State Ex Rel. Hamblen v. Yelle , 29 Wash. 2d 68 ( 1947 )

It is rather difficult, from a reading of the majority opinion, to determine whether the majority considers the "State Legislative Council" a council or a legislative committee. The act itself is very clear; it sets up a council. True, its membership is limited to senators and representatives, but this fact does not allow the members to perform legislative functions. It is either an interim legislative committee, or it is a council.

The majority points out that a number of states have similar legislative councils, and that, by constitutional or statutory provisions, all of the states, except Rhode Island, prohibit members of the legislature from filling civil offices created by the legislature during the term for which such legislators are elected. Search reveals that in none of these states has the constitutional question been ruled upon.

If we are to consider this as a legislative interim committee, we are confronted with the power of the legislature to appoint a committee to function after the adjournment of the legislative session.

Art. II, § 1, of the state constitution provides:

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

Art. II, § 12, provides:

"The first legislature shall meet on the first Wednesday after the first Monday in November, A.D. 1889. The second legislature shall meet on the first Wednesday after the first Monday in January, A.D. 1891, and sessions of the legislature shall be held biennially thereafter, unless specially convened by the governor, but the times of meeting of subsequent sessions may be changed by the legislature. After the first legislature the sessions shall not be more than sixty days."

The legislative branch of the state government is thus limited to 60 day sessions. When the legislature adjourns sine die, its functions as the legislative branch of the government, entirely cease. Its members lose all powers as legislators. They cannot make laws; they cannot reconvene, unless called into special session by the governor; they cannot perpetuate themselves in power; they cannot appoint committees to serve subsequent to adjournment. This is due entirely to the constitutional provision limiting the session to 60 days. If that limitation were not there, then the legislature could function at all times. Such is the situation in New York, which gave rise to the decision in People ex rel. Hastings v. Hofstadter, 258 N.Y. 425,180 N.E. 106, 79 A.L.R. 1208, relied upon by the majority. I have only been able to find two cases in which the power of the legislature to appoint interim committees was questioned because of constitutional limitations similar to ours.

Brown v. Brancato, 321 Pa. 54, 184 A. 89, was an action to restrain a committee, appointed by the Pennsylvania House of Representatives, from investigating a board of city trusts. The general assembly adjourned sine die June 21, 1935, and demand was made by the committee on September 5, 1935, for access to records, books, and accounts of the trusts. The court held:

"Legislative power is vested in the General Assembly composed of the Senate and the House of Representatives: Article II, section 1, PS, Constitution, page 176. Members of the Senate are elected for four years, members of the House for two years: Article II, section 3. The Assembly shall meet in regular session on the first Tuesday of January every second year and at other times when convened by the Governor, but no adjourned annual session shall be held: Article II, section 3. No power is vested in the House to act independently of the Senate after the Assembly adjourns sine die. The Constitution contemplates the exercise of Legislative power by concurrence of both House and Senate. The legislative action of the General Assembly, in virtue of the session which convened, as required by article II, section 3, ended with its adjournment. After adjournment the power of this committee of the House, if it had any power before, was effectually ended. There is no implied power in the exercise of which the House may sit after adjournment of the Assembly and therefore no power in the House to create a committee to do what the House itself may not do. From and after the adjournment, the power of the House complained of in this suit, was done once and for all."

The precise issue in that case was the power of one House to act subsequent to the adjournment of the assembly, but the principle that the legislature had no power to function after the adjournment was clearly stated.

In In re Hague, 105 N.J. Eq. 134, 147 A. 220, the court was called upon to determine the validity, subsequent to adjournment, of a legislative committee appointed for the laudable purpose of investigating Mayor Hague. The court held:

"The legislative power vests in a senate and general assembly.State Const., art 4 § 1 ¶ 1. Said bodies meet separately on the second Tuesday in January, at which time of meeting the legislative year commences. State Const., art. 4 § 1 ¶ 3. Neither of said bodies are continuous; they expire annually.State v. Rogers, 56 N.J. Law 480 (at p. 631). Although the senate — providing an always-existent membership — may be considered as having a permanent existence, it does not have continuous vitality. State v. Rogers, supra (at p. 622). It is only when the senate and general assembly are lawfully assembled that they constitute the legislature — the law-making body of the state. Each of said bodies are subject, in their action, to constitutional limitations and laws, in common with all other bodies, officers and tribunals within the state. In reGunn, 50 Kan. 155; 19 L.R.A. 519; Kilbourn v. Thompson,103 U.S. 168; Burnham v. Morrissey, 80 Mass. 226. All powers of the legislature, as such, cease upon the final adjournment of said body. All powers delegated to a committee appointed by a joint resolution of the senate and general assembly also cease."

