State Ex Rel. O'Connell v. Meyers

319 P.2d 828, 51 Wash. 2d 454, 1957 Wash. LEXIS 557

• Court: Washington Supreme Court
• Decided: December 24, 1957
• Docket: 34407
• Status: Published

Opinions

Ott, J.

This is an original proceeding in this court, in which the relator seeks a writ of mandamus compelling the secretary of state to perform his duties, with reference to redistricting the state, in accordance with Laws of 1957, chapter 5, p. 11 (initiative No. 199), rather than Laws of 1957, chapter 289, p. 1147, contending that the latter enactment is unconstitutional and void.

The record contains no statement of facts; nevertheless, we take judicial notice of the following:

(1) Initiative No. 199 was approved by the voters of this state at the November 6, 1956, general election. December 6, 1956, the governor proclaimed the measure to be law. It was enrolled as chapter 5, Laws of 1957. (It will be hereinafter referred to as initiative 199.)

(2) The state legislature, at its 1957 regular session, passed chapter 289 by a vote of more than a two-thirds majority of the members in each house. It became law, without the governor’s signature, at midnight June 12, 1957.

Several contentions regarding the scope of this proceeding were made by relator, respondent, and interveners in their briefs and in argument before the court. In order that the scope of this action be clear, we define the issues as follows:

(1) In this proceeding, we are concerned solely with the constitutionality of the legislature’s amendment to initiative 199. Both initiative 199 and chapter 289 were designed to comply with that portion of Art. II, § 3, of our constitution, which provides that the legislature periodically “ . . . shall apportion and district anew the members of the senate and house of representatives, according to the number of inhabitants, . . . ” We are not here concerned with what the legislature did or failed to do since 1895, or with what the people, through their right of initiative, did or failed to do since 1912, concerning the matter of redistricting.

(2) The parties agree that, both by virtue of the constitution and by the basic concept'of our representative form of state government, it is required that legislative districts be established according to the number of inhabitants. Likewise, it is conceded that the districts must be reasonably proportionate according to the number of inhabitants, in order to stand the test of the constitutional mandate.

(3) The constitutionality of initiative 199, without the legislative amendments, is not before us. A law initiated and adopted by the people, as well as a law enacted by the legislature, is presumed to be constitutional. See Frach v. Schoettler, 46 Wn. (2d) 281, 280 P. (2d) 1038 (1955); Gruen v. State Tax Commission, 35 Wn. (2d) 1, 211 P. (2d) 651 (1949); State v. Brunn, 22 Wn. (2d) 120, 154 P. (2d) 826 (1945). Therefore, for the purposes of our considerations in this proceeding, initiative 199 is a constitutional act.

Whether a more equitable formula of representation would have been effected by the method provided by initiative 199 or by chapter 289 is not an issue because (1) there are no facts or evidence in the record with which a comparison can be made, and (2), in the absence of such evidence, we must assume that either of the methods accomplished the purposes of the constitutional mandate.

With the scope of this mandamus proceeding defined, we consider the issues as joined by the pleadings.

Respondent contends that this court does not have jurisdiction of this proceeding, for the reason that the pleadings do not present a justiciable issue.

The governor, in permitting chapter 289 to become law without his signature, recognized that its enactment presented a legal issue that could be determined only by the court. The governor’s message to the legislature is, in part, as follows:

“ ‘There exists in my mind a serious question as to whether or not Substitute Senate Bill No. 374 [chapter 289] merely amends Initiative 199 or whether it in effect repeals the Initiative. This represents a legal issue which under the Constitution can only be decided by the Supreme Court of this state.’ ” Laws of 1957, p. 1162.

Art. IV, § 4, of the state constitution, provides, in part:

“The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers, ...” (Italics ours.)

The primary factor to be considered, in determining whether this court should assume or refuse original jurisdiction in mandamus to a state official, is whether the sovereignty of the state, its franchises, prerogatives, or the rights and interests of the general public are involved.

In State ex rel. Malmo v. Case, 25 Wn. (2d) 118, 123, 169 P. (2d) 623, 165 A. L. R. 1426 (1946), this court adopted the following rule with reference to mandamus proceedings:

“And in this connection the established rule seems to be that as original jurisdiction is conferred in order that the court of highest authority in the state should have the power to protect the rights, interests, and franchises of the state, and the rights and interests of the whole people, to enforce the performance of high official duties affecting the public at large, . . . the court is vested with a sound legal discretion to determine for itself, as the question may arise, whether or not the case presented is of such a character as to call for the exercise of its original jurisdiction.” 18 R. C. L. 101, § 15 (restated in 34 Am. Jur. 824, § 26).

