State ex rel. O'Connell v. Yelle

• Decision Date: 22 January 1958
• Docket Number: No. 34437,34437
• Citation: 51 Wn.2d 594,320 P.2d 1079
• Parties: The STATE of Washington, on the relation of John J. O'CONNELL, as Attorney General, Plaintiff, v. Cliff YELLE, as State Auditor, Respondent.
• Court: Washington Supreme Court

Page 594

51 Wn.2d 594

320 P.2d 1079

The STATE of Washington, on the relation of John J.

O'CONNELL, as Attorney General, Plaintiff, v. Cliff YELLE, as State Auditor, Respondent.

No. 34437.

Supreme Court of Washington, En Banc.

Jan. 22, 1958.

Carlson, Newlands & Reha, C. John Newlands, Special Asst. Atty. Gen., Tacoma, for plaintiff. Helsell, Paul, Fetterman, Todd & Hokanson, Russell V. Hokanson, Seattle, amicus curiae.

Elvin J. Vandeberg, Asst. Atty. Gen., Olympia, for respondent.

HUNTER, Justice.

This is an original proceeding for a writ of mandamus instituted by the attorney general of the state of Washington, John J. O'Connell, as relator, petitioning this court to restrain permanently the state auditor from the further issuance of warrants to certain state officials for reimbursement of expenses, as prescribed by Laws of 1957, chapter 300, p. 1231, enacted by the thirty-fifth session of the legislature. He contends such an act grants an increase in compensation to a public official during his term of office and is in violation of the state constitution.

The last paragraph in § 2 of the above act, with which we are concerned, provides:

'For reimbursement in lieu of expenses incurred while serving as duly elected and qualified officials at the seat of the government for the Secretary of State, the State Treasurer, the State Auditor, the Attorney General, the Superintendent of Public Instruction, the Commissioner of Public Lands and the Insurance Commissioner, at the rate of $200.00 per month each to [be] distributed upon their respective vouchers therefor * * * $33,600.00'

The constitutional provisions involved are as follows:

Art. II, § 25: '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.' (Italics ours.)

Art. III, § 25: 'No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office, * * * The compensation for state officers shall not be increased or diminished during the term for which they shall have been elected. * * *' (Italics ours.)

Art. XXVIII, amendment 20, § 1:

'All elected state officials shall each severally receive such compensation as the legislature may direct. The compensation of any state officer shall not be increased or diminished during his term of office, except that the legislature, at its thirty-first regular session, may increase or diminish the compensation of all state officers whose terms exist on the Thursday after the second Monday in January, 1949.' (Italics ours.)

It is not contended by counsel for the relator or the respondent that the expenses allowed by the legislative enactment for these stated officials are for other than their lodging and subsistence while in Olympia. The question then to be resolved is whether two hundred dollars per month is an increase in compensation, or is it a true reimbursable expense allowance? If it is the former, the statutory provision is unconstitutional; if it is the latter, the enactment is valid.

In State ex rel. Todd v. Yelle, 7 Wash.2d 443, 110 P.2d 162, 170, we passed on this very question in the case of members of the legislature. We held that an allowance of five dollars per day for lodging and subsistence for members of the legislature, while in the performance of their duties at the seat of government and temporarily away from their homes in other parts of the state, was a true reimbursable expense and did not constitute an increase in compensation.

We assume that the members of the 1957 legislature were aware of the constitutional prohibition against increasing compensation of a public official during his term of office, but intended to grant a reimbursable expense allowance to these elected state officials in the performance of their duties at the seat of government, as we said they could do for themselves in the Todd case.

Are these elected state officials, in the performance of duties at the seat of government, within the same category as members of the legislature while serving in Olympia, and thereby within the rule of the Todd case, supra? In that case we said:

'Counsel says, however, that the expenses of which we have been speaking are distinguishable from those for which reimbursement is provided in chapter 4, Laws of 1941, in that they are allowed while the officer is away from his regular place of work, while those provided for in chapter 4 are allowed to the officer while living where the work is performed.

