State Ex Rel. O'Connell v. Yelle

320 P.2d 1079, 51 Wash. 2d 594, 1958 Wash. LEXIS 474
CourtWashington Supreme Court
DecidedJanuary 22, 1958
Docket34437
StatusPublished
Cited by8 cases

This text of 320 P.2d 1079 (State Ex Rel. O'Connell v. Yelle) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. O'Connell v. Yelle, 320 P.2d 1079, 51 Wash. 2d 594, 1958 Wash. LEXIS 474 (Wash. 1958).

Opinions

Hunter, J.

This is an original proceeding for a writ of mandamus instituted by the attorney general of the state of Washington, John J. O’Connell, as relator, petitioning this court to restrain permanently the state auditor from the further issuance of warrants to certain state officials for reimbursement of expenses, as prescribed by Laws of 1957, chapter 300, p. 1231, enacted by the thirty-fifth session of the legislature. He contends such an act grants an increase in compensation to a public official during his term of office and is in violation of the state constitution.

The last paragraph in § 2 of the above act, with which we are concerned, provides:

“For reimbursement in lieu of expenses incurred while serving as duly elected and qualified officials at the seat of the government for the Secretary of State, the State Treasurer, the State Auditor, the Attorney General, the Superintendent of Public Instruction, the Commissioner of Public Lands and the Insurance Commissioner, at the rate of $200.00 per month each to [be] distributed upon their respective vouchers therefor..................$33,600.00”

The constitutional provisions involved are as follows:

Art. II, § 25: “The legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor after the services shall have been rendered or the contract entered into, nor shall the compensation of any public officer be increased or diminished during his term of office.” (Italics ours.)
Art. Ill, § 25: “No person except a citizen of the United States and a qualified elector of this state shall be eligible to hold any state office, . . . The compensation for state officers shall not be increased or diminished during the term for which they shall have been elected. ...” (Italics ours.)
Art. XXVIII, amendment 20, § 1: “All elected state officials shall each severally receive such compensation as the [596]*596legislature may direct. The compensation of any state officer shall not he increased or diminished during his term of office, except that the legislature, at its thirty-first regular session, may increase or diminish the compensation of all state officers whose terms exist on the Thursday after the second Monday in January, 1949.” (Italics ours.)

It is not contended by counsel for the relator or the respondent that the expenses allowed by the legislative enactment for these state officials are for other than their lodging and subsistence while in Olympia. The question then to be resolved is whether two hundred dollars per month is an increase in compensation, or is it a true reimbursable expense allowance. If it is the former, the statutory provision is unconstitutional; if it is the latter, the enactment is valid.

In State ex rel. Todd v. Yelle, 7 Wn. (2d) 443, 110 P. (2d) 162, we passed on this very question in the case of members of the legislature. We held that an allowance of five dollars per day for lodging and subsistence for members of the legislature, while in the performance of their duties at the seat of government and temporarily away from their homes in other parts of the state, was a true reimbursable expense and did not constitute an increase in compensation.

We assume that the members of the 1957 legislature were aware of the constitutional prohibition against increasing compensation of a public official during his term of office but intended to grant a reimbursable expense allowance to these elected state officials in the performance of their duties at the seat of government, as we said they could do for themselves in the Todd case.

Are these elected state officials, in the performance of duties at the seat of government, within the same category as members of the legislature while serving in Olympia, and thereby within the rule of the Todd case, supra? In that case, we said:

“Counsel says, however, that the expenses of which we have been speaking are distinguishable from those for which reimbursement is provided in chapter 4, Laws of 1941, in that they are allowed while the officer is away from his regular place of work, while those provided for in chapter 4 are allowed to the officer while living where the work is per[597]*597formed. But to us it seems that these expense provisions, so to speak, have a common denominator, and that is, that they are made to reimburse the officer for expenditures made necessary by the fact that he is called away from his home in the service of the state. Most of the state officers, for whose expenses appropriations have been made throughout statehood, live permanently at Olympia. When they are compelled to spend a few days in Seattle, Spokane, or elsewhere, their house rent or the interest on the investment, if they own their homes, their fuel, light, water, and other maintenance charges, go on. It is for this reason that they are reimbursed with respect to lodging which they are compelled to pay for in some other town or locality.
“It is the same, except in isolated cases, with respect to the members of the legislature. They do not break up or abandon their homes when they come to Olympia for a legislative session. The expenses there continue as usual. We have no doubt but that many state officers are absent from Olympia and on expense account a great deal more than sixty days in each biennium, though the aggregate be made up of a day or two, or a week at a time. Can it make any difference that the legislator is away from his home for sixty consecutive days?
“In our opinion, the reimbursements provided for in chapter 4, Laws of 1941, do not increase the compensation of the members off the legislature, within the meaning of § 25, Art. II of the constitution.” (Italics ours.)

In resolving the question before us, we are entitled to take judicial notice of facts that are of general notoriety and which appear in statutory enactments. See Gottstein v. Lister, 88 Wash. 462, 153 Pac. 595 (1915); Centralia Labor Temple Ass’n v. O’Day, 139 Wash. 331, 246 Pac. 930 (1926); McFerran v. Heroux, 44 Wn. (2d) 631, 269 P. (2d) 815 (1954); 31 C. J. S., Evidence, 525, §16; 20 Am. Jur., Evidence, 55, 57, 58, §§ 29, 32, 33; 9 Wigmore on Evidence (3d ed.), 551, 571, §§ 2572, 2580; Model Code of Evidence 320, Rule 802. In the case of legislators, we know that they are in Olympia approximately sixty days every two years, except for isolated additional periods in the event of special sessions. We know that they do not break up their homes and come to Olympia in performing their official duties at the seat of government. We know, in order to represent their [598]*598respective legislative districts, that they are required by law to be residents of their districts. We, therefore, properly concluded, in ■ the Todd case, supra, that they were in Olympia and away from their usual abode only temporarily, in the performance of their duties.

, In the case of elected state officials, with whom we are now concerned, we know they represent the entire state. In the case of the governor, secretary of state, state auditor, and treasurer, they are required to maintain their residences in Olympia, as provided in Art. Ill, § 24, of the state constitution.

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State Ex Rel. O'Connell v. Yelle
320 P.2d 1079 (Washington Supreme Court, 1958)

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Bluebook (online)
320 P.2d 1079, 51 Wash. 2d 594, 1958 Wash. LEXIS 474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oconnell-v-yelle-wash-1958.