(dissenting)—“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.” Constitution of Washington, art. 1, § 1.
Section 32 of the same article declares:
“A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.”
It seems that the majority have forgotten those positive declarations of our fundamental law. It seems, also, that they are imbued with the idea that there are some instances in which the courts may not inquire into the validity of a legislative act under the restrictions of the constitution. Our primary obligation is to the constitution.
“In monarchical governments, the independence of the judiciary is essential to guard the rights of the subject from the injustice of the crown; but in republics it is equally salutary, in protecting the constitution and laws from the encroachments and tyranny of faction. . . . Nor is an independent judiciary less useful as a check upon the legislative power, which is sometimes disposed, from the force of party, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and necessary principle of our government, . . . that legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice, who are hound to regard the constitution as the paramount law, and the highest evidence of the will of the people.” 1 Kent, Commentaries, 294, 295.'
*13“This, then, is the office of a written (free) constitution : to delegate to various public functionaries such of the powers of government as the people do not intend to exercise for themselves; to classify these powers according to their nature, and to commit them to separate agents; to provide for the choice of these agents by the people; to ascertain, limit and define the extent of the authority thus delegated; and to reserve to the people their sovereignty over all things not expressly committed to their representatives.” Hurlbut on Human Rights and their Political Guaranties.
“It is idle to say the authority of each branch is defined and limited in the constitution, if there be not an independent power able and willing to enforce the limitations. Experience proves that it is thoughtlessly but habitually violated; and the sacrifice of individual rights is too remotely connected with the objects and contests of the masses to attract their attention.
“Prom its every position, it is apparent that the conservative power is lodged with the judiciary, which, in the exercise of its undoubted right, is bound to meet every emergency; else causes would be decided not only by the legislature, but, sometimes, without hearing or evidence.” Gibson, Chief Justice, in De Chastellux v. Fairchild, 15 Pa. St. 18.
“Without the limitations and restraints usually found in written constitutions the government could have no elements of permanence and durability; and the distribution of its powers and the vesting their exercise in separate departments would be an idle ceremony.” People v. Draper, 15 N. Y. 532, Brown, J.
“It cannot be denied that the one great object of written, constitutions is to keep the departments of government as distinct as possible; and for this purpose to impose restraints designed to have that effect. And it is equally true that there is no department on which it is more necessary to impose restraints than upon the legislature. The tendency of things is almost always to augment the power of that department . . .”
“The constitution being the supreme law it follows of course that every act of the legislature contrary to that law must be void. But who shall decide this ques*14tion? Shall the legislature itself decide it? If so, then the constitution ceases to be a legal and becomes only a moral restraint upon the legislature. If they and they only are to judge whether their acts be conformable to the constitution, then the constitution is admonitory or advisory only; not legally binding; because, if the construction of it rest wholly with them, their discretion in particular cases may be in favor of very erroneous and dangerous constructions. Hence the courts of law, necessarily, when the occasion arises, must decide upon the validity of particular acts. ....
“Without this check, no certain limitations could exist on the exercise of legislative power.” 3 Daniel Webster, Independence of the Judiciary, Works, p. 29.
During the last forty years of the nineteenth century and the first decade of the twentieth, popular unrest and distrust of legislatures resulted, in numerous states, in a return to the primitive system of direct legislation, modified by modern systems of election. The result in this state was the adoption in 1912 of the seventh amendment to the constitution, which is, in substance, set forth in the majority opinion. By plain and simple, apt and certain words, it withdrew from the legislature the power to finally enact legislation, with certain clear exceptions, and reserved them to the people.
The emergency declared in the act under consideration is that, it is “necessary for the support of the state government and its existing institutions.”
