23 Wn.2d 578, THE STATE OF WASHINGTON, on the Relation of Harry Living- ston et al., Respondents, v. ELLIS C. AYER, as Auditor of Thurston County, Appellant
[No. 29691. En Banc. Supreme Court August 24, 1945.]
THE STATE OF WASHINGTON, on the Relation of Harry
Livingston et al., Respondents, v. ELLIS C. AYER, as Auditor
of Thurston County, Appellant.«1»

Many cases have been before 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 in directly what could not be done directly.

As indicating the attitude of this court, we quote from the early case of State ex rel. Davis v. Clausen, 47 Wash. 372, 91 Pac. 1089, where, after referring to § 25, Art. II and § 8, Art. XI, we stated:

"So that it will be seen that it was a positive policy of the constitution, expressed in every possible way, that the salaries of officers should not be increased during their term of office. This wise provision was no doubt intended to prevent pernicious activity on the part of the office holders of the state being brought to bear upon the members of the legislature - a wise provision which must not be construed out of existence or evaded by legislative enactment." (Italics ours.)

In the cited case we also 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."

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In State ex rel. Funke v. Board of Commissioners, 48 Wash. 461, 93 Pac. 920, after quoting § 8, Art. XI, of our constitution, we stated:

"It is manifest from the section quoted that the salary of a county officer cannot be increased during the term of office for which he is elected."

In the same case we further stated:

"Another section of the constitution must be considered in this connection. Section 25, art. 2, provides, among other things, as follows: `Nor shall the compensation of any public officer be increased or diminished during his term of office.' The above provision is so comprehensive that interpretation seems wholly unnecessary. The proposition is so simple that the statement of it carries its own argument. This provision relates strictly to what the legislative department shall not do, and it is manifest that the two constitutional provisions must be read and construed together. If the term `salary,' as used in the one, has a more restricted meaning than `compensation,' as used in the other, then the more comprehensive term which applies to `any public officer' must control here when we are considering what the legislature may or may not do. The term `compensation,' as used seems to be broad enough to include any kind of remuneration from the public treasury for a public officer, whether by way of what is called `salary' or otherwise."

Again we quote from the cited case:

"The increase of compensation by those statutes and also by the one now before us was, no doubt, in each instance a meritorious thing for the legislature to do, having reference to future office incumbents. But the constitutional provision as to present incumbents must not be so construed in the interest of seeming expediency or even apparent necessity as shall practically amount to an evasion of the organic law." (Italics ours.)

In State ex rel. Port of Seattle v. Wardall, 107 Wash. 606, 183 Pac. 67, a situation was presented where the legislature passed an act providing that port commissioners in port districts having a population of two hundred thousand or more should receive a compensation of three thousand dollars per annum. Prior to the passage of the 1917 act, no salary had been provided for port commissioners. After the passage

590 STATE EX REL. LIVINGSTON v. AYER. [23 Wn. (2d)

of the act the port commissioners of the Port of Seattle directed the county auditor of King county to draw warrants in payment of the salaries allowed by the act for December, 1918. The auditor refused to comply with the order, whereupon proceedings were instituted to compel him so to do. In the cited case, after quoting § 25, Art. II, and § 8, Art. XI, we stated:

"These provisions of the constitution, it may be premised, since they are prohibitory in their nature, are self-executing, binding alike upon the authority empowered to fix salaries or compensation of public officers, whether that authority be the legislature, a board or commission, or, as in this instance, the legislature with the concurrence of the electorate affected by the increase. It is plain, also, that these commissioners are public officers within the meaning of the constitutional inhibition. . . . It is further true, we think, that had the original act given the commissioners a mere nominal compensation, a substantial compensation, such as is here provided, would be an increase within the meaning of the constitutional provisions. The question for consideration is, therefore, simple in its elements. Since the commissioners are serving without compensation, is the award to them of a substantial compensation within the constitutional inhibition?

