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Court of Appeal, Third District, California.

KENNEDY WHOLESALE, INC., Plaintiff and Appellant, v. BOARD OF EQUALIZATION, Defendant and Respondent.

No. Civ. C006406.

Decided: December 14, 1989

Ron Olson, Law office of Munger, Tolles, and Olson, Los Angeles, Law office of Ball, Hunt, Hart, Brown and Baerwitz, for plaintiff and appellant. John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Richard M. Frank, Supervising Deputy Atty. Gen., and Floyd D. Shimomura, Deputy Atty. Gen., for defendant and respondent. Daniel G. Nauman, Sacramento, on behalf of Amicus Curiae for appellant. Olson, Connelly, Hagel and Fong, George Waters, Sacramento, on behalf of Amicus Curiae for respondent.


In this case we are called upon to determine the constitutionality of Proposition 99, the Tobacco Tax Initiative, passed by a 58 percent vote of the electorate in November 1988.   Plaintiff Kennedy Wholesale, Inc. (“Kennedy”), a tobacco distributor, sues for a refund of taxes paid pursuant to Proposition 99, urging that the initiative is unconstitutional on a variety of grounds.

We affirm and hold that Proposition 99 does not violate Proposition 13;  the single subject rule applicable to initiatives;  the equal protection clause of either the United States or the California Constitution;  and does not infringe on the Legislature's constitutional appropriations power.


Proposition 99, the “Tobacco Tax and Health Protection Act of 1988,” (“The Act”) was a statutory initiative measure approved by the electors on November 8, 1988.   The Act included the following findings and declarations:  “Sec. 2.   The people find and declare as follows:  [¶ ] (a) Tobacco use is the single most preventable cause of death and disease in America.  [¶ ] (b) Tobacco-related diseases create immense suffering and personal loss, and a staggering economic cost which all Californians have to pay.  [¶ ] (c) Tobacco-related diseases are a major burden on state and local governments by requiring them to provide medical care and health services.  [¶ ] (d) Tobacco use causes substantial environmental damage, and property damage and loss of life due to fire.  [¶ ] (e) To reduce the incidence of cancer, heart, and lung disease and to reduce the economic costs of tobacco use in California, it is the intent of the people of California to increase the state tax on cigarettes and tobacco products and do all of the following:  [¶ ] (1) Reduce smoking and other tobacco use among children.  [¶ ] (2) Support medical research into tobacco-related cancer, heart, and lung diseases.  [¶ ] (3) Treat people suffering from tobacco-related diseases.  [¶ ] (4) In recognition of the uncompensated costs of tobacco-related illness, support treatment of patients who cannot afford to pay for services.”   Proposition 99 added sections 30121 through 30130 to the Revenue and Taxation Code.1  The Tobacco Initiative imposes additional taxes on distributors of cigarettes and tobacco products and creates a Cigarette and Tobacco Products Surtax Fund in the State Treasury into which all revenues generated by its terms are to be deposited.  (Rev. & Tax.Code, §§ 30123 and 30122(a).) 2  The fund consists of six separate accounts:  a Health Education Account;  a Hospital Services Account;  a Physician Services Account;  a Research Account;  a Public Resources Account;  and an Unallocated Account.  (§ 30122(b).)   The monies in the fund may be appropriated only for the following four purposes and only to supplement existing levels of service:  (1) Tobacco-related school and community health education programs;  (2) Tobacco-related disease research;  (3) Medical and hospital care and treatment of patients who cannot afford to pay for those services, and for whom payment will not be made through any private coverage or by any program funded in whole or in part by the federal government;  and (4) Programs for fire prevention;  environmental conservation;  protection, restoration, enhancement, and maintenance of fish, waterfowl, and wildlife habitat areas;  and enhancement of state and local park and recreation purposes.”  (§§ 30122, subd. (a) and 30125.)   A deposit formula is mandated for all monies raised by the new tax:  twenty percent to the Health Education Account;  thirty-five percent to the Hospital Services Account;  ten percent to the Physician Services Account;  five percent to the Research Account;  five percent to the Public Resources Account;  and twenty-five percent to the Unallocated Account.  (§ 30124, subd. (b).)

The new law became effective on January 1, 1989.  (§ 30128.)   On January 3, 1989, plaintiff Kennedy, a distributor of cigarettes and tobacco products, paid an increased tax of $50,510.49 pursuant to the Initiative.   It simultaneously filed a claim for refund with the Board of Equalization (“Board”), alleging that the initiative is unconstitutional under the California and U.S. Constitutions.   On January 12, 1989, the Board promptly notified Kennedy of the denial of its claims for refund.   On January 17, 1989, pursuant to section 30403,3 Kennedy instituted this action in the superior court for a refund of taxes paid under protest, raising identical constitutional issues.

Kennedy alleges that Proposition 99 violates section 3 of article XIII A of the California State Constitution, commonly known as “Proposition 13,” which provides that no statewide tax may be increased or added except by two-thirds vote of both houses of the state legislature;  that it violates the “single subject” rule of article II, section 8(d) of the state Constitution by embracing and funding more than one subject;  that it violates the equal protection clauses of the California and United States Constitutions by enforcing a statute which burdens one class of persons with a tax which benefits the public generally;  and finally, that it violates article IV, section 12 of the state Constitution by restricting the appropriations power of future legislatures.   Kennedy requests a determination that Proposition 99 is unconstitutional and a refund of taxes paid plus interest.

The parties stipulated to a motion for judgment on the pleadings by the Board based on arguments previously presented and deemed the Board's motion submitted for decision.   On March 31, 1989, the court granted the Board's motion for judgment on the pleadings and entered judgment in favor of the Board.   Plaintiff timely appeals.


In reviewing the constitutional authority of the people to enact a statutory initiative, the Supreme Court has recently stated that:  “[i]n adjudicating such constitutional issues, our duty is clear:  ‘We do not consider or weigh the economic or social wisdom or general propriety of the initiative.   Rather, our sole function is to evaluate [it] legally in the light of established constitutional standards.’  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 219 [149 Cal.Rptr. 239, 583 P.2d 1281];  see Ferguson v. Skrupa (1963) 372 U.S. 726, 730 [83 S.Ct. 1028, 1031, 10 L.Ed.2d 93, 97, 95 A.L.R.2d 1347].)  ‘[A]ll presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity.   Statutes must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.’  (In re Ricky H. (1970) 2 Cal.3d 513, 519 [86 Cal.Rptr. 76, 468 P.2d 204];  In re Dennis M. (1969) 70 Cal.2d 444, 453 [75 Cal.Rptr. 1, 450 P.2d 296];  Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484 [171 P.2d 21, 166 A.L.R. 701].)   If the validity of the measure is ‘fairly debatable,’ it must be sustained.  (Associated Home Builders, etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 605 [135 Cal.Rptr. 41, 557 P.2d 473, 92 A.L.R.3d 1038];  Hamer v. Town of Ross (1963) 59 Cal.2d 776, 783 [31 Cal.Rptr. 335, 382 P.2d 375] and cases there cited.)”   (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 814–815, 258 Cal.Rptr. 161, 771 P.2d 1247.)