By statute, the secretary of state is designated the chief election officer for all state, city, and town elections. RCW 29.04.070 [cf. Rem. Supp. 1949, § 5147-2]. He is charged with the duty of publishing the election laws in force and distributing them to county auditors “. . . in

sufficient number to place a copy thereof in the hands of all officers of elections.” RCW 29.04.060 [cf. Rem. Rev. Stat. §§ 5193, 5299], Further,

“The secretary of state shall make rules and regulations not inconsistent with the state, city and town election laws to facilitate the execution of their provisions in an orderly manner and to that end shall assist local election officers by devising uniform forms and procedures.” RCW 29.04.080 [cf. Rem. Supp. 1949, § 5147-3].

These statutory duties must be performed prior to elections. Statutory changes made in the geographic boundaries of legislative districts are of paramount public importance to the state at large, and involve substantial public rights. Definitive information regarding such changes in geographic boundaries is essential to legislative candidates, as well as to officials of political parties if they are to perform their functions properly.

Under the constitution and the rule announced in the Malmo case, supra, we find no merit in respondent’s contention that this court lacks jurisdiction to resolve the questions posed in this proceeding. See, also, annotation, 165 A. L. R. 1431.

Relator contends that chapter 289 repeals initiative 199, in violation of amendment 26 of the state constitution.

In'the original-text of the state constitution, exclusive lawmaking power was vested in the legislature. In 1912, the constitution was amended to provide for lawmaking power in the people by initiative and referendum. This amendment provided, in part:

“No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment. But such enactment may be amended or repealed at any general regular or special election by direct vote of the people thereon.” (Italics ours.) Amendment 7, state constitution.

In 1952, the people, by constitutional amendment 26, removed this two-year limitation as follows:

“No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment: Provided, That any such act, law or bill may be amended within two years after such enactment at any regular or special session of the legislature by a vote of two-thirds of all the members elected to each house with full compliance with section 12, Article III, of the Washington Constitution, and no amendatory law adopted in accordance with this provision shall be subject to referendum. ...” (Italics ours.)

The constitution, as amended, must be construed to carry out the intent of the people. State ex rel. Billington v. Sinclair, 28 Wn. (2d) 575, 183 P. (2d) 813 (1947). The intent must be determined from the express words in the amendment and the purposes for which it was adopted. State ex rel. Billington v. Sinclair, supra; State ex rel. Linn v. Superior Court, 20 Wn. (2d) 138, 146 P. (2d) 543 (1944).

It is clear that the people, by adopting amendment 26, intended to relinquish the two-year immunity from any action by the legislature, which previously existed under the 1912 constitutional amendment. It is likewise clear that the people recognized the propriety of removing the inflexibility which existed under the 1912 amendment, by permitting the legislature to amend any initiative measure adopted by the people. We must, therefore, conclude that the people determined that their rights were adequately protected by the requirement that an amendment of an initiative could be effected only by a two-thirds vote of all of the members duly elected to each house. This conclusion is strengthened by the fact that the people, in adopting amendment 26, further provided that the legislative amendment of an initiative would not be subject to referendum.

Does chapter 289, Laws of 1957, amend initiative 199?

In the title to chapter 289, the legislature used the words, “. . . amending section 4, . . . and 58, chapter 5, Laws of 1957; ...” From the title of the act, it would appear that the legislature intended only to amend. The body of the act establishes that the legislature intended the law to be amendatory only of specific, named sections of the initiative. Sections 1, 2, 3, 14, 20, 22, 24, 52, 54, and 55 of the initiative were not in any manner amended or altered by chapter 289.

It is a general rule of statutory construction that, if any section or sections of the original act remain, the new matter or changes are amendatory only of the original act. United States ex rel. Palmer v. Lapp, 244 Fed. 377, 383 (1917); 1 Sutherland, Statutory Construction (3d ed.), 325, § 1901.

The form of the act and the amendatory words used therein indicate that the legislature intended to amend initiative 199.

Relator contends that, although the legislature designated the act as amendatory, the result was in fact a repeal, and, specifically, that the repeal of § 56 of initiative 199, which provided a method of redistricting by census tracts, and substituting therefor a redistricting based upon precinct boundaries, constituted such a radical change as to effect a repeal.

When the people granted to the legislature amendatory power, they did not define the word, “amend.” It must therefore be given its usual and ordinary meaning. Pacific Northwest Alloys v. State, 49 Wn. (2d) 702, 705, 306 P. (2d) 197 (1957).

