Todd v. Tierney

I agree with Mr. Chief Justice WATSON and Mr. Justice ZINN that the circumstance that the Legislature declared an emergency to exist, which made it necessary that chapter 171, Laws 1933, take immediate effect and be in full force from and after its passage and approval, does not foreclose a decision by the courts as to whether the act is within the exceptions from the reserved power of the electors of the state to disapprove the act if a proper 10 per cent. petition is timely filed demanding a vote on the question of its approval or disapproval, as guaranteed in section 1 of article 4 of our Constitution.

I assert further, however, that the same circumstance was without effect to accomplish the declared purpose of putting the act into immediate effect, unless such act is within such exceptions from the people's reserved power.

The question here seeking solution is of grave importance. It involves the right of the people under their Constitution to enter into, and become a part of, the lawmaking power of the state.

I participate in making up a majority who say that the lawmaking power to disapprove and repeal any law enacted by the last preceding session of the Legislature within the people's power to disapprove has not been, and cannot be, destroyed by the Legislature by appending such emergency clause.

This power to disapprove and repeal, however, was only a part of the lawmaking power which the people reserved to themselves. The Constitution, § 1, art. 4, says: "The people reserve the power to * * * suspend and annul any law enacted by the legislature [except certain laws]." I accept the view that "suspend," as here used, does not mean to temporarily annul or deprive of effect a law which has already been in effect, but, as Brother SADLER phrases it, suspends the taking effect of the law.

The suspension being accomplished, this is not the end of the matter. Suspension of a law has not accomplished "its rejection," nor its approval by the people in the exercise of their reserved lawmaking power. When an *Page 39 act of the Legislature is thus in suspension, "the question of its approval or rejection shall be likewise submitted to a vote." If the majority are for its rejection, "it shall thereby be annulled; otherwise it shall gointo effect." It will be noted that it is not said that it shall not go into effect again.

It appears to be clear from a reading of section 1 of article 4 alone that the reserved power of the people to enter into and become a part of the lawmaking power embraces the repealingpower and also the power to say that certain acts shall notbecome law at all.

I join the CHIEF JUSTICE and Mr. Justice ZINN in deciding that section 23 of article 4 has not put it within the power of the Legislature by attaching the emergency clause to destroy the power of the people to repeal certain laws, but they join with Mr. Justice SADLER and Mr. Justice HUDSPETH in saying that said section 23 has put it in the power of the Legislature by attaching such emergency clause to prevent the exercise of that other reserved power of saying that certain laws enacted by the Legislature shall not become law. To this I cannot agree.

A superficial survey of section 1 and section 23 of article 4 does suggest some inconsistencies. In constitutional construction the rule always obtains that the intent of the people is the intent to be ascertained and upheld. If there is any real conflict between the reserved power of the people as expressed in section 1, with a power delegated by the people to the Legislature in section 23, the latter should yield. A casual examination of the two sections, however, construed together, convinces me that the conflict, if any, is more apparent than real.

As to the repealing power which may be exercised upon the demand of a 10 per cent. petition, it being apparent that the law may not be repealed until the vote of the people is taken at the next general election, such petition may be filed at any time before four months prior to the election, it is a matter of no particular concern in the exercise of this power as to whether the act has gone into effect immediately upon its passage and approval by virtue of an emergency clause or after the lapse of 90 days after the adjournment of the Legislature.

The people by section 1 of article 4 intrusted the determination as to whether certain laws shall go into effect 90 days after the adjournment of the Legislature to 25 per cent. or more of the qualified electors of each of three-fourths of the counties and in the aggregate of 25 per cent. of the qualified electors of the state.