Plaintiff argues that Proposition 99, a statutory initiative, violates section 3 of article XIII A, which was enacted by constitutional initiative in 1978, and appeared as part of Proposition 13 on the ballot.   That section, entitled “Changes in State Taxes—Vote Requirement”, provides “[f]rom and after the effective date of this article, any changes in State taxes enacted for the purpose of increasing revenues collected pursuant thereto whether by increased rates or changes in methods of computation must be imposed by an Act passed by not less than two-thirds of all members elected to each of the two houses of the Legislature, except that no new ad valorem taxes on real property, or sales or transaction taxes on the sales of real property may be imposed.”

Plaintiff argues that the plain and unambiguous language of section 3 prohibits tax increases by statutory initiative;  that to allow a tax increase by statutory initiative would violate the purpose of Proposition 13;  and that an interpretation allowing tax increases by statutory initiative would violate the established rule that the voters' power of initiative is no greater than the Legislature's power.   Plaintiff relies on Legislature v. Deukmejian (1983) 34 Cal.3d 658, 194 Cal.Rptr. 781, 669 P.2d 17, for the proposition that the initiative and legislative powers are coextensive, even where the restriction by its own terms applies only to acts by the Legislature.   Plaintiff further argues that an interpretation which would allow a statewide tax increase by statutory initiative passed by a majority vote would create anomalies in Proposition 13's restrictions on tax increases, as indicated by section 4 which provides that “special taxes” may be increased by cities, counties and special districts only when approved by a two-thirds vote of the electorate.5

Contrary to the position argued by plaintiff, we hold that established principles of statutory and constitutional construction and an analysis of the source and nature of the people's power of initiative demonstrate that article XIII A, section 3 does not repeal the people's right to enact statewide tax increases by statutory initiative pursuant to article II, sections 8 and 10, and article IV, section 1.

The power of the people of California to direct and control the state government is firmly embedded in our state Constitution.   Article I, section 24 provides that its “declaration of rights may not be construed to impair or deny others retained by the people.”  Article II, section 1 provides that “[a]ll political power is inherent in the people.   Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.”   Although the “legislative power of this State is vested in the California Legislature ․ the people reserve to themselves the powers of initiative and referendum.”   (Art. IV, § 1.)  “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”   (Art. II, § 8, subd. (a).)

The initiative has been described as a “legislative battering ram which may be used to tear through the exasperating tangle of the traditional legislative procedure and strike directly toward the desired end.   Virtually every type of interest group has on occasion used this instrument.   It is deficient as a means of legislation in that it permits very little balancing of interest or compromise, but it was designed primarily for use in situations where the ordinary machinery of legislation has utterly failed in this respect.   It has served, with varying degrees of efficacy, as a vehicle for the advocacy of action ultimately undertaken by the representative body.”  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 228–229, 149 Cal.Rptr. 239, 583 P.2d 1281 [hereafter Amador ], quoting Key & Crouch, The Initiative and The Referendum in California (1939) p. 485, original italics.)

As described by Justice Tobriner in Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 591, 135 Cal.Rptr. 41, 557 P.2d 473, “The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900's.[ ]  Drafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them.[ ]  Declaring it ‘the duty of the courts to jealously guard this right of the people’ (Martin v. Smith (1959) 176 Cal.App.2d 115, 117 [1 Cal.Rptr. 307] ), the courts have described the initiative and referendum as articulating ‘one of the most precious rights of our democratic process' (Mervynne v. Acker, supra [ (1961) ] 189 Cal.App.2d 558, 563 [11 Cal.Rptr. 340] ).  ‘[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled.   If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.’   (Mervynne v. Acker, supra, 189 Cal.App.2d 558, 563–564 [11 Cal.Rptr. 340];  Gayle v. Hamm, supra [ (1972) ] 25 Cal.App.3d 250, 258 [101 Cal.Rptr. 628].)” [ ]  (Fns. omitted.)

Plain Meaning of Article XIII A, Section 3

 If plaintiff is to prevail in its contention that article XIII A, section 3 precludes the people from enacting a statewide tax measure by statutory initiative adopted by a majority vote, it can only be because article XIII A, section 3 has impliedly repealed constitutional provisions reserving such power in the people.  (Cal. Const. art. II, §§ 8, 10, and art. IV, § 1.)   In rejecting this argument, we use well-settled rules of construction.   First, “[a] constitutional amendment should be construed in accordance with the natural and ordinary meaning of its words.”  (Amador, supra, 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281;  accord, In re Quinn (1973) 35 Cal.App.3d 473, 482, 110 Cal.Rptr. 881.)   Second, it should not be construed in such a way as to undermine its validity.  (See Amador, supra, 22 Cal.3d at p. 245, 149 Cal.Rptr. 239, 583 P.2d 1281;  Associated Home Builders etc., Inc., supra, 18 Cal.3d 582, 598, 135 Cal.Rptr. 41, 557 P.2d 473.)   Third, it should not be construed to effect the implied repeal of another constitutional provision.  (Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 868–869, 167 Cal.Rptr. 820, 616 P.2d 802;  ITT World Communications, Inc. v. City and County of San Francisco (1985) 37 Cal.3d 859, 865, 210 Cal.Rptr. 226, 693 P.2d 811.)

By its express terms, section 3 limits its scope to action by the Legislature.   The supermajority requirements it imposes on the Legislature are not unusual.  (See art. I, § 28, subd. (d) requiring a two-thirds vote of the membership in each house of the Legislature to enact a statute excluding relevant evidence in criminal proceedings;  Historical Note to Gov.Code, § 8880 et seq., the California State Lottery Act of 1984, § 5, providing that no provision of the Act may be changed except to further its purpose by a bill passed by vote of two-thirds of the membership of both houses of the Legislature.)   The imposition of supermajority requirements by the people on the Legislature does not destroy the coextensive nature of their powers to enact particular types of legislation.   The methods by which they act may differ, but the essential right remains the same.   As noted in Carlson v. Cory (1983) 139 Cal.App.3d 724, 728, 189 Cal.Rptr. 185 upholding the people's power to repeal tax laws by statewide statutory initiatives (Propositions 5 and 6), the “reservation of power by the people [in article IV, section 1] is, in the sense that it gives them the final legislative word, a limitation on the power of the Legislature.”

Although it is true that an initiative statute cannot violate the Constitution, that general principle does not answer the question of whether a constitutional provision which by its terms applies to the Legislature, applies to the electorate as well.  (Estate of Cirone (1984) 153 Cal.App.3d 199, 201, 200 Cal.Rptr. 511.)   In Cirone, the court held that Proposition 6, an initiative statute which repealed the state inheritance and gift tax, precluded the imposition of inheritance taxes against the estate of persons dying on the date on which the initiative was enacted even though the state's right to such taxes vests on the date of death.   The Cirone court held the initiative did not violate the prohibition of article XVI, section 6 of the California Constitution against a gift of public funds by the Legislature.6  In rejecting an argument that this section also applies to initiative statutes, the court stated that the “express language of article XVI, section 6, limits its scope to the Legislature, and nothing in this section, or elsewhere in the Constitution requires stretching the term ‘Legislature’ to include the electorate.   To the contrary, the Constitution consistently distinguishes between the Legislature as a body of representatives elected to the Senate and the Assembly, and the people as the voters who elect the representatives and are the ultimate source of constitutional power.”   (Id., at p. 205, 200 Cal.Rptr. 511.)   Because the initiative power must be liberally construed and all doubts resolved in favor of the exercise of this power, and the court concluded that, in enacting Proposition 6, the electorate had the power to make it applicable to the estate of those dying on the date of its enactment.  (Id., at p. 206, 200 Cal.Rptr. 511.)

