Original
application by the State, on the relation of Herbert M
Hamblen, for a writ of mandamus to compel Cliff Yelle, State
Auditor, to issue a warrant for payment of relator's
expenses as a member of the State Legislative Council. On
respondent's demurrer to, and motion to deny, the
application.
Writ
granted.
SCHWELLENBACH
J., and MALLERY, C.J., dissenting.
HILL
J., dissenting in part.
Ford Q.
Elvidge, of Seattle, for relator.
Smith
Troy, Atty. Gen., and Smithmoore P. Myers, of Olympia, for
respondent.
MILLARD
Justice.
This is
an original application for a writ of mandamus to compel the
state auditor to issue a warrant to pay the expenses of the
relator incurred under a statute, Laws 1947, chapter 36, p.
60, of the 1947 legislature creating what is denominated in
that statute as a 'State Legislative Council.'
Respondent demurs to and moves denial of the application upon
the ground that as relator is a member of the legislature
which enacted the statute cited, he is disqualified from
serving upon the legislative council, as such membership
constitutes a civil office which the state
constitution, Art. II, § 13, reading as follows, forbids the
relator from holding: 'No member of the legislature
during the term for which he is elected shall be appointed or
elected to any civil office in the state which shall have
been created, or the emoluments of which shall have been
increased, during the term for which he was elected.'
Chapter
36, Laws of 1947, reads as follows:
'Section
1. There is hereby created a 'State Legislative
Council' hereinafter referred to as the council, which
shall consist of ten senators and eleven representatives
from the Legislature of the Stae of Washington, including
the President pro tem of the Senate and the Speaker of the
House of Representatives, said council to be appointed by
the President of the Senate and the Speaker of the House of
Representatives at least ten days Before the close of the
1947 session of the Legislature, and at least ten days
Before the close of each regular session thereafter. The
President of the Senate and the Speaker of the House of
Representatives shall prepare their lists of appointees so
that the whole membership of the council shall include at
least one individual from each United States Congressional
District within the state and so that not more than twelve
of the council members shall be members of any one
political party. The said lists of appointees shall be
subject to confirmation as to the senate members by the
Senate and as to the house members by the House of
Representatives. In the event of a failure to appoint
council members within the time above stated, or in the
event of a refusal by either Senate or House of
Representatives to confirm appointments on the council,
then the members on the council from either house in which
there is a failure to appoint or confirm shall be elected
forthwith by the members of such house.
'Sec.
2. The council shall have the following powers and duties:
(1) To perform, either through the council as a whole or
through subcommittees thereof, all duties and functions
customarily delegated to special interim legislative
committees;
'(2)
To examine and study the administrative organization and
procedures of the state government, its offices, boards,
committees,
commissions, institutions and other state agencies and to
make recommendations, where found advisable, directed to
the elimination of unnecessary overlapping or duplication
of functions, procedures and expenditures, and
to the promotion of economy and efficiency in state
government;
'(3)
To make current examination and reports concerning the
current condition of all state funds, appropriations and
other state moneys; concerning whether or not such
appropriations are being currently expended for the
purposes and within the statutory restrictions provided by
the Legislature; and concerning the current availability of
revenue to meet expenditures under appropriations;
'(4)
To make such other studies and examinations of the state
government and its state agencies as it may find advisable
and to hear complaints, hold hearings, gather information
and make findings of fact with respect thereto;
'(5)
To receive messages and reports in person or in writing
from Governor or any other state officials and to attend
generally to any and all business addressed to or affecting
the Legislature during the intereim between regular
legislative sessions; and
'(6)
To make reports from time to time to the members of the
Legislature and to the public with respect to any of its
findings or recommendations. The council shall keep
complete minutes of its meetings. The council shall make
and distribute its final report to the members of the
ensuing Legislature at least ten days prior to the
convening of the Legislature. '(7) To cooperate, act
and function with similar councils or committees of other
states, with the Council of State Governments, and with
other interstate research organizations.
'Sec.
3. In the discharge of any duty herein imposed, the council
and its subcommittees shall have the authority to examine
and inspect all files, records and accounts of any state
office, department, institution, board, commission or
agency, and to administer oaths, issue subpoenas, compel
the attendance of witnesses and the production of any
papers, books, accounts, documents and testimony, and to
cause the deposition of witnesses, either residing within
or without the state, to be taken in the manner prescribed
by law for taking depositions in civil actions in the
superior courts. In case of disobedience on the part of any
person to comply with any subpoena issued in behalf of the
council, or on the refusal of any witness to testify to any
matters regarding which he may be lawfully interrogated, it
shall be the duty of the superior court of any county, or
of the judge thereof, on application of the council to
compel obedience by proceedings for contempt,
as in the case of disobedience of the requirements of a
subpoena issued from such court or a refusal to testify
therein. Each eitness who appears Before the State
Legislative Council by its order, other than a state
official or employee, shall receive for his attendance the
fees and mileage provided for witnesses in civil cases in
courts of record, which shall be audited and paid upon the
presentation of proper vouchers signed by such witness and
approved by the secretary and chairman of the council.
'Sec.
4. The first meeting of the State Legislative Council shall
be held on the third Monday in June, 1947, and thereafter
meetings shall be held throughout the legislative interim
at such times and at such places as the council may
determine. Subcommittees of the council may meet at such
additional times and in such places as may be convenient or
necessary in carrying out their delegated duties.
'Sec.
5. The council shall have authority to select and employ an
executive secretary, together with such other clerical,
legal, accounting, research, and other assistants as it may
deem desirable, whose compensation and salaries shall be
fixed by the council.
'Sec.
6. The members of the council shall be reimbursed for their
expenses incurred while attending sessions of the State
Legislative Council or meetings of any subcommittees of the
council or while engaged on other council business
authorized by the council to the extent of fifteen dollars
($15) per day plus five cents (5¢) per mile in going and
coming from State Legislative Council sessions or
subcommittee meetings or for travel on other council
business authorized
by the council. All expenses incurred by the council,
including salaries of employees, shall be paid upon voucher
forms as provided by the State Auditor and signed by the
chairman or vice-chairman of the council and attested by
the secretary of said council, and the authority of said
chairman and secretary to sign vouchers shall continue
until their successors are selected in each ensuing session
of the Legislature. Vouchers may be drawn upon funds
appropriated generally by the Kegislature for legislative
expenses or upon any special appropriation which may be
provided by the Legislature for the expenses of the
council.
'Sec.
7. The State Legislative Council shall have authority to
make its own rules and regulations governing the conduct of
its business not otherwise prescribed in this act. The term
of office of all council members shall be from time of
confirmation or election until the convening of the next
session of the Legislature. Vacancies on the
council among the senate members of the council may be
filled by appointment by the remaining senate members.
Vacancies on the council from among the members of the
House of Representatives may be filled by appointment by
the remaining house members. All such vacancies shall be
filled from the same political party as that of the member
whose seat was vacated. All of the minutes, records and
files of the council and its subcommittees shall be
delivered over by the council to the Speaker of the House
of Representatives or to the President of the Senate at the
convening of each new session of the Legislature, which
minutes, records and files shall be held subject to the
order of the Senate and House of Representatives, and shall
thereafter be delivered over to the members of the
successing legislative council as soon as the newly
constituted council has been appointed and organized in
each ensuing session of the Legislature.
'Sec.
8. If any section, subsection, paragraph or provision of
this act shall be held invalid by
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