I am unable to concur in the reasoning or in the result reached by the majority. *Page 245
They say the tobacco tax statute provides for the preservation of the public health. Whether it does so provide is the only question in the case.
When a public officer refuses to file petitions for a referendum on the ground that the law in question is not subject to referendum, the burden is upon such officer in a mandamus proceeding to show that clearly and obviously the questioned law is one that provides for the preservation of the public peace, health or safety or otherwise falls within the exceptions to the referendum. Since it is not contended by anyone that the public peace or safety are involved, the inquiry is narrowed as to whether the act provides for the preservation of the public health.
We are called upon to decide the question from such evidence as the record affords in the light of established rules of construction.
From the four corners of the act we see that it is a revenue measure and that the revenues obtained are to be used to make money payments to persons in need who are 65 years of age or over, in addition to the "service, aid, assistance or relief whether monetary or otherwise" granted to any needy person.
Respondent's argument is that the relief is to be granted to only the aged needy who have not sufficient income or other resources to provide a reasonable subsistence compatible with decency and health and that thus we have a legislative declaration that the public health is imperiled if a standard of living is not maintained at the expense of the state for all of its citizens, compatible with the ideas of the Department of Public Welfare as to what is decency and health.
Since the legislature has not here defined the public health or even defined private decency and health, perhaps our only concern will be to find out what the constitution makers understood to be the meaning of the phrase "public health". We have many guideposts which should lead us to a correct conclusion.
In discharging our task we should look to well defined definitions of words, to rules of construction and to such statutes as existed at the time of the adoption of the constitution in which similar words were employed. Sutherland on Statutory Construction, 2nd Edition, Sec. 358 says: "So the meaning of particular words in a recent statute will have weight; and their meaning may be inferred from earlier statutes in which the same words or language has been used where the intent wasmore obvious." (Emphasis supplied.)
In an effort to show the common understanding of men as to what is meant by "public health", I refer for convenience to Ch. 71 of N.M. Statutes 1941, Annotated, which bears the title "Public Health and Safety." Art. 1 of this chapter establishes a State Department of Public Health, and Sec. 71-104 sets out a list of the activities of the health department, some of which are as follows: *Page 246
"1. Supervise the health of the people of the state.
"2. Investigate, control and abate the causes of diseases, especially epidemics, sources of mortality and effects of localities, employment and other conditions of public health.
"3. Inspect public buildings, institutions, premises and industries and to regulate the sanitation thereof in the interest of public health.
"4. Regulate the sanitation and conduct in so far as it affects health of schools, hospitals and sanatoria, maternity homes, asylums, orphanages, hotels, restaurants, lodging-houses and tenements, factories, workshops, industrial and labor camps, recreational resorts and camps, barber shops, swimming pools and public baths, places of public amusement, and public conveyances and stations.
"5. Establish, maintain and enforce isolation and quarantine.
"6. Close theaters, schools and all other public places and forbid gatherings of people when necessary for the protection of the public health.
"7. Abate nuisances endangering the public health.
"8. Regulate plumbing, drainage, water supply, sewage and water disposal, lighting, heating, ventilation and sanitation of public buildings, in the interest of public health."
Art. 2 establishes health districts and provides for the appointment of a district health officer and authorizes the establishment of county health departments to cooperate with the district health officer.
Art. 3 relates to the control of nuisances and contagious diseases; provides for vaccination; requires the report of householders as to persons in his family sick with any contagious disease "dangerous to the public health."
Another section of this article provides for the inspection of travelers who might be suspected as bringing with them any infection "which may be dangerous to the public health." Another section gives justices of the peace and judges of the district courts power to restrain the movements of persons infected with contagious or infectious diseases; quarantine of persons for the purpose of preventing the spread of contagious or infectious diseases is provided for. Epidemics are dealt with.
Sec. 71-314 provides: "The State Treasurer shall establish a special fund to be known as the `Health Protection Fund' which fund is hereby created." Laws of 1931, c. 128.
