In Re Elliott

446 P.2d 347, 74 Wash. 2d 600, 1968 Wash. LEXIS 801

• Court: Washington Supreme Court
• Decided: October 10, 1968
• Docket: 39278
• Status: Published

Opinions

Rosellini, J.

The 39th legislature enacted Laws of 1965, ch. 99, p. 1302 (RCW 2.60), called the Federal Court Local Law Certificate Procedure Act, which provides a procedure whereby the federal district courts may certify questions of law to this court. Proceeding under the authority of this law, the District Court of the United States for Western District of Washington, by order of Judge William J. Lind-berg, presiding in a bankruptcy case, has certified to this court a question pertaining to the interpretation of section 48.18.410 of the Revised Code of Washington, which concerns the disposition of life insurance proceeds in insolvency proceedings.

At the outset the question is raised whether the legislative act providing for the certification procedure is constitutional. Before attacking this question, we think it would be well to summarize the background of the law.

Prior to Erie R. R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 Sup. Ct. 817, 114 A.L.R. 1487 (1938), federal courts were not required to apply state law in the disposition of diversity cases or controversies pending before them, but were free to exercise an independent judgment as to what the common law of the state was or should be.

Since Erie, federal courts have been required to follow local law as expounded by state courts. This has not been a problem where there is a state decision or rule on the question. However, where the state law is not clear, either because of the absence of state decisions or conflicting decisions in the same state, federal courts have been in a quandary.¹

A federal court, confronted with the necessity of ascertaining and applying local law, has been compelled to either (1) guess at the law and risk laying down a rule which may later prove to be out of harmony with state decisions, since state courts are not bound by federal court interpretations of state statutes, or (2) abstain from deciding the case until the state courts pass upon the point of law involved.

The great burden created by the abstention doctrine is the matter of delay. If the doctrine is invoked, the parties may appeal to the United States District Courts of Appeal and possibly to the United States Supreme Court. If the case is stayed or dismissed, the litigant must bring the case in the state courts. The parties must obtain a decision from the highest state court.

The delay and expense give advantage to a financially-endowed litigant, and he may be able to control the forum. He can intentionally choose federal adjudication in a case reasonably certain to be sent back to the state court. In this way the adversary who is less able financially may be forced to settle or abandon his suit.

Thus the legislature, in enacting Laws of 1965, ch. 99, sought to afford a procedure whereby litigants in federal court actions might obtain answers, in an expeditious manner, to questions of state law which controlled the disposition of their cases. The procedure is a shortcut, eliminating the necessity of instituting a declaratory judgment action in the superior court and taking an appeal to this court. The statute is not designed to increase the workload of this court, but rather to simplify the procedure for obtaining decisions on state questions which are relevant in federal court suits.

It is suggested that the enactment of RCW 2.60 was not within the power of the state legislature because it requires of the court a function which it cannot constitutionally perform. Const, art. 4, § 1, provides: “The judicial power of the state shall be vested in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may provide.” Const, art. 4, § 4, provides:

The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers, and appellate jurisdiction in all actions and proceedings, excepting that its appellate jurisdiction shall not extend to civil actions at law for the recovery of money or personal property when the original amount in controversy, or the value of the property does not exceed the sum of two hundred dollars ($200) unless the action involves the legality of a tax, impost, assessment, toll, municipal fine, or the validity of a statute. The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. Each of the judges shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of any person held in actual custody, and may make such writs returnable béfore himself, or before the supreme court, or before any superior court of the state or any judge thereof.

RCW 2.60.020, the operative section under which the question has been certified, states:

When in the opinion of any federal court before whom a proceeding is pending, it is necessary to ascertain the local law of this state in order to dispose of such proceeding and the local law has not been clearly determined, such federal court may certify to the supreme court for answer the question of local law involved and the supreme court shall render its opinion in answer thereto.

It must be remembered that the state constitution is a limitation upon the actions and powers of the legislature, instead of a grant of power. So far as the power of the legislature is not limited by the constitution, it is unrestrained. Standard Oil Co. v. Graves, 94 Wash. 291, 307, 162 Pac. 558 (1917); Clark v. Dwyer, 56 Wn.2d 425, 443, 353 P.2d 941 (1960).

This court has recognized that the legislature can confer jurisdiction on the courts or provide for statutory procedures for the exercise of jurisdiction by the court, provided the court exercises only judicial power. Such a limitation would be read into the statute in the absence of an express provision to the contrary. Thus the Uniform Declaratory Judgments Act (RCW 7.24) does not expressly forbid the rendering of advisory opinions. The court has simply construed the statute as inapplicable where such an opinion is sought. State ex rel. O’Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966). And it has upheld the Declaratory Judgments Act as constitutional. Acme Finance Co. v. Huse, 192 Wash. 96, 73 P.2d 341, 114 A.L.R. 1345 (1937).