The majority recognizes that interim committees are not lawful. It states:

". . . and while, according to well-reasoned cases, the legislature cannot by joint resolution create a committee with power to sit after adjournment, we find no authority sustaining the position that interim committees to investigate and report to the next legislature may not be appointed pursuant to a statute duly adopted."

Surely the legislature would not attempt, and surely this court would not countenance, the constitutional prohibition against interim committees to be circumvented by the subterfuge of substituting such a committee by an act of the legislature, rather than by a joint resolution. Art. II, § 12, of the state constitution prohibits the legislature from continuing as such for more than 60 days. After adjournment, it cannot continue through an interim legislative committee, whether that committee be authorized by joint resolution or by a statute.

This is not a legislative committee. It is a council, a separate body, set up by an act of the legislature. The legislature had the right to set up such a council. It had the right to prescribe of whom the membership of the council should consist. In this instance, it limits the membership to members of the legislature. But, just the minute those individuals qualify, they do not serve as legislators; they serve as commissioners. The only constitutional prohibition against members of the legislature serving in any other capacity is that they cannot be appointed or elected to a civil office in the state which shall have been created, or the emoluments of which shall have been increased, during the term for which such legislators were elected.

So, the question for us to determine is not whether the legislature may create an interim committee, by statute, to act after the legislature adjourns sine die, but is this — is membership on this legislative council a civil office.

The majority relies upon Parker v. Riley, 18 Cal.2d 83,113 P.2d 873, 134 A.L.R. 1405, as authority for its contention. This case was urged upon us by the attorney general in State ex rel. Troy v. Yelle, 27 Wn.2d 99,176 P.2d 459, involving the constitutionality of the Washington committee on interstate co-operation. We pointed out that our own decisions held otherwise and refused to follow the decisions of other states. We should follow the same procedure in this case, as I shall point out later. As the majority states, in State ex rel.McIntosh v. Hutchinson, 187 Wn. 61, 59 P.2d 1117, 105 A.L.R. 1234, we quoted with approval from State ex rel. Barneyv. Hawkins, 79 Mont. 506, 257 P. 411, 53 A.L.R. 583, the five elements necessary to make a position of public employment a public office of a civil nature. The majority feels that the act under consideration does not come within provision (2) of the rule: "It must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public."

The council has authority, among other things:

To examine and study the administrative organization and procedure of the state government, and to make recommendations directed to elimination of unnecessary overlapping of functions, and to the promotion of economy and efficiency in state government.

To make current examinations and reports concerning current conditions of all state funds, appropriations, and other state moneys.

To make such other studies and examinations of the state government and its state agencies as it may find advisable, and to hear complaints, hold hearings, and make findings of fact.

To co-operate and function with similar councils and committees of other states.

It has authority to employ an executive secretary, together with other clerical, legal, accounting, research, and other assistants, as may be advisable, and to fix their salaries and compensation.

It has authority to make its own rules and regulations.

Vacancies on the council among Senate members may be filled by appointment by the remaining Senate members. A similar provision is made for filling vacancies among House members by remaining House members of the council.

These are not the functions of employees. They are the functions of officers. All of the foregoing constitutes delegation of a portion of the sovereign power of government to be exercised for the benefit of the public.

Tucker v. State, 218 Ind. 614, 35 N.E.2d 270, was a case considering the constitutionality of an act of the legislature setting up various boards to perform the functions of elective officers. Among other things, the act abolished the office of attorney general. Another act established the office, the first incumbent to be chosen at an election to be held a year hence, and provided that in the interim, the governor, lieutenant governor, and secretary of state should constitute a board to employ an attorney to be known as "the attorney general of Indiana." In discussing whether or not this individual was an officer, the court said:

"The interim Attorney General is referred to in the act as an employee, but the duties and functions delegated to him by the act involve an exercise of a portion of the sovereign power. He appoints deputies, and employees are not thought to have deputies; fixes their salaries; and is authorized to draw vouchers upon the State Treasury in his own discretion, limited only by the total appropriation theretofore made for the Attorney General's office and the Department of Law. This is discretion to spend the total funds, uncontrolled by the judgment of any other executive officer. The provision that his expenditures are limited by the amounts appropriated applies to all — even the highest and most powerful offices. The exercise of discretion in employing deputies and persons to assist in taking care of the state's business, and to fix their salaries, and to incur expenses to be paid out of the general funds, is an exercise of part of the functions of a sovereign. It is well settled that any one intrusted with part of the sovereign power is an officer."

