State ex rel. Todd v. Yelle

• Decision Date: 10 February 1941
• Docket Number: 28333.
• Citation: 110 P.2d 162,7 Wn.2d 443
• Parties: STATE ex rel. TODD et al., State Representatives, v. YELLE, State Auditor.
• Court: Washington Supreme Court

110 P.2d 162

7 Wn.2d 443

STATE ex rel. TODD et al., State Representatives, v. YELLE, State Auditor.

No. 28333.

Supreme Court of Washington, En Banc.

February 10, 1941

Original proceeding by the State of Washington, on the relation of Charles H. Todd and another, State Representatives, against Cliff Yelle, as Auditor of the State of Washington, for a writ of mandate peremptorily directing the State Auditor to issue warrants reimbursing relators for sums which they allegedly necessarily incurred by reason of their absence from their respective places of residence while members of the House of Representatives of the State legislature.

Writ issued.

MAIN and MILLARD, JJ., dissenting.

S Harold Shefelman and Charles H. Todd, both of Seattle, and Edward J. Reilly, of Spokane, for relators.

Smith Troy, Atty. Gen., and W. A. Toner, of Olympia, for respondent.

ROBINSON Chief Justice.

The relators are members of the House of Representatives of the State legislature, and have been in attendance since it began its current session at Olympia on January 13th. Invoking the original jurisdiction of this court, they pray for a writ of mandate peremptorily directing the state auditor to issue warrants reimbursing them for sums which they allege they have necessarily incurred by reason of their absence from their respective places of residence while thus engaged in the service of the state. The amounts involved are set out on vouchers sworn to by the relators and duly certified by the speaker of the house. To those vouchers are attached, as exhibits, the receipts of payees showing that the sums for which reimbursements are claimed were, on or after January 13th, actually expended for lodging and subsistence. The relators claim the right of reimbursement by virtue of the provisions of chapter 4 of the Session Laws of 1941, which was passed by the senate on January 15th, by the house on January 16th, and approved by the governor on January 21st. We quote the act in its entirety:

'An Act Appropriating the sum of forty thousand dollars ($40,000.00), or so much thereof as may be necessary for the actual and necessary expenses of the members of the Legislature for lodging and subsistance actually incurred and paid by them while absent from their places of residence in the service of the State and declaring an emergency.

'Be it enacted by the Legislature of the State of Washington:

'Section 1. That there is hereby appropriated out of the general fund of the State of Washington the sum of forty thousand dollars ($40,000.00), for the actual and necessary expenses of the members of the Legislature, actually expended by them for subsistance and lodging while absent from their usual places of residence in the service of the State, at a rate not exceeding five dollars ($5.00) per day, to be evidenced by vouchers with the necessary receipts showing such expenditures.

'Sec. 2. This act is necessary for the support of the state government and shall take effect immediately.'

The case presents but one question for decision, and that, a pure question of law. It appears from the return of the respondent auditor that the sole reason why he refuses to issue the warrants is that he fears that, if he does so, he and his sureties may be called to account upon the ground that the act above quoted is void and of no effect as being violative of section 23 or section 25 of Article II of the state constitution. The relators assert that this fear is groundless. Section 23 reads as follows: '§ 23. Each member of the legislature shall receive for his services five dollars for each day's attendance during the session, and ten cents for every mile he shall travel in going to and returning from the place of meeting of the legislature, on the most usual route.'

Similar provisions are found in the constitutions of many of the states. An illustrative example is found in section 29 of Article IV of the constitution of our neighboring state of Oregon. That section reads: '§ 29. The members of the legislative assembly shall receive for their services a sum not exceeding three dollars a day, from the commencement of the session; but such pay shall not exceed in the aggregate one hundred and twenty dollars for per diem allowance for any one session. When convened in extra session by the governor, they shall receive three dollars per day; but no extra session shall continue for a longer period than twenty days. They shall also receive the sum of three dollars for every twenty miles they shall travel in going to and returning from their place of meeting, on the most usual route. The presiding officers of the assembly shall, in virtue of their office, receive an additional compensation equal to two-thirds of their per diem allowance as members.'