That it may be a better system of administration and operation of the state’s activities, may, for the purpose of this argument, be readily conceded. ■ With the desirability or results of such a system, or the policy or the expediency of it, courts have no concern. We are here to declare the law, not to defend, or assail policies. That this system is immediately necessary for the support of the state and its existing institutions is plainly, *15utterly and emphatically fallacious. This is proven by the fact that for thirty-two years the state existed and the successive and cumulative wisdom of sixteen legislatures evolved the system of administration heretofore existing. It remained for the seventeenth legislature to suddenly enact, almost without debate, or deliberation, a revolutionary act, completely changing the existing system of administration, transferring the duties of a number of bureaus, commissions and officials to ten new, highly paid officials, with numerous highly paid-assistants; and it is declared that this new and extremely revolutionary system is so immediately necessary that an emergency exists, and that the act cannot wait the lapse of ninety days from the adjournment of the session at which it was enacted.
The proposition is preposterous. There is no declaration that unless put into effect before June 8, 1921, the state would- become insolvent, or that its several agencies transformed and transferred to the new would cease to function under the old system. It may be noted that the same legislature that declared this system to be necessary, “in order to bring the cost of supporting the state government and its existing institutions within the possible revenues of the state,” appropriated the total sum of $10,637,289.88 from the general fund for the support and maintenance of the state and its existing institutions for the biennium ending in 1923, as against a total appropriation by the legislature of 1919, for the support of the state and its then existing institutions from the general fund of $10,561,000.42. There has never been a more supreme example of an act of the legislature intended to be reserved by the seventh amendment for the right of referendum to the people. It is an act of the utmost importance to the people of the state. It is a much more obvious legislative evasion *16of the seventh amendment that that under consideration in the case of State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 Pac. 11, in which our present learned chief justice concurred with the majority in deciding that there could not be any immediate emergency as declared by the legislature. And that case was right, and the attempt to distinguish’this case from it by the majority is a vain attempt at a distinction without a difference. That case was thoroughly considered, unanswerably reasoned, and its determination was the only logical result under the seventh amendment. Otherwise that amendment, as to the reserve power of the people to have measures referred for their accept-. anee or rejection, is merely solemn and empty phrase-making, and the legislature is at liberty to evade it, by a mere ipse dixit whenever it is so inclined.
The legislature is very powerful, but not all powerful. It is not like the British parliament, or other parliamentary bodies, which exercise sovereign authority, and may even change the constitution at any time by declaring the parliamentary will to that effect. Our constitutions consist entirely of commands to, and limitations and restraints upon, the several governmental agencies. They were created for the protection of the minority against the tyranny of the majority.
“In America after a constitutional question has been passed upon by the legislature, there is generally a right of appeal to the courts when it is attempted to put the will of the legislature in force. For the will of the people, as declared in the constitution, is the final law; and the will of the legislature is law only when it is in harmony with, or at least is not opposed to, that controlling instrument which governs the legislative body equally with the private citizen.” Cooley, Constitutional Limitations (7th ed.), p. 6.
“While every possible presumption is to be indulged in favor of the validity of the statute, . . . the *17courts must obey the constitution rather than the lawmaking department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed.” Mugler v. Kansas, 123 U. S. 623.
Courts are both cautious and reluctant to override a law duly enacted by the legislature; and that caution and that reluctance are to be applauded. We have gone as far as the courts of any state and as far as judicial ingenuity and judicial oaths could possibly go in upholding legislation of doubtful constitutional validity, upon the theory that every possible presumption is to be indulged in favor of the validity of the statute. The rule of reason should be applied to every case.
“To what purpose,” said the great Chief Justice, John Marshall, in Marbury v. Madison, 1 Cranch (U. S.) 49, “are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the person on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
“Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. . . .
“Certainly all those who have framed' written constitutions contemplate them as forming the fundamental and paramount law of the nation and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.”
*18As if in answer to the oral argument made here by the Attorney General, and the idea that seems to prevail in the minds of the majority, that the constitution does not specify who shall declare the conditions to support which the constitutionality of the act must be determined, exist, and that the seventh amendment does not so specify, that the legislature is therefore the exclusive judge of the existence of these conditions, the great chief justice in the case above quoted, further said:
“If any act of the legislature,'repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect?
