State Ex Rel. Troy v. Yelle , 27 Wash. 2d 99 ( 1947 )

The reasons given for my dissent in State ex rel. Livingstonv. Ayer, 23 Wash. 2d 578, 161 P.2d 429, apply to the instant case.

In considering cases of this nature, we should bear in mind the following well-established rules:

"The rule of law is well settled in this country that the legislative department is not made a special agency for the exercise of specially defined legislative powers, but is intrusted with general authority to make laws at discretion, except where the constitution has imposed limits upon this legislative power. Cooley, Constitutional Limitations, pp. 104, 201. In other words, the constitution of this state is a limitation upon the powers of the legislature, and not a grant of power. Hence, before an act of the legislature may be declared unconstitutional, it must appear that the act is in conflict with some express provision of the constitution which prohibits the act or parts of the act complained of." State ex rel. Murphy v.McBride, 29 Wash. 335, 70 P. 25.

"It is a rule, become axiomatic by long continued reiteration, that no court will hold a law to be unconstitutional unless such holding is compelled." State ex rel. Mullen v. Howell,107 Wash. 167, 181 P. 920.

"It is presumed that the statute in question is constitutional and the burden rests upon appellant [the attacking party] to establish clearly its invalidity." State v. Hanlen, 193 Wash. 494,76 P.2d 316.

"It is further elementary, and both parties so admit, that all doubts as to whether or not a state legislature had the power to pass a given enactment must be resolved in favor of the legislature." State ex rel. Todd v. Yelle, 7 Wash. 2d 443,110 P.2d 162.

"It is an elementary principle of constitutional law, universally accepted, that, where the validity of a statute is assailed, there is a presumption of the constitutionality of the legislative enactment unless its repugnancy to the constitution clearly appears or is made to appear beyond a reasonable doubt.. . . This court has upheld that principle many times." UnionHigh School Dist. No. 1 v. Taxpayers of Union High School Dist.No. 1, 26 Wash. 2d 1, 172 P.2d 591.

"In order to justify a court in pronouncing a legislative act unconstitutional or a provision of a state Constitution to be in contravention of the Constitution of the United States, the case must be so clear as to be free from doubt. In those jurisdictions in which a trial court may consider the constitutionality of a statute, unless a statute is manifestly and plainly unconstitutional, a trial court should sustain it, particularly where the same question might arise in other counties of the state, in order that a final and uniform decision may be had on appeal.

"In all instances where the court exercises its power to invalidate, the conflict of the statute with the Constitution must be irreconcilable, because it is only a decent respect to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until the contrary is shown beyond reasonable doubt. Therefore, in no doubtful case will the judiciary pronounce a legislative act to be contrary to the Constitution; to doubt the constitutionality of a law is to resolve the doubt in favor of its validity." 11 Am. Jur. 719, Constitutional Law, § 92.

It is also a general rule that the bar of the constitution does not come into play in those cases in which extra compensation is provided for new duties extrinsic to the duties provided by the constitution.

This rule is well stated as follows in State ex rel. Youngerv. Clausen, 111 Wash. 241, 190 P. 324:

"The general rule supported by the authorities is that, where new duties are added to the office during the term and the act fixes the compensation therefor, the constitutional inhibition does not apply if such new duties are extrinsic or foreign to the prior duties. On the other hand, if the new duties are incidental, collateral or germane to the duties which the officer was required to perform under the prior law, the salary increase cannot be sustained. The question is not so much over the statement of the rule as it is the application thereof. Probably the best statement of the rule will be found in §§ 862 and 863 of Mecham on Public Officers, as follows:

"``An officer who accepts an office, to which a fixed salary or compensation is attached, is deemed to undertake to perform its duties for the salary or compensation fixed, though it may be inadequate, and if the proper authorities increase its duties by the addition of others germane to the office, the officer must perform them without extra compensation. Neither can he recover extra compensation for incidental or collateral services which properly belong to or form a part of the main office. . . .

"``Where, therefore, a public officer is employed to render services in an independent employment, not germane or incidental to his official duties, . . . he may recover for such services.'"

Accord: State ex rel. Seattle v. Carson, 6 Wash. 250,33 P. 428; 43 Am. Jur. 145, 151, Public Officers, §§ 353, 364; 46 C.J. 1017, Officers, § 242.

In addition to the cases I cited in the Livingston case, I desire to call attention to the following:

The case of Love v. Baehr, 47 Cal. 364, involved the creation by the legislature of a board of examiners whose duties were to examine claims against the state, the books of the state treasurer, and to perform other similar functions. It named the attorney general as a member of the board and provided extra compensation. The California court held that the attorney general could receive the compensation, it being for extrinsic duties. The court, in passing upon the question, stated in part as follows:

"The Legislature has no more power to compel the Attorney-General to perform such service as a part of the duties of his office, than it has to compel the Superintendent of Public Instruction to take charge of the State Prison, or to perform the duties of State Gauger. The Attorney-General is, therefore, under no obligation to perform such services, and he may decline to perform them, without any breach of his official duty as Attorney-General. If, however, he voluntarily performs them, he does not thereby enlarge the scope of his official duties as a constitutional officer. . . .

