State Ex Rel. Troy v. Yelle

176 P.2d 459, 27 Wash. 2d 99, 170 A.L.R. 1425, 1947 Wash. LEXIS 258

• Court: Washington Supreme Court
• Decided: January 10, 1947
• Docket: No. 30120.
• Status: Published

Opinions

Schwellenbach, J.

This matter came before this court on an original application of relators, filed November 1, 1946, for an alternative write of mandate to require Cliff Yelle, as auditor of the state of Washington, to issue and deliver to each of the relators, in payment of their salaries as members of the Washington commission on interstate cooperation for the month of October, 1946, the necessary warrants, as prescribed by chapter 195, Laws of 1945, p. 565 (Rem. Supp. 1945, § 10964-50 et seq.), or to show cause why he had not done so. The respondent demurred to the application, and thereby placed in issue the constitutionality of chapter 195. Relator Smith Troy is the attorney general of the state of Washington, Pearl Wanamaker the superintendent of public instruction, Belle Reeves the secretary of state, Russell Fluent the state treasurer, and Victor A. Meyers the lieutenant governor. All are members of the commission.

We are immediately confronted with the following provisions of the constitution:

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.”

Art. Ill, §25: “. . . The compensation for state officers shall not be increased or diminished during the term for which they shall have been elected. The legislature may, in its discretion, abolish the offices of the lieutenant-governor, auditor and commissioner of public lands.”

Art. Ill, § 16: “The lieutenant-governor shall be presiding officer of the state senate, and shall discharge such other duties as may be prescribed by law. He shall receive an annual salary of one thousand dollars, which may be increased by the legislature, but shall never exceed three thousand dollars per annum.”

Art. Ill, § 17: “The secretary of state shall keep a record of the official acts of the legislature and the executive department of the state, and shall, when required, lay the same, and all matters relative thereto, before either branch of the legislature, and shall perform such other duties as shall be assigned him by law. He shall receive an annual salary of twenty-five hundred dollars, which may be increased by the legislature, but shall never exceed three thousand dollars per annum.”

Art. Ill, § 19: “The treasurer shall perform such duties as shall be prescribed by law. He shall receive an annual salary of two thousand dollars, which may be increased by the legislature, but shall never exceed four thousand dollars per annum.”

Art. Ill, § 20: “The auditor shall be auditor of public accounts, and shall have such powers and perform such duties in connection therewith as may be prescribed by law. He shall receive an annual salary of two thousand dollars, which may be increased by the legislature, but shall never exceed three thousand dollars per annum.”

Art. Ill, § 21: “The attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law. He shall receive an annual salary of two thousand dollars, which may be increased by the legislature, but shall never exceed thirty-five hundred dollars per annum.”

Art. Ill, § 22: “The superintendent of public instruction shall have supervision over all matters pertaining to public schools, and shall perform such specific duties as may be prescribed by law. He shall receive an annual salary of twenty-five hundred dollars, which may be increased by law, but shall never exceed four thousand dollars per annum.”

Rem. Rev. Stat., § 10976 [P.P.C. § 953-1], fixed the salary of the lieutenant governor at twelve hundred dollars per annum. (Chapter 116, Laws of 1945, p. 310 (Rem. Supp> 1945, § 10976a), set the salary at three thousand dollars, but this increase could not become effective during the term for which relator Meyers had been elected.) Section 10976 also fixed the salaries of the secretary of state and auditor at three thousand dollars per annum. Section 10976-1 fixed the attorney general’s salary at thirty-five hundred dollars per annum, § 10976-2, the state treasurer’s at four thousand dollars, and § 10976-3, the superintendent of public instruction at four thousand dollars.

The state government is composed of three branches: the executive, the legislative, and the judicial— each separate and distinct from the other. Should the executive, by use of the appointive power, attempt to influence legislation, he would be encroaching on the legislative branch. Should this court declare some act of the, legislature invalid because we, as judges, did not deem such legislation advisable, this court would be encroaching on the legislative branch. And if the legislature should pass an act and tell this court that the act was constitutional, it would be encroaching on the judicial branch of the government. The law imposes on the courts the duty of determining the constitutionality of any act of the legislature whenever the question is properly presented. True, there is a presumption that every act of the legislature is constitutional. But the ultimate determination of this question rests with the court. The constitution is a solemn mandate by the people themselves, directed to the various branches of the government, and we would be derelict in our duty if we permitted such a mandate to be circumvented, regardless of our personal desires, no matter how expedient such circumvention might appear at the time.

“The duty of the courts to declare void any statute which violates the Constitution is not limited to direct violations, but extends to any evasion or indirection which may be practiced by the legislature. What cannot be done directly because of constitutional restriction cannot be accomplished indirectly by legislation which accomplishes the same result. ...

