Ct. 1899). THE STATE OF WASHINGTON, on the Relation of Dudley
Eshelman,
vs.
NEAL CHEETHAM, as State Auditor
No. 3289
SUPREME COURT OF WASHINGTON
21 Wash. 437, 58 P. 771
September 9, 1899, Decided
CONSTITUTIONAL LAW -- EXTRA COMPENSATION TO OFFICERS.
Under § 25, art. 2, of the constitution, which provides that "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," an
allowance of extra compensation to employees of the legislature
subsequent to the rendition of the services they were employed to
perform is void.
CONSTITUTIONAL LAW -- PROHIBITION APPLIES TO EITHER BRANCH OF
LEGISLATURE.
The constitutional limitation against the granting of extra
compensation by the legislature to officers, employees or
servants of the state, is applicable to either branch, as well as
to the whole body, of the legislature.
CONSTITUTIONAL LAW -- PERFORMANCE OF EXTRA DUTIES.
The constitutional restriction against the legislature's granting
extra compensation to officers or servants after the rendition of
the services or the entering into the contract, and against
increase of compensation of a public officer during his term of
office does not prohibit the legislature, or either branch, from
granting an employee compensation for services performed in
addition to the regular duties for which he was employed.
LEGISLATIVE OFFICERS AND EMPLOYEES -- HOURS OF LABOR.
When an employee enters the service of a legislature, he
contracts to perform his duties whenever they are required to be
performed, and he can not claim his employment is for the
performance of his services during certain hours of the day nor
for a certain number of hours per day, even though it may be
customary in state offices to regard ten hours as constituting a
day's work.
Original Application for Mandamus.
Pritchard & Haight, for relator.
Thomas M. Vance, Assistant Attorney General, for respondent.
DUNBAR, J. GORDON, C.J., and FULLERTON, ANDERS and REAVIS, JJ.,
concur. DUNBAR
{*437} This is an application for a writ of mandamus to command
the state auditor to issue warrants to {*438} Dudley Eshelman
and others for extra services performed during the sixth session
of the legislature of the state of Washington. The affidavit upon
which the application is based shows that Dudley Eshelman was
employed as secretary of the senate, Herbert N. DeWolfe as
assistant secretary, M. G. McGuinnes as minute clerk, Oscar
Ingram as stenographer, E. M. Hunter as docket clerk and M. E.
Miller and E. J. Delbridge as committee clerks, in the senate of
said legislature. The employment began about the 9th day of
January, 1899. On the 13th day of January the senate adopted a
resolution allowing the following sums per day to said employees,
respectively: Secretary, $ 5; assistant secretary, $ 4.50; minute
clerk, $ 4; docket clerk, $ 4; committee clerk, $ 4;
stenographer, $ 4. On March 8, 1899, the senate adopted the
following resolution:
"Whereas, the secretary and assistant secretary, the minute and
docket clerks and the stenographers of this senate, in order to
faithfully perform their respective duties, have been compelled
to work on an average of fourteen hours per day,
Be it resolved by the senate that said clerks be allowed
compensation for one-fourth time extra, in consideration of said
extra work, and that the secretary draw warrants to cover such
amounts."
On March 9, the last day of the session, the following resolution
was adopted:
"Whereas E. J. Delbridge has acted during the session as the
stenographer for the senate and the members thereof in addition
to his other duties, and whereas Ed Miller has assisted the
secretary of the senate in the performance of his duties in
addition to his regular duties,
Therefore be it resolved by the senate that the said clerks above
referred to (and the assistant sergeant at arms) be and they are
hereby allowed additional salary to the extent of one-fourth of
that allowed them heretofore, and be it further resolved that the
secretary of the senate {*439} be and they are hereby authorized
to draw warrants for the amount due each."
The amounts so allowed said employees were as follows: Dudley
Eshelman, $ 75; Herbert N. DeWolfe, $ 67.50; E. M. Hunter, $ 57;
M. G. McGuinnes, $ 60; Oscar Ingram, $ 57; M. E. Miller, $ 56; E.
J. Delbridge, $ 52. These claims have been assigned to Dudley
Eshelman, the relator herein.
It is alleged in the petition that the said last mentioned
allowances made in said resolution were a reasonable, and not
more than a reasonable, compensation for said extra work, and
that the certificates conveying the said last mentioned amounts
and allowances and showing the same to be due to said employees,
respectively, to and including said 9th day of March, 1899, duly
signed by the president of the senate and countersigned by the
secretary, have been duly presented to the respondent, but that
respondent has refused to issue warrants thereon. It was the
opinion of the auditor that the issuing of these warrants would
be in contravention of § 25, art. 2, of the constitution. Said
section is as follows:
"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."
It is asserted by the relator in his brief that, without
constitutional limitation, the salary of a public officer can be
increased or diminished at the will of the legislature; and for
the purposes of this decision this proposition may be conceded.
It is also insisted that the grant forbidden is for extra
compensation, while the allowance in question is not extra pay
for work done, but pay for extra work done, and that it is not a
grant of extra compensation, but the ascertaining and fixing of
what is a fair and reasonable {*440} compensation; that it is
not an extra grant after service rendered or the contract has
been entered into, but the settlement and allowance of a
reasonable compensation in a case where the value of the services
has not been ascertained or agreed upon in advance, but the
service has been entered upon on the implied promise to pay a
reasonable compensation. We do not think that these deductions
are legitimately drawn from the facts stated. The value of the
services evidently had been ascertained by the senate when it
fixed the per diem of these employees. It must have been upon
this ascertainment that the per diem was fixed, and it was agreed
upon when it was so fixed by the senate and the employees
accepted the offices and entered upon the discharge of their
duties.