In State ex rel. Nagle v. Kelsey, 102 Mont. 8,55 P.2d 685, the defendant was a member of the Montana legislature, which had created the Montana relief commission, and had been appointed by the governor as one of its members. Art. V, § 7, of the Montana constitution provided: "No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office under the state."

The act provided for the establishment of a state fund; for a commission to administer the same, with power of supervision and distribution; for co-operation with the Federal government; for the appointment of administrators; for adoption of rules and regulations governing the board and the transaction of its business; for the right to secure property and take title thereto; for the right to make contracts; and for a multitude of other rights specifically enumerated in the act.

In discussing whether or not membership on this commission constituted a "civil office," after quoting the five requirements as laid down in State ex rel. Barney v. Hawkins, supra, the court said:

"A careful review of the powers and authority of officials and boards existing in the state of Montana at this time fails to disclose any board or official vested with more sweeping and comprehensive powers than those conferred upon the Montana Relief Commission. So we say that unquestionably the individuals who constitute the membership of the commission are civil officers, not mere state employees or even minor civil officers, but public officials, invested with large powers and comprehensive discretion. A member of the commission is a civil officer of the state of Montana, and as such is subject to all of the provisions of the Constitution and laws of the state of Montana applicable thereto."

However, it is not necessary for us to look to other states for guidance in the determination of this question. The precise question has been presented to and decided by this court inState ex rel. French v. Clausen, 107 Wn. 667, 182 P. 610, in which Laws of 1919, chapter 184, p. 566, adopting the Industrial Code Commission, was ruled upon. Chapter 184 provided:

"SECTION 1. As soon as practicable after the passage of this act the governor shall appoint a commission, consisting of five citizens of the state of Washington, one of whom shall be a member of the state senate and one a member of the house of representatives of the legislature of 1919, to be known as the ``Industrial Code Commission'. Each commissioner shall receive a compensation of ten dollars ($10.00) for each day actually employed in the work of such commission, and shall be allowed his necessary expenses incurred in the actual performance of his duties. The commission shall organize as soon as practicable after their appointment and select one of their number as chairman and one as secretary, and may employ such persons as they deem necessary to assist them in the performance of their duties under this act.

"SEC. 2. It shall be the duty of the industrial code commission to investigate the evils existing in industrial life and the means and methods of remedying the same, and to prepare and present to the legislature of the state of Washington at its next regular session a proposed act, or acts, upon all such subjects, including an act for the prevention of strikes, lockouts and boycotts, and the orderly settlement of industrial disputes.

"SEC. 3. Each commissioner shall have power to administer oaths and to issue subpoenas for the attendance of witnesses and the production of books and papers in any inquiry, investigation or hearing in any part of the state.

"The superior court of the county in which any such inquiry, investigation or hearing may be had shall have power to compel the attendance of witnesses and the production of books and papers and testimony as required by such subpoena. Such superior court shall have power to punish in cases of failure to appear in testimony as in cases of contempt. Witnesses shall be entitled to such fees and mileage as is provided in the case of witnesses in the superior court.

"SEC. 4. For the purpose of carrying out the provisions of this act there is hereby appropriated out of the general fund the sum of twenty-five thousand dollars ($25,000.00)."

The only distinction that I can find in the two acts is that the 1947 act is more elaborate, and the powers and duties of its members are set out in more detail.

In State ex rel. French v. Clausen, supra, E.L. French, a member of the legislature of 1919, which created the Industrial Code Commission, was appointed as one of its members. He necessarily expended, in attending one of its meetings, the sum of $6.54, which the state auditor refused to pay, contending that Mr. French's appointment was in conflict with Art. II, § 13, of the state constitution. In holding that he could not serve as a member of the commission, we said:

"Statutes are enacted by legislators of experience, or at least by persons of affairs, while in the enactment of a constitution the public are the legislators. Unless otherwise provided, precision may be exacted in determining the meaning of the language of a statute, while generally, in the case of a constitution, its provisions should be construed in the common and natural view; always the most important thing being to determine, if possible, what the real intention of the lawmakers was. Discussing the subject, this court, by Judge Dunbar, in the case of State ex rel. Chamberlin v. Daniel, 17 Wn. 111,49 P. 243, quoted with approval as follows:

"``"A constitution," says Mr. Endlich in his Interpretations of Statutes, § 526, "is intended for the benefit of the people and must receive a liberal construction." "The principle of strict construction would frustrate important provisions in every newly constructed frame of government." Such is the general rule, the keynote, as it were, of all interpretation of constitutional provisions, and is in harmony with the principles already discussed.'