Plaintiff argues that, had the people intended to retain their power to enact statewide tax increases by statutory initiative, they would have specifically so provided as they did in section 4, relating to local tax initiatives.   We believe that the more appropriate conclusion is that, had the electorate intended to impose any greater restriction on its power to enact statewide measures than those extant at the time of passage—i.e., by statutory initiative on a majority vote—they would have expressly indicated that intent as they did in section 4.

Such a construction does not undermine the purpose or validity of Proposition 13.7  Although sections 3 and 4 are designed to prevent the depletion of tax savings resulting from the operation of sections 1 and 2 (Amador, supra, 22 Cal.3d at p. 231, 149 Cal.Rptr. 239, 583 P.2d 1281), obtaining majority approval of the statewide electorate provides equal assurance that no tax increase will be imposed without spirited public debate.   Such broad public scrutiny provides a reasonable safeguard against the depletion of savings realized by sections 1 and 2, leaving the validity of Proposition 13 intact.

For 67 years prior to the passage of Proposition 13, the people had expressly reserved to themselves the constitutional right to enact statewide measures by statutory initiative adopted by a majority vote.  (Cal. Const. art. II, §§ 8, 10.)  “The adopting body is presumed to be aware of existing laws․”  (In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11, 210 Cal.Rptr. 631, 694 P.2d 744.)   Nothing in the language of Proposition 13 suggests it was intended to abrogate the people's reserved right to enact statewide measures by statutory initiatives adopted by a majority vote;  obviously, then, it does not expressly repeal such provisions in article II, sections 8 and 10, and article IV, section 1.  “And the law shuns repeals by implication, particularly where, as here, ‘the prior act has been generally understood and acted upon.’  (Penziner v. West American Finance Co. (1937) 10 Cal.2d 160, 176 [74 P.2d 252].)  [¶ ] So strong is the presumption against implied repeals that when a new enactment conflicts with an existing provision, ‘In order for the second law to repeal or supersede the first, the former must constitute a revision of the entire subject, so that the court may say that it was intended to be a substitute for the first’ (Ibid.)” (Board of Supervisors v. Lonergan, supra, 27 Cal.3d 855, 868, 167 Cal.Rptr. 820, 616 P.2d 802.)

If the people had wanted to abrogate their right of statutory initiative in this area or to impose upon themselves a supermajority requirement, we are confident that they would have expressly done so.   To adopt plaintiff's argument, we would have to insert the language “and the people through initiative” after the words “the Legislature” in section 3.   Such a judicial redrafting of this article is contrary to the rules which shun repeals by implication, and require a liberal construction of the initiative power and the resolution of reasonable doubts in support of its use.  (See also Code of Civ.Proc. § 1858.)   The plain meaning of section 3 does not preclude the use of the power of statutory initiative to enact a statewide tax increase, such as that imposed by the Tobacco Initiative.   We will not presume that the people intended to give away a right of such magnitude by their silence.

Legislature v. Deukmejian, supra, does not mandate a different result.   There the court was being asked to find that the people, through statutory initiative could enact a statute, the nature and attributes of which the Legislature was precluded by article XXI from enacting, namely a second redistricting plan within the same decade.   Holding that the reserved power to enact statutes by initiative is no greater “with respect to the nature and attributes of the statutes that may be enacted than that of the Legislature” the court concluded that article XXI prohibits the adoption of a second redistricting plan within the same decade whether by the Legislature or by initiative.  (Legislature v. Deukmejian, supra, 34 Cal.3d 658, 673, 680, 194 Cal.Rptr. 781, 669 P.2d 17;  emphasis added.)   Here, the nature and attributes of the statutes at issue are substantive changes in the tax laws.  Article XIII A expressly vests the Legislature with the power to enact such changes and provides procedural requirements uniquely applicable to legislative bodies.8  Article II, sections 8 and 10, and article IV, section 1 vests the people with the power to enact such changes through statutory initiative and provides procedural requirements uniquely applicable to an electorate acting through the initiative.9  Article XIII A does not curtail the nature and attributes of the statutes the Legislature and/or the people acting through their reserved initiative power may enact.   Both retain the power to enact changes in our tax laws, albeit through procedures unique to their differing nature.

Secondary Sources

“In construing constitutional and statutory provisions, whether enacted by the Legislature or by initiative, the intent of the enacting body is the paramount consideration.”  (In re Lance W., supra, 37 Cal.3d at p. 889, 210 Cal.Rptr. 631, 694 P.2d 744.)   Ballot arguments and summaries may be considered when determining the voters' intent and understanding of a ballot measure.  (Legislature v. Deukmejian, supra, 34 Cal.3d at p. 673, n. 14, 194 Cal.Rptr. 781, 669 P.2d 17.)   Although by its express terms section 3 places no limitation upon the people's power to enact statewide taxes by statutory initiative, “out of an excess of caution we shall refrain from concluding that it does so unambiguously in order that we may test our construction against such extrinsic aids as the ballot materials on Proposition 13․  We resort to such extrinsic aids, of course, only when language is ambiguous.  (Board of Supervisors v. Lonergan, supra, 27 Cal.3d 855, 866 [167 Cal.Rptr. 820, 616 P.2d 802];  Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 [137 Cal.Rptr. 460, 561 P.2d 1148]․)”  (ITT World Communications, Inc. v. City and County of San Francisco, supra, 37 Cal.3d 859, 868, 210 Cal.Rptr. 226, 693 P.2d 811.)

The ballot summary, arguments and analysis of Proposition 13 are of limited assistance and do not alter our conclusion.  “Read as a whole, these materials present Proposition 13 as a measure concerned with real property tax relief for homeowners.”  (Ibid.)  Although these materials reiterate that a two-thirds vote of the Legislature is required to enact any change in State taxes designed to increase revenues, there is nothing in the ballot arguments or summaries which indicates an intent by the people to limit their existing power to enact tax increases by statewide statutory initiative.

