State Ex Rel. Humiston v. Meyers

Weaver, J.

This is an original application for a writ of mandamus to compel the Secretary of State to accept, file, and process documents submitted to him for the purpose of implementing a popular referendum of Laws of 1963, chapter 37 (Senate Bill No. 360), in accordance with Article 2, § 1 (b) (amendment 7) of the state constitution and ROW 29.79.

Respondent refused relator’s proffered documents, stating:

“Petition for referendum refused March 15, 1963 because of emergency clause contained in section 9, Enrolled Senate Bill No. 360.”

Chapter 37, Laws of 1963, bears the title:

“An Act Relating to the maintenance and operation of certain machines or mechanical devices, salesboards, bingo equipment and cardrooms in certain governmental subdivisions; adding new sections to chapter 249, Laws of 1909 and chapter 9.47 RCW; and declaring an emergency.”
The act, as passed by the legislature, adds nine new sections to the existing law. Four sections provide that “. . . it shall be lawful . . . ” (1) to possess “. . . any machine or mechanical device which is not manufactured or equipped with an automatic payoff mechanism” (Section 1); (2) to possess “. . . any sales-board or sales ticket intended for trade stimulation purposes where merchandise only is dispensed” (Section 3); (3) to operate a “. . . public cardroom not to exceed eight tables wherein persons engage in games of skill . . . ” • (Section 4); (4) to possess and operate paraphernalia "... for use in the game of bingo ...” pro*774vided the game is conducted for the benefit of certain enumerated nonprofit charitable organizations and “. . . the proceeds thereof are not to inure to the profit of any individual. . . . ” (Section 5)

The practices and devices designated as lawful can only be employed and used if

“ . . . located in any incorporated city or town, or all that portion of any county not included within the limits of incorporated cities and towns where the same is licensed or taxed.” (Italics ours.) (Section 3)
Section 2 of the act makes it unlawful for the user of any mechanical device, described as lawful in section 1, to receive anything of value except “. . . free plays and the playing of additional games ...”
Section 6 sets forth certain licensing criteria; section 7 is a licensing “grandfather clause”; section 8 is a severability clause.

The question before us arises from section 9, which provides:

“This act is necessary for the immediate preservation of the public peace, health and safety, the support of the state government, and its existing public institutions, and shall take effect immediately.”

March 7, 1963, the act was passed by both houses of the legislature. March 11, 1963, the Governor vetoed the words “or taxed”1 and the licensing “grandfather clause.”2 In his veto message to the senate, the Governor stated:

*775“I will allow the remainder of the bill to become law without my signature, in accordance with the additional explanation appended to the bill and to this message.”
In the “additional explanation,” the Governor said:
“I have deliberately refrained from vetoing an emergency clause contained in Senate Bill 360 in order to allow the constitutionality of this measure to be tested at once. This emergency clause permits the bill to take effect immediately; therefore, allowing a court test of the constitutionality of this bill at once by anyone who might desire to do so.”

The question for our determination is simply this: Is section 9 — the emergency clause — valid so that the act becomes effective immediately, or, is the emergency clause invalid so that the act is subject to a possible referendum vote by the people?

In view of the many overtones that have been developed by counsel and amici curiae, we point out that this case does not involve the constitutionality of the act or the efficacy of the Governor’s item veto, nor do we have before us the question of how or when the constitutionality of the act may be tested. The expediency of the act is, of course, not justiciable; expediency is a legislative problem.

The people are the genesis of all political and legislative power.3

. Article 2, § 1, of the state constitution provides:

“The legislative authority of the state . . shall be vested in the legislature, . . . but the people reserve to themselves the power to propose . . . laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power ... to approve or reject at the polls any act, item, section or part of any . . . law passed by the legislature.
*776“(a) Initiative: The first power reserved by the people is the initiative. . . .
“(b) Referendum. The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions, . . . ” (Italics ours.)

The people’s reserved right to exercise the initiative and referendum was placed in the state constitution by amendment 7, adopted in 1912. Its political history and the impact of the amendment upon the law of this state have been discussed, exhaustively, in State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 Pac. 11 (1915); State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 Pac. 28 (1915); and State ex rel. Case v. Howell, 85 Wash. 281, 147 Pac. 1162 (1915).

We believe it self-evident that, by the adoption of amendment 7, the people intended to mark a line between laws that might be emergent and those that clearly are not, reserving to themselves the right to pass upon legislative acts that affect public measures and policies; that they fixed a limit beyond- which the legislature cannot go without doing violence to the will and voice of the people; that the legislature has no right to tack an emergency clause onto an act in order to prevent the people from exercising their right of referendum, unless that act is clearly within the exception set forth in the amendment.