This court in State ex rel. Kurtz v. Pratt, 45 Wn.2d 151, 273 P.2d 516 (1954), recognized again the power of the legislature to increase its jurisdiction. In an original proceeding in the Supreme Court, the county auditor was restrained from placing the names of three candidates for justice of the peace on the ballot. This was done by authority of RCW 29.04.030, which gives any judge of the Supreme Court the power to act where error or omission of any clerk or auditor appears in an election. Const, art. 4, § 4, reads as follows: “The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers . . . .” Thus RCW 29.04.030 expands the original jurisdiction of the court.

We said, at 157:

If we should refuse to act in the instant matter, we would be remiss in our duty as members of the court of last resort of this state, in that we would disregard the responsibility relative to the protection and orderly conduct of elections tendered to us by the legislature in its enactment of Rem. Rev. Stat., § 5202. [cf. RCW 29.04.030]

The reasoning of Sun Ins. Office, Ltd. v. Clay, 133 So.2d 735 (Fla. 1961), supports the constitutionality of RCW 2.60. The provisions of the Florida Constitution are substantially similar to article 4, section 5 of the Washington Constitution.²

The Supreme Court of Florida in Sun Ins. Office, Ltd. v. Clay, supra, dealt with the basic constitutional issue raised, by the Florida Certificate Procedure Act (Fla. Stat. Ann. § 25.031) saying, at 741:

The real question here is whether § 4 of Revised Article-V of our Constitution, adopted in 1956, which delineates the appellate jurisdiction of this court and provides for the issuance by it of named writs, should be construed as. prohibiting this court from exercising any judicial powers other than those expressly provided for therein.

The court considered the nature of Article V, § 4 and held. that this provision of the Florida Constitution was only a restriction upon state power, rather than a grant (just as is; our similar provision), and that, accordingly, the legislature could enlarge the jurisdiction of the state Supreme-Court where such enlargement was not forbidden by the constitution. The court said, at 742-43:

We have concluded that, in the absence of a constitutional provision expressly or by necessary implication, limiting the jurisdiction of the Supreme Court to those matters expressly conferred upon it, and in the absencer of a constitutional provision expressly conferring upon another court jurisdiction to exercise the judicial power which is the subject matter of § 25.031 and Rule 4.61, and in the light of the well settled rule that all sovereign, power, including the judicial power, “not limited by a state constitution inheres to the people of [the] state,”' such power may be granted to this court by statute if it is deemed to be a substantive matter, or by a rule of this, court if it is deemed to be a matter of “practice and procedure,” cf. State v. Furen, supra, 118 So.2d 6, 11. It follows that this court, having in the background derived authority both by statute prior to 1956 and by rule of court subsequent to the 1956 organic revision above referred to, may entertain the subject certificate.³ (Italics ours.)

It should also be pointed out that Article V, § 6, dealing-with the jurisdiction of the circuit courts in Florida is-. substantially the same as Const, art. 4, § 6 of our state constitution dealing with the jurisdiction of the superior courts, and that therefore the holding in Sun Ins. Office, Ltd. v. Clay, supra, is especially applicable to the situation existing in Washington.

Assuming, however, that the legislature does indeed lack power to increase the duties of this court in spite of our former holdings to the contrary, it does not follow necessarily that the act has this effect. If it is construed as permissive, it imposes no obligation on the court but merely gives it an option.

We are asked to construe RCW 2.60.020 as mandatory because it uses the word “shall.” In this field of legal inquiry the word “shall” does not necessarily mean “must,” but may mean “may.”

The legislative intent to confer a judicial power is construed to mean “may” notwithstanding the use of the word “shall.” This principle has been adopted in a long line of cases. It was applied in Clancy v. McElroy, 30 Wash. 567, 70 Pac. 1095 (1902), and has been repeatedly applied elsewhere. State v. Doe, 149 Conn. 216, 178 A.2d 271, 277 (1962); In re Laub, 145 Pa. Super. 513, 21 A.2d 575 (1941); State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 2 S.W.2d 713 (1928); 82 C.J.S. Statutes § 380 (1953); 59 C.J. Statutes § 635 at 1086, n. 13 (1932); 57 C.J. Shall § 7 at 556, n. 41 (1932).

In 82 C.J.S. Statutes, supra, it is stated at 881-82:

Where a statute makes that legal and possible which otherwise there would be no authority to do, it will be construed as permissive only, although using the word “shall.” It is also a general rule that the word “shall,” when used by the legislature in a grant of authority to a court, means “may,” and that the use of the word “shall” in a statute directing a court to determine certain matters does not necessarily confine such power to that tribunal. . . . The word “shall” must also be construed as permissive when the statute can thereby be upheld, if a construction to the contrary could render it unconstitutional.

The phrase “shall render” is construed subject to the implied limitations of the constitution. As stated in Robb v. Tacoma, 175 Wash. 580, 28 P.2d 327, 91 A.L.R. 1010 (1933) (quoted with approval in Union High School Dist. No. 1, Skagit Cy. v. Taxpayers of Union High School Dist. No. 1, Skagit Cy., 26 Wn.2d 1, 5-6, 172 P.2d 591 (1946)), we said, at 586:

If the act is fairly and reasonably open to more than one construction, that construction will be adopted which will harmonize the statute with the constitution and avoid a conflict therewith.