“It has been said that illegitimate and unconstitutional practices get their first footing by silent approaches and slight deviations from legal modes of procedure and that the courts must be vigilant to prevent such encroachments.” 11 Am. Jur. 724, § 95.

We are not concerned with any motive which may have actuated the legislature in adopting any legislation. But it is our solemn duty to scrutinize legislation from its four corners, together with all the circumstances surrounding the enactment of such legislation, and then determine, if we can, not necessarily what the legislature said was the purpose of the act, but what it actually intended to accomplish.

The 1945 session of the legislature enacted chapter 195 (the act here in question), entitled:

“An Act to facilitate the cooperation of this state with other units of government, establishing the Washington Commission on Interstate Cooperation for that purpose, making an appropriation, and declaring an emergency.”

The relevant portions of the act follow:

“Section 1. There is hereby established a Commission, to be officially known as the Washington Commission on Interstate Cooperation, which shall consist of seven (7) members to be appointed by the Governor, and which shall hold office at the pleasure of the Governor.

“Sec. 2. It shall be the function of this Commission:

“(1) To carry forward the participation of this state as a member of the Council of State Governments;

“(2) To encourage and assist the legislative, executive, administrative and judicial officials and employees of the state to develop and maintain friendly contact by correspondence, by conference and otherwise with officials and employees of the other states, of the Federal government and of local units of government;

“(3) To endeavor to advance cooperation between this state and other units of government whenever it seems advisable to do so by formulating proposals for, and by facilitating (a) the adoption of compacts, (b) the enactment of uniform or reciprocal statutes, (c) the adoption of uniform or reciprocal administrative rules and regulations, (d) the informal cooperation of governmental offices with one another, (e) the personal cooperation of governmental officials and employees with one another, individually, (f) the interchange and clearance of research and information, 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.

“Sec. 3. The Commission shall establish such delegations and committees as it deems advisable, in order that they may confer and formulate proposals concerning effective means to secure inter-governmental harmony, and may perform other functions for the Commission in obedience to its decisions, subject to the approval of the Commission. The member or members of each such delegation or committee shall be appointed by the chairman of the Commission. The Commission may provide such other rules as it considers appropriate concerning the membership and the functioning of any such delegation or committee. The Commission may provide for advisory boards for itself and for its various delegations and committees. . . .

“Sec. 5. The Council of State Governments is hereby declared to be a joint governmental agency of this state and of the other states which cooperate through it. . . .

“Sec. 7. Each member of said Commission shall receive a salary of six thousand dollars ($6,000) per annum: Provided, That should the Governor appoint any elected state officer or other state official on said Commission, said officer or official shall receive as compensation for the extra duties imposed by this act the difference between the salary provided herein and the salary provided by law for said officers or officials, and said elected state officer shall hold office and may not be removed from same until the Wednesday after the second Monday in January, 1949, unless said officers or officials resign from their elective office [offices]: Provided, That said state elected officers may be removed from the Commission in the manner now provided by law for the removal of each respective elected state officer. Thereafter, said stated elected officers shall be appointed for a term of (4) years under the same terms and conditions provided herein. . . ’.

“Sec. 9. There is hereby appropriated the sum of forty thousand seven hundred and fifty dollars ($40,750) to carry out the provisions of this act. . . .

“Sec. 11. This act is necessary for the immediate support of the state government and its existing institutions and shall take effect immediately.”

The circumstances surrounding the enactment of this legislation will be discussed later. Upon its passage and approval on March 15, 1945, the governor appointed the relators, who are all elected officers of the state; and, since their appointment, the relators Wanamaker, Reeves, Fluent, and Meyers, and, since August, 1945, the relator Troy, have been duly appointed, qualified, and acting members of the commission, and have, up to and including September 30, 1946, been drawing from the state the salaries provided for in the act.

In matters involving considerable public interest, judges often find it difficult to disassociate from their minds impressions gained by rumors, newspaper articles, and commentaries over the radio, and find a conflict between such impressions and their duty to approach each problem with open and unbiased minds.

One safeguard which they have placed upon themselves is the salutary rule that the courts cannot inquire into the motive back of any legislation. But they do have the right, and it is their duty, to determine the intent of the legislature. At times, it is rather difficult to distinguish between motive and intent. “Motive” has been defined in 42 C. J. 561 as:

“An inducement, reason, cause or incentive, for the doing of an act; some cause or reason that moves the will and induces action; that condition of the mind which incites to the action; that which impels the will to action, culminating in a definite result whether it be benign or malign; that which stimulates or incites an action; the mainspring of human action; the moving cause which induces action; the moving power which impels to action for a definite result; the moving power which leads the mind to desire the result and form the purpose. Motive has to do wholly with desire.”