"In support of the enactment, the commissioners' learned counsel call attention to the rule that courts will not declare an act of the legislature to be violative of the constitution unless it is clearly and plainly so, and to the rule that every intendment is in favor of the constitutionality of the act, . . . They then argue that it is evident that the present case presents a condition not contemplated by the framers of the constitution; that the constitution speaks of an increase and decrease in salary or compensation; that, where nothing is granted, there can be no decrease, and that to grant something where nothing was granted before is not to grant an increase within the usual meaning of that term; . . .

"But, plausible as this reasoning may seem, we think it overlooks the purpose and intent of the constitutional inhibitions. These inhibitions, it will be observed, are wide in their application. They cover the case of every public officer holding by a fixed term, whether that officer be elected or appointed and whether his duties conduce much or little to the public welfare."

Aug. 1945] STATE EX REL. LIVINGSTON v. AYER. 591

Then, after quoting from State ex rel. Davis v. Clausen, 47 Wash. 372, 91 Pac. 1089, which quotation we have heretofore set out, the court further stated:

"Other courts have said that such provisions also have an additional purpose, namely, to prevent the salary-fixing body from rewarding their friends and punishing their enemies, which they were sometimes wont to do, by increasing the salaries of those in favor and decreasing the salaries of those whose actions did not meet with the approval of that body."

The court then stated that it was as much a violation of the spirit and purpose of the constitutional provision to grant a salary where none was before provided as it was to increase an inadequate salary. Quoting further from the cited case:

"In other words, it is as much against the spirit and purpose of the constitution to permit public officers to solicit a salary during their terms where none has been provided, as it is to solicit an increase of a provided salary, since the one is as much a violation of the public policy involved as is the other."

[1] We say quite frankly that, when it is considered that chapter 87 could not apply to these county officers during their present terms of office, that chapter 258 was passed the day after the passage of chapter 87, that chapter 258 contained an emergency clause purporting to make it effective immediately, thereby increasing the salary of these county officers by nine hundred dollars, or to an amount practically the same as the salaries provided in chapter 87, and when the duties required of the officers by the act are considered, We are forced to the conclusion that chapter 258 is nothing more nor less than an attempt to evade the constitutional provisions hereinbefore set out, in that the act did in fact purport to increase the salaries of county officers during the terms of office for which they were elected.

It may be said to the credit of the legislature that it no doubt recognized the inadequacy of the present salaries of county officers, and we are entirely in accord with the view that such salaries have been and are inadequate; but, be

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that as it may, we are firmly of the belief that if a violation of these constitutional provisions is permitted or sanctioned on the ground of expediency, either by direct or indirect methods, such constitutional provisions might as well be written out of our organic law.

[2] 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.

Again we say that if the salary-fixing body can do indirectly what it has attempted to do by chapter 258, namely, increase the salary of county officers during the terms for which they were elected, then in our opinion § 25, Art. II. and § 8, Art. XI, would become nullities.

While we do not purport to say that the following cases are all the cases decided by this court involving some phase of the general question now before us, and do not pretend to say that in any of the cases referred to an exact factual situation such as we have before us in the instant case is presented, we repeat that these decisions plainly indicate the attitude of this court in regard to either a direct or an