By section 23 they intrusted to the Legislature to determine whether certain acts shall go into effect 90 days after the adjournment of the Legislature or immediately upon their passage and approval. By these two sections the Constitution makers have in effect said to the Legislature: "As to laws providing for the public debt or interest thereon, or the creation or funding of the same, except in this constitution otherwise provided; laws providing for the maintenance of the public schools or state institutions; local or special laws and other laws providing for the preservation of the public peace, health or safety, you may exercise *Page 40 your own judgment subject to the limitations of section 23 of article 4 of this constitution, whether they shall go into effect immediately upon their passage and approval or 90 days after the adjournment of the legislature enacting them. You have no option of discretion as to the effective date of `general appropriation laws,' we hereby fix the time of going into effect of `general appropriation laws' as `immediately upon their passage and approval.' We reserve the right to suspend thetaking effect of any law enacted by you except those heretofore described. In order to enable the people to consider whether certain laws shall take effect 90 days after the adjournment of the session of the Legislature at which such law was enacted, 90 days after such adjournment time is provided within which to afford an opportunity for 25 per cent. or more of the qualified electors of each of three-fourths of the counties and in the aggregate of 25 per cent. or more of the qualified electors of the state to file a petition with the secretary of state, demanding an opportunity to approve or reject such laws. If such petition is filed, the going into effect of the law petitioned against is suspended, and at the next general election, "if a majority of the votes cast thereon and not less than 40 per centum of the total number of votes cast at such general election be cast for its rejection, it shall be thereby annulled; otherwise it shall go into effect upon publication of the certificate of the Secretary of State declaring the result of the vote thereon."

By the enumerated exceptions from the reserved referendum power, certain laws are beyond the power and control of the people. As to such laws, the exercise of the power delegated to the Legislature is specifically made final. It is apparent that outside of the exceptions the referendum provision has withdrawn the power of the Legislature to act with finality, or, more properly speaking, has withheld the power to act with finality. The people have reserved to themselves the power to put the stamp of finality upon certain laws. I do not discover any provision of the Constitution indicating that it is intended that the Legislature may divest the people of this reserved power.

There is nothing else for this obvious declaration of section 1 as to when referable laws shall take effect to operate on except the power delegated to the Legislature in section 23. If the people have a right to suspend through specified procedure the taking effect of certain legislative acts in the process ofbecoming laws in order that they may exercise the right to annul them, it is an invasion of that right for the Legislature to attempt to put them into immediate effect. How can the Legislature cause to go into immediate effect an act which has not become a law? Acts of the Legislature are still in the process of becoming laws when they leave the hands of the Legislature. Some will become laws when approved by the Governor. Other will become laws when approved by the Governor, or again passed over his veto, and no extraordinary referendum and suspension petition is filed.

Similar questions have been before the courts before, and the question has arisen as to whether to reconcile an apparent conflict *Page 41 it was more reasonable to read into a section of the Constitution corresponding with our section 23 of article 4 the provisions of a section corresponding with section 1 of article 4 or the reverse. The Supreme Court of South Dakota, in the case of State v. Bacon, 14 S.D. 394. 85 N.W. 605, in an ill-considered opinion, took the position that the section of the South Dakota Constitution respecting the time of taking effect of laws under legislative declarations as to emergencies should be read into the referendum provisions of the Constitution. But in a later case, State v. Whisman, 36 S.D. 260, 154 N.W. 707, 711, L.R.A. 1917B, 1, this holding was repudiated. The learned court, in a unanimous opinion by presiding Justice McCoy, held that the two sections should be construed and read together as if forming different parts of but one section. It therefore follows, said the court in the later case:

"That the Legislature, by necessary implication, is onlyauthorized to declare emergencies in that class of measuresspecified in the said exception to the referendum clause. As to all emergency measures and acts within the purview of this exception, the Legislature may declare an emergency to exist. * * * But as to any measure, law, or enactment clearly not withinthe class of emergency measures specified within said exception,the Legislature has no power or authority to declare an emergencyto exist in relation thereto, by any vote, however large the samemay be; and the action of the Legislature in embodying emergencyclauses in measures clearly not comprehended within the saidexception are wholly unwarranted and void, and should be so heldby the courts. Not that the act itself would be void, but theemergency clause would be void, with the result that the actwould not go into effect until the 1st day of the next July, andalso with the result that, in the event of a proper referendum petition being filed as required by law, such enactment would not go into effect until approved by a majority vote of the electors of the state."

Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S.W. 199, is in complete accord with the later South Dakota case.