■ “ It is emphatically the province and duty of the judicial department to say what the law is. . . .
“If then, the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must .govern the case to which they both apply.”
In this case we have a legislative declaration which is manifestly made for the purpose of preventing any referendum to the people upon the act, otherwise it would not be in the act. It was enacted for that sole purpose, and the majority of this court say that the courts are bound by that declaration and cannot inquire beyond its enactment.
The act before us states as its purpose the consolidation of numerous departments, commissions, bureaus and officials into fewer departments for the purpose of co-ordinating their activities, and securing greater efficiency and greater economy, and transfers the duties of the,boards, bureaus, commissions and officers that are abolished, to the new departments.
In 1915 the legislature consolidated the duties of several commissions and bureaus and transferred certain duties to one board, called the board of state land com*19missioners, and declared that the act was “necessary for the immediate preservation of the public peace, and safety, and the support of the state government, and shall take effect immediately.” The act was hy no means as comprehensive as the present act, hut it was brought before this court to contest the validity of the emergency clause. In that case Judge Chadwick, speaking for the court, said:
“Where there is a declaration in the constitution that no law shall take effect unless in a case of emergency to he declared by the legislature, it may he truthfully said that the general rule is that a court will not review the declaration of the legislature; hut where the people have put upon the legislature a limitation in the way of a. specific definition of its power, and an elimination of acts of a certain character, the rule is that the declaration of an emergency must conform to the constitutional requirement. . . .
“At the general election held in November, 1912, the people of the state adopted the initiative and referendum1 amendment to the constitution. By this amendment, it was provided that no law or hill subject to the referendum shall take effect until ninety days after the adjournment of the legislature at which it was enacted, and that all laws shall he subject to referendum except such 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. . . .
“It is the contention, of the respondents that the provision for an emergency in the amendment is in no respect different from that contained in the constitution, art. 2, § 31, and that the courts are powerless to inquire into the act or discretion of the legislature; that we are governed hy the same rules and hy the same considerations which have moved the courts since the establishment of our government to put no judicial restraints upon legislative discretion. . . .
“The judicial aversion to a review of legislative discretion, in so far as it relates to emergency clauses, is *20no more thoroughly established than the equivalent declaration that courts have power to declare laws unconstitutional. Now there is no more reason for saying that a bill is an emergency measure, when upon its face it is not, and from the very nature of its subject-matter cannot be, just because the legislature has said it is so, thán there is for declaring a law to be unconstitutional when it has been passed by the legislature with the constitution and its limitations lying open before it. The sense and discretion of the legislature, as well as its power to discriminate between an act falling clearly without and one falling clearly within the constitution, should, if we are consistent, be given the same weight as a declaration that an act is emergent, but few courts have so held since Marbury v. Madison, 1 Cranch, (U. S.) 49, although their inconsistencies have long been apparent to the lay mind. In the one case we have said that we will inquire, in the other we have said that we will not inquire, saying meanwhile that we will indulge every presumption in favor of a law and will not declare it unconstitutional unless it is clearly violative of the constitution.
“The object of the amendment, in so far as it touches the taking effect of bills or laws, was to secure the right of review. In paragraph ‘b’ of the same section it is provided.:
“ ‘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. ’
“If specific reservation in words of the right to subject all laws to the referendum were not enough, the preamble of the amendment makes it clear that the people intended to assert that the revised and amended clause of the constitution permitting emergent legislation should not be a dead letter, as was § 31, which was expressly repealed. They said :
“ ‘The legislative authority of the State of Washington shall be vested in the legislature, consisting of the ' • *21senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to thepiselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section or part of any bill, act or law passed by the legislature.’ Laws of 1911, p. 36.
‘ ‘ The people said to the legislature, make such laws as you will, but you may not legislate so as to take away our rights to pass upon the law you have just enacted, ‘ except such laws as may be necessary for the immediate preservation of the peace, health or safety, support of the state government and its existing institutions.’ ” (State ex rel. Brislawn v. Meath, supra).