"Section 13, art. 2, of the constitution does not prohibit a member of the legislature, during the term for which he was elected, from being appointed or elected to office, generally, in the state. The preclusion extends only to any office which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected. Of course, the purpose of the rule is obvious. It is as was stated in Fyfev. Kent County Clerk, 149 Mich. 349, 112 N.W. 725, in construing a similar constitutional provision, as follows:

"``The purpose of these provisions is "to preserve a pure public policy," or, as we said in Ellis v. Lennon, 86 Mich. 468, speaking through Justice McGrath, "to prevent officers from using their official position in the creation of offices for themselves or for the appointment of themselves to place."'

"The commission is created by, and its members derive their powers from, an act of the legislature. The term of service is fixed. It uses the process of the state to compel the attendance of witnesses and the production of books and papers. Its members administer oaths. It has at its disposal twenty-five thousand dollars ($25,000) of the state's money for carrying out the purposes of the act. On behalf of the state, of its own independent motion and will, it makes investigations and holds hearings within the state when, where and for whatever length of time it pleases. Its defined duties are under the direction and control of no superior. And each member, in addition to his expenses, receives compensation for each day's actual service.

"In oral argument counsel for relators interestingly called attention to the wisdom of that plan of the act by which advantage to the state would be greatly increased in having as a member of the legislature, when it considers an act or acts proposed by the commission, one who was a member of the commission, as would happen in the event a member of the commission were a member of such session of the legislature. There is force in the argument that one who had listened to the details of the inquiries of the commission and of the information it had received would be already familiar with the subject and of peculiar and signal help to other legislators in the final shaping of contemplated legislation. But these considerations go only to the propriety, or lack of it, in the constitutional provision in question as it is written. Most any rule has its disadvantages as well as its virtues. To be persuaded by the argument of counsel would induce the writing of an exception to the rule in the constitution. On the contrary, it must be held that, in adopting the provision referred to, the makers of the constitution preferred to forego some advantages that might flow from some exception to the rule, rather than risk manifest evils which would be obviated by enforcement of the rule without any exception or qualification. We are of the opinion that membership in the industrial code commission comes within the term ``office' as used in this provision of the constitution, and that the relator is not eligible thereto — this according to both the spirit and the letter of the law."

There may be instances where it would be proper for us to require a strict interpretation in deciding whether or not a certain position is an office, but we should not do so when we are considering the constitutionality of an act.

In Benefiel v. Eagle Brass Foundry, 154 Wn. 330,282 P. 213, we held:

"In maintaining a fire department, a city is exercising a governmental function, and a fireman, instead of being considered as an ordinary employee of the city, ``is in fact a public officer and engaged in a governmental duty'. Johnson v. Pease,126 Wn. 163, 217 P. 1005."

Accord, State ex rel. Knez v. Seattle, 176 Wn. 283,28 P.2d 1020, 33 P.2d 905; Christie v. Port of Olympia, 27 Wn.2d 534, 179 P.2d 294.

In State v. Nick, 66 Wn. 134, 119 P. 15, we held that police officers exercise the functions and powers of public officers. Accord: State v. Worsham, 154 Wn. 575,283 P. 167; State v. Cooney, 23 Wn.2d 539, 161 P.2d 442.

When the people set up the state government, they wrote their own constitution, a basic law to always guide all public officers in the performance of their functions. And they placed upon the courts the solemn obligation of keeping that constitution inviolate. The constitution was written to be obeyed, not evaded or by-passed. It is plain and simple in its terms. It is not within our province to split hairs and make fine distinctions as to the meaning of words. It is our duty to protect the people, in carrying out the purposes for which the constitution was written. In order to maintain a pure public policy, the people have said that no member of the legislature, during the term for which he is elected, shall be appointed or elected to any civil office in the state. Membership on this commission constitutes such an office.

All the members of this commission were members of the legislature which created the commission. The act provides that the commission shall have permanent existence, and will continue unless repealed by a subsequent legislature.

Because of the constitutional prohibition, all of the present members are disqualified from serving, and the commission must of necessity lie dormant until the convening of the 1949 legislature.

The writ should be denied.

MALLERY, C.J., concurs with SCHWELLENBACH, J.