In 16 Am. Jur. 2d Constitutional Law § 144 at 345 (1964), it is stated:

In construing statutes with relation to constitutional provisions, the courts take into consideration the principle that every statute is to be read in the light of the Constitution, and that the Constitution and a statute involving constitutional rights will be construed together as one law. . . .

The rule has developed that the courts, in applying rules of statutory construction to legislation which is under constitutional attack, must do so with a view to bringing the legislation into line with constitutional requirements.

These Washington cases support these statements: Robb v. Tacoma, supra; In re Milecke, 52 Wash. 312, 100 Pac. 743 (1909); State v. Lewis, 45 Wash. 475, 88 Pac. 940 (1907).

There is case law to the effect that even if the statute is intended to be imperative it will be construed as discretionary because the statute is subject to the implied limitations of the constitution as a matter of construction. State v. Doe, supra; In re Laub, supra; Simmons v. State, 160 Fla. 626, 36 So.2d 207 (1948); Fort Howard Paper Co. v. Fox River Heights Sanitary Dist., 250 Wis. 145, 26 N.W.2d 661 (1947). Such holdings are consistent with the philosophy of judicial self-restraint. (See 16 Am. Jur. 2d Constitutional Law § 109 (1964).)

In Becker v. Lebanon & M. St. Ry., 188 Pa. 484, 41 Atl. 612 (1898), a statute providing that where corporations are acting outside their franchises, the court “shall” by injunction, at the suit of private parties or other corporations, restrain such injurious acts, the court held that the word “shall” was not mandatory and that before an injunction would issue, a proper case therefor would have to be made out. The court said, at 496:

The word “shall” when used by the legislature to a court is usually a grant of authority and means “may,” and even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power.

Aside from the meaning to be ascribed to the word “shall” as a matter of intention, independent of the issue of constitutionality, the question of constitutionality does itself aid in determining the meaning to be ascribed to the word “shall.” We have heretofore called attention to the rule, as stated in 16 Am. Jur. 2d Constitutional Law § 144 at 345 (1964), “. . . that every statute is to be read in the light of the Constitution, and that the Constitution 'and a statute involving constitutional rights will be construed together as one law. . . .” The rule has developed that the courts, in applying rules of statutory construction of legislation which is under constitutional attack, must do so with a view to bringing the legislation into line with constitutional requirements.

The rule here emphasized is that stated in 82 C.J.S. Statutes § 380 at 882:

The word “shall” must also be construed as permissive when the statute can thereby be upheld, if a construction to the contrary could render it unconstitutional.

The foregoing principle is supported by the reasoning of cases such as Union High School Dist. No. 1, Skagit Cy. v. Taxpayers of Union High School Dist. No. 1, Skagit Cy., supra.

RCW 2.60.020 is premised upon the ability of the Supreme Court of Washington to determine by its decision what the local law of this state is. The certified question seeks an answer in the decisional law of this state. The decisional law may be the interpretation of a statute or the formulation of a common law rule. Whatever the subject matter, it is a subject matter capable of being dealt with by a court rendering a decision, i.e., exercising judicial power. Implicit, therefore, in the statute, and indeed its fundamental premise, is the premise that the. certified question must call for a decision which the Supreme Court is empowered to give. It is to be noted too that in RCW 2.60.020 the federal court certifies the question and the Supreme Court “shall render its opinion in answer thereto.” “Opinion” as that term is defined in RCW 2.60.010 (6) means “the written opinion of the supreme court of Washington. . . .” If, in the unlikely event that a federal court, notwithstanding the basic premise of the act that the certified question must call for an answer which the Supreme Court of Washington is legally able to give in the exercise of judicial power, the federal court should certify a question that calls for an answer which the Supreme Court cannot give, as, for example, a question that calls for an answer to a political question, the opinion of the Supreme Court “in answer thereto” would be that under Washington law there is not and cannot be decisional law on the question certified for answer.

We hold that the statute is permissive, rather than mandatory, and does not impose onerous and unconstitutional dictates upon the court.

Lastly, it is contended that the statute is invalid because it requires this court to render advisory opinions. This is not the effect of the statute. In the instant case we have an actual controversy existing between the parties to the action. We have a certified agreed statement of facts, together with all of the necessary evidence and documents from which to render an opinion. The judgment which will be rendered will be enforced by the federal district court. It will be res judicata between the parties.

Our decision will be a legal precedent applicable in all future controversies involving the same legal question until and unless this court overrules its opinion. The legal question which must be determined is not an abstract question of law, but a question of law which will determine whether $11,584.45 belongs to the insured or his creditors.

