27 Wn.2d 99, THE STATE OF WASHINGTON, on the Relation of Smith Troy et al., Plaintiff, v. CLIFF YELLE, as State Auditor
[No. 30120. En Banc.      Supreme Court      January 10, 1947.]
THE STATE OF WASHINGTON, on the Relation of Smith Troy
                et al., Plaintiff, v. CLIFF YELLE, as State
                          Auditor, Respondent.«1»

"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

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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."

[3] 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

108 STATE EX REL. TROY v. YELLE. [27 Wn. (2d)

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 of 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.

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[4] 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 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 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."

110 STATE EX REL. TROY v. YELLE. [27 Wn. (2d)

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. III 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. III, § 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

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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.

MILLARD, C. J. (concurring) - I concur. See first paragraph of concurring opinion in State ex rel. Livingston v. Ayer, supra. One who holds an office under our constitution forfeits such office when he accepts another office or place of trust which is incompatible with office or place of trust already held, and ipso facto the first office is vacated.

SIMPSON, J. (dissenting) - The reasons given for my dissent in State ex rel. Livingston v. Ayer, 23 Wn. (2d) 578, 161 P. (2d) 429, apply to the instant case.

In considering cases of this nature, we should bear in mind the following well-established rules:

"The rule of law is well settled in this country that the legislative department is not made a special agency for the exercise of specially defined legislative powers, but is intrusted with general authority to make laws at discretion, except where the constitution has imposed limits upon this legislative power. Cooley Constitutional Limitations, pp. 104, 201. In other words. the constitution of this state is a limitation upon the powers of the legislature, and not a grant of power. Hence before an act of the legislature may be declared unconstitutional, it must appear that the act is in conflict with some express provision of the constitution which prohibits the act or parts of the act complained of." State ex rel. Murphy v. McBride. 29 Wash. 335, 70 Pac. 25.

"It is a rule, become axiomatic by long continued reiteration, that no court will hold a law to be unconstitutional unless such holding is compelled." State ex rel. Mullen v. Howell, 107 Wash. 167, 181 Pac. 920.

"It is presumed that the statute in question is constitutional and the burden rests upon appellant [the attacking party] to establish clearly its invalidity." State v. Hanlen, 193 Wash. 494, 76 P. (2d) 316.

112 STATE EX REL. TROY v. YELLE. [27 Wn. (2d)

"It is further elementary, and both parties so admit, that all doubts as to whether or not a state legislature had the power to pass a given enactment must be resolved in favor of the legislature." State ex rel. Todd v. Yelle, 7 Wn. (2d) 443, 110 P. (2d) 162.

"It is an elementary principle of constitutional law, universally accepted, that, where the validity of a statute is assailed, there is a presumption of the constitutionality of the legislative enactment unless its repugnancy to the constitution clearly appears or is made to appear beyond a reasonable doubt. . . . This court has upheld that principle many times." Union High School Dist. No. 1 v. Taxpayers of Union High School Dist. No. 1, 26 Wn. (2d) 1, 172 P. (2d) 591.

"In order to justify a court in pronouncing a legislative act unconstitutional or a provision of a state Constitution to be in contravention of the Constitution of the United States, the case must be so clear as to be free from doubt. In those jurisdictions in which a trial court may consider the constitutionality of a statute, unless a statute is manifestly and plainly unconstitutional, a trial court should sustain it, particularly where the same question might arise in other counties of the state, in order that a final and uniform decision may be had on appeal.

"In all instances where the court exercises its power to invalidate, the conflict of the statute with the Constitution must be irreconcilable, because it is only a decent respect to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until the contrary is shown beyond reasonable doubt. Therefore, in no doubtful case will the judiciary pronounce a legislative act to be contrary to the Constitution; to doubt the constitutionality of a law is to resolve the doubt in favor of its validity." 11 Am. Jur. 719, Constitutional Law, § 92.

It is also a general rule that the bar of the constitution does not come into play in those cases in which extra compensation is provided for new duties extrinsic to the duties provided by the constitution.

This rule is well stated as follows in State ex rel. Younger v. Clausen, 111 Wash. 241, 190 Pac. 324:

"The general rule supported by the authorities is that, where new duties are added to the office during the term and

Jan. 1947] STATE EX REL. TROY v. YELLE. 113

the act fixes the compensation therefor, the constitutional inhibition does not apply if such new duties are extrinsic or foreign to the prior duties. On the other hand, if the new duties are incidental, collateral or germane to the duties which the officer was required to perform under the prior law, the salary increase cannot be sustained. The question is not so much over the statement of the rule as it is the application thereof. Probably the best statement of the rule will be found in §§ 862 and 863 of Mecham on Public Officers, as follows:

"`An officer who accepts an office, to which a fixed salary or compensation is attached, is deemed to undertake to perform its duties for the salary or compensation fixed, though it may be inadequate, and if the proper authorities increase its duties by the addition of others germane to the office, the officer must perform them without extra compensation. Neither can he recover extra compensation for incidental or collateral services which properly belong to or form a part of the main office. . . .

"`Where, therefore, a public officer is employed to render services in an independent employment, not germane or incidental to his official duties, . . . he may recover for such services.'"

Accord: State ex rel. Seattle v. Carson, 6 Wash. 250, 33 Pac. 428; 43 Am. Jur. 145, 151, Public Officers, §§ 353, 364; 46 C. J. 1017, Officers, § 242.

In addition to the cases I cited in the Livingston case, I desire to call attention to the following:

The case of Love v. Baehr, 47 Cal. 364, involved the creation by the legislature of a board of examiners whose duties were to examine claims against the state, the books of the state treasurer, and to perform other similar functions. It named the attorney general as a member of the board and provided extra compensation. The California court held that the attorney general could receive the compensation, it being for extrinsic duties. The court, in passing upon the question, stated in part as follows:

"The Legislature has no more power to compel the Attorney-General to perform such service as a part of the duties of his office, than it has to compel the Superintendent of Public Instruction to take charge of the State Prison, or to perform the duties of State Gauger. The

114 STATE EX REL. TROY v. YELLE. [27 Wn. (2d)

Attorney General is, therefore, under no obligation to perform such services, and he may decline to perform them, without any breach of his official duty as Attorney-General. If, however, he voluntarily performs them, he does not thereby enlarge the scope of his official duties as a constitutional officer. . . .