After discussing the fact that under the original constitution and § 31, art. 2 thereof, the legislature had unlimited power to declare emergencies without the right of review by the people, the writer of the.foregoing opinion continues:
“But here no such declaration is final, and should be given no immediate effect unless it can be fairly said that the act is necessary to preserve the health, peace or safety of the state or to support the government or its institutions.”
and quotes from Mugler v. Kansas, 123 U. S. 623, to the effect that courts are not bound by mere forms, nor are they to be misled by mere pretenses. The opinion continues:
‘ ‘ The reservation in the amendment is a declaration of ‘Thou shalt not’, except it be for the safety or support of the state..... . . . “power has been withheld, in so far as a withholding can be made by apt and certain words.”
The opinion further says:
“The true rule is: The referendum cannot be withheld by the legislature in any case except it be where the act touches the immediate preservation of the pub-*22lie peace, health, or safety, or the act is for the financial support of the government and the public institutions of the state, that is, appropriation bills. If the act be doubtful, the question of emergency will be treated as' a legislative question, and the doubt resolved in favor of emergency made by the legislative body.
“Emergency, in the sense of the present constitution, does not mean expediency, convenience or best interest. There is no room for construction or speculation. The declaration is equivalent to saying that the referendum shall not be cut off in any case except in certain enumerated instances, none of which now occur. . . .
“The essence of our reasoning is not that the legislature has abused its discretion; that is really immaterial ; but that the people shall have a right, if they see fit, to review its acts and place the stamp of approval or disapproval upon it.”
It was there concluded:
“The real question is, Can the people, as distinguished from a representative legislative body, indulge in constructive legislation and reserve that right without interference by the legislature or the courts, except where, in certain enumerated instances, they have waived the right in order that the immediate necessities of health, peace and safety and the support of the government and our public institutions may be met by their representatives duly convened in legislative session? Section 2 of the act amending § 6605, violates the Seventh Amendment to our constitution, and is void. The act will take effect ninety days after the legislature has adjourned.”
In State ex rel. Mullen v. Howell, 107 Wash. 167, 181 Pac. 920, involving the method of ratifying or rejecting the eighteenth amendment to the constitution of the United States, Chadwick, C. J., again writing the opinion for the court, again reviewed the reasons for the adoption of the seventh amendment to our state consti*23tution, known as the direct legislative amendment, among other things said:
“No cases have been cited, and we may confidently say that there are none holding to the rule of strict construction where the power of the whole people is in question.....
“It is well known that the power of the referendum was asserted, not because the people had a willful or perverse desire to exercise the legislative function directly, but because they had become impressed with a profound conviction that the legislature had ceased to be responsive to the popular will. They endeavored to, and did—unless we attach ourselves to words and words alone, reject the idea upon which the referendum is founded, and blind ourselves to the great political movement that culminated in the seventh amendment —make reservation of the power to refer every act of the legislature with only certain enumerated exceptions. . . .
“ ‘The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority’.” Citing Cooley, Constitutional Limitations (6th ed.), p. 39.
And in that case one of our learned associates, Judge Mackintosh, concurred with the majority and wrote a special concurring opinion in which he said:
“By the adoption of the initiative and referendum amendments the people of this state became a part of the legislative branch of the state government, and all legislative actions, except those especially exempted, are subject to their participation. The reasons which have led up to this modem form of legislation are as set forth in. Judge Chadwick’s opinion and, upon both authority and reason, no curtailment of this power should now be judicially sanctioned. If the people have declared their intention to assert their authority over the legislature in acts many of which are of temporary or small importance, it was surely their intention to preserve to themselves the right of reviewing legislative action of lasting and great importance, . . . *24It would be idle to say that the right of referendum could be exercised in the unimportant matters and not in the important.
