Todd v. Tierney , 38 N.M. 15 ( 1933 )

Mr. Justice SADLER holds that a petition, though bearing signatures of not less than 25 per centum of the qualified electors, cannot operate to suspend a law in force and effect. With this conclusion I concur.

With the conclusion reached by him that, because such petition cannot suspend the operation of a law in effect, it must necessarily follow that a referendum petition directed against a legislative act bearing the emergency clause is entirely ineffectual, I cannot agree.

Justice SADLER adopts the Oregon theory as held in the case of Kadderly v. Portland, 44 Or. 118, 74 P. 710, 75 P. 222, and which theory is followed in other states. See In re Menefee,22 Okla. 365, 97 P. 1014; Hanson v. Hodges, 109 Ark. 479, 160 S.W. 392,395; Van Kleeck v. Ramer, 62 Colo. 4, 156 P. 1108; State v. Bacon, 14 S.D. 394, 85 N.W. 605; Sutherland v. Miller, 79 W. Va. 796, 91 S.E. 993, L.R.A. 1917D, 1040; Orme v. Salt River Valley Water Users' Ass'n, 25 Ariz. 324, 217 P. 935; State v. Smith,102 Ohio St. 591, 673, 133 N.E. 457, 480. Also see notes in 50 L.R.A. (N.S.) 206; L.R.A. 1917D, 1046; 7 A.L.R. 519 and 530.

An exhaustive search which we deem unnecessary would probably disclose other states in accord with the Oregon view.

The so-called "Oregon" theory is simply this: That a legislative declaration in the "emergency clause" that the act is necessary for the preservation of the public peace, health, and safety of the inhabitants conclusively makes such a law necessary for the preservation of the public peace, health, and safety of the inhabitants, and is beyond review of the courts, and such emergency declaration deprives the people of their reserved power of referendum.

As I view it, the basic theory upon which the case of Kadderly v. Portland, supra, is founded, is the rule adopted in holding that the declaration of an emergency by the Legislature to give an act immediate effect is conclusively binding on the courts. I adhere to this basic rule. It does not necessarily follow that, because the formula for putting a law into immediate effect required the Legislature to use the phrase "That it is necessary for the preservation of the peace, health and safety of the inhabitants," conclusively means that a law so enacted does provide for the preservation of the peace, health, and safety of the people. That the Kadderly Case is founded on the same rule we followed in the case of Hutchens v. Jackson, 37 N.M. 325,23 P.2d 355, I quote from the Kadderly Case:

"In State ex rel. v. Bacon, 14 S.D. 394, 404, 85 N.W. 605, the court say in referring to this amendment: `It will be observed that the law of 1901 which we are considering not only declares that an emergency exists, but also that the "provision is necessary for the immediate preservation and support of the existing public institutions of this state." It seems to have been uniformly held under Constitutions containing an emergency clause, and providing that laws containing such a clause shall take effect as therein directed, that the action of the Legislature in inserting such a clause is conclusive upon the courts. (Citing authorities.) No reason occurs to us why thesame rule should not apply to the act in question. The Legislature having declared that the provisions of that act are necessary for the immediate preservation and support of the existing public institutions of the state, that declaration is conclusive upon this court, and brings this class clearly within the exception contained in section 1 (as amended) of article 3 of the Constitution.'" Kadderly v. Portland, 44 Or. 118, pages 149 and 150, 74 P. 710, 721, 75 P. 222.

I italicized the statement which shows conclusively the underlying reason for the Oregon rule. That is the premise from which the Oregon court in the Kadderly Case started, and therefore they reached an illogical conclusion. I do not concede that premise to be correct, and the reasons are ample why the same rule we followed in the case of Hutchens v. Jackson, supra, does not apply in the instant case. I readily distinguish the different purposes of section 1 and section 23, art. 4, of our Constitution, and I cannot see where our recent pronouncement in the Hutchens v. Jackson Case, supra, varies the conclusion I here reach.

This same conclusion as to the illogical result in the Kadderly Case is expressed by the Supreme Court of Montana. The court said:

"We believe the learned justice who wrote the opinion based his conclusion on a false premise; he argues that because the question is a question of fact, and the authority to determine that fact rests `somewhere,' and the Constitution has not conferred it upon any tribunal, it must necessarily rest with the Legislature. If the reasoning was sound, it would apply with equal force to questions arising as to whether acts were in violation of the state Constitution, and on the passage of local and special laws on the prohibition subjects; for here also `the authority to determine it must rest somewhere,' and `the Constitution does not confer it upon any tribunal.'

"We are also convinced that the learned writer of that opinion fell into the error of confounding the question involved with that in the decisions dealing with enactments under which the emergency clause did no more than to abridge the time within which laws should take effect." State v. Stewart, 57 Mont. 144,187 P. 641, pages 643 and 644.

The Kadderly Case and those following it started with a premise which in my view has no application to the question presented, and which I do not care to blindly follow, and thereby hold that the people are deprived of their reserved powers of referendum.