The target of Proposition 13, as articulated by co-authors Mr. Jarvis and Mr. Gann and by Senator Briggs, was “spendthrift politicians” who “tax us into poverty.”   Significantly, these proponents stated that the passage of Proposition 13 would “[R]estore[ ] government of, for and by the people.”   It is difficult to reconcile such a promise of a return to democratic control with a simultaneous implied repeal of the people's power of statutory initiative.10

Plaintiff argues that the intent of Proposition 13 is evidenced by the December 1988 amicus brief filed by Proposition 13's co-author Paul Gann and the People's Advocate in Calfarm Ins. Co., v. Deukmejian, supra, making an identical argument that section 3 of article XIII A was intended to restrict the right of voters to increase taxes through statutory initiative.   This argument is without merit.  “․ [A]s stated by the Supreme Court in a recent case interpreting other ambiguous provisions of article XIII A, ‘an after-the-fact declaration of intent by a drafter of Proposition 13 [Howard Jarvis] ․ may deserve some consideration (see Stanton v. Panish (1980) 28 Cal.3d 107, 114 [167 Cal.Rptr. 584, 615 P.2d 1372] );  but by no means does it govern our determination how the voters understood the ambiguous provisions.’   (Carman v. Alvord (1982) 31 Cal.3d 318, at p. 331, fn. 10 [182 Cal.Rptr. 506, 644 P.2d 192], italics added.)”  (Armstrong v. County of San Mateo (1983) 146 Cal.App.3d 597, 618, 194 Cal.Rptr. 294.)

There are compelling policy reasons for finding unexpressed opinions of intent by the drafters of both statutes and constitutional amendments unpersuasive.  “First, there is no assurance that the personal views of the drafters were shared by anyone else.   Second, ․ unexpressed opinions ‘may never have been exposed to public view so that those with differing opinions as to the bill's meaning and scope had an opportunity to present their views also.’  (California Teachers Assn. [v. San Diego Community College Dist. (1981) ] supra, 28 Cal.3d [692] at p. 701 [170 Cal.Rptr. 817, 621 P.2d 856].)”  (Id., at p. 619, 194 Cal.Rptr. 294.)   These policy considerations are of particular importance where the unarticulated intent is the abrogation of a cherished right.   Had the voters understood that the effect of their “taxpayers' revolt” was to strip themselves of the effective means of continuing that revolution, it is likely that the debate engendered and the ultimate outcome would have been significantly altered.

In sum, we hold that section 3 of article XIII A did not silently dismantle the people's preexisting right to enact statewide tax increases by statutory initiative passed by a majority of the electorate.   The enactment of the Tobacco Initiative was thus well within the power of the electorate.


Single Subject Rule

 Article II, section 8, subdivision (d) provides that “[a]n initiative measure embracing more than one subject may not be submitted to the electors or have any effect.”   The single subject rule as applied to the initiative has the dual purpose of avoiding logrolling and voter confusion.   (Amador, supra, 22 Cal.3d at p. 231, 149 Cal.Rptr. 239, 583 P.2d 1281.)   An initiative measure complies with the single subject rule “if its provisions are either functionally related to one another or are reasonably germane to one another or the objects of the enactment.  (Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1100, 240 Cal.Rptr. 569, 742 P.2d 1290.)

Plaintiff argues that Proposition 99 violates the single subject rule because some of the Legislature's appropriations from the Initiative's surtax funds are for environmental and medical purposes which are neither functionally related nor reasonably germane to each other or to the provisions of the Initiative concerning tobacco related problems.   In support of this argument, plaintiff has offered examples of various appropriations from the funds contained in the 1989–90 Budget which are allegedly unrelated to tobacco use.11  Plaintiff also contends that the Tobacco Initiative violates the purposes of the single subject rule—to prevent “logrolling” or the combination of several proposals in a single bill to obtain a majority in favor of a measure which would not have been individually approved.   Finally, plaintiff argues that the initiative violates the single subject rule because it contains more than one item or appropriation.   Plaintiff would have us find that the provision of article IV, section 12, prohibiting the Legislature from proposing any bills, except the budget bill, which have more than one item of appropriation is applicable to the people's power of initiative.

Precedent relating to the single subject rule is “both venerable and current.”  (Brosnahan v. Brown (1982) 32 Cal.3d 236, 246, 186 Cal.Rptr. 30, 651 P.2d 274.)   The leading authority on the construction of the single subject rule is Evans v. Superior Court (1932) 215 Cal. 58, 8 P.2d 467, which upheld the Legislature's adoption of the entire Probate Code.12  As noted by the Supreme Court, Evans “confirms the liberal construction to be accorded to the single subject rule.”  (Harbor v. Deukmejian, supra, 43 Cal.3d 1078, 1098, 240 Cal.Rptr. 569, 742 P.2d 1290.)  Evans based its holding on the following principles:  “the [single-subject] provision is not to receive a narrow or technical construction in all cases, but is to be construed liberally to uphold proper legislation, all parts of which are reasonably germane.  (Citations.)  The provision was not enacted to provide means for the overthrow of legitimate legislation.  [Citation.]  [¶ ] Numerous provisions, having one general object, if fairly indicated in the title, may be united in one act.   Provisions governing projects so related and interdependent as to constitute a single scheme may be properly included within a single act.   [Citation.]  The legislature may insert in a single act all legislation germane to the general subject as expressed in its title and within the field of legislation suggested thereby.  [Citation.]  Provisions which are logically germane to the title of the act and are included within its scope may be united.   The general purpose of a statute being declared, the details provided for its accomplishment will be regarded as necessary incidents.   [Citations.]  ․ A provision which conduces to the act, or which is auxiliary to and promotive of its main purpose, or has a necessary and natural connection with such purpose is germane within the rule.”  (215 Cal. at pp. 62–63, 8 P.2d 467.)

Supreme Court decisions relying on the rule articulated in Evans and upholding initiative measures against claims of single subject rule violations lead us to conclude that the Tobacco Initiative is well within constitutional parameters.13

In Amador, supra, 22 Cal.3d 208, 229–232, 149 Cal.Rptr. 239, 583 P.2d 1281, the Supreme Court rejected an argument that Proposition 13 violated the single subject rule by being “so sweeping and extensive in its practical effect and import as to encompass nearly the entirety of “government.”  Id., at p. 229, 149 Cal.Rptr. 239, 583 P.2d 1281.)   It held that the proposition's four major elements (a real property tax rate limitation, a real property assessment limitation, a restriction on state taxes and a restriction on local taxes) were reasonably germane and functionally related to “the general subject of property tax relief.”  (Id., at p. 231, 149 Cal.Rptr. 239, 583 P.2d 1281.)

In Fair Political Practices Commission v. Superior Court (1979) 25 Cal.3d 33, 37, 157 Cal.Rptr. 855, 599 P.2d 46, the Court held that the provisions of the Political Reform Act of 1974 (Gov.Code, § 81000, et seq.), a statutory initiative measure which concerned “elections and different methods for preventing corruption and undue influence in political campaigns and governmental activities” were “reasonably germane to the broad subject of political practices.”   That act involved multiple complex features:  the establishment of the fair political practices commission;  creation of disclosure requirements for candidates' financial supporters;  the regulations of election to public office;  the regulation of ballot measure petitions and elections;  the regulation of public official conflicts of interest;  and the regulation of lobbyists.  (Id., at p. 40, 157 Cal.Rptr. 855, 599 P.2d 46.)   The court stated that “[i]n keeping with the policy favoring the initiative, the voters may not be limited to brief general statements but may deal comprehensively and in detail with an area of law.”  (Id., at p. 41, 157 Cal.Rptr. 855, 599 P.2d 46.)