Constitutional provisions are static, and properly and intentionally so, but the purchasing price of a dollar is not. No doubt, when the constitution of Oregon was adopted in 1859, a legislator could reasonably maintain himself, when absent from his usual place of residence, upon three dollars per day plus three dollars for each twenty miles of travel, and, doubtless, a legislator could reasonably maintain himself at Olympia upon five dollars per day and mileage at ten cents per mile when our own constitution was adopted thirty years later. But it is no longer possible to conveniently do so, and has not been for a number of years. Chapter 4 was enacted by the present legislature with the hope and intent of providing a remedy for an admittedly unfortunate condition.

Before discussing the precise question presented for decision, and as a method of approach thereto, it seems desirable to clear away certain prevalent misunderstandings and misapprehensions regarding the general subject matter. A widespread, but mistaken, impression exists that the people, by direct vote, decisively rejected the subject matter of chapter 4 in the fall election of 1940. The fact is that, in the fall election of 1940, the people rejected, by a decisive majority, a proposed constitutional amendment designed to add a new section to Article III. See Laws 1939, p. 1027. This proposed section read as follows: 'Section 26. The people by initiative, or the legislature by appropriate enactment, may fix, change, raise or lower the salary of any constitutional or other officer of the state, including members of the legislature: Provided, however, The salary of the legislators shall not exceed Fifty Dollars per month. Any and all constitutional provisions to the contrary are hereby repealed.'

Previous sections in Article III, towit, sections 14, 16, 17, 19, 20, 21, and 22, fix a maximum limit upon the salaries of the governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, and superintendent of public instruction. The adoption of the amendment would not only have repealed and cancelled all of these maximum salary provisions, but would also have authorized the legislature, without any check whatever, to either raise or lower the salaries of all of these officials and all other state officers. Furthermore, it is perfectly plain that a voter might be quite willing that the legislators should receive reimbursement with respect to sums actually expended for lodging and subsistence when absent from their usual places of abode in the service of the state, and, yet, be altogether unwilling to grant them the power to vote themselves a salary up to fifty dollars per month, payable throughout their terms in office.

It is also widely, but mistakenly, believed that this court has heretofore decided the exact question presented by the relators, and adversely to their contention, in the case of State ex rel. Banker v. Clausen, 142 Wash. 450, 253 P. 805. That case was subsequently approved in State ex rel. Mills v. Clausen, 161 Wash. 700, 296 P. 1119, the per curiam opinion therein reciting that the two cases presented identical issues. At the hearing of this cause, the respondent, invoking the doctrine of stare decisis, vigorously contended that we are bound by those decisions, and must, therefore, refuse the writ prayed for in the case at bar. With this contention we do not agree. The relator in the Banker case [142 Wash. 450, 253 P. 806], founded his alleged right to the writ upon a mere resolution which read as follows:

'Resolved, by the House of Representatives of the State of Washington:

'That the sum of five dollars ($5.00) be allowed to each member of the House of Representatives, for each day of the twentieth session of the legislature of the state of Washington for expenses incurred in attending the session of the legislature at the state capital, and that the speaker and the chief clerk be and they are hereby authorized to make out the necessary vouchers upon which warrants for the same will be drawn, the said sums to be paid out of moneys appropriated for the expenses of the twentieth legislature.'

It is axiomatic that a writ of mandate can only be issued to enforce a right clearly founded in or granted by law. It is equally clear that a house resolution is not a law. A law must be enacted either by popular initiative or by the legislature, and, when enacted by the legislature, must be by bill Const. Art. II, § 18, and a bill cannot become a law until it is enacted by both houses, Art. II, § 22, and approved by the governor or re-passed over his veto, Art. III, § 12. Section 18 of Article II of the constitution reads as follows: '§ 18. The style of the laws of the state shall be: 'Be it enacted by the legislature of the state of Washington;' and no laws shall be enacted except by bill.' (Italics ours.)

This section alone necessitated the result arrived at in the Banker case, and the result would have been completely...