"It is true, as suggested by counsel, that the Legislature might abuse its trust, and perhaps partially evade the constitutional prohibition, by contracting with these officers for the performance of trivial, non-official services, at an exorbitant compensation. But all legislative power is subject to abuse; and under our form of government, the only remedy is to be found at the ballot-box."

A similar situation was present in Phelps v. Childers,184 Okla. 421, 89 P.2d 782. There, it appears that a statute provided that justices of the supreme court should compile and annotate certain statutes, and compensation for the performance of those duties was authorized. The compensation provided for by this statute, in the opinion of the Oklahoma court, did not violate the constitutional provision relative to the changing of salaries of public officers after their election or appointment. The court reviewed the cases and held that where, as here, the duties were foreign to those provided for by the constitution, it is proper to award extra compensation.

In Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133, the Kentucky legislature created a judicial council and outlined the duties of that board. Circuit judges were named as members, and a compensation in addition to their regular salaries was allowed. The supreme court upheld the constitutionality of the act in the following words:

"The duties of members of the Judicial Council are not duties added to the office of circuit judge, for which no compensation may be allowed during the term, but the duties are wholly outside of the duties which a circuit judge is required to perform, and, therefore, under the many cases cited, the compensation is legal, and the act does not violate any of the provisions of the Constitution relating to compensation to be paid out of the state treasury."

In accord with the cases just cited are State ex rel. McMasterv. Reeves, 44 S.D. 612, 184 N.W. 1007; Moore v. Moore, 147 Va. 460, 137 S.E. 488, 51 A.L.R. 1517; and State v.Roddle, 12 S.D. 433, 81 N.W. 980.

This court in the case of State ex rel. Seattle v. Carson,6 Wash. 250, 33 P. 428, laid down a rule that is in conformity with those to which I have just called attention.

To my mind, the duties provided for in the act under consideration are entirely foreign and extrinsic to those which the various officers are compelled to perform by provisions of the constitution.

Rem. Supp. 1945, § 10964-51, provides:

"Functions. It shall be the function of this Commission:

"(1) To carry forward the participation of this state as amember of the Council of State Governments;

"(2) To encourage and assist the legislative, executive,administrative and judicial officials and employees of the stateto develop and maintain friendly contact by correspondence, byconference and otherwise with officials and employees of theother states, of the Federal government and of local units ofgovernment;

"(3) To endeavor to advance cooperation between this state andother units of government whenever it seems advisable to do so byformulating proposals for, and by facilitating (a) the adoptionof compacts, (b) the enactment of uniform or reciprocal statutes,(c) the adoption of uniform or reciprocal administrative rulesand regulations, (d) the informal cooperation of governmentaloffices with one another, (e) the personal cooperation ofgovernmental officials and employees with one another,individually, (f) the interchange and clearance of research andinformation, and (g) any other suitable endeavors.

"(4) To do all such acts as will, in the opinion of this Commission, enable this state to cooperate effectively with the various state governments in the United States and in assisting the Council of State Governments for that purpose."

There is nothing in the state constitution quoted in the majority opinion that directly, or by implication, requires the lieutenant governor, the secretary of state, the state treasurer, the state auditor, the attorney general, or the superintendent of public instruction, to do or perform any of the duties demanded by the 1945 act. The duties mentioned in that act which I have emphasized by italics, prove conclusively that they are entirely foreign to the duties set out in the constitution.

The duties of the members of the commission are real and substantial, and require the exercise of discretion. They require the giving of time and the performance of services within and without the state of Washington. Every state in the Union, with possibly one or two exceptions, has provided for a body of the type fashioned by chapter 195, Laws of 1945, and it was the evident purpose of the legislature that Washington should not stand alone, but should have a commission that would work in conjunction with the commissions from other states to advance the cause of uniform laws and bring about a working organization with the governmental bodies of sister states.

Courts take judicial notice of the fact that for many years business organizations and bar associations have worked together in an effort to bring about the passage of laws in various states that would make for better business relations. Law colleges and their faculties, and writers of legal publications, have advocated the passage of many uniform laws by the various states in the Union.

I cannot see anything in the present act which is prohibited by our state constitution.

The only thing that can be complained of is the fact that the governor appointed state officials to hold positions on the council created by the act.

MALLERY, J., concurs with SIMPSON, J.