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evasive attempt to violate the plain provisions of the constitution. State ex rel. Seattle v. Carson, 6 Wash. 250, 33 Pac. 428; Spokane County v. Allen, 9 Wash. 229, 37 Pac. 428, 43 Am. St. 830; Cox v. Holmes, 14 Wash. 255, 44 Pac. 262; Young v. Millett, 19 Wash. 486, 53 Pac. 823; State ex rel. Eshelman v. Cheetham, 21 Wash. 437, 58 Pac. 771; State ex rel. Davis v. Clausen, 47 Wash. 372, 91 Pac. 1089; State ex rel. Funke v. Board of County Commissioners, 48 Wash. 461, 93 Pac. 920; State ex rel. Wolfe v. Parmenter, 50 Wash. 164, 96 Pac. 1047, 19 L. R. A. (N. S.) 707; State ex rel. Maltbie v. Will, 54 Wash. 453, 103 Pac. 479, 104 Pac. 797; State ex rel. Port of Seattle v. Wardall, 107 Wash. 606, 183 Pac. 67; State ex rel. Younger v. Clausen, 111 Wash. 241, 190 Pac. 324; State ex rel. Hovey v. Claus en, 117 Wash. 475, 201 Pac. 770; King County v. Stringer, 130 Wash. 287, 227 Pac. 17; State ex rel. Cornell v. Smith, 149 Wash. 173, 270 Pac. 306; State ex rel. Cornell v. Smith, 155 Wash. 422, 284 Pac. 796; State ex rel. Jaspers v. West, 13 Wn. (2d) 514, 125 P. (2d) 694; State ex rel. Wyrick v. Ritzville, 16 Wn. (2d) 36, 132 P. (2d) 737, 144 A. L. R. 681.

In none of the above cases, except State ex rel. Seattle v. Carson, 6 Wash. 250, 33 Pac. 428, did this court permit an increase in the salary or compensation of the public officer or officers involved, add we are of the opinion the Carson case is plainly distinguishable from the other cited cases and from the instant case. We referred to the Carson case in Spokane County v. Allen, 9 Wash. 229, 37 Pac. 428, 43 Am. St. 830, stating:

"We do not think that the doctrine enunciated in that case [Carson case] should in any event be extended, though it is plainly distinguishable from the case at bar. In that case the court held that a legislative act which provided that the county treasurer should be charged with the duty of assessing and collecting city taxes, and that the city should pay him there for the sum of $500 per year, did not violate the constitutional inhibition against increasing the compensation of any public officer during his term of office." (Italics ours.)

It appeals to us that the Carson case might be sustained upon the theory that the statute under which the county

594 STATE EX REL. LIVINGSTON v. AYER. [23 Wn. (2d)

treasurer was required to collect city taxes, for which service he was to be paid by the city, did not offend against the spirit of the constitutional provisions at least. In other words, so long as neither the statutes nor the constitution prohibits a county officer from performing for some third person, body, or corporation services not directly connected with the duties of his office, the constitutional provisions are not violated, where such public officer performs such duties and is paid therefor by the person, body, or corporation for whom the services are performed. We think it was upon this theory that the Carson case was decided.

The Carson case is the only one from this state cited by respondents to sustain their contention on this phase of the present controversy. Respondents have cited numerous cases from other jurisdictions, among them Groesbeck v. Fuller, 216 Mich. 243, 184 N. W. 870, 21 A. L. R 249.

[3] Without attempting to discuss the constitutional provisions in the several states in which the decisions in the cases last above referred to were rendered, or the factual situations presented, we are of the opinion that those cases are not controlling in this case, first, because in the interpretation and application of the constitutional provisions of this state, this court is not bound by the decisions of the courts of sister states in the interpretation and application of their constitutional provisions, and second, when the facts in the instant case are considered, we believe the conclusions we have reached in the instant case are not out of harmony with the decisions in the cited cases.

We conclude that the intent of the legislature in passing chapter 258 was to increase the salaries of county officers during the term for which they were elected, from the effective date of the act to January 1, 1947, and that the act, if declared valid, would in fact so increase such salaries, contrary to the prohibition contained in § 25, Art. II, and § 8, Art. XI, of the state constitution.

For the reason assigned, the judgment of the trial court is reversed, with instructions to enter judgment dismissing this action.

MILLARD, STEINERT, BLAKE, and ROBINSON, JJ., concur.

Aug. 1945] STATE EX REL. LIVINGSTON v. AYER. 595

MILLARD, J. (concurring) - I concur in the holding that for performing additional duties provided by an act passed subsequent to his election, a public officer may not be paid additional salary or compensation during the term for which he was ejected, even if such additional duties are extrinsic and foreign to the duties required of him at the time of his election, which is the sole question answered by the majority opinion. To hold otherwise would nullify the plain, unambiguous language of the constitution which forbids the increase in the case at bar. Anything that we have said which tends to nullify the constitutional prohibition against increasing or diminishing the compensation of any public officer during his term of office should be overruled.

