secretary of state not less than four months before the election at which they are to be voted upon, or not less than ten days before any regular session of the legislature. If filed at least four months before the election at which they are to be voted upon, he [the secretary of state] shall submit the same to the vote of the people at the said election. If such petitions are filed not less than ten days before any regular session of the legislature, he shall transmit the same to the legislature as soon as it convenes and organizes. Such initiative measure shall take precedence over all other measures in the legislature except appropriation bills and shall be either enacted or rejected without change or amendment by the legislature before the end of such regular session.”

It is further provided that the veto power of the governor shall not extend to measures enacted by the people, either upon initiative or upon the second power reserved to the people and designated the “referendum.” It also further provided that the reserved powers of the people “shall be self-executing, but legislation may be enacted especially to facilitate its operation.” It is finally peremptorily commanded by this amendment that:

“The legislature shall provide methods of publicity of all laws or parts of laws, and amendments to the constitution referred to the people with arguments for and against the laws and amendments so referred, so that each voter of the state shall receive the publication at least fifty days before the election at which they are to be voted upon.” Const., art. 2, §1.

In obedience to and furtherance of the above mandate, the legislature, at its 1913 session, enacted a facilitative measure providing for regular processes of initiating measures, and for publicity and arguments for and against them at the expense of the persons filing arguments in support of or against such measures, respectively, prohibiting the circulation of more than two arguments in support of, and more than three in opposition to, any initiative measure, and providing for the arrangement of ballot title by the Attorney General, the printing of arguments upon the proposed measure by the secretary of state at least sixty days prior to the election at which they are to be submitted, and the transmission of same by him to every voter in the state not less than fifty-five days before the election. Laws 1913, p. 433 (Rem. 1915 Code, § 4971-27).

The facilitating act, above partially outlined, was not only a complete delegation of power to the legislature, but a positive command of the paramount law to be produced. Without it the self-executing provisions of the constitution as amended could be followed, but might result in confusion and disorder in many instances. There can be in such a vast state no assemblage of all or a majority of the voters to propose and vote upon measures or to reject measures already enacted. It is possible for an act, if very brief and concise, to be proposed and voted upon at regular elections in identical form by every voter, but very uncertain. Hence the people provided that their reserved powers of legislation should be facilitated and promoted, but not curtailed or hindered by a legislative act providing a comprehensive scheme to facilitate the employment of the legislative powers reserved by the people in mass. The facilitating act carefully provides certain steps to be taken in order to prevent unfairness and fraud and confusion and disorder. It provides that any legal voter or committee or organization of legal voters may “propose” any measure to be submitted to the legislature or to the people. Upon filing such proposed measure within certain periods prior to a regular election or session of the legislature, the Attorney General shall prepare the ballot title to such measure. It is carefully provided that the ballot title so prepared shall be of “not to exceed one hundred words,” and “shall express, and give a true and impartial statement of the purpose of such measure, and shall not be intentionally an argument, or likely to create prejudice, either for or against the measure.” Provision is made for an appeal to the courts from the action of the Attorney General in preparing the ballot title. The act provides for the utmost publicity of the proposed measure within the state, and for not more than two arguments in favor of and three against the proposed measure, the publication of the arguments to be paid for, not by the state, but by the parties submitting the arguments. This requirement of the law was sustained in State ex rel. Chamberlain v. Howell, 80 Wash. 692, 142 Pac. 1. It is now asserted by appellants that this requirement of the facilitating act is violated and evaded by the proponents of the present measure by a pretended “preamble” which is neither necessary nor proper and is mere argument and false statements in support of the proposed measure, which, if permitted, will enable the proponents to have their arguments printed by the public at no expense to the proponents, under the guise of part of the bill or proposed law, and give undue advantage to proponents and work irreparable injury to the opponents of the measure.