But to us it seems that these expense provisions, so to speak, have a common denominator, and that is, that they are made to reimburse the officer for expenditures made necessary by the fact that he is called away from his home in the service of the state. Most of the state officers, for whose expenses appropriations have been made throughout statehood, live permanently at Olympia. When they are compelled to spend a few days in Seattle, Spokane, or elsewhere, their house rent or the interest on the investment, if they own their homes, their fuel, light, water, and other maintenance charges, go on. It is for this reason that they are reimbursed with respect to lodging which they are compelled to pay for in some other town or locality. It is the same, except in isolated cases, with respect to the members of the legislature. They do not break up or abandon their homes when they come to Olympia for a legislative session. The expenses there continue as usual. We have no doubt but that many state officers are absent from Olympia and on expense account a great deal more than sixty days in each biennium, though the aggregate be made up of a day or two, or a week at a time. Can it make any difference that the legislator is away from his home for sixty consecutive days?

'In our opinion, the reimbursements provided for in chapter 4, Laws of 1941, do not increase the compensation of the members of the legislature, within the meaning of section 25, Art. II of the constitution.' (Italics ours.)

In resolving the question before us, we are entitled to take judicial notice of facts that are of general notoriety and which appear in statutory enactments. See Gottstein v. Lister, 1915, 88 Wash. 462, 153 P. 595; Centralia Labor Temple Ass'n v. O'Day, 1926, 139 Wash. 331, 246 P. 930; McFerran v. Heroux, 1954, 44 Wash.2d 631, 269 P.2d 815; 31 C.J.S. Evidence § 16, p. 525; 20 Am.Jur., Evidence, 55, 57, 58, §§ 29, 32, 33; 9 Wigmore on Evidence (3d ed.), 551, 557, §§ 2572, 2580; Model Code of Evidence 320, Rule 802. In the case of legislators, we know that they are in Olympia approximately sixty days every two years, except for isolated additional periods in the event of special sessions. We know that they do not break up their homes and come to Olympia in performing their official duties at the seat of government. We know, in order to represent their respective legislative districts, that they are required by law to be residents of their districts. We, therefore, properly concluded, in the Todd case supra, that they were in Olympia and away from their usual abode, only temporarily, in the performance of their duties.

In the case of elected state officials, with whom we are now concerned, we know they represent the entire state. In the case of the governor, secretary of state, state auditor and treasurer, they are required to maintain their residences in Olympia, as provided in Art. III, § 24, of the state constitution.

In construing this provision of our constitution in respect to the location of state offices, we stated, in State ex rel. Lemon v. Langlie, 45 Wash.2d 82, 273 P.2d 464, 472:

"The governor, secretary of state, treasurer, auditor, superintendent of public instruction, commissioner of public lands and attorney general shall severally keep the public records, books and papers relating to their respective offices, at the seat of government, at which place also the governor, secretary of state, treasurer and auditor shall reside.'

'Like all other sections of our state constitution these provisions are mandatory since the section contains no express declaration to the contrary. Art. I, § 29.

'* * * We feel certain that it was the intention of the framers of our state constitution and of the people in adopting it to provide that the whole of the executive department of the state should be located and maintained at the seat of government.

'The framers of the constitution provided that all of the then known executive departments of the state should be located at the seat of government. * * *

'In view of the history of the seat of government controversy in this state, culminating as it did in the framing of Article III, § 24 and Article XIV, §§ 1 and 2 of the state constitution, we hold that it was the evident intention of the framers of the constitution and the people who adopted it to require that all of the state executive offices be maintained at the seat of government.' (Italics ours.)

We know all the state officials with whom we are concerned have their offices located in Olympia. We can conclude that, in all of these offices, necessity would demand that the official move to Olympia in order to perform his duties during his four-year term, unless he would be able to drive to and from his home to work. In the latter case, he would be living at his regular residence and there would be no expense incurred for lodging and subsistence away from his home. In the former case, he would be living in Olympia during his full term of office, which would be his place of usual abode during that period. Such a state official is aware of these physical requirements of living in Olympia, unless he be a 'commuter', when he aspires to the position, and must be held to intend to fulfill these requirements.

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