(dissenting) — The majority have quoted the following language from State ex rel. Hoppe v. Meyers (1961), 58 Wn. (2d) 320, 326, 363 P. (2d) 121, which is the most recent pronouncement by this court as to the validity of an “emergency clause”:
“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 he given effect, unless the declaration on its face is obviously false; and, in' determining" the truth or falsity of the legislative *781declaration, 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.” ’ ” (Italics mine.)
The majority formulate and state as their conclusion the following:
“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.”
I am convinced that the majority have misconceived, among other things, the proper placement of the burden of proof as to the matter presented to the court for evaluation and resolution in this case. The majority have apparently placed the burden of proving the validity of the use of an “emergency clause” by the state legislature upon the defenders of that legislative declaration. This obligation, as imposed by the majority, to affirmatively validate the legislative declaration is clearly in conflict with the rule enunciated and emphasized in State ex rel. Hoppe v. Meyers, supra, and quoted with' approval in the majority opinion. In other words, the rule of the Hoppe case succinctly stated is that the legislative declaration is conclusive unless it is shown to be obviously false. In State ex rel. Pennock v. Coe (1953), 42 Wn. (2d) 569, 584, 257 P. (2d) 190, this court quoted with approval the following language from State ex rel. Reiter v. Hinkle, 161 Wash. 652, 297 Pac. 1071:
“ ‘No facts of which we will take judicial notice are called to our attention which justify a holding that the emergency clause is a mere pretense, for which reason we should brush aside the solemn legislative declaration. . . . ’ ”
Thus, it appears beyond question, from the previous decisions of this court, that the burden of proof must fall upon the party attacking the validity of an “emergency clause”, since the legislative declaration is conclusive unless it is shown'to be obviously false. In the instant case the relator has simply failed to sustain that burden. Actually, the prin*782cipal thrust of the relator’s argument has been directed to the constitutionality of the act itself (Chapter 37, Laws of 1963), and the majority have correctly stated that issue is not before the court in this proceeding.
Article 2, § 1(b), placed in the state constitution by amendment 7 in 1912, provides:
“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,
We have consistently held that the word “or” was apparently inadvertently omitted before the word “support”, and, therefore, the above quoted section of the constitution has always been read as though the word “or” had not been omitted. State ex rel. Hoppe v. Meyers, supra. Thus an act is not subject to referendum if it is either for (1) the immediate preservation of the public peace, health or safety, or (2) the support of state government and its institutions. Furthermore, it should be emphasized that the word “immediate” does not modify the word “support”. In State ex rel. Pennock v. Coe, supra, one member of the court, in a concurring opinion, contended that the word “immediate” modified “support”; but that contention was rejected in the majority opinion, which was signed by seven members of the court. Thus, if the instant act comes within the support of government exemption from the right of referendum, it is not necessary to find the act “emergent” in an immediate sense.
The phrase “emergency clause” is merely a label used in common parlance. The phrase does not appear in the referendum provision of the state constitution. There is no question but that the phrase “emergency clause” connotes a sense of immediateness, and I believe that the majority’s use of that label has led them into requiring a showing of a need for immediateness. However, as previously discussed, under our constitutional provisions, there is no ne*783cessity to show a need for immediateness if the support of the state and its institutions is involved.
The majority have properly pointed out the existence of a delicate balance between the electorate’s right to referendum and the so-called “emergent” powers of the legislature, relative to the continuity of state government. However, it seems to me that the majority, in seeking to perform this delicate balancing indigenous to the judicial process, have overemphasized one side of the scales in requiring a showing of immediateness. There is an extensive discussion about the referendum amendment in State ex rel. Blakeslee v. Clausen (1915), 85 Wash. 260, 267, 148 Pac. 28, and I believe that consideration of the following passage from that case places the “delicate balance” in better perspective:
“Several years before the legislature submitted the amendment to our constitution, the people of Oregon had adopted the initiative and referendum with practically no limitations. Their constitution reads, ‘except as to laws necessary for the immediate preservation of the public peace, health, or safety.’
“It was a matter of common knowledge that, under this unbridled license to refer legislation, the state university had been denied the benefit of an appropriation for its support and maintenance; that one of the state institutions exercising an essential function of the state had been crippled and embarrassed and but for the pledge of private credit would have been destroyed, for a time, at least.
“. . . We may well assume that the people of this state had no intention of falling into the error that Oregon had made, and so framed their constitution that our government and its institutions should not be put to the embarrassments that might follow an agitation which could be supported and a vote compelled by a number of the electors so small that it may be said to be merely nominal— . . . ” (Italics mine.)
The majority’s requirement of “immediateness” to justify the use of the “emergency clause” constitutes a reading of our constitution as though it were the same as the Oregon provision referred to in the above quotation.
*784The majority, after stating that the instant act neither appropriates nor taxes anything, blithefully conclude that the support exclusion from referendum does not apply. Support is not confined to expenditures made for the operation and maintenance of the state and its institutions, but extends necessarily to the raising of revenue required to finance appropriations. On numerous occasions this court has stated that the term “support” should be used in its fullest- sense. See: State ex rel. Hoppe v. Meyers, supra; State ex rel. Reiter v. Hinkle, supra; State ex rel. Short v. Hinkle (1921), 116 Wash. 1, 198 Pac. 535. Therefore, an act which seeks to maintain, or materially to assist, in the collection or effective continuation of taxation would come within the broad concept of support.