To establish that the procedure questioned is unfair is not sufficient. Any law or proposed law may be, and often is, unfair to some. Except when dealing with essential morals or fundamental principles, in the modern complexity of human affairs and relations there is little legislation that can be said to be entirely fair. Legislative bodies, whether delegated or principals in mass, are not to be stopped from exercising the supreme function of making laws by such considerations. The sole question now to be determined is, Have they the power? Courts will not concern themselves with any questions of policy or hardship or expediency. Nor will they in any case intervene to hinder or influence the process of legislation in any of its steps. Were it a question of whether a delegated member of a legislative body of any kind could introduce to that body a “bill” or law of any kind, no matter how arbitrary, how novel, or how foolish, the answer at the very outset would unhesitatingly be that no other department of our triune form of government could in any wise interpose. We now have a dual system of legislation; one by a delegated, bi-cameral legislature, deliberative, maker of its own rules of procedure in general; the other by the legal voters of the state in mass. Here we have the question, Is the proponent of an initiative measure in any sense a legislator? And ancillary to that, Is the filing of a proposed bill or law a legislative step? A third and vital question then arises, Can the courts interfere?

As to the first question, we conceive that an initiator of a bill (which means the draft of an act or proposed law) is not, under this system of direct legislation, a legislator. State ex rel. McNary v. Olcott, 62 Ore. 277, 125 Pac. 303. He is merely given license or privilege to propose and file a proposed measure. This is a preliminary step in the process of legislating. It may be dispensed with, but it is nevertheless provided for in furthering or “facilitating” the system. He must proceed in conformity with the license. The question then is, Are these proponents exercising this privilege legally? In the first place, it must be considered that here we have a step or procedure authorized and granted by law and to be exercised and administered under a general law authorized by the supreme law, the constitution; not a legislator acting in a parliamentary, deliberative body, empowered within certain constitutional limitations to make its own rules of procedure at the moment, and co-equal with any other branch of government. But, it is said, the people in their legislative capacity are superior to all other branches of government, superior to the legislature which made this law; in fact, supreme in their legislative capacity. The people in their legislative capacity are not, however, superior to the written and fixed constitution. Nor is the individual who proceeds to initiate any legislation. His act in initiating a measure is but a voluntary one, and is permitted and defined, limited and circumscribed, by the constitution and the laws passed in obedience to and compliance with the constitution as amended.

Such a step has not the immunity of the old delegated, protected legislative act and privilege. One voting upon the final passage of an initiated or referred bill at the election could not claim the privilege of voting by any method he pleased. He could not go to the polls and cast his vote viva voce under our election system, and demand that it be recorded and counted. Nor could he electioneer or solicit votes within the polling place, for such is prohibited. Nor could he insert a new word or clause or expunge anything from the proposed measure. The voter on proposed or referred measures is controlled and regulated by positive general laws. There is no sanctity conferred upon the proposal of an intended law to be initiated and voted upon by the people.

The legal right granted to the proponents is a private and a political right to propose a “bill, or law,” to be initiated by a petition if signed by the constitutional number of legal voters. Now, are proponents proceeding in their legislative capacity by the prescribed method? As private members of the legislative body in mass, certain legal political rights are conferred upon them to be exercised in a prescribed manner. These rights must be considered as no greater than the rights of other members of the legislative body in mass to oppose the proposed measure. It cannot be assumed that the right of one legal voter to attempt to obtain the enactment of a given measure is greater than the right of other legal voters to attempt to prevent its passage. All are equal before the law. There is no presumption that, because certain legal voters or legislators desire and propose certain legislation upon a certain subject, the same is desired by the voters in mass. In fact, it can be assumed as a safe postulate that other members of the voting mass will oppose it. It is the sole ground of relators here that they are entitled to interfere in the matter because they are voters and do oppose the proposed measure, irrespective of the merits of the measure and regardless of the reasons for their opposition, and that if the proponents of the measure are proceeding in accordance with the positive law, their only recourse is at the polls. This position is sound. This brings us to the precise question as to the legality of the procedure of the proponents.