One will take an oath to support the constitution, and then readily, and even eagerly, breach that oath if he thinks it politically expedient for him to do so. Like Herod, who, for a good and sufficient political reason closely affecting the permanence of his reign in Judea, set aside the law and committed wholesale murder in his endeavor to effect the physical death of the Son of God. History proves that merely taking the oath of office does not change human nature and cannot make honest men out of born knaves.

Faith plighted is ever to be kept, was a maxim and an axiom even among pagans. The virtuous Roman said that either let not that which seems expedient be base, or if it be base, let it not seem expedient. What is there which that so-called expediency can bring, so valuable as that which it takes away, if it robs you of your integrity and honor? Throughout the ages, he who violates his oath has been held unspeakably base.

Legislative recreancy may not be absolved by judicial cowardice and intellectual jugglery. We may not, unless false to our oath, look with an indifferent eye upon the legislature's attempt to breach the constitution.

It is true, as observed in one of the dissenting opinions, that presumption of constitutionality is one of the aids employed in interpretation and construction of statutes. The author of that dissenting opinion should have listed another aid no less frequently invoked: The faculty to sense the

596 STATE EX REL. LIVINGSTON v. AYER. [23 Wn. (2d)

voting strength for or against constitutionality of a legislative enactment. The characteristic - "double talk" - of the Japanese nation is too often utilized by judges in their attempt to excuse evasion of an unambiguous constitutional mandate which is so plain that a grammar school pupil would be classified as subnormal did he misunderstand its meaning.

The constitutional mandate is simple, intelligible. To agree with the minority view is to wander from the true theory by reason of want of the logical faculty or. transgress against the constitutional mandate on the plea of necessity or expediency. In either case, did I so act I would deem I had offended against first principles and had been false to my oath to support the constitution.

That portion of the act creating the county statistics commission, I do not challenge as unconstitutional. That portion of the act increasing the compensation of the county officials is invalid as it offends against the state constitution.

The opinion in State ex rel. Seattle v. Carson, 6 Wash. 250, 33 Pac. 428, should be overruled. The legislative enactment challenged in that case is clearly unconstitutional, as it permitted the legislature, which may not impose taxes upon any municipal corporation for municipal purposes, to indirectly do the thing forbidden by the constitution; it was a flagrant by-passing of the constitution.

The evil that men do lives after them. For little more than a decade it has been the vogue to contemn the Federal and state constitutions. That practice should be discontinued.

SIMPSON, J. (dissenting) - It is elementary that a statute must be sustained and enforced unless it is in clear and irreconcilable conflict with some express provision of the constitution. On the other hand, if the constitutional provision and the legislative enactment are so clearly in conflict that they cannot both stand, the statutory provision must of course fail.

In construing a statute, every reasonable intendment will be indulged in, in favor of the construction that is in

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conformity with the provision of the constitution. If a reasonable doubt appears, it should be resolved in favor of the validity of the law.

A statute when enacted possesses that binding force and effect named therein unless it is clearly in conflict with our fundamental law. In other words, a statute cannot be judicially declared beyond the power of the legislature to enact, unless in conflict with some specific or definite provisions of the constitution. State v. Emonds, 107 Wash. 688, 182 Pac. 584.

The legislature may enact any law not expressly or inferentially prohibited by the constitution, the constitution being a limitation and not a grant of power. Walker v. Spokane, 62 Wash. 312, 113 Pac. 775; State ex rel. Mountain Timber Co. v. Superior Court, 77 Wash. 585, 137 Pac. 994; Standard Oil Co. v. Graves, 94 Wash. 291, 162 Pac. 558; Sears v. Western Thrift Stores, 10 Wn. (2d) 372, 116 P. (2d) 756.