In Sears v. Multnomah County, 49 Or. 42, 88 P. 522, the Supreme Court of Oregon had occasion to consider a similar question, and it likewise held ineffective an emergency clause to put a referable act into immediate effect. It was held in that case that the act in question would not become effective until 90 days after the approval of the Governor, notwithstanding it bore an emergency clause which would have carried it into effect under the Constitution if it were not for the referendum provisions. In this case the question was squarely presented and the court was unanimous.

In the case of State v. Meath, 84 Wash. 302, 147 P. 11, the Supreme Court of Washington decided, in accordance with the decisions from South Dakota, Arkansas, and Oregon, that, since the adoption of the referendum amendment, an emergency clause complying only with the original Constitution would not be effective to carry the law into immediate operation. In that case an act was passed changing the personnel of the *Page 42 state board of land commissioners. An emergency clause was attached stating that the act was necessary for the immediate preservation of the public peace and safety, and for the support of the state government, wherefore it should take effect immediately. While there was a marked difference of opinion among the judges as to the propriety of going back of this legislative declaration of an emergency, the court seemed to be agreed that the law could not go into immediate operation save on the assumption that there had been a full compliance with the referendum emergency exception.

In the case of State v. Carter, 257 Mo. 52, 165 S.W. 773, the Supreme Court of Missouri construed a referendum amendment which was substantially like ours. In that case the referendum had been invoked, but the court, in determining whether or not the act referred to was in effect prior to the election, approved and adopted interpretations of the courts of Arkansas and Oregon above referred to.

Again in State v. Missouri Workmen's Compensation Commission (1928) 318 Mo. 1004, 2 S.W.2d 796, 800, that court, referring to laws not excepted from the operation of the referendum provision, said: "All other laws are subject to its operation; and, ninety days being given by its terms from the final adjournment of the session of the Legislature which passed them in which to demand or order the referendum thereon, they cannot take effect or go into operation till the expiration of ninety days after such adjournment."

In State v. Sullivan, 283 Mo. 546, 224 S.W. 327, 334, the Missouri Supreme Court made some observations that support my view. In that case, the broad position was taken that no law passed with an emergency clause is the subject of referendum under the Missouri Constitution: "In other words the legislature can foreclose the constitutional right of referendum by simply tacking on and passing an emergency clause. This idea is not sound, nor does it comport with the weight of the better reasoned cases." The case involved the consideration of several parts of the Constitution, and among them the referendum provision. The court calls attention to a sentence of the referendum provision of prime importance as follows: "But the people reserve to themselves power to propose laws and amendments to the Constitution, and to enact or reject the same at the polls, independent of the Legislative Assembly, and also reserve power at their own option to approve or reject at the polls any act of the Legislative Assembly."

The Missouri court said: "Note the comprehensive term `any act' as used above."

The same is true of our section 1, article 4: "The people reserve the power to disapprove, suspend and annul any law enacted by the legislature, except general appropriation laws," etc. The court went on to say:

"The emergency clause to the measure under consideration does not attempt to declare such measure to be of the excepted class in the constitutional provision named. It only declares in a way, the legislative reason for the conceived emergency. It does not *Page 43 declare that the measure is `necessary for the immediate preservation of the public peace, health, or safety.' If it had so declared the declaration would have been false on the face of the measure itself. But for our present purpose it suffices to say that the emergency clause does not bring the measure within the excepted class named in the Constitution. So that, unless a mere emergency clause will exempt the measure from referendum, the contentions of plaintiffs and relator must fall. They urge that under section 36 of article 4 the Legislature has the power, by expressing an emergency in the face of the bill, and passing the emergency clause by a two-thirds vote, to put any law into immediate effect.

