Johns v. Wadsworth, 80 Wash. 352, 141 Pac. 892 (1914).

                     Opinion Per GOSE, J.           80 Wash.

           [No. 12018. En Banc. July 6, 1914.]
     P.H. JOHNS, Respondent, v. J.L. WADSWORTH, as County
               Auditor, et al., Appellants. 1

CONSTITUTIONAL LAW. Rem. & Bal. Code, SS 3024 et seq., providing
that the county commissioners may make an appropriation to a
county agricultural fair association to pay expenses and premiums
awarded, violates Const., art. 8, SS 7, prohibiting a county from
giving any money or property or loaning its money or credit to or
in aid of any individual, association or corporation except for
the necessary support of the poor and infirm, etc.; and it is
immaterial that SS 3025 makes the county commissioners ex officio
members of the fair association, and that SS 3026 provides that
all buildings and structures erected and the funds appropriated
shall become the property of the county.

Appeal from a judgment of the superior court for Pierce
county, Clifford, J., entered October 11, 1913, enjoining the
issuance of a county warrant, at the suit of a taxpayer, upon
sustaining a demurrer to the answer. Affirmed.

Lorenzo Dow, W.W. Keyes, and Gordon & Easterday, for

T.L. Stiles, for respondent.

Post, Avery & Higgins, amici curiae.

GOSE, J. - This is an action by a resident and taxpayer of
Pierce county to enjoin the issuance and payment of a
county warrant. The facts are these: On the 18th day of July,
1913, the board of county commissioners of Pierce county,
for the purpose of donating and giving to the Western
Washington Fair Association the sum of $3,586.19, allowed a
claim to the association for that amount, conformably to the
provisions of the code (Rem. & Bal. Code, SS 3024 et seq.;
P.C. 111 SS 1). The association is a private corporation,
organized for the purpose of holding a county fair and giving

1 Reported in 141 Pac. 892.

                     JOHNS v. WADSWORTH.                353
 July 1914               Opinion Per GOSE, J.

an exhibition of stock, agricultural and dairy products,
including articles manufactured in Pierce county. It
conducts the only agricultural fair in the county. A demurrer
was sustained to an answer setting forth these facts. The
defendants having announced that they did not desire to
plead further, judgment was entered in favor of the plaintiff.
This appeal followed.

The code, Rem. & Bal. Code, SS 3024 (P.C. 111 SS 1),

"Any agricultural fair association which has a corporate
existence for the purpose and object of holding a fair
and agricultural exhibition of stock, cereals and agricultural
produce of all kinds, including dairy produce as well as arts
and manufactures in any county, may apply to the board of
county commissioners of such county for a grant to pay
expenses and premiums awarded."

Section 3025 (P.C. 111 SS 3) provides that the members of
the board of county commissioners shall be ex officio members
of the county agricultural fair association, in all counties
where appropriations are made under the provisions of the
act. Section 3026 (P.C. 111 SS 5) provides, that no more
than one county agricultural fair shall be held in any county
in any one year; that any association applying for the
benefit of the appropriation must have a corporate existence, and
that all buildings and structures erected with the funds
appropriated shall become the property of the county making
the appropriation. Of the applicable provisions of our
constitution, art. 1, SS 29, reads: "The provisions of this
constitution are mandatory, unless by express words they are
declared to be otherwise." Const., art. 8, SS 6, prohibits
counties from incurring indebtedness for any other than
"strictly" county purposes. Const., art. 8, SS 7, provides:

"No county, city, town, or other municipal corporation
shall hereafter give any money or property, or loan its
money or credit, to or in aid of any individual, association,
company, or corporation, except for the necessary support

12 - 80 WASH.

                     Opinion Per GOSE, J.           80 Wash.

of the poor and infirm, or become directly or indirectly the
owner of any stock in or bonds of any association, company,
or corporation."

The appellants, contending for a liberal construction of
the constitution so as to effectuate the intention of those
who framed it and the people who adopted it, say: "It must
be conceded that the main and chief purpose of an
appropriation made conformably to the statutes in question is to
promote a public purpose." Counsel who have filed a brief as
amici curiae argue that the purpose of the constitution is to
prohibit the county from aiding in any manner a purely
private enterprise, and that a constitutional provision should be
interpreted so as to further the known purposes for which it
was adopted.

The section of the constitution last quoted, in most
express terms, prohibits a county from giving any money,
property or credit to, or in aid of, any corporation, except for
the necessary support of the poor and infirm. If the framers
of the constitution had intended only to prohibit counties
from giving money or loaning credit for other than
corporate or public purposes, they would doubtless have said
so in direct words. That agricultural fairs serve a good
purpose is not questioned, but the constitution makes no
distinction between purposes, but directly and unequivocally
prohibits all gifts of money, property, or credit to, or in aid of,
any corporation, subject to the exception noted. In Ranch
v. Chapman,
16 Wash. 568, 48 Pac. 253, 58 Am. St. 52, 36
L.R.A. 407, after referring to SS 7, art. 8, of the constitution,
this court said that a recurrence to the history of the
times will show that many municipalities had become bankrupt
because of liabilities incurred in aid of railroads, "and
various other public improvements which were deemed
advantageous" at the time. In Rands v. Clarke County,
79 Wash. 152, 139 Pac. 1090, we said that the word
"corporation," in the article under review, did not include the
Federal or state governments, or any of their members. In

                     JOHNS v. WADSWORTH.                355
 July 1914               Opinion Per GOSE, J.