In Brosnahan v. Brown, supra, 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274, the court upheld the provision of Proposition 8, “The Victims' Bill of Rights” against a claimed single subject violation.   Proposition 8 had as its aim the accomplishment of changes in the criminal justice system for the purpose of protecting the rights of crime victims and encompassed a sweeping range of subjects.14  Relying heavily on Evans and its approval of the adoption of probate legislation “consisting of one thousand and seven hundred sections covering a wide spectrum of topics,” the Court noted that the Evans legislation included such disparate subjects as the essential elements of wills, the rights of succession, the details of the administration and distribution of decedents' estates, and the procedures, duties, and rights of guardianship of the persons and estates of minors and incompetents.   With this sweeping precedent, the court concluded that Proposition 8 met the “reasonably germane” standard because “[e]ach of its several facets bears a common concern, ‘general object’ or “general subject” promoting the rights of actual or potential crime victims.”  “This goal is the readily discernible common thread which unites all of the initiative's provisions in advancing its common purpose.”  (Id., at p. 247, 186 Cal.Rptr. 30, 651 P.2d 274.)   The court rejected an argument that the right to safe schools could encompass such diverse hazards as acts of nature, acts of war, environmental risks, or building code violations by interpreting this right in light of the common goal articulated in the proposition's preamble.  (Id., at p. 248, 186 Cal.Rptr. 30, 651 P.2d 274.)

Recently, in Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d 805, 258 Cal.Rptr. 161, 771 P.2d 1247, the Supreme Court held that all parts of Proposition 103 were reasonably germane to the subject of insurance rates and regulations and did not violate the single subject rule.   Intervenor and amicus had argued that section 7 of the initiative, which repeals laws prohibiting rebates to consumers and which bars banks from selling insurance, did not further the initiative's goals.   In rejecting this argument, the court stated that “we do not review initiatives by attempting to predict whether each section actually will further the initiative's purpose.   Instead, we inquire only whether the provisions are ‘reasonably germane’ to the general purpose or objective of the initiative.”  (Calfarm, supra, 48 Cal.3d at pp. 841–842, 258 Cal.Rptr. 161, 771 P.2d 1247.)   Because all of the provisions of Proposition 103 relate generally to the cost of insurance or its regulation and “all ․ at least arguably” will help to achieve its goals, the single subject rule was not violated.  (Id., at p. 842, 258 Cal.Rptr. 161, 771 P.2d 1247.)

Viewed against this background and our mandate of liberal construction, Proposition 99 does not violate the single subject rule.   Entitled “The Tobacco Tax and Health Protection Act of 1988”, the Act has as its broad goal the reduction of disease, environmental damage and economic costs to the state which result from tobacco use.   It is true that the use of funds deposited in the Hospital Services, Physicians Services and Public Resources Accounts is not expressly limited to tobacco-related expenditures.   As in Brosnahan, however, when read in light of the overall purpose of the Act, it is clear that funds from these accounts are intended to address problems engendered by tobacco use.   The Board's position that these expenditures should not be tied to a rigid causation test is well taken and we decline to so rule.   It is enough that each of the Act's provisions will at least arguably help to achieve its goal.

It is unnecessary for our decision and we do not decide whether appropriations contained in the final 1989–90 Budget are within the scope of expenditures authorized by the Act.   These appropriations lend no insight into the constitutionality of the Act itself.   Proposition 99 was not placed on the ballot by Legislative action.   The appropriations contained in the final 1989–90 Budget are merely reflective of the Legislature's interpretation of the scope of the Act.   Although “courts have on occasion resorted to such extrinsic materials as an aid in interpreting ambiguous language in statutes or initiative measures (citations), we have no need to do so, as the Act and the ballot arguments provide the dispositive interpretive information.”  (AFL–CIO v. Deukmejian (1989) 212 Cal.App.3d 425, 436, n. 4, 260 Cal.Rptr. 479.)

We conclude that, on its face, Proposition 99 does not present one of “those rare occasions” in which the initiative is “so all encompassing, so multifaceted as to demand a conclusion of unconstitutionality.”  (Brosnahan v. Brown, supra, 32 Cal.3d at p. 252, 186 Cal.Rptr. 30, 651 P.2d 274.)   Because each of the six separate accounts in the Cigarette and Tobacco Products Surtax Fund is designed to accomplish the broad purpose of alleviating the societal costs of tobacco use, the provisions of the Tobacco Initiative are reasonably germane to its purposes and Proposition 99 does not violate the single subject requirement of article II, section 8, subdivision (d) of the California Constitution.

 Furthermore, Proposition 99 is not fatally flawed by “log-rolling”.   We are not required to determine and we decline to speculate whether the Tobacco Initiative would have obtained “independent voter approval” without the appropriation of funds to the Hospital Services, Physicians Services and Public Resources Accounts.   Such speculation “could well frustrate legitimate efforts by the people to accomplish integrated reform measures.”  (Amador, supra, 22 Cal.3d at p. 232, 149 Cal.Rptr. 239, 583 P.2d 1281.)   The Initiative's attempt to address problems of staggering economic, environmental and health costs to our society through a multifaceted program of educational, hospital, physician, research and public resources expenditures “contains no ‘unnatural combination’ of provisions on unrelated subjects which might suggest an inordinate vote-getting scheme on behalf of the proponents.”  (Brosnahan, supra, 32 Cal.3d at p. 251, 186 Cal.Rptr. 30, 651 P.2d 274.)

 Finally, we regard as frivolous plaintiff's argument that the Tobacco Initiative is unconstitutional as a violation of article IV, section 12(d), which declares:  “No bill except the budget bill may contain more than one item of appropriation, and that for one certain, expressed purpose”.   Shortly after the adoption of the single subject constitutional provisions applicable to initiatives, “it was held that the same principles apply to the single subject rule relating to initiatives as to legislative enactments.  (Perry v. Jordan (1949) 34 Cal.2d 87, 92–93 [207 P.2d 47].)”  (Harbor v. Deukmejian, supra, 43 Cal.3d at p. 1098, 240 Cal.Rptr. 569, 742 P.2d 1290) Perry dealt exclusively with former article IV, section 24, now article IV, section 9, which provides that “Every act shall embrace but one subject, which subject shall be expressed in its title,” and applied the legislative single subject principles of Evans v. Superior Court, supra, 215 Cal. 58, 8 P.2d 467, to the initiative.   There is absolutely no mention of the appropriations limit of article IV, section 12(d).