In re Richards, 223 A.2d 827 (Me. 1966) at 830, points out that the decision of the court in answer to a certified question is binding upon the parties, the Supreme Judicial Court of Maine concluded: “In retrospect we see here no more than a proper exercise of ‘judicial power.’ ”

The case at bar illustrates clearly the needed and binding character of the decision of this court to the question certified. The whole reason for invoking the certified question procedure is to obtain an authoritative decision of this court as to the meaning of RCW 48.18.410 so that the district court can apply that meaning in disposing of the bankruptcy proceeding pending before it. The reason for the certification is that different referees of the bankruptcy courts have given conflicting interpretations of the statute. That the district court will apply the ruling of this court is evident not only from the record, but from the compulsion of Erie R. R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 Sup. Ct. 817, 114 A.L.R. 1487 (1938). As the Supreme Judicial Court of Maine said in In re Richards, supra, at 832:

This court will treat the judgment which it renders on legal issues tendered in certification proceedings as having the force of decided case law within the courts of this state and as constituting res adjudicata as between the same parties in any subsequent action brought in our courts. We rely upon the doctrine of Erie R. R. Co. v. Tompkins (1938), 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, to make our decision and opinion given in answer to questions under this procedure conclusive and determinative in the federal courts with respect to the state of the law in Maine.

Assuming, however, that an opinion rendered in answer to a certified question is nothing more than an advisory opinion, this does not mean the court lacks power to render such an opinion. The exercise of the judicial power requires that an actual controversy be before the court for determination. It does not follow that the court lacks all extrajudicial power. Certainly the rule-making power, which is held to be inherent, and the power to administer itself are not judicial powers, and yet they are powers of the court. The court also has the power to render advisory opinions. The best and simplest way to demonstrate the validity of this proposition is to cite instances in which this court has exercised the power.

A recent case is National Elec. Contractors Ass’n, Puget Sound Chapter v. Seattle School Dist. No. 1, 66 Wn.2d 14, 20, 400 P.2d 778 (1965). The majority of the court, speaking through Hill, J., said:

We are persuaded that we are justified in exercising our discretion and retaining this appeal, notwithstanding that the immediate issue of whether an injunction should have been entered in this case is now moot. It seems desirable that school districts throughout the state should have an authoritative construction of RCW 28.58.135 . . . for their guidance in like situations.

In that case, this court rendered an advisory opinion for the benefit of school districts generally, although none of them had an existing justiciable controversy before the court.

In the case of State ex rel. O’Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966), this court found that a justiciable controversy existed, although the rights of the parties before the court were not at issue. This court was asked to determine whether legislators who had voted to increase the salaries of legislators would be eligible for re-election and entitled to the increased salary if re-elected. The parties before the court were the Attorney General, who was the petitioner, and the parties he named as defendants, who were the county auditors of 14 counties and their respective prosecuting attorneys, the Secretary of State, and a named elector and taxpayer. Another taxpayer intervened. This court did not say what the special justicia-ble rights of these parties were, but on the question of whether a justiciable controversy existed, so as to give the court jurisdiction under the Declaratory Judgments Act (RCW 7.24) we said, at 557-58:

Although neither the constitution, nor RCW 7.24, et seq., nor the court’s inherent duty require the Supreme Court to render advisory opinions to the legislature, even on a direct request therefor, all courts should carefully consider legislative declarations of facts upon which a claimed controversy exists. The courts, without being bound .thereby, should and do accord great respect to the official declarations of that constitutional body, possessed as it is of the sovereign legislative power, that circumstances exist so genuinely affecting the rights of citizens and members of the legislature as to require in the public interest a decision of the Supreme Court of the state. Although we are not bound by the recitals set forth in the legislative request, we will not ignore the legislature’s assertions of fact upon which the controversy is said to depend.

What are the principal elements of a justiciable controversy as contemplated by the Uniform Declaratory Judgments Act, RCW 7.24? First, a justiciable controversy requires parties having existing and genuine, as distinguished from theoretical, rights or interests. Second, the controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument evoking a purely political, administrative, philosophical or academic conclusion. Third, it must be a controversy the judicial determination of which will have the force and effect of a final judgment in law or decree in equity upon the rights, status or other legal relationships of one or more of the real parties in interest, or, wanting these qualities be of such great and overriding public moment as to constitute the legal equivalent of all of them. Finally, the proceedings must be genuinely adversary in character and not a mere disputation, but advanced with sufficient militancy to engender a thorough research and analysis of the major issues. Any controversy lacking these elements becomes an exercise in academics and is not properly before the courts for solution. The decisions of this court, when considered seriatim, recognize and apply this definition. Hubbard v. Medical Serv. Corp., 59 Wn.2d 449, 367 P.2d 1003 (1962); State ex rel. Ruoff v. Rosellini, 55 Wn.2d , 348 P.2d 971 (1960); Huntamer v. Coe, 40 Wn.2d 767, 246 P.2d 489 (1952); Adams v. Walla Walla, 196 Wash. 268, 82 P.2d 584 (1938); Washington Beauty College, Inc. v. Huse, 195 Wash. 160, 80 P.2d 403 (1938); Acme Finance Co. v. Huse, 192 Wash. 96, 73 P.2d 341, 114 A.L.R. 1345 (1937).

We concluded in regard to the question before the court in that case:

Sound considerations of public policy invite a solution of the controversy now, well in advance of the filing of declarations of candidacy and the printing of ballots for the 1966 primary elections. Heavens v. King Cy. Rural Library Dist., 66 Wn.2d 558, 404 P.2d 453 (1965). Any other ruling compels the haste, confusion and uncertainty arising from the chronology of events in State ex rel. Pennick v. Hall, 26 Wn.2d 172, 173 P.2d 153 (1946). The trial court correctly ruled this a justiciable controversy cognizable under the Uniform Declaratory Judgments Act, RCW 7.24. (Footnote omitted.)