Sec. 71-315 deals with the objects of the fund and says: "The objects of the Health Protection Fund are to assist the counties of this state to establish and maintain improved health services in the manner herein prescribed; to match such sums as may be offered by the United States Government, public or private organizations or by individuals for the same purpose, and to serve as a depository for the receipt and disbursement of such gifts, subscriptions, *Page 247 donations, allotments or bequests when so desired by the donor."
By Sec. 71-318 the boards of county commissioners are ordered to levy a special health tax upon all taxable property in their respective counties not to exceed one mill on the dollar of assessed valuation of such property and the proceeds thereof shall be covered into the "county health fund", which fund is thereby created, and to be used only to defray the cost of enforcing all the health laws, rules and regulations as provided by law.
Art. 5 deals with the disposition of the unclaimed dead.
Art. 6 deals with adulterated or unhealthy food or drink which might be injurious to health. Laws of 1889.
It is not necessary to recite further details, but an examination of this chapter entitled "Public Health and Safety" by the publishers with the acquiescence of the compilation commission and this Court gives a fair index to common understanding as to measures which relate to the public health and safety. This service is for all the people regardless of age.
There is another subdivision of our statutes, being Art. 35 of Ch. 41 of the 1941 Statutes Annotated, and this is also entitled "Public Health and Safety" and is directed more to individuals and relates to the maintenance of public nuisances; defining public nuisances such as maintaining unhealthful privies or cesspools; disposing of debris and offensive matter near roads or highways or near inhabited buildings; bathing in or polluting reservoirs or water supplies; regulating slaughter houses; spitting in public places, etc., all obviously touching the public at large.
It is of some significance that the provisions for public assistance in the Public Welfare Act which includes any "service, aid, assistance or relief, whether monetary or otherwise granted to a needy individual" § 73-101, subd. (m), was not placed under the supervision and administration of the Public Health Department but is a separate department dealing with the alleviation of many of the harsh conditions of life without regard to the health of the needy individual and surely without regard to the "public health" as that term is commonly understood.
These conceptions of the public health and existing and anticipated dangers to it as outlined in our public health statutes are in accord with an old and standard definition of the public health. In State v. Becker, 289 Mo. 660, 233 S.W. 641,649, it was said: "By the `public health' is meant the wholesome sanitary condition of the community at large. 1 Bl.Com. 122; Anderson's Law Dictionary."
Obviously the provision for old age assistance is one of relief simply and purely. It is none the less meritorious on that account. It is a most worthy cause and one in which I deeply sympathize. It requires no argument for its support as a social service. But it does require a vast deal of argument and stretching of the processes of *Page 248 reasoning to produce conviction that this sort of social service was in the minds of the constitution makers as a measure to provide for the preservation of the public health or reasonably within the language employed in the constitution.
It is to be noted from the act here in question (the Tobacco Tax Law) that not one dollar of the proceeds derived therefrom can be used for the purposes mentioned in the chapters on "public health and safety" which I have mentioned. The funds are to be used solely for "old age assistance".
A careful analysis of the Public Welfare statute should produce conviction that old age assistance is an outright grant of money and on a different basis from other assistance.
Sec. 73-101, Comp. 1941 (Definitions) (m) says: "`Public assistance' means any service, aid, assistance or relief, whether monetary or otherwise granted to a needy individual by the State Department of Public Welfare."
Sec. 73-111 says:
"Public assistance shall be granted under this Act * * * to any needy person who:
"(a) Has not sufficient income or other resources to provide a reasonable subsistence compatible with decency and health."
This language is broad enough to embrace any needy person who is 65 years of age or over and to render unnecessary the establishment of old age assistance contained in Sec. 73-122 unless it is based upon something different than general public assistance.
Sec. 14 of the Tobacco Tax law, Laws 1943, c. 95, says: "All revenues including taxes, penalties, interest and license fees collected under this act shall be paid over to the State Treasurer, and shall be placed by him in a fund to be known as the `Department of Public Welfare Fund' for old age assistance."
Since a needy person 65 years of age is also within the privileges of Sec. 73-111 and entitled to public assistance accorded to "any needy person," he gets under the definition of "public assistance" contained in paragraph (m) of Sec. 73-101 "any service, aid (and) assistance," which the Department of Public Welfare is authorized to render which I assume includes medical attention and perhaps hospitalization under the provisions of Sec. 73-125.