We have held that “[a]rticle IV of the state constitution deals with the legislative department, and section 12(d) is limited to appropriations made by the Legislature.”  (Morris v. Priest (1971) 14 Cal.App.3d 621, 624, 92 Cal.Rptr. 476.)   Morris relied on Prince v. City & County of S.F. (1957) 48 Cal.2d 472, 475, 311 P.2d 544, reversed on other grounds sub nom.   Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, an action by a World War II veteran to recover taxes paid under protest.   In Prince, the Supreme Court held that (former) article XX, section 19, a constitutional amendment relating to subversive persons and groups which limited the veterans' tax exemption, did not violate the single subject rule of article IV, section 24, since article IV deals with the “Legislative Department” and “section 24 is intended to be and has been limited to legislative enactments under the Constitution.”   Accordingly, in Morris, we held that a constitutional amendment, article XVI, section 1, which authorized the Treasurer to sell general obligation bonds and notes at interest rates exceeding five percent, was not forbidden by article IV, section 12(d).  Even if the amendment were viewed as an implied appropriation, it was outside the restrictions of article IV, section 12(d).   Similarly, the Tobacco Initiative's appropriation of surtax funds generated by statutory initiative does not violate the appropriations limitation of article IV, section 12(d) since that provision is limited to appropriations made by the Legislature.


Equal Protection

 Plaintiff's argument that Proposition 99 violates the equal protection clauses of the United States and California Constitutions by imposing a financial burden on tobacco distributors and consumers for programs designed to benefit the public at large is without merit.   Plaintiff argues that the question is not whether tobacco distributors may be taxed but whether they may be taxed when the proceeds are linked to the funding of particular programs.

In affirming the validity of Proposition 13 against an equal protection challenge, the Supreme Court in Amador, supra, 22 Cal.3d at p. 233, 149 Cal.Rptr. 239, 583 P.2d 1281, described the general principles applicable to the determination of an equal protection challenge to state tax legislation:  “We have long held that ‘[w]here taxation is concerned and no specific federal right, apart from equal protection, is imperiled, the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.’  [Citation.]  A state tax law is not arbitrary although it ‘discriminates in favor of a certain class ․ if the discrimination is founded upon a reasonable distinction, or difference in state policy,’ not in conflict with the Federal Constitution.  [Citation.]  This principle has weathered nearly a century of Supreme Court adjudication․”  (Kahn v. Shevin (1974) 416 U.S. 351, 355–356 [94 S.Ct. 1734, 1737, 40 L.Ed.2d 189, 193].)   The court summarized that “[s]o long as a system of taxation is supported by a rational basis, and is not palpably arbitrary, it will be upheld despite the absence of ‘ “a precise, scientific uniformity” ’ of taxation.  [Citations.]”  (Id., at p. 234, 149 Cal.Rptr. 239, 583 P.2d 1281.)  (Accord, Lynch v. State Bd. of Equalization (1985) 164 Cal.App.3d 94, 118, 210 Cal.Rptr. 335 (holding that article XIII A, as implemented, does not violate due process or equal protection principles as applied to oil and gas properties.)

“Neither due process nor equal protection imposes upon a state any rigid rule of the equality of taxation․  (Citations.)   A Legislature ․ may make distinctions ․ having a rational basis, and ․ they must be presumed to rest on that basis if there is any conceivable state of facts which would support it.”  (Carmichael v. Southern Coal & Coke Co. (1937) 301 U.S. 495, 509, 57 S.Ct. 868, 872, 81 L.Ed. 1245;  Capitol Records, Inc. v. State Bd. of Equalization (1984) 158 Cal.App.3d 582, 601, 204 Cal.Rptr. 802;  see also Sea–Land Service, Inc. v. County of Alameda (1974) 12 Cal.3d 772, 780, 117 Cal.Rptr. 448, 528 P.2d 56.)

The state's power to impose a tax as a condition for the sale of cigarettes has long been recognized.  (Gundling v. Chicago (1900) 177 U.S. 183, 20 S.Ct. 633, 44 L.Ed. 725.) 15  (See also, Calif. Bd. of Equal. v. Chemehuevi Tribe (1985) 474 U.S. 9, 106 S.Ct. 289, 88 L.Ed.2d 9, (upholding California's right to impose a tax on distributors of cigarettes to non-Indian purchasers.)

In support of its argument, plaintiff relies on cases which hold that it is a denial of equal protection when the government seeks to charge the cost of operation of a state function, conducted for the benefit of the public, to a particular class of persons.   Premised on the notion that it is a legitimate state function to assist the poor (The Housing Authority v. Dockweiler (1939) 14 Cal.2d 437, 450, 94 P.2d 794), these cases are clearly inapplicable to the tobacco tax at issue.   The singling out of tobacco distributors for taxation and the creation of a fund for programs which on their face are designed to alleviate the societal costs associated with its use is neither arbitrary nor irrational.   There is a rational relationship between the imposition of a tax on cigarette distributors and the initiative's broad goals to fund educational, health and environmental programs related to tobacco use.  County of San Mateo v. Dell J. (1988) 46 Cal.3d 1236, 252 Cal.Rptr. 478, 762 P.2d 1202 does not mandate otherwise.   That case and Dept. of Mental Hygiene v. Kirchner (1964) 60 Cal.2d 716, 36 Cal.Rptr. 488, 388 P.2d 720, which it reaffirmed involved the propriety of imposing the costs of incarceration or institutionalization on family members.16  Kirchner, supra, 60 Cal.2d at p. 722, 36 Cal.Rptr. 488, 388 P.2d 720, reiterated the basic principle that a “statute obviously violates the equal protection clause if it selects one particular class of persons for a species of taxation and no rational basis supports such classification.”   Although there is no rational basis for charging a family member on the basis of that status alone with the costs of protecting society by institutionalizing another family member, such a rational basis clearly exists between tobacco distributors and programs aimed at addressing the effects of tobacco use.

The rational basis for Proposition 99's excise tax on cigarettes and tobacco distributors is set forth in its findings and declarations which describe the “staggering” medical, environmental and societal costs which all Californians have historically had to pay as a result of tobacco use.   Thus, the distinction between tobacco consumers and distributors and non-consumers and distributors is not “based on criteria wholly unrelated to the objective of the statute” (Brown v. Merlo (1973) 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212) and the tobacco initiative does not violate principles of equal protection.


Appropriations Power

 Finally, we reject plaintiff's contention that section 30125, which provides that tobacco surtax funds may be expended only for those purposes expressed in the act and only to supplement exiting levels of service, violates article IV, section 12.17  Relying on our decision in People's Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 226 Cal.Rptr. 640, plaintiff contends that the initiative imposes a legal limit on how the Legislature may appropriate the proceeds of the tax, in violation of the constitutional budget process.

In People's Advocate, supra, 181 Cal.App.3d at pp. 328–329, 226 Cal.Rptr. 640, we invalidated, inter alia, a portion of the Legislative Reform Act of 1983, a statutory initiative, which limited the Legislature's budget.   We found that Government Code section 9934 violated article IV, section 12 by limiting the content of future statutes as reflected in the amount of money that could be appropriated in future budget bills.   That section provided as follows:  “Limits upon public expenditure [¶ ] Notwithstanding any other provision of law, within 30 days following the enactment of this chapter, the total amount of monies appropriated for the support of the Legislature, including but not limited to all monies appropriated to the Senate Contingent Fund, the Assembly Contingent Fund, the Contingent Funds of the Senate and Assembly, for legislative printing, and for aids to the Legislature as described in Part 2 of this title, shall be reduced by an amount equal to thirty percent of the total amount of monies appropriated for support of the Legislature for the 1983–84 fiscal year, and the amount so reduced shall revert to the General Fund.   For each fiscal year thereafter, the total amount of monies appropriated for support of the Legislature shall not exceed an amount equal to that expended for support in the preceding fiscal year, adjusted and compounded by an amount equal to the percentage increase or decrease in state General Fund spending for that fiscal year.”