In all of the cases cited in the second paragraph of the above quotation, save one, this court said that there must be an actual controversy existing between the parties to the action before the court is authorized to render a decision under the Declaratory Judgments Act. The exception is Huntamer v. Coe, 40 Wn.2d 767, 246 P.2d 489 (1952), wherein this court engrafted an exception upon the requirement of a justiciable controversy, that is, the “great public interest” exception. The plaintiffs in that case were not candidates for public office but contended they would be prevented from becoming candidates because they would refuse to take the loyalty oath prescribed by the legislature. In deciding that the question of the constitutionality of the statute was properly before the court, nine judges of this court concurred in an opinion which based the holding upon authorities cited and quoted as follows:

In Anderson, Actions for Declaratory Judgments 1413 (1951), the following statement is found:

“A petition for a declaratory judgment is particularly appropriate to determine the constitutionality of a statute when the parties desire, and the public need requires, a speedy determination of the public interest involved therein.”

In Allison v. Sharp, 209 N. C. 477, 481, 184 S. E. 27, where the facts admittedly were somewhat different from those in the case at bar, the supreme court of North Carolina said:

“The plaintiffs and all the people of the State are vitally affected by the statute in controversy. While there was another remedy at law available to them, they have challenged the constitutionality of the statute under which they contend that the registrar refused them registration. Under such circumstances and conditions, the Uniform Declaratory Judgment Act affords a ready means of testing its validity.” (Huntamer v. Coe, 40 Wn.2d 767, 771, 246 P.2d 489 (1952).)

Thus was the “great public interest” exception to the “justiciable controversy” requirement born. In the Du-buque case, supra, it was formally embodied in the definition of “justiciable.” That is, as this court framed the rule there, the requirements of (1) interested parties, (2) a controversy on which the judgment of the court can operate, and (3) a controversy the judicial determination of which will have the effect of a final judgment upon the rights, status or other legal relationships of the parties, do not apply if the question submitted to the court is of sufficient public interest and the need for an immediate answer is of sufficient urgency to induce the court to exercise its discretion and render a declaratory judgment. Such a judgment is really nothing more than an advisory opinion, and this court let it be known that it was aware of that fact in the Dubuque case. The opinion in that case was frankly rendered in response to a direct request from the legislature for the advice of the court. The interested parties were those legislators who planned to run for re-election.⁴ They were not parties to the action, nor were they represented in the action. The interest of the actual parties was hardly greater than that of the public generally.

Thus, this court can and does render advisory opinions when it is convinced that the public interest makes it desirable to do so. It does not do so often; but when a proper case presents itself, this court exercises its discretion and gives its opinion, even though its judgment will not operate on any controversy between parties before it. The power to render such opinions should of course be exercised with great reluctance and only when there are urgent and convincing reasons for doing so; but this court has the power to render this courtesy, which is so beneficent in most cases where it is extended.

While such an opinion is not binding on the court in the future and does not determine the rights of any parties before the court, the experience has been that advisory opinions are respected by the public and are persuasive in future cases. In other words, they are not useless.

An objection to the rendering of advisory opinions is that questions are not so vigorously debated when the parties do not have a personal or financial interest in the outcome.

In this case this court has not only the briefs of the parties, who have a genuine interest in the outcome of the litigation, but it has also been furnished splendid briefs by Charles Horowitz of Seattle and Professor Charles E. Corker of the University of Washington School of Law, who have vigorously argued their respective positions.

While we have concluded that the statute does not in fact call for the rendering of an advisory opinion, if this was the nature of the opinion to be given, we would nevertheless find this a proper case in which to render such an opinion. We believe that citizens of the state are entitled to have the same rule of law applied on an issue regardless of whether it arises in a federal or state court. The Local Law Certification Procedure Act synthesizes a dual court system and removes one of the problems of the system, that of maintaining uniformity in the law.

So patent is the power of a court to render an opinion in response to a certified question that New Hampshire has adopted the practice by court rule, not waiting for an expression of legislative approval of the idea. Supreme Court Rule 21, which can be found in Vol. 4-A Replacement, N. H., RSA 1968 at pp. 408 and 409, is treated by the New Hampshire court as a rule of procedure, that court obviously finding no constitutional impediment to the adoption of such a rule.

This court, under its rule-making power (Laws of 1925, Ex. Ses., ch. 118 and RCW 2.60.030(7)) could do as the Supreme Court of New Hampshire has done. It could also accept a certified question and respond to it even if there were no implementing statute or rule. It is within the inherent power of the court as the judicial body authorized by the constitution to render decisions respecting the law of this state.

We conclude that Laws of 1965, ch. 99, p. 1302, is not invalid in that it imposes on the court duties or gives it powers not provided in Const, art. 4, §§ 1 and 4.