"We do not so view the matter. The force and effect of section 57, when read with section 36 of said article 4, is to withdraw from the power of the Legislature to put into immediate effect any measure subject to the referendum. The two sections must be read together and made to harmonize in the light of the history of the constitutional provisions. Section 57 contemplates that `any act' of the Legislature is subject to the referendum, save and except the measures therein specifically named. The term `any act' covers measures which were theretofore subject to the emergency clause, spoken of in section 36, so that it should be ruled that measures not excepted by section 57 are not subject to an emergency clause, but only become effective at the end of 90 days, when the time for referendum has expired. In no other way can these two sections be made to harmonize. Sears v. Multnomah County, 49 Or. loc. cit. 43, 88 P. 522."

The Missouri court held:

"That the exception in the amendment [referendum provision] should be read into section 28 of article 4. Otherwise the reservation in the amendment that `the people reserve * * * power at their own option to approve or reject at the polls any act of the legislative assembly' would be rendered futile. * * * We believe the amendment makes its own exceptions, and, if those conflict with section 28 of article 4 [emergency clause provision], they will constitute a limitation upon it to that extent.

"That an act may take effect under a general emergency clause, and yet be subject to the referendum, is clearly contrary to the intent of the amendment, and would produce disastrous results. The clause in the amendment which reads, `Any measure referred to the people shall take effect and become the law when it is approved by a majority of the votes cast thereon, and not otherwise,' clearly means that a law upon which the referendum is invoked cannot take effect prior to its approval by the vote; and consequently no act that is subject to the referendum can be made to go into operation for 90 days after the adjournment of the session or its approval by vote. * * *

"The language, supra, `We believe the amendment (in Missouri, section 57) makes its own exceptions, and, if those conflict with section 28 of article 4 (in Missouri, section 36 of article 4), they will constitute a limitation upon it to that extent,' are sufficient and satisfying. No other construction can be given which will give force and effect to both sections. This Oregon case met with our *Page 44 express approval in State ex rel. v. Carter,257 Mo. loc. cit. 70 et seq., 165 S.W. 773, supra.

"The force of the rule is that the Legislature cannot give immediate effect to any measure which is subject to referendum, but may or may not (by an emergency clause) give immediate effect to nonreferable laws. When read together these constitutional provisions mean that by no process can the Legislature preclude the referendum upon measures subject to reference by the terms of section 57, supra. That the term `any act,' as therein used, is broad enough to cover the measure before us cannot be questioned."

The Missouri court cited with approval the following statement of the Colorado Supreme Court in Re Interrogatories of the Governor, 66 Colo. 319, 181 P. 197, 7 A.L.R. 526:

"The conclusion is irresistible that no act, not of the excepted class, can have the force of law, or can become operative until after ninety days from the adjournment of the assembly at which passed, and, if referred, then not until approved by a majority of the people by vote at a general election.

"It is argued that the emergency clause of the Constitution above recited was not repealed by the initiative and referendum amendment. This requires no argument. It was not repealed. It is as effective now as it was before the amendment in so far as the Legislature has power to finally enact statutes. When the General Assembly had the absolute power to enact all legislation, the emergency provision was applicable to all acts of the body. But when the power to finally enact legislation was withdrawn from the General Assembly except as to certain classes, then manifestly the emergency provision could apply only to acts within the power of the Legislature to finally enact. Plainly the Legislature cannot act in an emergency where it has no power to act at all. It can only apply the emergency clause of the Constitution to an act to which it has the power to give finality."

It appears from reading our Constitution relating to the legislative department, and particularly section 1 of article 4, that the dominant purpose manifested is that of securing and safeguarding the right of the electors to legislate. We should avoid a construction contrary to this dominant purpose. It ought not to be presumed that the framers of the Constitution intended to put beyond the power of the electors to exercise a power reserved to them or to render futile such power. See State v. Sherman (N.D.) 245 N.W. 877, 879.

A case which supports my argument in several particulars is State National Bank v. Board of Councilmen (1925) 207 Ky. 543,269 S.W. 726. The syllabus which indicates the decision is in substance as follows:

"1. Under referendum clause of Const., § 171, as amended in 1915, a legislative act subject to referendum does not become effective until after time allowed within which to file referendum petition, if none be filed, but, if one is filed, it becomes effective when approved by people. *Page 45

"2. Const. § 55, providing effective date of legislative enactments so far as conflicting with referendum clause, section 171 must be controlled by latter."