In Webster’s New International Dictionary (2d ed.), the word “amend” (when used in a parliamentary sense) is defined as follows:

“. . . to alter (as a bill or resolution) formally by some addition, taking away, or modification; as, to amend an appropriation bill. The changes that may be made in amending a bill or resolution are practically limited only to those that do not bring in a subject different from the original.”

Cushing, Law and Practice of Legislative Assemblies, 517, § 1302, states:

“A proposition may be amended, in parliamentary phraseology, not only by an alteration which carries out and effects the purpose of the mover, but also by one which entirely destroys that purpose, or which even makes the proposition express a sense the very reverse of that intended by the mover.”

In Wade v. Tacoma, 4 Wash. 85, 29 Pac. 983 (1892), in construing the scope of an amendment, we said: “The amendment may effectually supplant or destroy the original charter and institute a new policy altogether.”

In State ex rel. Hindley v. Superior Court, 70 Wash. 352, 126 Pac. 920 (1912), the city charter provided that five commissioners be elected by the whole body of the electors. Proposed amendments provided that ten councilmen be elected, and that their election should be by wards. The contention was that the constitutional provision which authorized city charter amendments would not permit such radical changes, under the guise of amendment. This court, in sustaining the change as an amendment, said [p. 359]:

“It is also said that amendments referred to and provided for in the charter are only such revisory or supplemental changes as the working of the present charter may suggest, and should not be held to refer to amendments which alter or annul the basic plan or principle upon which the city government is founded. It would be dangerous indeed for courts to draw a line between amendments, or to classify them in any way; for the whole question is a political one, to be determined by the people themselves. This they may do and should have the fullest right to do, without suggestion or interference by the courts.”

The interpretation of the meaning of the word “amend” by this court is consistent with that of other jurisdictions. In Cantini v. Tillman, 54 Fed. 969, 975 (1893), the court said:

“It is a settled principle of parliamentary law in this state [South Carolina] that, so long as the enacting words remain in a bill, it can be amended to any extent, even by striking out all after the enacting words, and by inserting other words as a substitute. . . . Nothing is more common than to amend by striking out one section and by inserting another, or by striking out several sections and by inserting one or several; and if it be competent to amend by striking out and inserting one, two, three, four sections, clearly it is competent to strike out all the sections, and to insert others, in pari materia. Striking out all after the enacting words, and inserting, is nothing but an amendment, and is governed by the same rules as other amendments.”

Accord, Brake v. Callison, 122 Fed. 722 (1903).

Giving the word “amend” its usual and ordinary meaning as set out in Webster’s Dictionary, and its meaning as given by this court and other jurisdictions, we must hold that the people, by granting to the legislature the right to amend, authorized it to change the law completely, within the realm of the subject matter contained in the act.

Since chapter 289 deals with the same subject matter as that contained in initiative 199, namely, redistricting, the legislature had the unlimited power to establish methods of redistricting, and to alter, modify, take away, add to, or change the various districts in such manner as it saw fit. It follows, then, that the repeal of § 56 of initiative 199, which established a method of redistricting, and substituting therefor another method, constituted an amendment of the act well within the purview of the definition of that term.

Relátor next contends that chapter 289, Laws of 1957, is unconstitutional, being violative of Art. II, § 3, which provides:

“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, . . . ”

This contention is based upon two premises, (1) that the legislature is powerless to redistrict at any time other than that specifically provided by Art. II, § 3, and (2) that chapter 289 violates Art. II, § 3, by establishing districts which contain unequal and disproportionate numbers of inhabitants.

With reference to the first premise, it is a familiar rule that the state constitution is a limitation upon, rather than a grant of, legislative power; that the legislature may enact any law not expressly or inferentially prohibited by the constitution of the state, and that, in so far as the power of the legislature is not limited by the constitution, it is unrestrained. In re Bartz, 47 Wn. (2d) 161, 163, 287 P. (2d) 119 (1955); Union High School Dist. No. 1 v. Taxpayers of Union High School Dist. No. 1, 26 Wn. (2d) 1, 6, 172 P. (2d) 591 (1946); State ex rel. Pischue v. Olson, 173 Wash. 60, 63, 21 P. (2d) 516 (1933). In the absence of specific words of limitation, an express enumeration of legislative powers does not exclude the exercise of others not named. State ex rel. Robinson v. Fluent, 30 Wn. (2d) 194, 203, 191 P. (2d) 241 (1948).

