Yelle v. Bishop

• Citation: 347 P.2d 1081,55 Wn.2d 286
• Decision Date: 17 December 1959
• Docket Number: No. 35315,35315
• Parties: Cliff YELLE, as Auditor, Appellant, v. Warren BISHOP, as State Budget Director, and Tom Martin, as State Treasurer, Respondents.
• Court: United States State Supreme Court of Washington

Page 286

55 Wn.2d 286

347 P.2d 1081

Cliff YELLE, as Auditor, Appellant, v. Warren BISHOP, as State Budget Director, and Tom Martin, as

State Treasurer, Respondents.

No. 35315.

Supreme Court of Washington, En Banc.

Dec. 17, 1959.

John J. O'Connell, Atty. Gen., Thomas L. O'Leary, Olympia, Thomas R. Garlington, Tacoma, for appellant.

John J. O'Connell, Atty. Gen., Weter, Roberts & Shefelman, Harold S. Shefelman, Seattle, John S. Robinson, Olympia, for respondents.

HUNTER, Judge.

This action was instituted under the Uniform Declaratory Judgments Act, RCW 7.24, by state auditor Cliff Yelle against state budget director Warren Bishop and state treasurer Tom Martin, for the purpose of testing the constitutionality of Laws of 1959, chapter 328, known as the budget and accounting act. The act establishes a comprehensive and complete new budget and accounting system for all activities of state government, to provide an efficient, modern system for management of the fiscal affairs of the state.

The plaintiff challenged the constitutionality of the act in six particulars, the principal challenge being that the state auditor will suffer loss of his constitutional powers, duties and prerogatives relating to his functions as general accountant of the state, and in the auditing of all claims of the state payable out of the state treasury, in violation of Art. III, §§ 1 and 20, of the state constitution. Defendant state treasurer Tom Martin did not appear in the action. Defendant budget director Warren Bishop admits that certain duties will be taken from the state auditor but denies they are constitutional duties; that they are instead statutory and may be removed by the legislature without violating the above constitutional provisions. Defendant Warren Bishop also denies the state constitution is violated by the act on any of the other grounds alleged by the plaintiff.

The trial court held that the transferring of functions from the state auditor under the act was valid and constitutional; that the other constitutional issues raised in the complaint were not properly before the court, and entered judgment accordingly. The state auditor appeals.

It is not disputed that the budget and accounting act takes from the state auditor all of his pre-auditing functions, which are presently the auditing of claims against the state treasury and the issuing of warrants to the state treasurer for payment of claims thus approved. Nor is it disputed that the post-auditing functions of the auditor are not in any way disturbed by the questioned enactment.

Appellant contends that these pre-auditing functions of the state auditor are historically inherent, and are implied constitutional powers of the auditor which, therefore, may not be removed without being in derogation of Art. III, §§ 1 and 20, of the state constitution.

The respondent contends the duties are purely statutory and, as stated by the trial court '* * * The Constitution so clearly states that the Auditor shall have those duties prescribed by law. If the law can give him duties, the law can take them away. * * *'

The office of state auditor is established in the executive department by Art. III, § 1, of the state constitution as follows:

'The executive department shall consist of a governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and a commissioner of public lands, who shall be severally chosen by the qualified electors of the state at the same time and place of voting as for the members of the legislature.'

The powers and duties of the office thus established are set forth in Art. III, § 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. * * *' (Italics ours.)

To infer from the above language the existence of implied constitutional powers raises the question of what the framers of the constitution intended. The appellant argues that the traditional and inherent powers of the office were fully understood by the framers of our constitution, they therefore intended that such powers attach to the constitutional office of auditor. The respondent, on the other hand, contends the express language of § 20 places all of the powers and duties of the state auditor exclusively in the hands of the lawmaking body.

In determining the meaning of a constitutional provision, the intent of the framers, and the history of events and proceedings contemporaneous with its adoption may properly be considered. Bowen v. Department of Social Security, 1942, 14 Wash.2d 148, 127 P.2d 682; Sears v. Western Thrift Stores 1941, 10 Wash.2d 372, 116 P.2d 756; State ex rel. Mason County Logging Co. v. Wiley, 1934, 177 Wash. 65, 31 P.2d 536; Morgan v. Board of School Com'rs of Mobile County, 1946, 248 Ala. 22, 26 So.2d 108; State ex rel. State Railway Commission v. Ramsey, 1949, 151 Neb. 333, 37 N.W.2d 502.