In State ex rel. Howell v. Superior Court, 97 Wash. 569, 577,166 Pac. 1126 (1917), Judge Parker, writing the court’s majority opinion, stated:

“Whatever divergence of opinion there may be among the courts touching the meaning of constitutional or statutory provisions relating to the initiative and referendum, we think it safe to say that all courts that have spoken upon the subject agree that such provisions are to be liberally construed, to the end that these popular legislative rights of the people reserved in the several constitutions where found may be preserved and rendered effective.” (Italics ours.)

*777A review of all the decisions of this court upon the question prompts two observations: first, Judge Parker’s reference to “liberal construction” was over-optimistic; and second, there is a most delicate balance between the emergent powers of the legislature and the people’s right of referendum. The latter observation is buttressed by the fact that in almost every prior decision on this point, the court was divided, or there was a concurring opinion based on reasons different from those expressed by the majority.

On at least 11 occasions this court has upheld the efficacy of emergency clauses* **4; on 7 occasions we have struck them down.5

The question before us is one of construction or interpretation of an act of the legislature and of a provision of the constitution; this is a judicial question.

*778By what rule shall the question be tested? It would be inaccurate to say that our former decisions have been consistent in discussing and announcing the rule to be applied.

In State ex rel. Hoppe v. Meyers, 58 Wn. (2d) 320, 326, 363 P. (2d) 121 (1961) (the most recent opinion on the question), the court said:

“With regard to the weight to be given such clauses, the rule to which this court has most consistently adhered, is that most recently stated in State ex rel. Pennock v. Coe, 42 Wn. (2d) 569, 257 P. (2d) 190, quoting from State ex rel. Pennock v. Reeves, 27 Wn. (2d) 739, 179 P. (2d) 961:
“ ‘ . . . such legislative declaration of emergency and necessity for the enactment is conclusive and must be given effect, unless the declaration on its face is obviously false; and, in determining the truth or falsity of the legislative declaration, we will enter upon no inquiry as to the facts, but must consider the question from what appears upon the face of the act, aided by the court’s judicial knowledge. State ex rel. Hamilton v. Martin, 173 Wash. 249, 23 P. (2d) 1. We must give to the action of the legislature and its declaration of an emergency every favorable presumption.” ’ ”

The touchstone of the rule is “. . . what appears upon the face of the act, aided by the court’s judicial knowledge.”

The face of the act is patently devoid of any facts relating to an emergency (with the exception of the emergency clause itself). The act repeals nothing; it appropriates nothing; it taxes nothing. In nowise is the act comparable to the act considered by the court in State ex rel. Hamilton v. Martin, 173 Wash. 249, 23 P. (2d) 1 (1933), wherein the act recited facts showing an emergent situation, which facts were, for the most part, capable of judicial knowledge. We do not indicate that the inclusion of a legislative declaration of policy in an act would, ipso facto, remove the emergency clause from the ambit of the court’s constitutional duty to project and test the clause upon the backdrop of the constitution.

A more subtle question is presented when we are called upon to bring into play our “judicial knowledge” in the decision of the instant case.

*779In the brief of the Attorney General, we are asked to judicially notice a letter from the Washington State Tax Commission. This letter sets forth the revenue from taxes on mechanical devices during a 5%-year period (July 1, 1958 — June 30, 1962, and the first 6 months of the 1962-63 fiscal year) received by the state, King County, city of Seattle, and the city and county of Yakima. We have taken judicial notice of the letter, but fail to appreciate its relevancy. The figures disclose no emergency, but a rather consistent collection of taxes.

Judicial notice, of which courts may take cognizance, is composed of facts capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy and verifiable certainty. The court may

. . resort to encyclopedias, authoritative works upon the subject, reports of committees, scientific bodies, and any source of information that is generally considered accurate and reliable ...” Ritholz v. Johnson, 244 Wis. 494, 502, 12 N. W. (2d) 738, 741 (1944).

In Mickelson v. Williams, 54 Wn. (2d) 293, 340 P. (2d) 770 (1959), this court said:

“. . . judicial notice may not be taken of a custom or usage, local in nature, without the proof of its existence and application. . . . ” (Italics ours.)

We are urged by amici curiae to take judicial notice of the fact that one city in the state recently changed its administrative policy applicable to Laws of 1909, chapter 249; that many people have lost employment in that city as a result of the change in administrative policy. This, it is argued, makes Laws of 1963, chapter 37, emergent and necessary for the “support of state government and its existing public institutions.”

