State ex rel. Livingston v. Ayer, 29691.
| Citation | 161 P.2d 429,23 Wn.2d 578 |
| Decision Date | 24 August 1945 |
| Docket Number | 29691. |
| Court | Washington Supreme Court |
| Parties | STATE ex rel. LIVINGSTON et al., County Com'rs, v. AYER, County Auditor. |
Rehearing Denied Oct. 5, 1945.
Action by the State of Washington, on the relation of Harry Livingston and others, as County Commissioners of Thurston County, against Ellis C. Ayer, as Auditor of Thurston County for a writ of mandamus to compel defendant to issue and deliver to relators and other members of the County Statistics Commission warrants in payment of their salaries as members of such commission. Judgment for relators, and defendant appeals.
Judgment reversed with instructions to enter judgment dismissing the action.
Appeal from Superior Court, Thurston County; D. F Wright, judge.
Neal Brodie & Trullinger, of Olympia, for appellant.
Levy Johnson and E. A. Philbrick, both of Olympia, for respondents.
This cause came Before the trial court on the application of relators, Harry Livingston, Joe C. Peters and H. W. Bolender county commissioners of Thurston County, and, as such, members of the county statistics commission of Thurston county, for a writ of mandamus to compel Ellis C. Ayer, as auditor of Thurston county, to issue to relators and the other members of the commission the necessary warrants in payment of salaries, as provided by Laws of 1945, chapter 258, and to deliver such warrants in the sum of $29.03 to each member for services performed in March, 1945, and in the sum of $75 per month for each and every month thereafter during the period fixed in the act. The affidavit supporting the application was signed by Harry Livingston.
The following allegation of the affidavit were admitted in the return filed by respondent, Ellis C. Ayer, in answer to an alternative writ issued by the court:
Paragraph 1. That Thurston county is a municipal corporation of the fourth class, and that relators are the duly elected, qualified and acting county commissioners of such county.
[23 Wn.2d 580] Paragraph 2. That Ellis C. Ayer is the duly elected, qualified and acting auditor of Thurston county.
Paragraph 3. That the 1945 session of the Washington state legislature enacted a law which now appears as Laws of 1945, chapter 258, entitled: 'An Act relating to veteran affairs and unemployment; preparation for rehabilitation and reconversion; creating employment statistics commissions; fixing their compensation; making an appropriation therefor; and declaring an emergency'; that this law creates in each county of the state a county statistics commission composed of various county officers, prescribes their duties, and provides that the members of such commission shall be compensated by the respective counties at a specified statutory salary for the performance of those duties.
Paragraph 4 of the affidavit states:
'That said act contained an emergency clause providing that the same should be and become effective immediately upon its passage by the legislature and signing by the governor (and) that said act was so passed and was signed by the governor on the 20th day of March, 1945.'
Respondent in his return admitted that the act contained an emergency clause and that the act was signed by the governor on March 20th. Respondent then alleged that there was in fact no emergency, that the legislature was without power to declare an emergency, and that the act did not become effective March 20, 1945, or at all.
It is alleged in paragraph 5 of the affidavit that immediately upon the taking effect of the law, the members of the statistics commission, as designated for Thurston county, met, organized and entered upon the performance of the duties prescribed by the act; that the members of the commission for Thurston county are Harry Livingston, Joe C. Peters, H. W. Bolender, county commissioners, Ellis C. Ayer, auditor, Ray Cruikshank, assessor, Ruby Swan Young, treasurer, Paul Paulk, clerk, Frank C. Tamblyn, sheriff, Marvin S. Stevens, superintendent of schools, and Levy Johnson, prosecuting attorney; that the compensation designated for each member of the statistics commission of Thurston county is seventy-five dollars per month; that in accord therewith there became due and owing to each member of the commission on the first day of April, 1945, the sum of $29.03; that the county commissioners, relators herein, directed the auditor to issue warrants of Thurston county to each member of the commission in the sum of $29.03; that respondent, as auditor of Thurston county, has refused and continues to refuse to issue the warrants in payment of the salaries of the members of the commission, as directed by the county commissioners.
Respondent in his return admitted that the members of the purported commission met and attempted to organize and enter upon the performance of the duties prescribed by the act, admitted that the members of the commission are as alleged in paragraph 5, and admitted that the act attempts to designate that the compensation for each member of the commission shall be seventy-five dollars per month; but denied that there was due and owing to each member of the commission on April 1, 1945, the sum of $29.03, or any sum whatsoever. Respondent admitted that warrants have not been issued to relators or to the other county officers who are members of the commission, and alleged that this has not been done for the reason that the provisions of Laws of 1945, chapter 258, authorizing such compensation, are void because such compensation is prohibited by section 25, article 2, and section 8, article 11, of the state constitution.
The matter came on for hearing Before the court upon the pleadings, no evidence being introduced, and thereafter, on May 16, 1945, the court made and entered findings of fact in accordance with the allegations of relators' affidavit, from which the court concluded that relators and other members of the commission were entitled to the relief asked for, and judgment was entered accordingly. The reason for the conclusion reached by the trial court is found in the following memorandum opinion:
'Inasmuch as this court is being used only as an avenue of approach to the supreme court where an adjudication, final and safe for the various county auditors to act upon, can be had; this court is extending to the legislative act that presumption of validity to which all such acts are entitled.'
The auditor has appealed from the judgment entered, and will hereinafter be referred to as appellant. The relators will be referred to as respondents.
It is contended by appellant that the trial court erred in requiring him to issue and deliver to the respective county officers of Thurston county, as members of the county statistics commission of Thurston county, warrants for services claimed to have been performed by them, or any warrants for services claimed to have been rendered pursuant to the provisions of Laws of 1945, chapter 258; that the court erred in not dismissing this action.
Appellant in his brief divides his argument into two parts. In the first part he deals with the emergency feature of chapter 258. We may say frankly that while we have grave doubts that this act is in fact necessary for the immediate preservation of the public peace, of for the immediate preservation of the public health, or for the support of the state government or its existing institutions, we have decided to express no opinion on the first question, in view of the fact that all the parties to this proceeding desire an expression by this court as to the constitutionality of chapter 258, in so far as it purports to authorize the payment of additional compensation to these county officers, as members of the county statistics commission.
Appellant contends that chapter 258 violates section 25, article 2, and section 8, article 11, of the constitution of the state of Washington, in that it increases the salaries of the county officers of Thurston county during the term for which they and each of them were elected.
While the above sections have been Before this court many times and are familiar to every member of the bar, we shall set them out herein: Section 25, article 2, provides:
'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.'
Section 8, article 11, provides:
Respondents and all the other officers of Thurston county who became members of the county statistics commission under the act are not only county officers, but also public officers.
Chapter 258 was passed after each of the officers of Thurston county had been elected to the office he is now filling, and during the term for which he was elected.
Before setting out the provisions of chapter 258 we desire to call attention to another act passed by the 1945 session, as we think it has a bearing on the conclusion we have reached in this case. The act referred to is chapter 87, and was passed by the house and senate March 6, 1945, and signed by the...
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