The court said:

"After careful consideration, we have come to the conclusion that on principle and authority the better view is that the acts of the Legislature subject to a referendum do not become effective until after the time allowed within which to file a referendum petition. This was the view of the lower court.

"The purpose of the referendum amendment to our Constitution was to allow the people to pass directly upon all the acts of their Legislature which come within its purview. The period of time fixed within which the people should have the right to file a referendum petition was undoubtedly so provided in order that the people might, in the meantime, inform themselves concerning what their representatives had done; that they might have full opportunity to discuss the same, to make up their minds as to what they wished to do; and, in the event they wished to test the sentiment of the state, to get up the necessary petition to order a referendum. Pending this time, it was not the purpose of the referendum amendment that acts passed but subject to its power should become laws or that the Legislature should have the right to put into effect acts which the people might reject. * * *

"Further, the language of the amendment itself when it says that `any measure referred to the people shall take effect and become a law when approved by the majority of the votes cast thereon, and not otherwise' leads to the same conclusion. If appellant's contention be correct, then acts subject to a referendum have the force of law until suspended by the filing of a referendum petition. But the amendment provides that such acts take effect and become law only on the contingency of their approval by the people. If such acts take effect before a petition is filed, how can they be made to take effect again on a different contingency or on a different condition? How can a measure become a law on the contingency of its approval by the people and `not otherwise,' if it was already a law before the voting happened?"

From all of the foregoing, I conclude that section 23 and section 1 of article 4 of the New Mexico Constitution must be read together. The exceptions provided for in section 1 (referable laws) must be read into section 23, and, to the extent they conflict, section 1 will constitute a limitation upon section 23. The fair interpretation from the two sections as thus read together is clearly that acts, subject to referendum, become laws on the expiration of the time allowed for the filing of the extraordinary 25 per cent. petition without such being done, and, if such extraordinary petition be so filed, only when approved by the people, at the election called for in section 1.

In Hutchens v. Jackson, 37 N.M. 325, 23 P.2d 355, recently decided, it was claimed that the Legislature had violated section 23 of article 4, and we denied the claim, or, *Page 46 rather, we said that we would not inquire into the question of whether it had violated that provision or not. We are now to consider the graver question, not presented to us in that case, of whether the Legislature violated section 1 of article 4 by saying that the act went into effect immediately if we find that it is a referable statute. As to laws to which the Legislature has the power to give finality, the rule of Hutchens v. Jackson is appropriate. As to laws to which the people have the power to give finality, it is not applicable. The questions here considered were not presented in that case. It is unfortunate that they were not. If the effect of that decision is to destroy the reserved right of the people to say that referable acts shall not become law, then it should be modified.

It is proper to remark that the middle ground taken by the CHIEF JUSTICE and Mr. Justice ZINN was not presented by counsel in the case at bar. It was assumed in the briefs and on the argument that, if the law in question were subject to referendum, it could be suspended by the proper petitions for suspension and referendum being filed.

It is claimed that, if the Legislature attaches the emergency clause to an act, uncertainty would exist as to the effective date thereof for 90 days at least, depending upon the fact of whether the act is referable or not, and whether a suspension and referendum petition will be filed within 90 days after adjournment. There is always in the offing the question as to whether the Legislature has kept within constitutional bounds. But we cannot change the Constitution by mere force of opinion, just because some hardships may be occasioned by following the Constitution. The Constitution may have made it hard upon a few litigants to be put to a decision as to whether a certain act bearing the emergency clause is within the rather broad exceptions from referendum named in section 1 of article 4, but this would be no reason to ask this court to rewrite the Constitution. The fixing of most any effective date might work some hardships. And, furthermore, the hardship of waiting 90 days after adjournment of the Legislature to find out whether an act goes into effect is reduced to a narrow compass, since the Constitution in section 1 of article 4 has withdrawn from suspension and referendum all the public "safety" acts.

The great importance of the question, involving as it does our organic law, has seemed to justify my setting forth at length my views, since I am unable to impress them upon my associates, whose opinions I hold in high respect.