In a pamphlet issued by the Department of Public Welfare entitled "Questions and Answers" is the following:
"Q. What kinds of services does the Department give in addition to financial assistance?
"A. Services in connection with health problems are:
"Provides examination and treatment for persons who are blind or who are in need of eye care.
"Maintains a sanatorium for tuberculosis persons who need institution care. *Page 249
"Provides for the care and treatment of crippled children.
"Within limits of funds available, provides examinations and treatment for persons who are sick and unable to purchase necessary medical care."
So the key to what might otherwise appear to be a discrimination in allocating all of the tobacco tax to "old age assistance" is probably found in paragraph (f) of 73-101 as follows: "Old age assistance means money payments to aged persons in need."
Counsel for relators say that it stems from the "Townsend Plan" and is an old age pension pure and simple.
The foregoing analysis satisfies me that so far as "old age assistance" is concerned it is not designed to provide for the preservation of the public health. It is something in addition to the provisions which have been made to preserve the public health. What reason would there be for creating a new classification of "old age assistance" which means money payments to the aged persons in need unless this kind of relief was something above and beyond and separate and distinct from the kind of service, aid and assistance which could be rendered under the authority of paragraph (m) of Sec. 73-101, and under the "Public Health and Safety" statutes.
The idea of old age pensions or old age assistance has been publicized by Dr. Townsend and the adherents to his plan and we know that it has been a political issue even in New Mexico.
I am not saying that the plan may not be meritorious and it has a lot of supporters.
And it looks to me that the 1937 act, being the Public Welfare Act, adopted the idea and that the legislators may have intended for it to be clear that it was a response to the demand of those who advocated this social service.
These distinctions are substantial and a brief recital of current history supports them.
As we have seen, the case of indigent persons has been a matter of governmental concern from very early times, but the idea of old age pensions or old age assistance is of comparatively recent origin.
In the Michigan Law Review article cited post it is said that during the decade preceding, great strides had been made in enacting such legislation and that five states had adopted "old age pension laws". This has now increased to over twenty. The writer continues: "Despite years of agitation, old age protection legislation has made no headway in the United States until recently. By 1929 forty-eight old age pension bills had been introduced in the federal Congress, but not one had ever been reported out of committee. Before 1923 only a single state had enacted such legislation, and this law was declared unconstitutional before it became operative. However, a period of activity which began following the great war led, in 1923, to the adoption of old age pension laws in three states. Since then such legislation has steadily increased, and today old age pensions *Page 250 are provided for by the laws of seventeen states and Alaska."
The majority say a "pension" is "a periodical allowance or bounty for past services rendered to the public."
Undoubtedly that was the old conception of a pension, but the moderns have tacked onto that theory in justifying the old age pensions or old age assistance or whatever you may call it, based upon the same theory. For instance in an article in Vol. 30, Michigan Law Review for January 1932, at page 403, there is an article on "Old Age Pensions" wherein the idea is developed that the aged have helped to contribute to the prosperity of the commonwealth and they should be taken care of by the society which they have helped to benefit. At page 409 the writer says: "Mr. Epstein, after a careful study of the problem, concluded that `the underlying cause of old age dependency today lies outside the control of the individual'. The true causes he finds to be: `industrial superannuation, waning earning power, sickness, industrial accident, unemployment, inadequate wages, industrial disputes and business and banking failures'. Thus, old age dependency is caused by our social and economic order; and the society which has created that order must protect its unfortunate consequences."
I am not saying that is not true nor that it is not a good thing.
What is repulsive to my reasoning powers is an attempt to relate this social service to the narrow proposition that its adoption as a state policy is necessary to the preservation of the public health.
Further references to publications which use the expression "old age pension" and "old age assistance" acts as synonymous will be found in the annotations in 37 A.L.R., page 1524; 86 A.L.R. page 912; and 101 A.L.R., page 1215 under the title "Constitutionality of Old Age Pension or Assistance Acts." An article in Vol. 10 of the American Bar Association Journal (1924, page 109) is on the subject "Old Age Pension Legislation."