A fear has been expressed that the federal courts will flood the Washington court with certification questions. This is a fear without foundation in fact. The certification act can only be used when there is no state decision or decisions in the state are in conflict. The possibility of an avalanche of such cases is remote. Furthermore, the act is construed as permissive and not mandatory, thus a certified question which does not meet the criteria of the certification act can be summarily rejected. Nor would this court take jurisdiction of a certified question which involves ultimately a federal constitutional issue, for again this would not meet the criteria of the certification statute. Experience also indicates that the procedure will be sparingly used.

The certification act was enacted in 1965. Since that time only two cases have been certified. The instant case was the first and the second case was improperly certified, as it was not a case of first impression and involved a federal constitutional issue. Had we promulgated rules for certification as the act provides, undoubtedly the federal court would have refrained from certifying the second question.⁵

The federal court has certified the following question:

Whether cash surrender value of life insurance as defined in Section 48.18.410 of the Revised Code of Washington is exempt property as against a Trustee in bankruptcy where the insurance policy is community property of the bankrupt and his wife, designates his wife as beneficiary thereon, and the terms of said policy reserved to the insured the absolute right to change beneficiaries without obtaining the consent of the then designated beneficiary.

RCW 48.18.410 provides as follows:

(1) The lawful beneficiary, assignee, or payee of a life insurance policy, other than an annuity, heretofore or hereafter effected by any person on his own life, or on the life of another, in favor of a person other than himself, shall be entitled to the proceeds and avails of the policy against the creditors and representatives of the insured and of the person effecting the insurance, and such proceeds and avails shall also be exempt from all liability for any debt of such beneficiary, existing at the time the proceeds or avails are made available for his own use.

(2) The provisions of subsection (1) of this section shall apply

(a) whether or not the right to change the beneficiary is reserved or permitted in the policy; or

(b) whether or not the policy is made payable to the person whose life is insured or to his estate if the beneficiary, assignee or payee shall predecease such person; except, that this subsection shall not be construed so as to defeat any policy provision which provides for disposition of proceeds in the event the beneficiary shall predecease the insured.

(3) The exemptions provided by subsection (1) of this section, subject to the statute of limitations, shall not apply

(a) to any claim to or interest in such proceeds or avails by or on behalf of the insured, or the person so effecting the insurance, or their administrators or executors, in whatever capacity such claim is made or such interest is asserted; or

(b) to any claim to or interest in such proceeds or avails by or on behalf of any person to whom rights thereto have been transferred with intent to defraud creditors; but an insurer shall be liable to all such creditors only as to amounts aggregating not to exceed the amount of such proceeds or avails remaining in the insurer’s possession at the time the insurer receives at its home office written notice by or on behalf of such creditors, of claims to recover for such transfer, with specification of the amounts claimed; or

(c) to so much of such proceeds or avails as equals the amount of any premiums or portion thereof paid for the insurance with intent to defraud creditors, with interest thereon, and if prior to the payment of such proceeds or avails the insurer has received at its home office written notice by or on behalf of the creditor, of a claim to recover for premiums paid with intent to defraud creditors, with specification of the amount claimed.

(4) For the purposes of subsection (1) of this section a policy shall also be deemed to be payable to a person other than the insured if and to the extent that a facility-of-payment clause or similar clause in the policy permits the insurer to discharge its obligation after the death of the individual insured by paying the death benefits to a person as permitted by such clause.

(5) No person shall be compelled to exercise any rights, powers, options or privileges under any such policy.

The trustee argues that this statute grants an exemption to the beneficiary alone, whose rights cannot vest until the death of the insured; that the rights to the cash surrender value of a life insurance policy are contractual rights of the insured alone, in which rights the beneficiary can have no interest during the lifetime of the insured; that, since the exemption does not run to the insured, all contractual rights of action of the insured, such as the right of a trustee to the cash surrender value of the policies, vests in the trustee.

All exemption statutes are to be liberally construed to effect their intent and purpose. Northern Sav. & Loan Ass’n v. Kneisley, 193 Wash. 372, 378, 76 P.2d 297 (1938), with cited cases.

The term “proceeds and avails” as used by many life insurance exemption statutes, includes the cash surrender value of the policies. Turner v. Bovee, 92 F.2d 791 (9th Cir., 1937); Fox v. Swartz, 235 Minn. 337, 51 N.W.2d 80, 30 A.L.R.2d 739 (1952); Pearl v. Goldberg, 300 F.2d 610 (2d Cir., 1962); 1 Collier on Bankruptcy, § 2.16, n. 3 (14th ed.).

The Washington statute is remedial in nature and enacted for the public good, and to hold that the cash surrender option or any other interest of the insured under the policy is a property right which is not exempt but is available to the insured’s creditors, is to wipe out the protective benefits of the policy and defeat the carefully considered and deliberately enacted statutory purpose of the exemption provisions of the act. As said in Murphy v. Casey, 150 Minn. 107, 184 N.W. 783 (1921), at 109-10:

While it is true that the insured may cash in his policy without regard to the wishes of the beneficiary, that reserved right, since the insurance was effected and taken out for the benefit of the latter, to give force and effect to the statute, must, as to creditors seeking to exercise it in the place and stead of the insured, be deemed and held subordinate to the rights of the beneficiary. There are no sound reasons either in morals or in equity and good conscience why the creditor, to the detriment of the beneficiary, should be given the right and privilege of the insured in such cases. No credit is extended to the insured on the faith of the insurance, for all persons dealing with him are bound to know the law, and that money to become due thereon when payable to a third person is exempt from their claims. The statute is wise in its purpose, securing as it does after the death of the insured pecuniary aid and assistance to the beneficiary, usually some one who is dependent upon the insured for support, and should not be frustrated or impaired by opening the door to those who have no just or equitable claim to the money.