They propose a purely amendatory bill or law upon a subject of legislation long recognized and acted upon in this state, the regulation of fishing in the public waters of the state and deriving a revenue therefrom. The territorial legislatures of 1877, 1879, 1881, the first legislature of the state in 1889-90, and each succeeding legislature, to and in1 eluding that of 1915, passed legislation in some manner regulating fishing, protecting,' conserving and fostering fish, and providing for revenue therefrom. In 1915 the legislature enacted a comprehensive regulation and revenue act concerning fish and fishing industries and declared it to be “The Fisheries Code of Washington.” Laws 1915, ch. 81, p. 67; Rem. 1915 Code, § 5150-1 et seq. The proponents have proposed a bill for direct action by the voters which would amend certain sections of the fisheries code, and preface the positive rules of action for the future by proposing to amend § 1 of the existing fisheries code so as to include a “preamble” or “declaration of purposes.” The proposed amendments in no wise extend or broaden the scope of the existing policy of the law. It is insisted by the proponents that it is their constitutional political right to insert any declarations of purposes or “preamble” in any proposed legislation introduced by initiative; that preambles are legitimate as component and proper portions of legislation, are so recognized by law, and serve several important functions in connection with the making and interpreting of laws.

In the entrance upon new fields of legislation, in order to justify the legislation “to the impartial consideration of mankind,” preambles are frequently adopted. Thus, the framers of the constitution of the United States explained their purpose to mankind by a preamble which for conciseness and brevity and general and comprehensive breadth of scope is unequaled. A preamble is defined in law to be:

“An introductory clause in a constitution, contract, or other instrument, reciting or declaring the motive or design of what follows.” New Standard Dictionary.

“The introductory part of a statute, which states the reasons and intent of the law.” Webster’s Unabridged Dictionary.

A cursory reading of the proposed preamble must convince any one that it contains much that is more than merely recitative of the motive or design of what follows, for it contains much that must appear to be merely polemic and open to serious controversy as assuming the existence of certain conditions, whether such be actually true or false, and in a very insidious manner. For instance, after reciting the fundamental principle of democracies that “the prosperity and happiness of all of its people are hereby declared to be the highest aim of the state,” — a principle universally known and acknowledged by every one and needing no re-enactment into law in the United States — it insinuates that, without such legislation as is now proposed, as if for the first time in history, “burdensome and confiscatory taxation” is “being placed upon the home-builders and real producers of the state.” It then insidiously argues that, “Protection and conservation of the great sources of food supply are necessary [as if for the first time asserted legislatively] that they shall not be monopolized by the few to the detriment and discomfort of the many.’y' And the only changes made in the existing fisheries code, proposed by this measure to be amended, are to prohibit fishing during the closed season in the Columbia river where it forms the state boundary, where it is now permitted; to further regulate or prohibit certain fishing apparatus in certain waters, requiring additional licenses, increasing the fees to be paid the state for certain licenses and for certain quantities of fish caught; further regulating the reports to be made, and limiting licenses to citizens or persons who have declared intention to become citizens of the United States and actually resident in this state, the existing law extending its permission to such persons resident in adjoining states.

The proposed amendments, while important, are not novel, original, or subversive. They are in harmony with the long settled and recognized policy of the state. No monopoly in its fish was ever legalized by the state any more than that conferred by the licensing of certain persons coming within the permission of the law who would pay the required license fees, exactly as is now proposed. This preamble is an argumentista ad hommem, appealing to the uninformed on the face of the proposed enactment, and to be printed by and at the expense of the state. There is further pure argument in the remainder of this proposed preamble, and further assertion of long established principles as to which there is no necessity to declare anew the reason for the law. A law is a rule of action. An argument is not.

Notwithstanding the obvious, the proponents insist that it is their right to include any declarations of purpose in a proposed measure, under the constitution and the law, and that the courts have no right to interfere with a legislative procedure or a political right. They illustrate by citing the declaration of purposes as a preamble to our “Workmen’s Compensation Act” (Laws 1911, ch. 74, p. 345; Rem. 1915 Code, § 6604-1 et seq.), reciting long existing and recognized mischiefs and an avowéd purpose of subverting a long established system of private compensation and trial by jury for injuries to workmen. Here was a most manifest need for a preamble containing a declaration of new principles to supplant the old, withdraw the right of trial by jury, and remedy a general condition.