It will be noticed in 1941 Comp.Sec. 73-109 the following: "The State Department is hereby designated as the state agency to cooperate with the federal government in the administration of the provisions of title 1, title 4, part 2 and 3 of title 5 and title 10 of the Federal Social Security Act."
Being curious to know what these provisions were, I went to the United States Statutes Vol. 49, Part 1, Public Laws, and find at Ch. 531, page 620, 42 U.S.C.A. § 301 et seq., the law entitled "An Act To provide for the general welfare by establishing a system of Federal old-age benefits, and by enabling the several States to make more adequate provision for aged persons, blind persons, dependent and crippled children, maternal and child welfare, public health, and the administration of their unemployment compensation laws; to establish a Social Security Board; to raise revenue; and for other purposes." *Page 251
Title 1, 42 U.S.C.A. § 301 et seq., is as follows: "Grants to states for old-age assistance." I notice that a federal requirement in order for the states to receive the federal aid is that the plan devised by the states be to pay money to "aged needy individuals". Just how needy is not stated. Then it is provided:
"The Board (federal board) shall approve any plan which fulfills the conditions specified in subsection (a), except that it shall not approve any plan which imposes, as a condition of eligibility for old-age assistance under the plan —
"(1) An age requirement of more than sixty-five years, except that the plan may impose, effective until January 1, 1940, an age requirement of as much as seventy years; or
"(2) Any residence requirement which excludes any resident of the State who has resided therein five years during the nine years immediately preceding the application for old-age assistance and has resided therein continuously for one year immediately preceding the application; or
"(3) Any citizenship requirement which excludes any citizen of the United States." 42 U.S.C.A. § 302.
In Sec. 3 of title 1 it is said that the money which the federal government pays to the states shall be used "exclusively for old-age assistance" and that the federal government will pay one half of the total sums expended for old age assistance under the state plan. The federal plan does not contemplate the contribution if the payments are more than $30 per month to the aged individuals.
I have information from the Public Welfare Department that "public assistance" is paid for entirely out of state funds, where-as "old age assistance" is paid for 50-50 by the state and federal government.
This may have been the reason for keeping them in separate pigeon holes. That is to say, that public assistance proceeding purely from the standpoint of the indigent ought to be taken care of solely by the state. Whereas old age assistance, as suggested in the Michigan Law Review article, is a social and economic problem caused by the aged becoming worn out in the service of their country and the taking care of such individuals is not only a matter of state concern but primarily of national concern, and proceeds not upon the narrow ground of public health or even of public peace and safety, but as the title to the federal act says, upon the ground of public welfare and as a matter of economic justice.
There is plenty of argument to support the claim that this is wise federal legislation and that it is wise for the states to cooperate with the federal government in furtherance of the plan. All I am saying is that we ought not to deceive ourselves with the idea that this is a public health measure, in the sense employed in the constitution to deprive the people of an opportunity to control this new public policy.
Our public welfare statute did not mention residential requirements as a factor of *Page 252 eligibility to receive old age assistance, but the Public Welfare Department of New Mexico, sensing the necessity of complying with the Federal Social Security Act above quoted, has promulgated some rules and regulations on "eligibility for assistance and service programs" and among those touching on old age assistance is the following: "The applicant must have lived in New Mexico for at least 5 years within the last 9 years. Also, he must have lived in New Mexico continuously for one year immediately before the date of his application."
This regulation complies with the federal statute and I think it is a very sensible one because in the administration of the Federal old age security legislation when the states are matching federal funds, each state ought to take care of its own aged needy individuals. This helps to protect the fund and avoid persons otherwise eligible from moving around from place to place and state to state to secure the benefits of the more liberal provisions.
These requirements of the 1937 Public Welfare Act are reasonable provisions to protect the funds from imposition. They show that the idea of preservation of the public health was not the paramount consideration if it was any consideration at all because the public health being as important as it is and manifested by the great concern for it in the statutes I have previously quoted, if the legislature thought that everybody ought to have at least $30 a month for subsistence, otherwise they might become a menace to public health, then it would be extremely shortsighted to put in the residential qualifications of at least one year's continuous residence and five years residence out of the last nine years before a person otherwise eligible could receive the pension, dole, assistance, security or whatever you may call it. Because those aged persons within our midst who cannot meet the residence requirements are just as potentially dangerous to the public health as those who do have the residential requirements.