The question presented here is: Does the act represent a valid exercise of the legislative power? If it does, this court cannot hold it to be invalid merely because it may be an unwise law and of questionable expediency, or because it may be unable to correct the supposed evils that it is intended to remedy, or because of any other objection directed to its wisdom.

It seems to me that the proper approach to a consideration of the act would be to consider it without reference to who should be paid for the services to be performed under the act. That is: Would the act be unconstitutional if it provided that the services should be performed by a board in each county composed of private citizens appointed by the governor?

Considering it in the light just mentioned, it seems that no valid objection could be made to the act. True, as pointed out by the majority, the statute does not provide for any use of the information to be secured by the commission. The act simply provides for a census of individuals who have served in the present war, the purpose of which is not material in so far as the courts are concerned.

598 STATE EX REL. LIVINGSTON v. AYER. [23 Wn. (2d)

The legislature has the undoubted power to pass any act regardless of the object to be obtained. The fact that certain county officers shall be paid for the work required by the act under consideration, is not material but is only incidental.

The fact that the act does not provide for any use of the statistics to be secured by the commission, is not material. It is not necessary to the validity of the act that the legislature determine what shall be done with the results of the work of the commission. The truth of this statement is obvious when we recall that most of our laws defining the general duties of state and county officials do not point out or determine the use to be made of the achievements of those officers. The constitution does not require any definite requirement of legislative acts.

As a matter of fact, the records compiled by the county statistics commission could be used by the supervisor of the veterans' loan insurance created by chapter 217, p. 614, Laws of 1945, and by the various organizations having to do with veterans' relief as provided for by chapter 144, p. 416, Laws of 1945.

The case of State ex rel. Seattle v. Carson, 6 Wash. 250, 33 Pac. 428, has a direct bearing upon the issue in the case at bar. In that case, it was held that a law passed during the term of a county treasurer, which imposed upon him the duty of collecting city taxes and allowing him a salary of five hundred dollars a year in addition to that which he was receiving from the county, was not subject to the constitutional prohibition that the salary of a public officer could not be increased during his term of office. The reason for so holding was that the collection of city taxes was entirely outside his duties as county treasurer.

A discussion of the principle involved in this case is found in State ex rel. Younger v. Clausen, 111 Wash. 241, 190 Pac. 324, and in State ex rel. Bagley v. Clausen, 111 Wash. 254, 190 Pac. 329. The holding in these cases is that additional salaries may be made to an elected officer if the new duties imposed upon him are outside or extrinsic to his duties imposed under a prior law; but, on the other hand,

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if the newly imposed duties are collateral, incidental, or germane to his existing duties, no additional salary may be allowed.

It is quite apparent that the duties imposed upon the county officers by the act under consideration are entirely outside and foreign to the duties required by the general laws relating to county officers.

The leading case upon the question presented is that of Groesbeck v. Auditor General, 216 Mich. 243, 184 N. W. 870, 21 A. L. R. 249. The 1921 legislature of Michigan passed an act which provided for an administrative board consisting of the governor, secretary of state, state treasurer, auditor general, attorney general, state highway commissioner, and the superintendent of public instruction. The duties of the board were set out in the opinion as follows:

"The duties imposed upon said board are the exercise of general supervisory control over the functions and activities of all administrative departments, boards, commissions and officers of the State and all the State institutions. In addition thereto said board performs all the duties heretofore vested by law in the State budget commission, the State purchasing agent and the advisory board in the matter of State purchasing. Said board also exercises control over the system of State accounting and the manner of handling such work. The aforesaid confers upon said board direct and complete supervision over the State budget, all State purchasing, State accounting, the State accident fund, department of agriculture, expenditure of State appropriations, State building activities, all matters of State finance including bond issues and expenditure of the emergency fund, and the regulation of the sale of steamship tickets and foreign exchange. It also confers upon said board supervision and primary control over the department of public safety, department of conservation, State highway department, department of labor and industry and the State welfare department."

The act also provided that the treasurer, secretary of state, and auditor general should receive in payment of their duties as members of the board an additional compensation of twenty-five hundred dollars per year.