Because this limitation was based on a formula tied to the budget bill enacted for fiscal year 1982–83, the established principles that legislative enactments may not be used to divest the Legislature of the power to enact legislation and that the Legislature may not bind its own hands or those of future Legislatures by rules which are not capable of change were violated.   Because the Legislature was denied this statutory power, so were the people.

Significantly, we noted that the “limitation imposed by section 9934 upon the content of a budget measure must be distinguished from the constitutional authorization to appropriate money by statute by measures other than the budget bill.   That power is specifically recognized in article IV, section 12.   It authorizes the Legislature and hence the people to provide by statute for a continuing appropriation to pay for some specified program.  (See, e.g., Railroad Commission v. Riley (1923) 192 Cal. 54 [218 P. 415].)   However, the power so recognized does not authorize the placement of a legal limit upon the power of the Legislature to enact future appropriations legislation.  [¶ ] Although as a practical fiscal matter, a statute containing a continuous appropriation may limit the Legislature's financial choices in other appropriations measures, such a limitation is not one imposed by law․”  (People's Advocate, supra, 181 Cal.App.3d at p. 329, n. 13, 226 Cal.Rptr. 640;  emphasis in original.)

The crucial factor in our decision invalidating section 9934 was that the limitation on the amount of money that could be appropriated was based on a formula tied to the budget bill enacted for the fiscal year 1982–1983.   It was this limitation which invaded both the content and the process of budget legislation and tied the Legislature's hands regarding change in the future.   By contrast, the Tobacco Initiative's appropriation of surtax funds for specified purposes, like the “Railroad Commission Fund” upheld in Railroad Commission v. Riley (1923) 192 Cal. 54, 218 P. 415, is a continuous appropriation which does not run afoul of article IV, section 12.   Although section 30125 requires that surtax funds be expended only for the purposes expressed in the act, the fees generated by the Public Utilities Act in Riley were also specifically appropriated for use of the Commission in carrying out the provisions of the Act.  (Id., at p. 55, 218 P. 415.)   In Riley, the court noted that “․ the language employed in the California constitutional provision [of art. IV, § 34, now Art. IV, § 12] clearly indicates that the “budget bill” was not intended to become the single and exclusive source of all state appropriations.”  (Id., at p. 57, 218 P. 415.)

Furthermore, the rules imposed by the Tobacco Initiative are capable of change.   The electorate has provided a means by which the Legislature may amend the Initiative.   Pursuant to article II, section 10, the Legislature has no independent power to amend or repeal an initiative statute by another statute.   It may so act “only when [such statute is] approved by the electors unless the initiative statute permits amendment or repeal without their approval.”  Section 30130 is an express grant of power to the Legislature to amend the provisions of the act by a 4/5th vote of the membership of both houses.   Accordingly, the Legislature is not bound by what plaintiff characterizes as “the dead hand of past initiatives”—i.e., by rules which are incapable of change.


In enacting the Tobacco Initiative through its power of initiative, the electorate has indicated its desire to ameliorate the societal costs of tobacco use.   As stressed by the Supreme Court, “[c]onsistent with prior precedent, we are required to resolve any reasonable doubts in favor of the exercise of this precious right.”   (Brosnahan v. Brown, supra, 32 Cal.3d at p. 241, 186 Cal.Rptr. 30, 651 P.2d 274.)

The judgment is affirmed.


1.   Proposition 99 also added Section 12 to Article XIII B of the Constitution, to read:  “SEC. 12.  “ ‘Appropriations subject to limitation’ of each entity of government shall not include appropriations of revenue from the Cigarette and Tobacco Products Surtax Fund created by the Tobacco Tax and Health Protection Act of 1988.   No adjustment in the appropriations limit of any entity of government shall be required pursuant to Section 3 as a result of revenue being deposited in or appropriated from the Cigarette and Tobacco Products Surtax Fund created by the Tobacco Tax and Health Protection Act of 1988.”

2.   All further undesignated references are to the Revenue and Taxation Code unless otherwise indicated.

3.   Section 30403 provides that “[w]ithin 90 days after the mailing of the notice of the board's action upon a claim for refund or credit, the claimant may bring an action against the board on the grounds set forth in the claim in a court of competent jurisdiction in any city or county in the State in which the Attorney General has an office for the recovery of the whole or any part of the amount with respect to which the claim has been disallowed.”

4.   The question of whether article XIII A, section 3 either bars tax increases by initiative or requires that any such measures be approved by two-thirds of the voters was recently presented to the California Supreme Court in Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d at p. 815, 258 Cal.Rptr. 161, 771 P.2d 1247.   The court upheld the facial constitutionality of the majority of Proposition 103, but declined to determine the validity of 103's tax-adjustment provision, Revenue & Taxation Code section 12202.1, because it would violate the constitutional prohibition of article XIII, section 32 on prepayment review.   By paying his tax and instituting this action to recover taxes, plaintiff has removed the procedural bar presented in Calfarm.

5.   Article XIII A, section 4, entitled “Imposition of Special Taxes”, provides that “Cities, Counties and special districts, by a two-thirds vote of the qualified electors of such district, may impose special taxes on such district, except ad valorem taxes on real property or a transaction tax or sales tax on the sale of real property within such City, County or special district.”

6.   Article XVI, section 6 provides that the “Legislature shall have no power to ․ make any gift ․, of any public money or thing of value to any individuals, municipal or other corporations․”

7.   In upholding the constitutionality of Proposition 13, the California Supreme Court described the Proposition's four distinct elements as follows:  “The first imposes a limitation on the tax rate applicable to real property:  ‘The maximum amount of any ad valorem tax on real property shall not exceed one percent (1%) of the full cash value of such property․’ (§ 1, subd. (a).)  ․ The second is a restriction on the assessed value of real property.  Section 2, subdivision (a), provides:  ‘The full cash value means the county Assessors valuation of real property as shown on the 1975–76 tax bill under “full cash value,” or thereafter, the appraised value of real property when purchased, newly constructed, or a change in ownership has occurred after the 1975 assessment․’  Subdivision (b) permits a maximum 2 percent annual increase in ‘the fair market value base’ of real property to reflect the inflationary rate.  [¶ ] The third feature limits the method of changes in state taxes[.] ․ (§ 3.)   The fourth element is a restriction upon local taxes[.] ․ (§ 4.)”  (Amador, supra, 22 Cal.3d at p. 220, 149 Cal.Rptr. 239, 583 P.2d 1281.)

