Having concurred in the opinion of Mr. Justice ZINN, I might forego individual expression. However, the importance of the question and the wide interest in the result may justify adding a word.
The people's reserved power is to "disapprove, suspend and annul." The power to "disapprove" and to "annul," and the manner of its exercise, are plain. Regarding them we do not differ, except as a minority here hold that the legislative declaration necessary to put a law into immediate effect is conclusive that it is not referable.
"Suspension" is different. In a proper context, the word might embrace any or all of the meanings in the various accompanying opinions attributed to it. We all agree that, as to acts taking effect ninety days after adjournment, its purpose and effect are to prevent the law from becoming operative. It maintains the status quo, pending the popular verdict. But, if it operates at all on an act already in effect, its result is farther reaching. It upsets the status quo. It perhaps restores the status quo ante. At the very least, it leaves a period of ninety days *Page 37 during which an act is or is not in effect, according as a petition has been or may be filed, or otherwise.
A result so disturbing can have no presumptions in its favor, and such a purpose should not be inferred from anything short of clear expression. Particularly is this true when we recall that "suspension" is accomplished by the mere filing of a petition, with no safeguards or sanctions, the informal and perhaps unstudied or impetuous gesture of a minority of the voters.
On the other hand, disapproval and annulment is the formal and deliberate act of the majority of the voters, the ultimate sovereignty, performed under the sanctions of the election laws. The power itself plainly appears, as well as the machinery for its exercise. It should not be frittered away by construction.
Having concluded that an act already in effect may not be suspended, it is easy to jump to the broader conclusion that it may not be referred. But this seems to me to confuse cause and effect. The power to suspend is denied, because, within the meaning of the Constitution, there can be no suspension of an existing and operating law; not because of the legislative declaration by virtue of which the effectiveness of the statute has been merely advanced in date.
Undoubtedly the judiciary owes great deference to its co-ordinate governmental branch, the Legislature. Where the latter has a function to perform under a given state of facts, or in a certain situation, its finding of the facts or its declaration of the existence of the situation will be conclusive. Accordingly, we have just held that the exercise of the legislative power to give immediate effect to its enactments cannot be challenged by asserting the falsity of the facts or situation found to exist.
But we are here dealing with a judicial function. However we may be influenced, we cannot be controlled, by a declaration made by the Legislature for a different purpose and in the exercise of a different power. I say the function is judicial. Admittedly it is as to all of the numerous classes of statutes excluded from the referendum, except "safety measures" alone. Even as to them, if the emergency clause has failed of adoption, the question is for the courts.
The contrary view results solely from similarity of definition in sections 1 and 23, art. 4, Const. The necessity of the statute "for the preservation of the public peace, health and safety" is conceived as a fact, which, found to exist by one branch of the government, cannot be questioned by another with convenience or propriety.
To my mind it is not a fact. It is a very general concept, and necessarily a matter of opinion, an opinion that may differ greatly according to the case in hand, whether there is involved the immediate effect or the referable character of the law. In legislative practice the criterion has long been interpreted most liberally. If this be an abuse, as some urge, it need not excite great alarm. Under modern conditions, it cannot matter greatly if the Legislature, for convenience or expediency, shall give immediate effect to a law, which, according to strict constitutional *Page 38 interpretation, should remain ineffective for ninety days.
But, if the legislative declaration is decisive against the referendum, a new and different importance attaches to it. A conscientious Legislature will employ it with scrupulous care. There will be either an unnecessary restriction of the useful legislative power to act with speed or an unnecessary restriction of the popular power to disapprove. I am not persuaded that the Constitution makers intended so to relate these different matters or to produce such result. The constitutional criterion is there for the guidance of the conscience and judgment of the tribunal called upon to act in the particular case, and in consideration of the consequences of its action.
Where there is so much difference of opinion, there cannot be complete assurance. My vote is cast and my views are expressed with the utmost deference to the contrary views of my associates.