A great many authorities have been cited by the relator, all of
which we have examined, but believe them not to be in point in
this case. Most of them are to the effect that under a
constitution which provides that the compensation or fees of
public officers shall not be increased during the term of office,
and that the term of an office cannot be extended for a longer
period than that for which such officer was elected or appointed,
such provision embraced only officers which are elected or
appointed for some specific or definite time, and that it has no
application to employees of this kind. Such is the case of State
ex rel. Kane v. Johnson, 123 Mo. 43 (25 S.W. 855), where it was
held that a municipal officer subject to removal at the pleasure
of the council was not an officer, within the constitutional
provision just above cited. And many cases are cited to show
that, under the provision of a constitution or statute which
prohibits the increase of salary or term of office of public
officers, such provision does not apply to officers who do not
have a fixed term or a fixed salary. We are unable to see the
bearing of these decisions upon the case at bar. Our constitution
is two-fold. {*441} The section referred to provides, as do the
constitutions cited by the cases above mentioned, that the
compensation of a public officer shall not be increased or
diminished during his term of office. But this is not the
provision in the constitution that is infringed by the action of
the senate. It is the first provision, viz., that the legislature
shall never grant any extra compensation to any public officer,
agent, servant or contractor after the same shall have been
rendered or the contract entered into; and, whether or not the
relator was a public officer, he certainly was a servant of the
state. He entered into a contract with the state, and extra
compensation has now been voted him for services which had
already been rendered. There is no doubt of the power of the
legislature to have, at any time they determined that the officer
was not sufficiently paid, increased his per diem; but that is a
different proposition from the one involved here, where the
compensation was added after the services had been performed. If
the whole disposition of the case were to depend upon the last
clause of the constitution in relation to public officers, then
there would have been no occasion for the insertion of the first
proposition. The constitution in that respect itself makes a
distinction.
It is urged by the relator that he had a right to rely upon the
custom existing, to the effect that state officers are not
ordinarily called upon to work more than ten hours a day; that
that is a reasonable labor. But the history of legislative bodies
is to the effect that no regular hours of service are rendered
either by members of the legislature themselves or by their
servants. They may sit two, four, six, or twelve hours a day, or
all night, as they see fit; and it frequently occurs that, during
a great many days of the session no service is rendered, either
by the members or by the employees. As is well said by the
attorney general in his brief:
{*442} "When an employee enters the service of a legislature in
either of its branches, he does so knowing of these
eccentricities of legislative bodies, and he contracts, not to
perform services during certain hours of the day, but to perform
his services whenever they are required to be performed."
The other proposition of the relator, that the constitutional
inhibition is one against the legislature and not against either
branch of the legislature, we think is scarcely worthy of
comment. There can not be imputed to the members of the
constitutional convention the weakness of prohibiting the entire
legislature from exercising an abuse which it would permit either
branch of the legislature to do separately. While there is a
great scarcity of authority on this particular question, there is
one case which is directly in point, -- State ex rel. Field v.
Williams, 34 Ohio St. 218, -- where it was held that a single
branch of the general assembly could not by resolution allow
compensation for extra services performed by a sergeant at arms,
such compensation being inhibited by § 29, art. 2, of the
constitution. The provision of the constitution was as follows:
"No extra compensation shall be made to any officer, public agent
or contractor, after the service shall have been rendered or the
contract entered into."
It will be observed that the provision of the Ohio constitution
was almost identical with ours, with the difference that in
addition to the officers, agents, or contractors mentioned in the
Ohio constitution, ours incorporates servants. In speaking of
this clause of the constitution the supreme court of Ohio said:
"This language is very broad, and was intended to embrace all
persons who may have rendered services for the public in any
capacity whatever, in pursuance of law, and in which the
compensation for the services rendered is fixed by law, as well
as persons who have performed or {*443} agreed to perform
services in which the public is interested, in pursuance of
contracts that may have been entered into in pursuance of law,
and in which the price or consideration to be received by the
contractor for the thing done, or to be done, is fixed by the
terms of the contract."
In that case the per diem of the officer was fixed, and the court
further said:
"It is unnecessary to determine whether the relators, while
acting as first and second assistant sergeants-at-arms, were or
were not 'officers,' within the strict meaning of that word, as
usually understood. They were, while discharging their duties,
serving the public at a fixed compensation, and were therefore,
whether they be regarded as statutory officers or as public
agents, within the meaning of the first clause of the section,
which inhibits them from receiving extra compensation after the
services were rendered."
It seems to us that the language of the constitution is so plain
and comprehensive that there is little room for construction,
and, if the language employed would not serve to prohibit the
payment of more wages after services were rendered than was
originally contracted for, it would be difficult to use language
that would bring about that result.
The claim of Miller and Delbridge is confessed by the answer as
resting upon a different state of facts. The auditor will
therefore issue a warrant to Miller for $ 56 and to Delbridge for
$ 52; but, as to the other claims, they will not be allowed, and
the writ will not issue.
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