Another significant thing to be noted from the regulations of the Department of Public Welfare is that as to general assistance or "public assistance" defined in Sec. 73-101 quoted supra, there are no residential qualifications of eligibility of the recipients. This bears out my argument that "old age assistance" is based upon some theory distinct from health considerations.
It was said in argument by the Assistant Attorney General that if by the tobacco tax we get more money for the old age assistance fund, some of the monies now used for old age assistance can be employed in other worthy purposes authorized by the Public Welfare Act. Maybe so. But do not the people have the right to say: "Leave it alone like it is."
If the people haven't a right to help shape the state policy by disapproving a policy proposed by the representative legislative assembly, then the legislature of 1945 could say, "Let's use the tobacco tax for something else and have a tax on gasoline *Page 253 for the old age assistance fund", and then in 1947 they could say, "Let's use the gasoline tax heretofore used for the needy aged for something else and get a property tax and a poll tax to provide for the needy aged", and so on ad infinitum. And the people could not disapprove because the Supreme Court says it relates to the preservation of the public health and therefore the people cannot have a referendum.
To emphasize my argument let me call attention to Secs. 12 and 13 of Art. 9 of the Constitution. Sec. 13 puts a limit on the debt contracting powers of municipalities. But it says that such municipalities may contract debts in excess of such limitation for the construction or purchase of a system for supplying water or for a sewer system for such city, town or village. I agree with the majority that no one would doubt that this is a recognition of the importance of a system for supplying water or of a sewer system to the public health, and so the limitations are taken off. We know as a practical thing that the only way cities and towns build sewer systems and water works of any considerable magnitude is by contracting debts for that purpose, and yet by Sec. 12 of Art. 9 it is said that no such debt shall be contracted unless the question of incurring the same shall, at a regular election, etc., have been submitted to a vote of such qualified electors thereof as have paid a property tax therein during the preceding year and a majority of those voting on the question shall have voted in favor of creating such debt.
My point is that the constitution manifests some concern for the taxpayer and that it should not be regarded as a matter of reproach to the taxpayers that they may wish to have an opportunity to say to the 1943 legislature: "We are not objecting to your old age pension or old age assistance legislation. You are already getting large sums from the liquor licenses, from the franchise tax, from the compensation tax, from the severance tax, and the counties and cities and towns can levy a half mill tax on all taxable property. In addition to this you get large sums from the federal government. You can also probably get some additional sums from the State Finance Board out of funds under its control. Aged needy individuals are afforded medical assistance the same as other needy individuals under this and other laws. What we petitioners want is the opportunity to give the people a chance to say whether they are satisfied with the way the social security program is working under the present setup or whether this new tax will be imposed in order to give the State Welfare Board an opportunity to rebudget the fund now available."
In other words, the disapproval of the Tobacco Tax Law would not repeal the public welfare act nor any of the laws heretofore enacted providing funds for its administration and for old age assistance.
To say that the expression of opinion in the preamble to the act that with more money the Welfare Department could do a better job for the relief of aged needy individuals *Page 254 is the expression of an opinion that if more money is not secured by the adoption of the tobacco tax, the public health will be imperiled requires considerable mental gymnastics.
All authorities agree that the words of the constitution must be given their plain and ordinary meaning. The plain and ordinary meaning of the phrase "public health" is that which affects the health of the community at large.
But this is not all. The narrower question is: What perils to the public health do the needy aged present at the present time which have not been adequately provided for heretofore?