The “Employment Agencies Law,” passed by the people in 1914 and containing a declaration of purpose to bring a new class of occupation within the scope of the police power of the state and regulate or abolish it; and the Oregon “Ten Hour Law,” containing a preamble of the same nature, are also cited as illustrations. As to the last mentioned law, it is argued that, on appeal to the supreme court of the United States to test its constitutionality, a “brief” has been written to demonstrate the facts set forth in the preamble, consisting of two large volumes of one thousand pages, and that if the supreme court of the United States sustains the law, it will sustain it by reason of the statements contained in the preamble and the demonstration contained in the “brief” that the facts recited in the preamble are established economic facts. If that be true, and if preambles are to become the established guide to interpretation by the court of the laws and of their constitutionality, we may expect such one thousand-paged “briefs” hereafter to be made part of the preamble, published by and at the expense of the state, whenever the proponent of a measure may desire, and forever set at rest by mere enactment thereof any arguments that might thereafter be made as to not only the wisdom, necessity, and expediency of the act, which are purely legislative questions, but also as to the constitutionality of an act, which is judicial. In neither of the laws cited, however, and the determination of their constitutionality by the courts, was there presented the question of the right of the proponent, undisturbed, to include anything he pleased as a preamble, under such system as has been provided in this state.

It is also urged by respondents that we have declared in regard to the “Workmen’s Compensation Act,” (State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466), and in regard to the “Employment Agencies Law” of 1914 (Huntworth v. Tanner, 87 Wash. 670, 152 Pac. 523), that a preamble is a most necessary and important constituent part of a law.

In the Hams case, a mere recital was made (p. 169) of the declared mischiefs to be remedied and purpose of the new law, a law entirely novel and original here, in that it takes away the right of trial by jury in large classes of cases and from large numbers of employers and employees and substitutes another remedy. In the Huntworth case, the preamble was resorted to as a source of interpretation of the true scope and intent of a prohibitive and highly penal law, and as a designation of the persons to be brought within the protection of the law, the declaration in the preamble of purpose and mischiefs to be remedied being, “a declaration of a policy to advance the police power into a new fieldand the preamble was more than a mere preamble, and disclosed an intention to protect, from the conditions existing and brought about by the employment agencies, as “workers” only those who were liable to imposition and extortion.

Both in England and in this country it was at one time a common practice to prefix to each law a preface or preamble stating the motives and inducement to the making of it; but it is not an essential part of the statute and is now generally omitted. It is not only not essential and generally omitted, but it is without force in a legislative sense, being but a guide to the intentions of the framer. As such guide it is often of importance. In this sense it is said to be a key to open the understanding of a statute. The preamble is properly referred to when doubts or ambiguities arise upon the words of the enacting part. It can never enlarge. It is no part of the law. Sedgwick, Construction of Statutory & Constitutional Law (2d ed.), pp. 42, 48; 1 Story, Constitution (5th ed.), book 8, ch. 6; Edwards v. Pope, 3 Scam. (Ill.) 465; Bouvier’s Law Dictionary. If it is no part of the law, proponents have no constitutional right to propose it as a law under art. 2 as amended.

In the instant case, there is no.need or place for the alleged declaration of purpose, and it is simply and purely the especial argument advanced by the proponents in advocacy of the measure. Its proper place is in the publicity pamphlet to be issued by the secretary of state under the “facilitating” law, and paid for pro rata by the proponents.

The principal question remains yet to be decided: Can the judicial department interfere with the legislative and enjoin the publication at the expense of the state of the proposed preamble as a part of a “bill” or proposed law? This we approach with considerable concern.