In considering these contentions as to what was intended by the language of § 20, it is proper to examine the deliberations of the delegates at the constitutional convention, when the establishment of the office was under consideration. The official minutes of proceedings of the constitutional convention in some respects are incomplete; however, the proceedings of July 25, 1889, were reported in the Tacoma Daily Ledger on July 26, 1889. This report, a first-hand account of a contemporaneous event, may properly be considered under the rule stated above. It reads as follows:

'Executive Department Article Considered in Committee of the Whole.

* * *

* * *

'Section 1 of the executive department article was read:

'Sec. 1. The executive department shall consist of governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and a commissioner of public lands, who shall be severally chosen by the qualified electors of the state at the same time and place of voting for the members of the legislative assembly.

'Moved To Strike Out.

'Mr. Sharpstein moved to amend the section by striking out lieutenant governor and commissioner of public lands.

'Mr. Dickey called for a division of the question. Mr. Sharpstein had no objection. He merely did not want useless officers, and did not think that either officer was required.

'The question was considered separately.

'Mr. Weir said the impression seems to be that the lieutenant governor would be only a presiding officer of the senate. The committee believed that there would be many state institutions and such an officer as supervisor was necessary.

'Mr. Dunbar, as a politician, would be in favor of the office of lieutenant governor, but as a member of the convention he thought such an officer would be a superfluity just at this time.

'Thought It Necessary.

'Mr. Browne regarded the office of lieutenant governor as a necessary office.

'Mr. Godman thought a lieutenant governor was not usually selected for his ability but for his peculiar ability as a political manipulator.

'Mr. Dyer said a lieutenant governor would be necessary to serve as chairman of the boards it will be found advisable to constitute.

'Mr. Buchanan opposed the amendment, and stated that as the president of the senate succeeded the governor, it would take a man off the floor as a representative of his constituency.

'Mr. McElroy was opposed to any unnecessary officers.

'Mr. Gowey spoke in favor of the report of the committee.

'In Other States.

'J. Z. Moore said that in every state where there is no lieutenant governor some other officer is substituted to insure succession.

'Mr. Lillis thought that no man should succeed to the governorship who had not been elected for that particular purpose.

'Mr. Cosgrove thought the amendment purely economical in character and he therefore opposed it.

'Motion To Strike Out Lost.

'Section One Adopted Without Being Amended--A Prolonged Debate.

'Mr. Myers offered a substitute for section 1, leaving out lieutenant governor and land commissioner, and giving the legislature power to increase the number of officers. Lost.

'The motion to strike out lieutenant governor was defeated by a vote of 38 to 31.

'On the question of striking out the office of commissioner of public lands Mr. Sharpstein said that he wished amendment to prevail because he thought the office not needed. He preferred a board composed of state officers to attend to the public lands.

'Possibly A Grievous Mistake.

'Mr. Bowen thought it would be a grievous mistake not to have an executive head for so important a department of state.

'Mr. Weir stated that none of the delegates fully comprehended the magnitude of the public lands in this territory. Such an executive officer will not be a fifth wheel, but his duties will be as important as any state officer.

'Ruled Out Of Order.

'Mr. Gowey moved to amend Mr. Sharpstein's amendment by inserting after 'secretary of state,' the words 'who shall be exofficio commissioner of public lands.' This was ruled out order [sic].

'Mr. Buchanan offered a substitute striking out commissioner of public lands and inserting, 'lieutenant governor, treasurer and attorney general shall constitute the board of state and school land commissioners.'

'After a long debate the substitute was lost. Mr. Buchanan alone voting for it.

'Voted It Down.

'Mr. Gowey again offered the motion previously ruled out of order, and it was voted down. Mr. Sharpstein's amendment striking out office of land commissioner was also lost. Mr. Myers moved to strike out auditor. Lost. The section as reported by the commissioners [sic] was then adopted.' (Italics ours.)

We find no record in the proceedings relative to consideration of the powers and duties of the office in § 20, other than the consideration of the salary and the adoption of the section in its present form.

On July 26, 1889, at the time of the adoption of Art....