In State v. Miller, 32 Wn. (2d) 149, 154, 201 P. (2d) 136 (1948), we said:

“Affirmative statutory provisions relating to the time or the manner of performing official acts, unlimited or unqualified by negative words, are generally considered directory rather than mandatory.”

It follows that, since Art. II, § 3, contains no negative or restrictive words of limitation, the legislature is not precluded from redistricting as often as it determines necessary.

The second premise poses a factual question. Relator concedes that there are no facts in the record from which this court can determine the number of inhabitants in any of the districts at the time the 1957 legislature redistricted the state. Relator’s contention is that this, court can take judicial notice of the Federal census of 1950; that, according to this census, the number of inhabitants in the various districts created by chapter 289 is unequal and disproportionate, and that, hence, the act is void.

We are here concerned with the number of inhabitants within any given district at the time chapter 289 was enacted. In order for the court to take judicial notice of the population within a district at a specific time, the number of inhabitants must be so generally known and so notorious that the production of evidence to establish the number would be unnecessary. Gottstein v. Lister, 88 Wash. 462, 153 Pac. 595 (1915). To this general rule, we have added an alternate rule, that the court may take judicial notice of a fact or proposition when it is capable of ascertainment by resorting to accurate, indisputable records which are easily accessible.

In McFerran v. Heroux, 44 Wn. (2d) 631, 644, 269 P. (2d) 815 (1954), we adopted the rule as stated in Model Code of Evidence, p. 320, Rule 802, that judicial notice may be taken of

“ . . . (c) specific facts and propositions of generalized knowledge which are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy, ...”

We have held that this court will take judicial notice of population as established by a Federal census. Martin v. Tollefson, 24 Wn. (2d) 211, 219, 163 P. (2d) 594 (1945); State ex rel. Cornell v. Smith, 155 Wash. 422, 284 Pac. 796 (1930). However, judicial notice of the 1950 census, in the absence of any proof that the population has remained static, is not notice that the same population existed when chapter 289 was enacted. In order for the court to take judicial notice of the population at that time, there must be accurate, indisputable, and easily accessible records establishing the population of those areas, to which this court can resort. We know of no such records. Neither can it be said that the number of inhabitants in the forty-nine districts created was then of such general knowledge that proof thereof would be unnecessary.

For the reasons stated, we find no merit in relator’s contention that this court can take judicial notice of the number of inhabitants in the several districts at the time of enactment of chapter 289.

The relator, in attacking the constitutionality of chapter 289 as being violative of Art. II, § 3, of the constitution, had the burden of proof to establish (1) the number of inhabitants in each legislative district in March, 1957, and (2) that disproportionateness exists among the various districts. See Frach v. Schoettler, 46 Wn. (2d) 281, 280 P. (2d) 1038 (1955). The relator failed to prove either of these essential elements.

There is a presumption that the legislature performed its duty by establishing the districts according to law. Frach v. Schoettler, supra, p. 285. The authority and duty to ascertain facts which control legislative action are upon those to whom was given the power to legislate. Courts will not inquire into a legislative factual determination, beyond consideration of that which appears upon the face of the act, aided by judicial notice. State ex rel. Hamilton v. Martin, 173 Wash. 249, 257, 23 P. (2d) 1 (1933). See, also, In re Bailey’s Estate, 178 Wash. 173, 177, 34 P. (2d) 448 (1934); Ajax v. Gregory, 177 Wash. 465, 476, 32 P. (2d) 560 (1934).

Applying these long-established rules of constitutional and statutory construction to the instant proceeding, we find nothing on the face of the questioned act which establishes an improper legislative factual determination. Nor can this court, for the reasons heretofore expressed, take judicial notice of the matter in pais which relator urges would support his contention that the legislature arrived at an erroneous factual determination.

The voting precinct is intended to be of a transitory nature. RCW 29.04.040 [cf. Rem. Rev. Stat., §§ 5171, 5278]. By reason of its small numerical size, it is easily adaptable to being shifted from one legistative district to another as fluctuating population requires. Likewise, it is necessary that legislative districts be transitory and flexible.

To the contrary is the purpose expressed by the Federal census bureau in establishing census tracts, namely, that such tracts “will remain as relatively permanent statistical areas.” Census of Population, 1950, vol. 2.

The legislature, in the exercise of its sound discretion, determined that the precinct method was more suitable for a legislative redistricting program.

We find no merit in any of relator’s contentions that chapter 289, Laws of 1957, is unconstitutional.

For the reasons stated, the petition for a writ of mandamus is denied.

Mallery, Rosellini, and Hunter, JJ., concur.