. . . To extend to the creditor the option to surrender the policy for the cash value, would wipe out the rights of the beneficiary altogether. And to award to the creditor the insured’s contingent interest, to come into life only in the event he outlived the beneficiary, would throw the whole contract relations of the parties into confusion, and prejudice and finally in all probability wholly destroy the benefit intended by the law to protect in the beneficiary. With the insured’s rights turned over to the creditor he naturally would have no further interest in keeping the policy alive by the payment of premiums; while the creditor would willingly let the policy lapse for nonpayment, accepting the lapsed value in discharge of his claim. (Italics ours.)

In Fox v. Swartz, supra, at 347, the court said:

It should be borne in mind that these statutes do not purport to give the debtor insured any exemption whatever as to his creditors. The exemption created is given only to the beneficiary and for her sole benefit. See, Bailey v. Wood, 202 Mass. 549, 89 N. E. 147, 25 L.R.A. (N.S.) 722. Strictly speaking, we do not have an exemption in the usual or constitutional sense. Farmers State Bank v. Smith, 36 N. D. 225, 162 N. W. 302. Fundamentally, what has been referred to as an exemption is rather in the nature of a preference which is given to the beneficiary over the creditors of the debtor insured as to insurance proceeds.

The Washington statute specifically protects creditors against fraud. In this case the issue of fraud is absent.

Most life insurance policies provide that after it has been earned the insured, by making a proper claim or exercising a proper option, can procure from the life insurance company the cash surrender value of the policy. This is a right purely personal to the insured. There is no debt due him from the insurance company until he has created the debt by the exercise of his option. This is well explained in Fox v. Swartz, supra, at 348, as follows:

Plaintiff, however, insists that, insofar as the cash-surrender value and dividends with interest are concerned, it is actually an unlimited exemption as to the debtor insured, in that he enjoys the right at all times to withdraw and appropriate to his own use such cash-surrender value, as well as the dividends and interest. What plaintiff wholly overlooks is that, in the absence of the exercise by the insured of his option to take the cash-surrender value and dividends of a policy that has not matured, there is no debt due and payable by the insurer to the insured, and that the right of the insured to create such a debt by the exercise of the option is not an asset available to creditors, but is a right purely personal to the insured alone. Isaac Van Dyke Co. v. Moll, 241 Mich. 255, 217 N. W. 29, 57 A. L. R. 692; Annotations, 44 A. L. R. 1188, 57 A. L. R. 695. An option of this nature has been aptly described as an irrevocable offer made to the insured by the insurer, but in no way binding upon the insurer until acceptance be had. Isaac Van Dyke Co. v. Moll, supra. Furthermore, in the absence of fraud, it has been held that a court of equity, at the instance of a creditor, would not be authorized to compel the exercise of an option whereby the rights of the beneficiary would be destroyed. National Bank of Commerce v. Appel Clothing Co. 35 Colo. 149, 83 P. 965, 4 L.R.A. (N.S.) 456, 117 A. S. R. 186. As a general rule, a policy is not to be regarded as liable to seizure under any form of judicial process against the insured so long as the duty of the insurer to pay is subject to any contingency or to any condition precedent. Vance, Insurance (2 ed.) § 161; 84 U. of Pa. L. Rev. 236, 243,244.

This principle is affirmed in the Washington case of Pick v. Pick, 54 Wn.2d 772, 345 P.2d 181 (1959), which cites with approval Farmers’ & Merchants’ Bank v. National Life Ins. Co., 161 Ga. 793, 131 S.E. 902, 44 A.L.R. 1184 (1926). At 774 of Pick v. Pick, supra, this court said:

The rule is stated in 37 A. L. R. (2d) 286, § 5(b) as follows:

“Even though a life insurance policy has a cash surrender value which is available to the insured at his option, it is quite uniformly held by the courts that where the insured has not exercised his option to surrender the policy for its cash surrender value, a creditor of the insured cannot obtain such cash surrender value by means of garnishment proceedings, the general view being that where the surrender option has not been exercised there is no such present fixed liability or existing indebtedness on the part of the insurer to the insured as is requisite to the maintenance of garnishment.” (Italics ours.)