“The dissenting opinion of Judge Parker indulges in altogether too narrow and restricted an interpretation of the right of referendum, and seems to be entirely out of harmony with the course of the decisions of this court upon this and kindred matters arising under laws affecting modern legislative and governmental functions. By strict adherence to dictionary definitions, this dissenting opinion crushes the spirit of the constitutional provisions under consideration, and if it were the prevailing view in this case, would mark a step backward by a court which has come to be recognized as rather liberal in its interpretation of legislation aimed at the correction of social and public evils. ’ ’
And yet, we have here not merely a step backward, but a long march backward in the interpretation of the force and effect of the referendum clause of the seventh amendment.
The emergency declared is that the act “is necessary for the state government and its existing institutions.” Apply the simplest rules of construction to this declaration of emergency and it must fall. It is not, and does not pretend to be, an act carrying an appropriation for either existing or future public institutions. It abolishes existing institutions and substitutes new ones.
In State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 Pac. 28, we held, Judge Parker concurring, that the seventh amendment to the constitution, art. 2, § 1, subd. (b) giving the right of referendum upon all laws except such as may be necessary for the “immediate preservation of the public peace, health and safety, (and the) support of the state government and its existing public institutions” contemplates “support” as *25including appropriations for current expenses, maintenance, upkeep, continuation of existing functions, as well as appropriations for such new buildings and conveniences as may be necessary for the needs and requirements of the state in relation to its existing institutions, but did not contemplate exemption from the referendum where the law brought the state into a new activity, or provided for a new function, so that it might be fairly said that it did not pertain to the support of the government as then organized, or to any (then) existing institution.
That precisely covers the situation here.
The present act abolishes seventy existing institutions and substitutes new ones to go into existence April 1, 1921.
Nor can it be said that it is necessary for the future support of the state government as it must be organized for the future, for the language of the constitution is that an emergent matter must be for the ‘ ‘ support of the state government and its existing public institutions”; and by no possible straining of language can it be said that anything is emergent unless it is immediate, or approximately so, and nothing can be in immediately necessitous circumstances unless it is in existence.
Here we have the constitution with its seventh amendment before us, and an act of the legislature with a declaration of an Immediate emergency, which is manifestly, as everyone knows, a mere pretense. It constitutes a positive legislative usurpation of power reserved by the people to themselves, and the majority say that the declaration is final and conclusive by the mere negation that it is non-justiciable. We have weakly vacillated from the rule adopted in the Brislawn case, supra. We have placidly closed our judicial *26eyes .to a legislative usurpation of rights withdrawn and reserved “by apt and certain words”, toi the people by the seventh amendment. We have abrogated judicial power to inquire into the validity of a legislative assertion of power; we have judicially countenanced the nullification of the seventh amendment as to the referendum—a result devoutly desired by some, but not by any considerable number of the people. It is an impotent outcome to labors in framing and adopting the amendment, withdrawing and reserving from the legislative power to fully and finally legislate in all matters except a few instances, that seemed to promise vastly more. At any rate, the law has become unsettled and its continuity broken.
The courts are the conservators of the rights guaranteed by the constitution to the people and to the individuals composing the people.
“It is requisite that the courts of justice should be able, at all times, to present a determined countenance against all licentious acts; and to deal impartially and truly, according to law, between suitors of every description, whether the cause, the question, or the party be popular or unpopular.....
“Courts should be more constant and determined else the law becomes unsettled and may even become an object of scorn and derision.” Kent Commentaries, p. 294.
The referendum right and power of the people may be a slow and clumsy system and may be objectionable to many. But this is a government eminently “of the people, by the people, and for the people,” and. they adopted this system and made it a part of the fundamental and paramount law. It is not for us to destroy it by judicial construction.
For the foregoing reasons I dissent.
The emergency clause attached to this act should be stricken under the seventh amendment of the constitu*27tion, so as to permit the act to be subject to the referendum.
Tolman, J., concurs with Holcomb, J.