That the care and maintenance of indigent persons has long been a state policy is apparent from Ch. 8 of the Session Laws of 1913 (Art. 2, Ch. 73, N.M.S.A. 1941). It was there provided: "That Boards of County Commissioners of the several counties and the council or other governing board of incorporated cities, towns and villages in the state are hereby authorized and empowered to make such provision as they may deem proper for the relief of deserving indigent persons who are objects of charity, residing within their respective limits." To this was added by the 1939 legislature in Ch. 189 the words: "and who have resided within the State of New Mexico for more than one year." This addition is principally significant as showing that the law is still in force, and recognized by the legislature as a power existing in counties and municipalities to take care of the situation of those who are indigent. Section 2 of the Act of 1913 provides: "That in order to provide funds for the purpose of this act, such boards of county commissioners and such counsel or other governing boards are hereby respectively empowered to levy and collect annually in the same manner as other taxes are levied and collected a tax of not to exceed one-half of one mill upon all taxable property within the limits of such counties and municipalities." That section was amended by the Laws of 1941, Ch. 122, so as to provide that the boards of county commissioners or governing bodies or the council of any city, town or village is authorized to enter into a contract with the Public Welfare Department of the State of New Mexico for the care of indigent persons residing within the limits of our respective counties or municipalities and to pay over to such Department of Public Welfare the indigent fund of their respective county or municipality within the limits of such indigent fund provided for the fiscal year as such funds may be available. It is then provided that if for any reason the Department of Public Welfare has not expended the entire amount which has been turned over to said department by any board, any remaining balance at the end of the fiscal year shall be refunded to the source from which it was received and by same board deposited to the credit of the indigent fund of such county or municipality. This shows that in 1941 the legislators thought that it was possible that the indigent fund of counties and municipalities, raised within the limits of the *Page 255 one half mill levy would be more than enough to take care of indigent persons in such counties and municipalities.
Then came the Public Welfare Act of 1937, found in Ch. 18 of the Session Laws of that year, which was rather broad in its scope and supplemented to some extent the purposes and objects of the 1913 act. Of course the Public Welfare Act covers a number of activities besides rendering assistance to the needy aged.
I am advised that in 1942 the liquor licenses brought in in round numbers $1,000,000; the franchise tax $200,000; the compensating tax $360,000; the severance tax $371,000; and this was all in addition to federal aid, the figures on which I do not have, but which was a substantially large amount.
Now let us look at the amount which could be raised by the counties and municipalities under the 1913 law. The amount of the taxable property of the state is $351,582,298. If I have my figures right a one-half mill levy upon this amount of taxable property would be $175,791. There is nothing in the record to show that this source of revenue has been exhausted. I am informed that every county in the state makes some sort of levy for the purpose of taking care of indigent persons and that in 1942 the total levy in the state for this purpose was $64,945. It thus appears that provision has already been made for caring for indigent persons, which of course would include the aged.
Of course I am not contending by this argument that we have a right to judge as to the wisdom of a proposed legislative means for accomplishing an old purpose accomplished in some other way.
What I am contending for is that the fact that only about one third of the resources available to counties and municipalities has been drawn upon is strong and almost conclusive evidence that there were no perils existing which threatened the public health from the condition of indigent persons. Boards of county commissioners and governing bodies of municipalities might be callous to the needs of indigent persons but it does not seem likely that they would be indifferent to threats of injuries to the public health and if any such perils existed the untapped resources would have been drawn upon.
In State v. Becker, supra, the Court said: "The word `preservation', say the lexicographers, presupposes a real or existing danger." The very fact that a substantial source of revenue from a one-half mill levy on the taxable property of the state which has not been exhausted and which has been tapped to only one third thereof is a strong indication that in the minds of the boards of county commissioners and the governing bodies of municipalities there was no existing danger.
To say that about 1% of our citizens, widely distributed, living in pastoral conditions, surrounded by people of proverbially hospitable and kindly natures, already the recipients of "public assistance" and *Page 256 "old age assistance" from the state, further protected if need be by the unexhausted power of county commissioners and governing bodies of municipalities, further to be served if they become in distress by sickness through the instrumentalities of local district and state health agencies provided for by separate laws heretofore mentioned, will, but for the tobacco tax be a menace to public health is too much of a strain upon reason and common sense.
By Sec. 73-103 the Department of Public Welfare is authorized to receive and disburse funds, commodities, equipment, supplies and property of every kind, given, granted, loaned or advanced for old age and other public assistance. The Public Health Act heretofore mentioned contains a similar provision for the receipt and disbursement of donations from public minded citizens.