The case of Farmers & Merchants’ Bank v. National Life Ins. Co., 161 Ga. 793, 131 S. E. 902, 44 A. L. R. 1184, states the reasoning supporting the above rule:

“ . . . we rest our decision in the case upon the ground—and it seems to us perfectly sound—that neither the cash-surrender value nor the cash-loan value of a policy of life insurance like that in question here can be treated as a debt due the insured by the company, until steps have been taken by the insured to effect the loan or to withdraw in cash the accumulated surplus apportioned to the policy by the company. The making of the application for the loan and the surrender of the policy to withdraw in cash the accumulated surplus apportionable to the policy are acts dependent upon the volition of the assured, and a court of equity can not compel him to take those steps, nor can it render a decree which renders the taking of those steps upon the part of the insured unnecessary. That the insured shall do certain things in order to withdraw the cash-surrender value of the policy, or to secure a loan, is a part of the contract; and whether he will perform these essential acts is a matter which he can decide and has a right to decide without the interference of a court of equity. There was no debt due from the insurance company to the insured, under the facts recited, that could be reached at law by the process of garnishment; nor can equity, which as a general rule follows the law, bring to bear upon the principal debtor in this case, that is, the insured, any force to compel bim to perform acts which he does not desire to perform in order to convert a contingency into an actual debt upon the part of the insurance company.”

Nor is RCW 48.18.410, subsection (3) (a), helpful to the trustee. This section states that the exemption “shall not apply (a) to any claim to . . . such proceeds or avails by . . . the insured ... in whatever capacity such claim ... is asserted.” It thus appears that, if the insured makes any claim to or exercises his option to procure the proceeds and avails of his policy, the exemption provisions become inapplicable. Since this is so carefully spelled out by the legislature, the converse would appear to be true, i.ethat the exemption provisions of the act do apply where no option has been exercised or claim made by the insured.

Subsection (5) of RCW 48.18.410 also carefully provides that the insured cannot be compelled to exercise any right or option he may have under the policy. The apparent legislative intent is to be certain that the policy and all its proceeds and avails be kept intact, absent the insured’s exercise of his rights thereunder, for the protection and benefit of the beneficiary.

We conclude, therefore, that whether or not the cash surrender value of the policy could be exempt in the hands of the insured, he cannot be compelled to surrender the policy and thus defeat the interest of the beneficiary, and, consequently, a policy naming a beneficiary protected under the statute which the insured has not elected to surrender, is not a part of the bankrupt insured’s estate and is beyond the reach of the trustee in bankruptcy.

Finley, C. J., Hunter and Hamilton, JJ., concur.

Hill and Neill, JJ., concur in the result.

1 E.g., cf., Green v. American Tobacco Co., 304 F.2d 70 (5th Cir. 1962), Green v. American Tobacco Co., 325 F.2d 673 (5th Cir. 1963).

The court in expressing its thanks to the Supreme Court of Florida, in answer to a question which the Court of Appeals had certified to the Supreme Court of Florida, said, at 325 F.2d 674:

That answer has saved this Court, through the writer as its organ, from committing a serious error as to the law of Florida which might have resulted in a grave miscarriage of justice. The Supreme Court of Florida has been a very real help in the administration of justice.

The error of the federal court with respect to the law of Wisconsin was noted in In re Stoddard’s Estate, 60 Wn.2d 263, 268, 373 P.2d 116 (1963).

2 The provision, constitutional or statutory, relative to the jurisdiction of the Supreme Court.

Article V, § 4 of the Florida Constitution, after making provision for the organization of the Supreme Court, deals with the subject of jurisdiction, subsection (2) as follows:

(2) Jurisdiction. . . .

The supreme court may issue writs of mandamus and quo war-ranto when a state officer, board, commission, or other agency authorized to represent the public generally, or a member of any such board, commission, or other agency, is named as respondent, and writs of prohibition to commissions established by law, to the district courts of appeal, and to the trial courts when questions are involved upon which a direct appeal to the supreme court is allowed as a matter of right.

The supreme court may issue all writs necessary or proper to the complete exercise of its jurisdiction.

3 The court could have cited outside supporting authority as well for the principle thus applied, e.g., Epstein v. Bendersky, 130 N.J. Eq. 180, 21 A.2d 815 at 816 (1941). See also 21 C.J.S. Courts § 122 at 184, note 10 (1940).

4 See State ex rel. Ruoff v. Rosellini, 55 Wn.2d 554, 348 P.2d 971 (1960), holding that no justiciable issue relating to the eligibility of candidates is presented prior to the filing of the declaration of candidacy.

5 In the state of Maine, since the enactment of the certification law in 1965, two cases have been certified as of February 26, 1968: Norton v. Benjamin, 220 A.2d 248 (Me. 1966) and In re Richards, 223 A.2d 827 (Me. 1966).

The certification act has not substantially increased the workload of the Florida court. The federal courts have been circumspect in certifying questions. They have received certificates in the following: Sun Ins. Office, Ltd. v. Clay, 133 So.2d 735 (Fla. 1961); Green v. American Tobacco Co., 154 So.2d 169 (Fla. 1963); and Dresner v. Tallahassee, 164 So.2d 208 (Fla. 1964). The foregoing are illustrative, although there have been three or four others. It has been found' that the questions certified are always quite important and the certificates have consistently appeared to be justifiable. It has been, the feeling that this procedure has generated a degree of cordiality in handling inter-jurisdictional problems.