The majority have taken judicial notice of a letter from the state tax commission setting forth tax revenues from “mechanical devices”
Fiscal King City of Yakima
Year State County Seattle County
1958 $1,593,096.37 $70,281.86 $ 935,364.24 $75,859.48
1959 1,693,245.68 76.310.80 1,053,561.57 91,147.58
1960 1,804,448.77 64.897.80 1,129,308.86 67,266.47
1961 1,684,766.03 50,243.54 1,042,983.65 81,198.68
1962 1,705,232.50 47,695.86 1,060,220.38 79,831.51
But the majority state that they fail to appreciate the relevancy of this computation of tax revenues. Contrariwise, it seems quite clear to me that these figures are relevant, because they indicate a substantial and fairly constant flow of tax revenues for the support and continuity of state government through December 1962, despite the existence of chapter 249, Laws of 1909.
Before proceeding further, it is appropriate to consider the scope of judicial notice which should reasonably be exercised by the court. The majority have placed a very narrow construction upon the permissible scope of judicial notice. I think that the majority’s confining concept of judicial notice will place a real restriction upon those who are confronted by an “emergency clause” when seeking to exercise the right of referendum. It has been previously stated that the burden is clearly upon the petitioner to show that *785the legislative declaration of “emergency” is false. This can only be accomplished by resorting to the face of the act and to those things of which the court will take judicial notice. Thus, if the scope of judicial notice is restricted in these proceedings, as is advocated by the majority, those attacking the validity of “emergency clauses” in the future will be placed in a very difficult position in attempting to sustain their burden of proof. The majority’s statements relative to judicial notice are perhaps inadvertently prompted by the anomalous situation herein presented; the defenders of the clause, who do not have the burden of proof, are seeking to have the court take judicial notice.
With reference to the permissible scope of judicial notice in situations such as the instant case, we should consider the following quotation from State ex rel. Short v. Hinkle (1921), 116 Wash. 1, 6, 198 Pac. 535:
“ . . . We are asked to say that the solemn statement of the legislature is false, and to say so, not because we are possessed of any knowledge upon the subject, but because we are ignorant upon it. We can take no testimony; we have no machinery with which to gather the facts, which the legislature is presumed to be possessed of, but, totally in the dark, we are asked to substitute our personal prejudices, predilections and preconceptions for the presumably enlightened judgment of those deputed by the constitution of the state to inquire into and determine these factual problems. ...”
I do not mean by the insertion of the above quotation that we should blindly uphold the legislative incorporation of a so-called “emergency clause”. However, I do feel that this quotation points out the need for a reasonable evaluation and utilization of the concept of judicial notice,6 particularly in public-interest, public-law situations. In State ex rel. Washington Toll Bridge Authority v. Yelle (1960), 56 Wn. (2d) 86, 351 P. (2d) 493, we took judicial notice of the commonly known situation in the Seattle area: traffic congestion and residential expansion.
*786In the instant case we should again take notice of a commonly known situation in Seattle — known to the members of the Washington State Legislature and a substantial proportion of the state’s inhabitants. In particular, I am referring to the pronouncement by the chief law enforcement official in the city of Seattle in the fall of 1962 that as of January 1, 1963, the so-called “tolerance policy” would be terminated. This decision to terminate was based upon the hypothesis that the activities permitted under the “tolerance policy” were in violation of chapter 249, Laws of 1909 (RCW 9.47). There exists a gray area of activities which are difficult to classify as being either within or without the prohibition of the 1909 laws; thus, there is confusion in the realm of law enforcement. In January 1963, the chief law enforcement official of the city of Seattle stated that the legislature should remove the inconsistencies and confusion from this area. The instant act is an attempt by the legislature to bring some semblance of order out of the chaos and confusion that now exist in this area, and to afford the opportunity to permit the continuation of the flow of tax revenues to the state and its subdivisions.
Activities which have been discontinued or greatly curtailed due to an administrative interpretation placed upon the 1909 act by the law enforcement officials of Seattle are subject to both state and local taxes and license fees. The magnitude of those tax revenues is indicated by the previously quoted statistics provided by the state tax commission, and it must be borne in mind that those figures relate only to the state tax imposed upon mechanical devices under RCW 82.28. It is obvious that the curtailment and discontinuation of those activities in the state’s largest population center will result, and has resulted, in a substantial diminution of tax revenue. Both state and local revenues are thus imperiled by the recent administrative construction placed upon the 1909 act by some local law enforcement officials. The instant act seeks to clarify the 1909 act and remove the confusion existing in this area of law. Thus, the legislature has sought to alleviate the threat to tax revenue by equating the stability and consistency of law *787enforcement with the stability and consistency of tax revenues.
The majority have correctly pointed out that “The expediency of the act is, of course, not justiciable; expediency is a legislative problem.” Thus, the question of whether the instant act is expedient — or for that matter will be successful substantially in stemming the present decrease in tax revenue is not germane to our consideration of the act.
In conclusion, I would reiterate that, since the instant act relates to the support of the state government and its institutions, there is no need to find that the element of immediateness is present. In this connection I am convinced that the “emergency clause” label may have led the majority into error in emphasizing immediateness where no such requirement is necessary. Furthermore, I believe it pertinent, in concluding, to reiterate the lines from the quotation commencing this dissent:
“ ‘ “. . . such legislative declaration of emergency . . . is conclusive and must be given effect, unless the declaration on its face is obviously false; . . . We must give to the action of the legislature and its declaration of an emergency every favorable presumption.” ’ ”
For the reasons hereinbefore stated, I would deny the writ of mandate.
Donworth, Rosellini, and Hunter, JJ., concur with Finley, J.
See: Appellate Courts use of facts outside of the Record by resort to judicial notice and independent investigation, 1960 Wis. L. Rev. 39.