Hoppe v. State

• Decision Date: 28 May 1970
• Docket Number: No. 41432,41432
• Citation: 78 Wn.2d 164,469 P.2d 909
• Court: Washington Supreme Court
• Parties: Harley H. HOPPE, Appellant, v. The STATE of Washington, Respondent.

Page 164

78 Wn.2d 164

469 P.2d 909

Harley H. HOPPE, Appellant, v. The STATE of Washington, Respondent.

No. 41432.

Supreme Court of Washington, En Banc.

May 28, 1970.

Flanders, Flanders & Trolson, Roy F. Trolson, Seattle, for appellant.

Slade, Gorton, Atty. Gen., Robert J. Doran, Asst. Atty. Gen., Donald H. Brazier, Jr., Deputy Atty. Gen., Olympia, for respondent.

HAMILTON, Associate Justice.

The appellant, Harley H. Hoppe, a resident and taxpayer of the state, initiated this declaratory judgment action pursuant to RCW 7.24 seeking a determination that Laws of 1969, ch. 3, p. 12, violated Const. art. 28, § 1. The trial court continued a hearing on the matter to permit the appellant to make a demand upon the Attorney General to prosecute the action. The Attorney General refused and, thereafter, filed a motion for summary judgment on behalf of the State of Washington, as respondent. The trial court granted respondent's motion upon the grounds that Laws of 1969, ch. 3, p. 12, is not unconstitutional on its face and that there were no facts of which the court could take judicial notice which would establish the unconstitutionality of the act. This appeal followed.

We substantially agree with the trial court and affirm the order granting summary judgment.

Const. art. 28, § 1, provides, Inter alia:

The compensation of any state officer shall not be increased or diminished during his term of office, * * *.

Laws of 1969, ch. 3, p. 12, provides:

Section 1. In view of the decreased purchasing power of the dollar and the concomitant increase in the cost of living during the past several years, the members of the legislature declare that the twenty-five dollar per diem allowance provided during the past several sessions in lieu of subsistence and lodging is inadequate to cover necessary expenses incurred while attending sessions of the legislature. The legislature further finds and declares that forty dollars per day is a fair and adequate allowance to cover such reimbursement.

Sec. 2. Section 1, chapter 173, Laws of 1941 as last amended by section 6, Chapter, 127, Laws of 1965 ex. sess., and RCW 44.04.080 are each amended to read as follows:

Members of the legislature including the president of the senate shall be paid not to exceed Forty dollars per day in lieu of subsistence and lodging during and while attending any legislative session.

Appellant, in his argument, concedes that the $25 per diem allowance in lieu of subsistence and lodging provided for in Laws of 1965, ex. ses., ch. 127, § 6, p. 2181, ¹ is reasonable and valid. Concerning the amount in excess of $25, he states in his brief:

(T)hat $40.00 a day for per diem expenses of the state legislature, is on its face, a violation of Article 28, Sec. 1 of the constitution in that the amount in excess of $25.00 or $15.00 is an increase in compensation.

In approaching a disposition of appellant's contention it is to be observed at the outset that Laws of 1969, ch. 3, p. 12, is not free of ambiguity as to which of two methods of expense reimbursement the statute adopts, I.e., whether it (a) provides only for the reimbursement of those subsistence and lodging expenses actually incurred and vouchered for up to but not in excess of $40 per day; ² or (b) grants a flat lump sum per diem amount of $40 in lieu of subsistence and lodging, upon the premise that daily expenses for such purposes in such an amount will necessarily be incurred by legislators attending upon a legislative session.

Certainly, if the first of the two possible interpretations be applied, there can be little doubt as to the constitutionality of the statute, for our constitution presently contains no prohibition against reimbursement of reasonable and necessary subsistence and lodging expenses actually incurred and vouchered for by a legislator while away from his usual place of residence and in attendance upon a legislative session at the seat of government. State ex rel. Todd v. Yelle, 7 Wash.2d 443, 110 P.2d 162 (1941).

In this vein, it is pertinent at this point to note that Const. art. 2, § 23, originally fixing the compensation of members of the legislature at $5 per attendance day and 10 cents a mile traveled to and from the place of meeting, was repealed in 1948 by Const. art. 28, § 1 (amendment 20) which allowed the compensation of elective state officials, including legislators, to be fixed by the legislature, provided, however, that such compensation could not be increased or diminished during a term of office. Const. art. 28 § 1, in turn, in 1968, was modified by Const. art. 30 § 1 (amendment 54) which permitted an increase in compensation during a term of office for such state, county, and municipal officials who did not fix their own salaries. Thus, it may be seen that the only constitutional limitation remaining which restricts allowances for subsistence and lodging of a legislator attending upon a session of the legislature is the prohibition of Const. art. 28, § 1, against legislators increasing or diminishing their compensation during their respective terms of office. In this latter respect, we held in State ex rel. Todd v. Yelle, Supra, that the word 'compensation' as utilized in Const. art. 28, § 1, does not embrace nor include appropriate reimbursement for expenses incurred for subsistence and lodging by legislators attending a legislative session away from their regular place of residence.