We know that in times of peril multitudes of our citizens, without the coercive measures of taxation, lend their efforts to avert such perils. I cannot conclude that the churches, the benevolent societies, the members of families, friends and neighbors of the needy aged have suddenly become so callous that they would be so indifferent to the privations of these unfortunates that they would permit them to become a menace to our public health and safety.
That which all know, the courts must judicially know. Current history shows the real purpose of this and similar laws, and we need not further state the history. It is known to every member of the representative assembly, every judicial officer of the state, every lawyer and citizen who has read and kept abreast of the current history made and now being made. To say that the purpose of the tobacco tax bill is to protect New Mexico in some great impending perilous condition relative to the public health is not only in the face of the bill itself but in the face of what her citizens know.
We cannot shut our minds to the fact that the act in question is a relief measure, and to the fact that direct relief from the public funds is a social and political question concerning which the opinions of our citizens are in sharp conflict. Some profess to fear paternalism as a factor in government; that there are dangers ahead if a bloc of voters on relief may exercise a large influence in elections, notwithstanding such restraints as the Hatch Act may afford (see News Week, July 3, 1939).
Others think it is a problem which should be solved by the church, benevolent associations and individuals. To the contrary, there is a large contingent who believe that it is a proper function of government to provide for the needy who have no other means of subsistence.
I see no occasion to be ashamed of it for what it is as an independent policy.
In 1940 Fortune conducted a poll on the question: "Do You Think the Government Should Provide for All People Who Have *Page 257 No Other Means of Obtaining a Living?" The answers were:
"Yes 65.1% "No 27.8 "Don't Know 7.1" (See March issue, 1940.)
That the statute involved in the case at bar is designed to serve a humanitarian purpose may not be doubted. That this is sufficient reason for the law is perhaps the view of a majority of our people.
The referendum also is designed for the preservation of public peace and safety. The right of the people through their representatives in the legislature and by supervisory control over their acts to control the course of legislation is one of the fundamentals of our state government and should not be impaired.
Sec. 2 of Art. 2 of our constitution says: "All political power is vested in and derived from the people; all government of right originates with the people, is founded upon their will and is instituted solely for their good."
This declaration but emphasizes Sec. 1 of Art. 4 here directly involved and aids in imputing to the constitution makers an intelligent and honest purpose and refutes the insinuation that this body of men were guilty of a questionable purpose of having yielded to a demand of the people for a referendum, but at the same time putting in a joker so as to render such referendum clause impotent, inert and of no effect.
In the solution of our immediate problem, much depends on our approach to it. If we start out with the premise that the power reserved to the people to veto laws enacted by the legislature is of high importance and dignity and itself tends to promote the public peace and safety, we will lean toward a construction which will guard, preserve and protect it from nullification or encroachment. If on the other hand it is thought that this reserved power of the people to veto laws enacted by the legislature is of small importance, conceived in trickery, we will more readily discover that a law enacted by the legislature provides for the preservation of the public peace, health or safety and is consequently immune from referendum.
My mental attitude and approach to the problem is not new born and aligns me in favor of the referendum power of the people and repels any encroachment thereon through fine spun arguments. My views were emphasized in my opinions in Todd v. Tierney, 38 N.M. 15, 27 P.2d 991, decided 10 years ago, and Hutcheson v. Gonzales,41 N.M. 474, 71 P.2d 140, decided 6 years ago.
It is a cardinal rule of construction of statutes and constitutions that the enacting part thereof must be liberally construed, and exceptions must be strictly construed.
Here referendum is the rule and a particular statute said by some to provide for the preservation of the public peace, health or safety is the exception and the burden *Page 258 is upon him who asserts that the act is not referable, to show that it clearly and obviously so provides.
We are not called upon to strive by labored argument to deny the right of the people to vote upon it.
The public health is not even mentioned in the act under consideration as it was generally mentioned in our statutes heretofore cited, and which would obviously refer to the public health.
Add to the foregoing the fact commonly known that the representative legislative assembly several times during the 1943 session were urged to attach the emergency clause because it was thought by some that attaching such a clause would except the act from a referendum. After due deliberation the act was passed without the emergency clause. We have a right to assume that it was the opinion of that body that the public peace, health and safety was not imperiled and rather evinces an expression of a desire that the people decide the question of policy.