Whether it is necessary that legislation be given immediate effect is for the Legislature. The courts would be usurping and exercising a power properly belonging to the legislative branch to attempt to review that question. But it is the duty of the court when a matter is properly presented to determine from the four corners of the act whether it is a law providing for the preservation of the public peace, health, or safety, or for the payment of the public debt or interest thereon, or the maintenance of the public schools, or is one of the excepted laws contemplated by article 4, § 1, and is freed from the operation of the referendum, and no legislative declaration that a law is one of the excepted laws is binding upon the courts.

Those states which follow or adhere to the opposite theory as expounded by the Supreme Court of Washington in the case of State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11, though often criticizing the rule of reasoning which is the basic rule upon which the Oregon theory is founded, do not dissociate the two provisions or attempt to distinguish the powers. Some are based on the express provision of their Constitution which prohibits the Legislature from attaching the emergency clause to a referable law.

It is noticeable that in many of the state Constitutions there is a provision that a law which is subject to the referendum cannot be given immediate effect. There is no limitation of that kind in our Constitution, which evidences an intention not to limit the Legislature in the use of the emergency clause, and as to the conclusiveness of such a declaration of emergency to give a law immediate effect we need not concern ourselves at this time, having already decided that question on June 10, 1933, respecting the very statute here in issue, in Hutchens v. Jackson, supra.

By most constitutional provisions, as is true in our state, laws necessary for the immediate preservation of the public peace, health, or safety are excepted from the operation of the referendum. In some states, as in New Mexico, the Legislature is given power by the use of the emergency clause to have an act passed by it take effect at once. The similarity of the language in the formula prescribed by the Constitution for the latter purpose, and the constitutional description of laws excepted from the referendum has caused this confusion. I separate the questions and consider the right to declare an emergency as a right conferred upon the Legislature. It is a matter separate from the limitation upon the people's right of referendum which excepts a law from the operation of the referendum.

It is not necessary to read section 1 into section 23, or vice versa. They are distinct powers, and have a different purpose and have no relation to each other. The power to give immediate effect to legislation was intrusted to the Legislature by the people, and we have sustained its right in the exercise of this power. Hutchens v. Jackson, supra. But the people have reserved to themselves the power to repeal acts of the Legislature, with certain exceptions, and it is our duty to sustain that power, and likewise determine the exceptions.

In the case of Hutchens v. Jackson, supra, when we referred to laws "necessary for the preservation of the public peace, health and safety," we referred to the formula known as the emergency clause, being the provision referred to in section 23, and nothing else. In other words, the use of the term "emergency," as used in Hutchens v. Jackson, supra, means a situation calling for the immediate operation of the law and has no relation to a law within the police powers of the state which is excepted from the operation of the referendum. This difference and distinction is of vital importance in considering the question.

The power of the Legislature to declare an emergency for the purpose of giving immediate effect to a law is an entirely different power from the one determining that only laws of a certain class shall be subject to the referendum. The clear purpose of the exception from the referendum of laws providing for the peace, health, and safety of the people is to preserve unimpaired the right of the Legislature to exercise the police power so far as it may be emergent without the uncertainty of the result of a referendum, which laws are by their very nature emergent. Since the court exercises jurisdiction to determine whether an act of the Legislature is a valid exercise of the police power, it must be a judicial question whether the exercise by the Legislature of certain phases of that power which are selected and made an exception to the constitutional guaranty of the referendum is a valid exercise of the power. No court can consistently say that a legislative declaration, "This law is a law enacted as one within the police powers of the State," makes such declaration conclusive upon the courts, and therefore not subject to review.

Because of this hopeless conflict in other jurisdictions, the interpretations given to this subject in other states are of value merely as an aid in reasoning, but not as precedent or authority. In fact, the courts of other jurisdictions are as hopelessly divided as we are, and the different views are as hard to reconcile.

We must necessarily look to our own Constitution and from it determine the question, and in considering the same, with a view to its interpretation, the thing which we are to seek is the thought which it expressed to the people of New Mexico, who ratified it Its meaning is to be found in the minds of its makers who are the people who adopted it. Its language is their language, and words employed therein must be given a meaning as they understood them. It is our duty to determine what the plain citizen intended when he voted to adopt the Constitution.

Says Mr. Justice Story: "Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness of judicial research. They are instruments of a practical nature, founded on the common business of human life, adopted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss." 1 Story, Const. § 451.

We must give the subject a common sense and plain interpretation to carry out the intention of the plain people who adopted it.

As an example of what I mean by a common sense or plain construction, I refer to the recently repealed article 23 of our Constitution, which prohibited within this state the manufacture for sale, barter, or gift of any ardent spirits, ale, beer, alcohol, wine, or liquor of any kind whatsoever containingalcohol.