We do not agree for two reasons: first, the administrative policy of a single city — which may change from day to day — is not a determinative fact that we should notice judicially in the instant case; it is “local in nature”; second, assuming that the facts claimed exist, the conclu*780sion does not follow from the major and minor premises of the syllogism.

Next, it is urged that chapter 37 is emergent because it is for the “immediate preservation of the public peace, health or safety.” We are unable to equate pinball machines (§1), punchboards (§3), bingo (§5), and card-rooms (§4) to an immediate threat to the populace. “ ‘Public peace, health or safety’ . . . refer to perils which may beset the state or its citizens ...” State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 274, 148 Pac. 28 (1915).

Finally, it is argued that the act explains and clarifies chapter 249, Laws of 1909. Assuming, arguendo, this clarification is accomplished, we are unable to conceive of an emergency springing from a law which has been in force for 54 years.

Neither the act upon its face, nor those factors of which judicial notice can be taken, indicate a situation justifying the inclusion of an emergency clause.

The writ of mandate will issue and respondent is directed to accept, file and process documents submitted to him by relator for the purpose of implementing a referendum of Laws of 1963, chapter 37, providing said documents are in accordance with the law.

It is so ordered.

Ott, C. J., Hill, Hamilton, and Hale, JJ., concur.

In his veto message to the senate, the Governor stated: “I hereby veto these items in Sections 1, 3, and 4 to make it plain that the non-gambling activities permitted under this statute may be exercised only by such municipal subdivisions of the state as are willing to license the respective activities or devices.”

n his veto message to the senate, the Governor stated:

“Section 7 would permit persons, firms, or corporations which had been licensed by a city council, board of trustees or board of county commissioners prior to March 1, 1963 to become automatically eligible to receive a bingo, state fair or similar license. I believe that each licensee under this act should be carefully scrutinized and only those persons who are citizens of the United States and who have been residents of the State of Washington for at least five years prior to application should be allowed to obtain licenses under this act. In the *775case of firms or corporations, I believe all officers and stockholders should first fulfill the residence requirements provided in Section 6 of the statute.”

“Washington Constitution, Art. 1, § 1:

“All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.”

State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 Pac. 28 (1915) (construction of highways); State ex rel. Case v. Howell, 85 Wash. 281, 147 Pac. 1162 (1915) (financing local improvement districts); State ex rel. Case v. Howell, 85 Wash. 294, 147 Pac. 1159 (1915) (regulation of common carriers on streets); State ex rel. Anderson v. Howell, 106 Wash. 542, 181 Pac. 37 (1919) (motor vehicle code); State ex rel. Short v. Hinkle, 116 Wash. 1, 198 Pac. 535 (1921) (administrative code); State ex rel. Reiter v. Hinkle, 161 Wash. 652, 297 Pac. 1071 (1931) (excise tax on butter substitutes); State ex rel. Shelor v. Hinkle, 162 Wash. 702, 298 Pac. 1070 (1931) (motor vehicle license fees and tax); State ex rel. Hamilton v. Martin, 173 Wash. 249, 23 P. (2d) 1 (1933) (bonds to alleviate state-wide unemployment and poverty); State ex rel. Pennock v. Reeves, 27 Wn. (2d) 739, 179 P. (2d) 961 (1947) (old age and general assistance) ; State ex rel. Pennock v. Coe, 42 Wn. (2d) 569, 257 P. (2d) 190 (1953) (department of public assistance); State ex rel. Hoppe v. Meyers, 58 Wn. (2d) 320, 363 P. (2d) 121 (1961) (increasing motor fuel tax).

State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 Pac. 11 (1915) (change of personnel — state land commission); State ex rel. Mullen v. Howell, 107 Wash. 167, 181 Pac. 920 (1919) (ratification of federal prohibition amendment); State ex rel. Satterthwaite v. Hinkle, 152 Wash. 221, 277 Pac. 837 (1929) (abolished state highway committee and established highway department); State ex rel. Burt v. Hutchinson, 173 Wash. 72, 21 P. (2d) 514 (1933) (authorizing horse racing and parimutuel system); State ex rel. Robinson v. Reeves, 17 Wn. (2d) 210, 135 P. (2d) 75, 146 A.L.R. 280 (1943) (acquisition of private utility by public utility district); State ex rel. McLeod v. Reeves, 22 Wn. (2d) 672, 157 P. (2d) 718 (1945) (appointment of game commissioners); State ex rel. Kennedy v. Reeves, 22 Wn. (2d) 677, 157 P. (2d) 721 (1945) (administration of state timber).