State Ex Rel. Miller v. Hinkle , 156 Wash. 289 ( 1930 )

This is an original proceeding in this court for a mandate to compel the secretary of state to accept and file an initiative petition proposing the submission to the people, under the seventh amendment to the state constitution and the legislative facilitating act (Rem. Comp. Stat., § 5397 et seq.) of a measure redistricting and reapportioning the state for purposes of representation in the state senate and house of representatives.

Respondent has demurred to the petition and affidavit for the writ.

Section 1 of article II of the constitution originally read:

"LEGISLATIVE POWERS, WHERE VESTED. — The legislative powers shall be vested in a senate and house of representatives, which shall be called the legislature of the state of Washington."

Section 2 of that article fixes the minimum and maximum number of senators and representatives.

Section 3 provides:

"THE CENSUS. — The legislature shall provide by law for an enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five, and every ten years thereafter; and at the first session after such enumeration, and also after each enumeration, made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and house of representatives, according to the number of inhabitants, excluding Indians not taxed, soldiers, sailors, and officers of the United States army and navy in active service."

By the seventh amendment, adopted in 1912, section 1, supra, was amended to read, in part, as follows:

"LEGISLATIVE POWERS, WHERE VESTED. — The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves 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.

"(a) Initiative: The first power reserved by the people is the initiative. . . .

"(b) Referendum. The second power reserved by the people is the referendum, . . ."

Respondent contends that the legislative power of redistricting and reapportioning the state still remains exclusively a prerogative of the bi-cameral representative legislative body, known in common parlance and designated, "the legislature."

The question is new, and the Attorney General was justified in resisting the filing of the initiative measure until the effect of the seventh amendment be determined.

The Attorney General concedes, however, with commendable discrimination, that, if the matter of redistricting or reapportioning the state relates to an act or acts of the legislature, or law-making, the seventh amendment is enforceable; otherwise not. The Attorney General also concedes that this court has always been committed to the rule of liberal construction to the end that popular rights might be preserved and rendered effective.

The history of the evolution of initiative and referendum as parts of the law-making power of the people of this state has been set forth in State ex rel. Case v. Superior Court,81 Wash. 623, 143 P. 461, Ann. Cas. 1916B 838; State ex rel.Brislawn v. Meath, 84 Wash. 302, 147 P. 11; State v. Paul,87 Wash. 83, 151 P. 114; Gottstein v. Lister, 88 Wash. 462,153 P. 595, Ann. Cas. 1917D 1008; State ex rel. Berry v.Superior Court, 92 Wash. 16, 159 P. 92; State ex rel. Howellv. Superior Court, 97 Wash. 569, 166 P. 1126; State ex rel.Mullen v. Howell, 107 Wash. 167, 181 P. 920.

[1] As to whether a reapportionment act is a "law," we think it is as much a law as a law creating counties or municipalities, or establishing their boundaries.

As is said in one of the cases cited by the AttorneyGeneral:

"The word `law' imports a general rule of conduct with appropriate means for its enforcement declared by some authority possessing sovereign power over the subject." In re Opinion ofthe Justices, 262 Mass. 603, 160 N.E. 439.

The eminent Judge Brewer, then of the supreme court of Kansas (later of the United States supreme court), declared it to be a law; that to create a representative or senatorial district requires a law. Prouty v. Stover, 11 Kan. 235. To the same effect are Wheeler v. Herbert, 152 Cal. 224, 92 P. 353;State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40.

Article XXII of the constitution also manifestly contemplates that the reapportionment of the state for legislative representation shall be "by law." The two sections in that article begin with the phrase "until otherwise provided by law."

We are firmly convinced that the matter of apportioning the state for legislative membership is a matter of law, requiring legislative acts.

[2, 3] In one of our earliest cases touching amendment seven, State ex rel. Case v. Superior Court, supra, we took occasion to say:

". . . it is worthy of note, and that we keep in mind as we proceed, that these initiative and referendum provisions of our constitution are all embodied in one section, which contains these words: `This section is self-executing, but legislation may be enacted especially to facilitate its operation.' Thus there is strongly suggested, in the language of the constitution and this law, a required liberal construction, to the end that this constitutional right of the people may be facilitated, and not hampered by either technical statutory provisions or technical construction thereof, further than is necessary to fairly guard against fraud and mistake in the exercise by the people of this constitutional right."

That the initiative is as broad as the referendum, we decided in State ex rel. Howell v. Superior Court, supra.

We also decided in the Mullen case, supra, that legislative power in this state under the seventh amendment had re-vested in the people, concurrently, the powers theretofore exercised by the bi-cameral legislature and the governor by direct legislation.

The effect of that case is limited by the decision of the United States supreme court in Hawke v. Smith, 253 U.S. 221. That case, however, does not impinge upon our own decisions and construction of our seventh amendment where no restriction of the Federal constitution is involved. No Federal question affects this case. Indeed, in a somewhat earlier case decided by that court, State ex rel. Davis v. Hildebrant, 241 U.S. 565, under a legislative act redistricting the state for congressional elections as to which the power of referendum was invoked under a constitutional amendment almost identical with ours, the supreme court of Ohio held that the legislative act was subject to the referendum under that amendment, declaring that under it the legislative power in that state was thereby vested not only in the general assembly, but also in the people by referendum. The United States supreme court upheld that construction of the constitutional amendment involved in that case.

It is common knowledge that the legislature has ignored the mandate of our constitution requiring re-apportionment of the state for legislative representation ever since 1901.

The passage of an initiative measure as a law is the exercise of the same power of sovereignty as that exercised by the legislature in the passage of a law. State v. Paul,supra.

Section 1 of article II of the constitution is modified and controlled by amendment VII, so that the legislature is not the whole legislative power as it now exists.

We are persuaded that, under the seventh amendment to our constitution, the people have a right to initiate legislation looking to the legislative reapportionment of the state.

The writ will therefore be granted.

MITCHELL, C.J., FRENCH, BEALS, MAIN, PARKER, MILLARD, and TOLMAN, JJ., concur.