A brief reference to some faulty arguments of the majority may not be amiss. They say: "If the issue were doubtful it would be our duty to resolve it in favor of the legislative determination and constitutionality." That might be the rule when an act is under attack as being unconstitutional, which is not the case here. On the issue before us all doubts ought to be resolved in favor of the right of the people to exercise their power of referendum. They are as capable as their representative legislators to judge as to what is wise, expedient or necessary.
The majority say: "It is not our province to declare the Legislature acted unwisely." That is correct so far as we as judges are concerned. But the province to declare whether "the Legislature acted unwisely" is exactly what the constitution does reserve to the people as electors. They say: "After all it was for the Legislature to appraise the danger apprehended and move to meet it." This deference to the surplusage of opinion recital of the representative assembly contained in a preamble makes of the constitutional referendum a mere scrap of useless paper. In State v. Becker, supra, it was said: "Legislatures, like courts, sometimes err. The referendum has been thought designed to correct legislative errors. If respondent's position is tenable, then, if the legislative assembly shall err and pass a bad law (in the belief that it is a good law), the error in passing this bad law is not subject to the referendum, but is exempt from such correction upon condition only that the same legislative assembly shall commit one more error — i.e., find as a fact that the law is necessary for the immediate preservation of the public peace, health, or safety, and then put this erroneous finding into the bad law. Does one error plus one error equal no error for the purposes of this case? To ascribe such an intent to the people is to charge them with incorporating a remarkable absurdity in the organic law of the state. If the people desired that the same body whose enactments they *Page 259 wished to supervise by means of the referendum should have full power to prevent such supervision in every case, it seems reasonable to think they would have said so, and, particularly, would not have avoided so carefully a form of words already in the Constitution which would have been adequate to have effectuated this remarkable purpose."
If I were in doubt I would rather make a mistake in favor of the referendum than against it. State policy as expressed in legislative enactments may change, and if the referendum is conducted the people will probably decide correctly. It is better that they have the opportunity to do so even in a doubtful case than that the power of referendum be whittled down by court decisions, until eventually no one would ever know in advance with any certainty when the people may have a referendum. This is but another way of stating the rule of construction that reservations of power in the people should be liberally construed to sustain and perpetuate the power, whereas exceptions should be strictly construed.
The majority cite Los Angeles County v. La Fuente as being the only case which research discloses as declaring itself on the direct question of the relationship of old age assistance to public health. That was a case involving the constitutionality of a statute and of course the court was correct in applying the rule of construction as to the constitutionality of a statute and saying [20 Cal. 2d 870, 129 P.2d 378, 381]: "Whether it is wise to give benefits to one who has a child willing and able to support him is a question for the attention of the Legislature and not for the courts."
The argument was that since the care and relief of aged persons who are in need "may" be a special matter of state concern in promoting public health and welfare, the act should be permitted to stand against an attack upon its constitutionality. In the case at bar a different rule applies because the people being a part of the legislative processes and having the power to disapprove a law enacted by the legislative assembly, the question of whether the legislation is wise is for the attention of the people as well as for the assembly.
The same objection may be made as to the decisions cited by the majority upholding legislation against objections, that they are not within the police power of the states. It was appropriate in those cases to indulge every presumption in support of the law as against such an attack. The difference is that in the case at bar the law is not under attack as being unconstitutional. The petitioners for a referendum merely say that they desire an expression of the voters not as to whether it is wise to care for the indigent, but whether the tobacco tax is necessary for that purpose.
To my mind there is greater danger to the public peace, health and safety in having large groups of our citizens disheartened with the sense of frustration arising from withdrawal from them of the right of petition and referendum than there is in the remote danger to the public health by a possible rejection of the tobacco tax. *Page 260
To reject the tobacco tax law would not leave the welfare board and other agencies powerless to relieve the needy aged in view of the many resources already at hand.
The provision for referendum is one of the constitutional processes which is ordained and established for the maintenance of a democratic form of government. I cannot acquiesce in the annulment or impairment of it by means of strained and unsatisfactory argument and reasoning, therefore I dissent.