No one would contend that vanilla extract is not a "liquor" and no one would contend that it was not a "liquor containing alcohol," but only by exacting critical propriety and literal construction could we say that the people when they adopted article 23 intended to prohibit the manufacture, sale, barter, and gift of vanilla extract. The people had in mind the "liquors" that were sold in saloons and not those sold in grocery stores.

The same common sense reasoning is applicable here.

Now, then, what did the people understand to be the meaning of section 23? What did they understand as to section 1?

Not necessarily what niceties of expression were employed by the lawyers who drafted the Constitution.

N.M. Const. art. 4, deals generally with the "Legislative department." Section 23 deals with the subject of the time when laws shall take effect. Section 1 refers to the reserved power of referendum, enumerating the exceptions and describing the methods to be employed to invoke such reserved powers.

For years before the adoption of the Constitution, and to this very day, the Legislatures where such provision as our section 23 was in effect, as well as the plain people, understood the purpose of an "emergency clause" to be the means by which a Legislature could give immediate effect to a law which the Legislature deemed necessary to put into immediate effect. For example, it might become necessary or emergent that another district judge be added in some large judicial district because of the congestion of business. A bill is introduced to which is added the clause which is generally known and accepted as the "emergency clause," and if such law receives a two-thirds vote of both Houses and is approved by the Governor, then such a law becomes immediately effective. This particular clause in actual practice is universally known as the emergency clause. It is a mere formula. The Legislature so considers it, and the people have so understood it.

Whether it is either expedient or necessary that an act go into immediate effect is for the Legislature to determine, and such declaration is conclusive upon the courts. Hutchens v. Jackson, supra. But whether a law provides for the preservation of the peace, safety, and health of the people is for the courts to determine.

Now what of section 1?

Our Constitution is different in form as to the reserved power of referendum from that of any other state Constitution. The North Dakota Constitution expressly provides for the result we here achieve. N.D. Const. § 25 (article 2).

As I interpret N.M. Const. art. 4, § 1, the people have reserved unto themselves two powers.

In order to distinguish and separate these powers, and for the purpose of visualizing and distinguishing one from the other, and by way of analogy, I have classified these two reserved powers in the people by article 4, § 1, as the power of "veto" and power of "repeal."

These two powers operate as to all laws except general appropriation laws; laws providing for the preservation of the public peace, health, or safety; laws for the payment of the public debt or interest thereon, or the creation or funding of the same, except as otherwise provided by the Constitution; laws for the maintenance of the public schools or state institutions, and local or special laws. These are the excepted laws, and as to these there is no reservation to the people either of the right of veto or right of repeal.

Whether the Constitution was framed in this manner intentionally or inadvertently I cannot say, but we must necessarily hold that there is no power reserved to the people to suspend the operation of a law which is in force and effect.

The power of veto is found in the reserved power of the people to suspend and annul. The machinery for exercising this power is through the extraordinary petition bearing the signatures of not less than 25 per centum of the qualified electors, which must be filed before the law goes into effect, in which event the operation of the law is suspended until the people at the next general election can approve or reject the same. The language of the Constitution is clear, and, as clearly demonstrated by Justice SADLER, the veto power with the machinery for the exercise thereof is not available as to laws in effect.

The Constitution is silent as to suspending laws in effect when a referendum petition is filed, and no provision is made that, upon the filing of the 25 per cent. petition, the suspension thus effected would reinstate and revive laws which the suspended law may have repealed.

However, though the power of veto may not exist in the Constitution as to laws in effect, the right of the people to repeal such a law, if a majority thereof decide in the affirmative, is expressly there, and it is at this point where my views part with the views subscribed to by Justice SADLER.

This reserved power of the people to repeal a law, exclusive of the excepted laws, is exercised in the following manner:

Petitions shall be filed with the secretary of state not less than four months prior to the next general election. Such petitions shall be signed by not less than 10 per centum of the qualified electors of each of three-fourths of the counties, and in the aggregate by not less than 10 per centum of the qualified electors of the state, as shown by the total number of votes cast at the last preceding general election. The question of the approval or rejection of such law shall be submitted by the secretary of state to the electorate at the next general election; and, if a majority of the legal votes cast thereon, and not less than 40 per centum of the total number of legal votes cast at such general election, be cast for the rejection of such law, it shall be annulled and thereby repealed with the same effect as if the Legislature had then repealed it, and such repeal shall revive any law repealed by the act so annulled; otherwise it shall remain in force unless subsequently repealed by the Legislature. See N.M. Const. art. 4, § 1.

This power is applicable to all but excepted laws, and the use of the emergency clause attached to a statute does not deprive the people of this right and power.

Whether the law under consideration comes within any of the exceptions specifically set forth in section 1, we are not called upon to decide at this time, and do not decide until our jurisdiction is invoked in an action between the proper parties.

Though agreeing that a law in effect cannot be suspended, I cannot agree with the expressed opinion of Justice SADLER that the emergency clause deprives the people of their reserved power of referendum.

WATSON, C.J., concurs.