8.   Article XIII A, section 3 provides in pertinent part:  “any changes in State taxes ․ must be imposed by an Act passed by not less than two-thirds of all members elected to each of the two houses of the Legislature, ․”

9.   Article II, section 8 provides in part:  “(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute ․ and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, ․ of the votes for all candidates for Governor at the last gubernatorial election.”

10.   Furthermore, it is noteworthy that Mr. Gann, in his rebuttal to the argument in favor of Proposition 99, made no mention of Proposition 13 or in any way suggested that, as a result of Proposition 13, the voters no longer retained the constitutional authority to pass this statutory initiative.

11.   We granted plaintiff's request for judicial notice of the Budget Act of 1989, 1989 Cal.Stat. Ch. 93.   Plaintiff highlighted various Budget Act appropriations from the Public Resources Account which it argues are not reasonably germane to the Tobacco Initiative.   These include appropriations for the acquisition of deer and waterfowl habitat;  acquisition of Wilder State Ranch (Gray Whale Ranch);  renovation and expansion of state parks;  local assistance to Anaheim Bay Harbor, Santa Cruz West Cliff Drive and Ventura Pierpoint Beach through the Department of Boating and Waterways and for support of the State Water Resources Control Board.   Plaintiff also highlighted an appropriation from the Unallocated Account to the Department of Mental Health for local assistance.   We reject plaintiff's contention that there is not a reasonable relationship between erosion control and habitat preservation and damage to the environment caused by fires.   Damage caused to both the inland and coastal environments by fires is among those problems the Initiative was designed to address.   Accordingly, long term measures for environmental conservation, protection, restoration and enhancement, including acquisition, are appropriate methods of addressing these concerns.

12.   Although both Harbor and Evans involved a violation of the single subject rule applicable to the Legislature, California Constitution, Article IV, section 9, the same principles apply to the single subject rule relating to initiatives as to legislative enactments.   (Perry v. Jordan (1949) 34 Cal.2d 87, 92–93, 207 P.2d 47;  Harbor v. Deukmejian, supra, 43 Cal.3d at p. 1098, 240 Cal.Rptr. 569, 742 P.2d 1290.)

13.   Despite the “undeniably liberal nature” of these precedents, we recently invalidated a proposed ballot measure in a rare example of a successful challenge on single subject grounds.   In California Trial Lawyers Assn. v. Eu (1988) 200 Cal.App.3d 351, 357–361, 245 Cal.Rptr. 916, we invalidated the “Insurance Cost Control Initiative of 1988” and ordered that the Secretary of State and registrar of voters refrain from certifying the initiative measure or placing it on the ballot.   We held that its inclusion of provisions protecting the right of special interest groups to make campaign contributions to elected state officials and exempting officials who received such contributions from disqualification in acting on official matters affecting a contributor violated the single subject rule.   This provision was unrelated to the initiative's general object and purpose of reining in the constantly increasing premiums of liability insurance.   Furthermore, because the offending provision was located near the middle of a 120–page document and consisted of two short paragraphs bearing no connection to what preceded or followed, the risk of voter deception was extremely high.   We subsequently noted that the question in California Trial Lawyers Assn. v. Eu was “not a close one” because even its proponents could not explain how the rules exempting public officials from disqualification would advance the purpose of controlling spiralling insurance costs.  (Insurance Industry Initiative Campaign Com. v. Eu (1988) 203 Cal.App.3d 961, 967–968, 250 Cal.Rptr. 320.)

14.   These included a recitation of victims' rights;  provisions for restitution;  a declaration of the “inalienable right” of public school students and staff to safe campuses;  a prohibition on the exclusion of relevant evidence in criminal proceedings;  a consideration of public safety in rulings on bail;  the abolishment of the defense of diminished capacity;  a provision for the unlimited use of prior felony convictions for impeachment or sentence enhancement;  sentencing enhancement for habitual criminals;  allowance of victim's statements and testimony in all sentencing, parole setting hearings or Youth Authority proceedings;  limitations on certain plea bargains;  the prohibition of Youth Authority commitment for certain serious felonies committed by one over 18 years old;  and a requirement that a two-thirds vote of both houses of Legislature be obtained to amend most of the statutory provisions of Proposition 8.

15.   The Court held that an ordinance giving the mayor the power to determine whether a person applying for a license to sell cigarettes is a suitable person to entrust with their sale and requiring the payment of a license fee did not violate equal protection of the laws.

16.   The Court in Dell J. held that, although equal protection principles enunciated in Kirchner preclude a statutory scheme for reimbursement of public assistance from requiring a class of responsible relatives to bear the costs of confinement, they do not preclude seeking reimbursement for preexisting legal obligations of support when such costs can be identified and segregated out from nonallowable costs.  (County of San Mateo v. Dell. J., supra, 46 Cal.3d at p. 1252, 252 Cal.Rptr. 478, 762 P.2d 1202.)  Cunningham v. Superior Court (1986) 177 Cal.App.3d 336, 222 Cal.Rptr. 854 held that although it is a legitimate state function to assist the poor, it is a violation of equal protection to force the class of attorneys to provide pro bono representation.   In John Tennant Memorial Homes, Inc. v. City of Pacific Grove (1972) 27 Cal.App.3d 372, 379, 103 Cal.Rptr. 215, the court found that the classification in a city ordinance which imposed a tax on the occupants of nonprofit retirement homes but which exempted for-profit retirement homes to be unreasonable and in violation of equal protection guarantees.

17.   Article IV, section 12 provides as follows:  “Budget;  time for submission;  budget bill;  itemized expenditures;  required vote for appropriation measures;  legislative control [¶ ] Sec. 12. (a) Within the first 10 days of each calendar year, the Governor shall submit to the Legislature, with an explanatory message, a budget for the ensuing fiscal year containing itemized statements for recommended state expenditures and estimated state revenues.   If recommended expenditures exceed estimated revenues, the Governor shall recommend the sources from which the additional revenues should be provided.  [¶ ] (b) The Governor and the Governor-elect may require a state agency, officer or employee to furnish whatever information is deemed necessary to prepare the budget.  [¶ ] (c) The budget shall be accompanied by a budget bill itemizing recommended expenditures.   The bill shall be introduced immediately in each house by the persons chairing the committees that consider appropriations.   The Legislature shall pass the budget bill by midnight on June 15 of each year.   Until the budget bill has been enacted, the Legislature shall not send to the Governor for consideration any bill appropriating funds for expenditure during the fiscal year for which the budget bill is to be enacted, except emergency bills recommended by the Governor or appropriations for the salaries and expenses of the Legislature.  [¶ ] (d) No bill, except the budget bill may contain more than one item of appropriation, and that for one certain, expressed purpose.   Appropriations from the General Fund of the State, except appropriations for the public schools, are void unless passed in each house by rollcall vote entered in the journal, two thirds of the membership concurring.  [¶ ] (e) The Legislature may control the submission, approval, and enforcement of budgets and the filing of claims for all State agencies.”

DAVIS, Associate Justice.

PUGLIA, P.J., and CARR, J., concur.

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Docket No: No. Civ. C006406.

Decided: December 14, 1989

Court: Court of Appeal, Third District, California.

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