Respondents cite, and his Honor below relied largely upon, State ex rel. Crawford v. Dunbar, 48 Ore. 109, 85 Pac. 337, to the effect that courts of equity have no jurisdiction to interfere in political matters where no property rights are affected, and that the presentation of arguments as parts of initiative measures is such a political matter. We should have decided in that case as did the supreme court of Oregon, for the reason that the direct legislation provision of the Oregon constitution contained no provision for further legislation to facilitate its operation and no mandate to the legislature to provide methods of publicity of proposed laws or arguments. An act passed by the legislature (Laws of Oregon, 1903, p. 2é4¡), regulating initiative and referendum procedure, which provided that the ballot title of such measures should be designated by the proponents, contained no restrictions upon argumentative ballot titles, but did provide that both proponents and opponents thereof might file pamphlets, printed at their own expense, containing their respective arguments, to be circulated by the secretary of state. This was the state of the law at the time of the decision in the cited case, and the case, therefore, furnishes us no assistance. The above decision was made in 1906, and the next session of the Oregon legislature repealed the act of 1903 and enacted one providing that the ballot titles of initiative measures should be prepared by the Attorney General and should not be argumentative. Laws of Oregon, 1907, p. 398.

We have no hesitancy in saying that, if the opponents of the measure under consideration could induce the secretary of state to include in some way in the proposed ballot their arguments against the measure, however brief, the proponents would forthwith demand and be entitled to the interference of the courts to prevent it as in violation of their rights. Nor can it be doubted that, if the opponents could induce the secretary of state to print and distribute their arguments against the proposed measure at the expense of the state and without expense to the opponents, the proponents would demand and be entitled to equity’s interference to restrain su,ch unlawful expenditure of public money. How then can it be asserted with any reason that the political right of the proponent is any greater, or the legal and equitable right of the opponent any less, than the other?

We have said that public officers will be restrained from the threatened illegal expenditure of public money. Rickey v. Williams, 8 Wash. 479, 36 Pac. 480; Krieschel v. Board of Com’rs, 12 Wash. 428, 41 Pac. 186. We have said that we will no longer in this state draw any fine distinctions between personal and property rights, unless it may be in favor of personal liberty. Huntworth v. Tanner, 87 Wash. 670, 152 Pac. 523. It is impossible to foresee all the exigencies of society which may require the aid and assistance of courts of equity to protect rights or redress wrongs. The jurisdiction of such courts is manifestly indispensable in a great variety of cases for the purposes of social justice,- and therefore should be fostered and upheld by a steady confidence. 2 Story, Equity Jurisprudence (13th ed.), p. 263.

In State ex rel. Mohr v. Seattle, 59 Wash. 68, 109 Pac. 309, we held that an injunction against the enforcement of a city ordinance, at the suit of one who had no interest except as a voter and signer of a referendum petition, should be granted. In State ex rel. Kiehl v. Howell, 77 Wash. 651, 138 Pac. 286, we assumed jurisdiction to determine the political question whether the secretary of state could refuse to proceed with an initiative measure filed more than ten months prior to a regular election. We entertained jurisdiction to determine the political question and right of relator to have the secretary of state file, print, and distribute, at the expense of the state, the arguments presented in favor of an initiative measure, in State ex rel. Chamberlain v. Howell, 80 Wash. 692, 142 Pac. 1.

The present situation seems in some measure to be an attempt to evade the plain provisions of the statute regarding the publication of arguments and the payment of the expense thereof, and the decision in the last cited case. Ordinarily the reason for an enactment lies wholly in its enactment. The existence of a law ought to be its own reason. While all preambles to initiative legislation would not be subject to criticism as mere arguments by the proponents, but intended to be proper declarations of purpose in a proposed law, we are convinced that the one under consideration is; and that it is not a mere political question nor an exempt legislative process, but is regulated by the law, and is subject to judicial interposition.

Reversed, and remanded with instructions to grant the injunction. The proponents may, however, at their election, expunge from the proposed measure all of § 1 after the clause, “This act shall be known as the ‘Fisheries Code of Washington’,” and have the remainder of the proposed act submitted under the ballot title prepared by the Attorney General, the proponents to furnish the arguments in support of their measure separately to the secretary of state for distribution. Relators will recover costs.

Morris, C. J., Main, Mount, and Chadwick, JJ., concur.