State ex rel. Dustin v. Rusk

The opinion of the court was delivered by

Hoyt, C. J.

To sustain the judgment entered in the superior court, it is necessary to hold that the act of March 19, 1895, (Laws 1895, p. 176) entitled, “An act in relation to superior courts and the election of superior court judges,” is unconstitutional, or that, if constitutional, the act of March 2, 1891, (Laws 1891, p. 117) entitled, “An act providing for judges and additional judges for the superior court in various counties in the state of Washington, and declaring an emergency,” was not repealed thereby.

As to the latter proposition, it is sufficient to say-that the plain intent of the legislature was to provide, not for the election of additional judges in certain counties or districts, but to provide for the election of all of the superior court judges of the state by districts provided for in the act. This being the evident object of the act, it must be held to have repealed the act of 1891, notwithstanding the absence of any repealing clause.

The constitutionality of the act is attacked upon two grounds, (1) that the title does not sufficiently indicate the subject matter contained in the act; and (2) that the act is in contravention of § 5, art. 4 of the constitution of the state. As to the first question.it is sufficient to say that the title sufficiently refers to superior courts and the election of superior court judges to make it competent for the legislature to enact anything relating to such courts or to the election of such judges. See Marston v. Humes, 3 Wash. 267 (28 Pac. 520).

The other question is one of more difficulty. A technical construction of the language used in the constitution might warrant the contention that thereunder the legislature had no jurisdiction as to superior court districts or the judges thereof, except to declare when the grouping contained in the proviso to said section should terminate and the general provision therein contained be given force. But, under a more liberal construction of the language, it may well be held that it was the intention to vest in the legislature full discretion as to when each county should be authorized to elect its own judge, and how counties not entitled to elect their own judges should be grouped for judicial purposes, and the real question presented for decision upon this appeal is as to which of these two constructions shall obtain.

It may be conceded that the first is best warranted by the language used unaffected by the circumstances surrounding the adoption of the constitution and by the legislative construction which has obtained from the adoption of the constitution to the present time. But when examined in the light of such surroundings and such legislative action, we feel warranted in adopting the more liberal construction; first, for the reason that no act of the legislature should be declared unconstitutional unless it is so clearly so as to be beyond reasonable question; second, by reason of the serious consequences which would necessarily re-suit from the technical construction. If such technical construction were to be adopted, the act of' 1891 would, in many of its features, be unconstitutional, yet said act has, in all of its features, been acted upon and superior court judges elected jointly by counties grouped for that purpose, some of which would have had no right to participate in such elections except by force of said act. It must follow that, under the technical construction of the constitutional provision it would be held that the judges so elected were at most but de facto officers, and it might require much litigation to determine whether or not they were officers of any kind. The legislature having adopted a liberal construction of the constitutional provision and the legislation enacted in pursuance of such construction having been acquiesced in and acted upon, must have great weight with the court and strongly incline it to that construction if the language used will at all justify it.

Beside, the technical construction would prevent the legislature from taking steps which the highest considerations of public policy and the economical administration of governmental affairs might require. Thereunder the legislature would be powerless to reduce the number of judges in the state by enlarging any group of counties entitled jointly to elect a judge, however much the business therein might decrease and however clear it might be that an election by the larger group would subserve the public interests.

In our opinion, no great violence is done to the language of the section of the constitution under- consideration when taken as a whole by holding that-thereby it was intended to vest in the legislature the discretion to determine as to when each of the counties should elect a judge for itself, and how the counties not entitled to so elect should be grouped for judicial purposes.

It follows from what we have said that the county of Klickitat is not entitled to elect a judge for itself at the coming election, but must act jointly with the counties of Skamania, Clarke and Cowlitz in the election of a judge for the district composed of those counties and itself.

The judgment will be reversed and the cause remanded with instructions to the superior court to dis-miss the proceeding.

Dunbar and Scott, JJ., concur.

Anders, J., dissents.