“Intent” is defined in 33 C. J. 168 as:

“A design; a determination to do a certain thing; a drift; a mental attitude made known by acts; an aim; an emotion or operation of the mind; an intention; a purpose; personal intention; that which is intended; the constructive purpose of an action, for which the doer may be responsible, although the actual intent was not wrongful; the doing or not doing of an act with the purpose or desire of accomplishing a certain known effect or result; the fixed purpose of the mind in connection with a given act; the purpose of the mind, including such knowledge as is essential ■ to such intent; the purpose to use a particular means to effect a certain result ” (Italics ours.)

So our problem is to determine the purpose of this act. Was it to raise the salaries, or was it to organize the commission? In State ex rel. Livingston v. Ayer, 23 Wn. (2d) 578, 161 P. (2d) 429, a case involving the constitutionality of a statute creating in each county an employment statistics commission, passed by the legislature during the same 1945 session, we said, p. 587:

“In approaching this question, we are mindful of the rule as to the presumption of constitutionality of legislative acts, and we are also mindful that it is not within the province of a court to question the wisdom of a legislative act. But we also have in mind the fact that when it becomes the duty of this court to pass upon the constitutionality of an act of the legislature, we must determine whether or not such act does in fact violate some provision of the constitution; and, in doing this, if the court performs its full duty, it will not shut its eyes to obvious facts which would compel a conclusion that the act is unconstitutional, and rest a decision that the act is constitutional upon the mere presumption of constitutionality, or upon the rule that we cannot question the wisdom of the legislature in passing the act, or upon some declared policy or purpose contained in the act, which policy or purpose cannot be substantiated.”

In State ex rel. Davis v. Clausen, 47 Wash. 372, 91 Pac. 1089, this court stated:

“The true intent of the legislature must be gathered from the whole scope of the enactment and the reasons which appear for making the enactment.”

The relators attempt to distinguish the Livingston case from the one at bar, because there the members of the county employment statistics commission were so by virtue of their county offices, while here, any person in the state is eligible for appointment. Be that as it may, the fact remains .that the governor appointed no one but state officers. It is rather significant that the membership is limited to seven, the salary not to exceed six thousand dollars per annum, and the seven members appointed are the only elected state officers whose present salaries do not exceed six thousand dollars. Section 1 of the act states that the members shall hold office at the pleasure of the governor. But § 7 provides that, should elected state officers be appointed, they may not be removed from office until the Wednesday after the second Monday in January, 1949 (the conclusion of the terms of relators), unless such officers resign from their elective offices. Section 7 then continues:

“Provided, That said state elected officers may be removed from the Commission in the manner now provided by law for the removal of each respective elected state officer. Thereafter, said state elected officers shall be appointed for a term of (4) years under the same terms and conditions provided herein.”

It would seem that the legislature was vitally interested in the welfare of these state officers, rather than in the welfare of the state at large, in the promulgation of the act creating the commission. Any one of these items, standing alone, would have very little weight, but, taken together, they are very persuasive that the purpose of the act was to raise salaries, rather than to establish the commission.

Now, let us consider the history of this legislation. It originally appeared as senate bill No. 205, and provided that the commission should consist of eight members, with a salary of $7,000 each per annum, except that, should elected officers be appointed, their salaries would be the difference between their present salaries and $7,000. The bill provided for ’an appropriation of $56,750 for the biennium. It was amended in the Senate to reduce the salaries to $6,600, and the appropriation to $50,350. The bill was again amended in the House to reduce the salaries to $6,000, the appropriation to $40,750, and the number of members from eight to seven. The Senate concurred in the House amendments, and the bill was passed by the Senate and House, March 7, 1945, as chapter 195.

It should be noted that each time the bill was amended, the appropriation for the biennium was just sufficient to provide for the increase in salaries from the elected officers’ present salaries to $7,000, $6,600, and $6,000. No provision was made in any of the appropriations for a salary of $7,000, $6,600, or $6,000 for anyone other than those elected officers. Let us examine it further. The following is a list of the members of the commission, their salaries as elected officers, and salaries as members of the commission:

Salaries Salaries as as State Members of Officers Commission

Lieutenant governor ................ $1,200 $4,800

Secretary ol state................... 3,000 3,000

State treasurer '..................... 4,000 2,000

State auditor....................... 3,000 3,000

Attorney general ................... 3,500 2,500

Superintendent of public instruction.. 4,000 2,000

Commissioner of public lands......... 5,000 1,000

The total salaries of the members of the commission for a year would amount to $18,300, or, for the biennium, $36,600. This amount deducted from the appropriation of $40,750, would leave only $4,150 for clerical help and supplies. Not much could be accomplished in two years with this amount in furtherance of the objectives set out in § 2 of the act. It so happened that Otto Case, commissioner of public lands, refused to accept the additional salary, thus making a saving of two thousand dollars for the biennium. But that was not known when the act was being considered, and we are here concerned with the purpose for which the legislation was enacted. Another thing, it is the usual procedure that, when a number of people are called upon to perform certain duties in concert, they will all receive the same compensation. But here, for performing the same services, we have one member of the commission receiving forty-eight hundred dollars and two other members each receiving two thousand dollars.