Wilkesbarre City Hospital v. County of Luzerne, 84 Pa.
St. 55, it was held that an appropriation from county funds
to a corporation organized to conduct a charitable hospital
was in conflict with the constitution of the state, which was
similar to ours. The act there reviewed limited the appropriation
to the support of such poor patients under treatment
in the hospital as were unable to pay for their treatment. In
that case, the court said:

"A law enabling a private incorporated hospital to make
requisitions upon a county, for the payment of its charges
for the support of patients under treatment, even though
they be paupers, is an appropriation of money by the county
to the corporation and comes within the prohibition of the

Here the appropriation is to a private corporation
organized for a worthy purpose, educational in its nature. There
is no room, however, for construction. Unless plain, simple,
direct words have lost their meaning, the legislature was
without power to authorize the gift. The act authorizes a
"grant" to pay "expenses and premiums." The amendment
of 1909, which provides that the members of the board of
county commissioners shall be ex officio members of the
association, adds nothing to the validity of the act. The same
may be said of the amendment which provides that the
buildings erected with the money appropriated shall become the
property of the county making the appropriation. How
money given to pay "expenses and premiums" shall be
transmuted into buildings we are not advised. Counsel for the
respondent very pertinently observes:

"Whitworth college is almost on the point of being
removed from Tacoma to Spokane, because it needs money. The
college is a great public benefit to Tacoma, probably as much
as the fair is to the county. What is to hinder the
legislature from authorizing the city to supply the lacking funds,
giving them subject to the condition that the mayor shall be
ex officio a member of the college board of trustees, and that

                     Opinion Per GOSE, J.           80 Wash.

the college treasurer shall report annually how the money was
spent? Many people think that one of the greatest institutions
a city can have is a theater and auditorium; why not
contribute ten or fifty thousand dollars to the construction of
one, put a councilman or two on the board, and have a yearly
account filed?"

Such illustrations might be multiplied, and who shall say
that such associations are not worthy, or that they would
not conduce to the public good ?

The appellants, among other cases, have cited Taylor v.
Thompson, 42 Ill. 9; Speer v. School Directors etc. of
Blairsville, 50 Pa. St. 150; Broadhead v. Milwaukee, 19 Wis. 658,
and Daggett v. Colgan, 92 Cal. 53, 28 Pac. 51, 27 Am. St.
95, 14 L.R.A. 474. In the Taylor case, it was held that a
tax imposed for the purpose of procuring funds to secure
volunteers to the United States army when civil war was
raging was a tax for "corporate purposes." The Speer and
Broadhead cases are to the same effect. In Daggett v.
Colgan, it was held that an act which appropriated money to be
used in the construction of buildings and maintaining an
exhibit of the products of the state at the World's Fair, to be
held at Chicago, was not in conflict with the constitution of
the state. In principle it does not differ from the rule
announced in Rands v. Clarke County.

Counsel who appear as amici curiae have cited numerous
authorities and made an extended argument which takes a
wide range. We have examined the cases cited and can say
confidently that none of them are in point. Many of them are
based upon constitutional provisions essentially different from
ours. Others merely decide which of two agricultural
societies is entitled to a small appropriation made by the county
or the state, there being no constitutional question raised.
Poweshiek County Cent. Agricultural Soc. v. Shaffer, 86
Iowa 377, 53 N.W. 304, illustrates the last class of cases.
In that case, two county agricultural societies claimed the
right to receive aid from the state. The court held that both

                     JOHNS v. WADSWORTH.                357
 July 1914          Concurring Opinion Per ELLIS, J.

were entitled to receive the aid. In State v. Robinson, 35
Neb. 401, 53 N.W. 213, 17 L.R.A. 383, it was held that,
as a general rule, the legislature is invested with authority to
determine what purposes are matters of public concern so as
to render taxation permissible. In the absence of constitutional
restriction, this is undoubtedly true. It would also be
true if the only limitation in the constitution was that the
appropriation should conduce to the public welfare.

The judgment is affirmed.



ELLIS, J. (concurring) - It is with extreme reluctance
that I have given my assent to the foregoing opinion. The
grant in question is of obvious public benefit. The terms of
the quoted provision of the constitution are, however, so
clear and explicit as to leave no room for construction. We
can do no more than acquiesce in what the constitution has
already plainly declared. To do otherwise would be an act
of judicial lawlessness. I am, therefore, constrained to