It follows, therefore, as we have observed, that reimbursement for reasonable subsistence and lodging expenses actually and necessarily incurred and vouchered for by a legislator in attendance upon a session would be constitutionally permissible. However, the same can not quite be said on behalf of a flat or lump sum per diem allowance, payable in lieu of subsistence and lodging expenses actually incurred. On the one hand, if the specified sum bears a rational, realistic and proportional relationship to the actual daily subsistence and lodging expenses necessarily incurred by legislators attending upon a legislative session, then there would appear to be no logical reason for holding either the amount or the method of reimbursement constitutionally impermissible. On the other hand, however, should the specified amount be so patently and palpably in excess of and disproportionate to the actual and necessary per diem subsistence and lodging expenses which legislators, with due respect to the trust imposed by their office, would rationally, reasonably, and honestly incur, then the reimbursement allowance would run afoul of Const. art. 28, § 1. Cf. Eberle v. Nielson, 78 Idaho 572, 306 P.2d 1083 (1957); Loushay Appeal, 169 Pa.Super. 543, 83 A.2d 408 (1951); Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 5 A.L.R.2d 1154 (1948); Peay v. Nolan, 157 Tenn. 222, 7 S.W.2d 815 (1928); Taxpayers' League of Carbon County v. McPherson, 49 Wyo. 251, 54 P.2d 897, 106 A.L.R. 767 (1936); Scroggie v. Scarborough, 162 S.C. 218, 160 S.E. 596 (1931); State ex rel. Payne v. Reeves, 44 S.D. 568, 184 N.W. 993 (1921); Christopherson v. Reeves, 44 S.D. 634, 184 N.W. 1015 (1921).

In the instant case, both parties and the trial court proceeded upon the assumption that Laws of 1969, ch. 3, p. 12, provided for a flat or gross per diem allowance in lieu of subsistence and lodging. Assuming without deciding that the approach adopted by the parties is a proper one, we proceed to a consideration of the validity of the specified allowance based upon that interpretation of the statute.

In traveling this avenue of approach we pause to observe that (a) our state constitution is not a grant, but a limitation upon the law-making power of the legislature, and unless some express or fairly implied limitation upon the legislature's power to enact can be found in the constitution that power is virtually unrestricted--State ex rel. Todd v. Yelle, Supra; Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968); (b) an enactment of the legislature carries with it a presumption of validity and should not be declared unconstitutional unless its repugnancy to there constitution clearly appears or is made to appear beyond reasonable doubt--Markham Advertising Co. v. State, Supra; Lenci v. City of Seattle, 63 Wash.2d 664, 388 P.2d 926 (1964); and (c) where it does not otherwise appear in the body of the act, it will be presumed that the legislature has appropriately and affirmatively determined any special facts essential to the validity of a questioned enactment; however, where a legislative declaration of the basis and necessity for an enactment does appear in the enactment that declaration is to be deemed conclusive as to the circumstances asserted and must be given effect unless, aided only by facts of which a court can take judicial notice, it can be said that the legislative declaration on its face is obviously false--Markham Advertising Co. v. State, Supra; State ex rel. Hoppe v. Meyers, 58 Wash.2d 320, 363 P.2d 121 (1961).

As we remarked in Lenci v. Seattle, Supra, these enumerated principles are not merely rules of judicial convenience. Rather they draw and mark the line of demarcation between the function and authority of the legislative and judicial branches of our government.

Resuming then the approach followed by the parties and the trial court, and turning to Laws of 1969, ch. 3, p. 12, it is at once apparent that the legislature did declare the circumstances and basis upon which the in lieu allowance of subsistence and lodging was increased. In essence, it predicated the increase upon (1) the decreased purchasing power of money; (2) the increased cost of living; (3) the inadequacy of the former allowance to cover current and necessary expenses of subsistence and lodging; and (4) the sufficiency of the increased allowance to meet such expenses. Thus, absent express or implied constitutional limitation precluding a fair and reasonable allowance for necessary living expenses incurred by a...