A scrutiny of the act and the circumstances surrounding its enactment, convinces us beyond a reasonable doubt that the purpose of the act was not “to facilitate the cooperation of this state with' other units of government,” but was to provide for an increase in compensation to six thousand dollars for these state officers, in contravention of the limitations imposed by the constitution.

The relators have cited a number of cases from other jurisdictions holding that, where new duties imposed on officers by the legislature are extrinsic to their common, duties provided by law, they are entitled to additional compensation for such services, and such additional compensation does not contravene a constitutional prohibition against the increase. Regardless of what the rule may be in other jurisdictions, this court has held otherwise. In State ex rel. Livingston v. Ayer, supra, we said, p. 588:

“Many cases have been befóte this court involving attempts to raise the salary of public officers during the term for which they were elected or appointed. While in our opinion none of the cases presents a factual situation such as is presented in the instant case, they all bear evidence of the fact that this court has zealously guarded against any attempted violation of § 25, Art. II, and § 8, Art. XI, of our constitution, by whatever method employed to accomplish that end. This court has recognized that, based upon expediency, evasive methods might be used to accomplish indirectly what could not be done directly.”

And, on p. 592:

“It may be conceded that we have stated in former decisions that the question of whether or not new duties, which a public officer is required to perform under the provisions of an act passed subsequent to his election, are extrinsic and foreign to the duties which he was required to perform under the law as it existed at the time of his election, may be considered in determining whether or not such officer is entitled to an increase in his salary during the term for which he was elected for performing such additional duties. But we are clearly of the opinion that it should not be the rule, and that it was not the intention of this court in any of its former decisions to say, that for performing additional duties provided by an act passed subsequent to his election, a public officer is entitled to additional salary or compensation during the term for which he was elected, even though such additional duties be extrinsic and foreign to the duties required of him at the time of his election, where it clearly appears, as in the instant case, that such act was passed with an intent to evade the constitutional provision prohibiting an increase in the salary of a county officer or the compensation of a public officer during the term for which he was elected.”

But even though we should find, in this case, that the additional duties imposed on these officers by the act in question are extrinsic and foreign to the duties otherwise required of them, and that the legislation was enacted for the purpose of forming the commission, rather than to raise salaries, the act would still contravene the constitution. The people themselves, by placing §§ 16, 17, 19, 20, 21, and 22 of Art. Ill in the basic law, stated definitely and positively that the salaries of state officers could be raised so high and no higher. In addition to stating that the compensation (not salary) for state officers shall not be increased or diminished during the term for which they have been elected, the people have placed a distinct limitation, as to each of the officers, on the amount of salary each may receive. For instance, as to the superintendent of public instruction, Art. Ill, § 22, says: “He shall receive an annual salary of twenty-five hundred dollars, which may be increased by law, but shall never exceed four thousand dollars per annum.” (Italics ours.) The people realized that the duties of the superintendent of public instruction might be increased from time to time and gave the legislature authority to raise the salary, but placed an absolute limit on it of four thousand dollars per annum. There are similar salary limitations placed against each state officer with the exception of the commissioner of public lands. We may agree that the people, in framing the constitution, did not contemplate inflation or high prices. But the only recourse which relators have is to go to the people themselves for relief, and not to the legislature or the courts.

Furthermore, as to each of such officers, there is a provision in the constitution that he shall perform or discharge such other duties as may be prescribed by law. Respondent, in his brief, has enumerated the various duties which have been prescribed by the legislature from year to year since statehood, required to be performed by the holders of these offices, all without additional compensation. This implies that the legislature, during all of these years, has felt itself bound by these constitutional restrictions as to salaries. We do not wish to be understood as holding that, if a state officer should be required by the legislature to perform extrinsic duties which would be incompatible with the duties of his particular office, he could not come before this court and be relieved from performing them. But that is as far as our power would extend. We would have no right, because of the constitutional prohibition, to countenance a raise in salary for the performance of such duties.

For the reasons assigned, the writ of mandamus is denied.

Steinert, Robinson, Jeffers, and Abel, JJ., concur.