State v. Clausen

• Decision Date: 25 February 1927
• Docket Number: 20498.
• Citation: 142 Wash. 450,253 P. 805
• Court: Washington Supreme Court
• Parties: STATE ex rel. BANKER, State Representative, v. CLAUSEN, State Auditor.

253 P. 805

142 Wash. 450

STATE ex rel. BANKER, State Representative, v. CLAUSEN, State Auditor.

No. 20498.

Supreme Court of Washington, En Banc.

February 25, 1927

Original proceedings by the State on the relation of E. F. Banker State Representative, for a writ of mandate to C. W. Clausen as State Auditor. Writ denied.

Mackintosh C.J., and French, Parker, and Askren, JJ., dissenting.

Judson F. Falknor, of Seattle, Charles W. Hall, of Vancouver, Samuel R. Buck, of Friday Harbor, and Joseph H. Griffin and Ward Hunt, both of Seattle, for relator.

John H. Dunbar and E. W. Anderson, both of Olympia, for respondent.

TOLMAN J.

Relator, who is a member of the House of Representatives of the present Legislature, seeks by this proceeding a writ of mandate requiring the state auditor to issue to him a warrant for $105, payable from the moneys appropriated for the expenses of the present session of the Legislature by chapter 1 of the Laws of 1927. It is alleged and admitted by the return:

That relator is such member. That he has been in attendance upon the legislative session from January 10 to January 30, 1927, inclusive. That the House has passed a resolution which reads:

'Resolved, by the House of Representatives of the State of Washington, that the sum of $5 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.'

That a voucher for 21 days at $5 per day, totaling $105, has been regularly issued to the relator, which voucher respondent has refused to recognize.

The return further 'alleges that the relator, E. F. Banker, has been paid as a member of the House of Representatives of the state of Washington all remuneration and reimbursement to which he is lawfully entitled for the period from January 10, 1927, to January 30, 1927, both dates inclusive; that he has been paid for his services the sum of $5 per day for each day's attendance upon sessions of the Legislature during said period, and that he has also been paid mileage at the rate of ten cents for every mile of travel in going to and returning from the place of meeting of the Legislature on the most usual route.'

Chapter 1, Laws of 1927, is the ordinary and usual act appropriating the amount therein specified for the purpose of paying the expenses of the Twentieth Legislature of this state.

Relator seems first to contend that, the appropriating act being a valid and constitutional enactment, the court should not look behind nor beyond that act in determining whether or not the Legislature has acted lawfully in providing for the expenditure of the money so appropriated. If we understand what is meant by this contention, we cannot give it our sanction. The appropriating act provides money for the expenses of the Legislature, and, if either House, or both acting concurrently, shall attempt by any means to withdraw and apply any part of the moneys so appropriated to another and foreign or forbidden purpose, such attempt can be reviewed by the courts in a proper proceeding. So here we think the resolution must be construed with the appropriating act, and, both taken together, are in legal effect the same as though there were written into the appropriating act a proviso in the language of the resolution, thereby directing that of the moneys appropriated a portion shall be used to pay each house member $5 for each day of the session for expenses incurred in attending the session at the state capitol. In other words, we hold that the act and resolution, when construed together, as they must be, show an attempt to withdraw money, appropriated for legislative expenses, for the personal use and benefit of the individual members of the House, and unless the Legislature has the power to pay such individual expenses, the relator must fail. We assume that each House, acting alone, may declare, fix, and allow its own proper expenses, so no point is made of the fact that the resolution here in question is not concurred in by the Senate.

The real question here to be determined is whether or no the Legislature or either House thereof has the power under our Constitution to provide for the payment to individual members of expenses incurred by them in attending its session at the state capitol.

The only provision of our Constitution which we have found necessary to be considered in answering the question is section 23, article 2, which reads:

'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.'

In approaching a construction of this provision of the Constitution we must bear in mind all of the rules to be applied to constitutional construction, among which are: (1) That the Constitution is a limitation of power, and the Legislature is supreme, except as its power is limited by the Constitution. Walker v. Spokane, 62 Wash. 312, 113 P. 775, Ann. Cas. 1912C, 994; Standard Oil Co. v. Graves, 94 Wash. 292, 162 P. 558. (2) In construing the Constitution, words are to be given their ordinary meaning. Bronson v. Syverson, 88 Wash. 264, 152 P. 1039, L. R. A. 1916B, 993, Ann. Cas. 1917D, 833. (3) All doubts or ambiguities are to be resolved in favor of the constitutionality of an act of the Legislature. State ex rel. Reclamation Board v. Clausen, 110 Wash. 525, 188 P. 538, 14 A. L. R. 1133; Nipges v. Thornton, 119 Wash. 464, 206 P. 17; State ex rel. Mullen v. Howell, 107 Wash. 167, 181 P. 920; State ex rel. Carroll v. Superior Court, 113 Wash. 54, 193 P. 226. Also (4) the well-settled and often applied rule generally expressed by law writers about as follows:

'In construing a Constitution, resrot may be had to the well recognized rule of construction contained in the maxim, expressio unius est exclusio alterius, and the expression of one thing in a Constitution may necessarily involve the exclusion of other things not espressed; but this rule, like all other mere rules of construction applied to ambiguous words, must yield to proof of surrounding facts and circumstances which satisfactorily demonstrates that the meaning intended by the parties was different.' 6 R. C. L. 49.

See, also, 12 C.J. 707.

And last, but not least, (5) uniformity of construction. 'A cardinal rule in dealing with Constitutions is that they should receive a consistent and uniform interpretation, so that they shall not be taken to mean one thing at one time and another thing at another time, even though the circumstances may have so changed as to make a different rule seem desirable. In accordance with this principle, a court should not allow the facts of the particular case to influence its decision on a question of constitutional law, nor should a statute be construed as constitutional in some cases and unconstitutional in others involving like circumstances and conditions. Furthermore, Constitutions do not change with the varying tides of public opinion and desire. The will of the people therein recorded is the same inflexible law until changed by their own deliberative action; and therefore the courts should never allow a change in public sentiment to influence them in giving a construction to a written Constitution not warranted by the intention of its founders.' 6 R. C. L. 46.

There are, of course, no words of express limitation in section 23 of article 2, and it is our duty to determine what was meant by those who drew the provision nearly 40 years ago. Relator earnestly contends that its authors meant that the Legislature should receive $5 per day and 10 cents per mile as compensation, while the respondent just as earnestly contends that $5 per day was intended as compensation for services, and the mileage was intended as an allowance for expenses. If the first construction be the correct one, then as the Constitution allowed nothing for expenses, the rule of expressio unius est exclusio alterius does not apply, and the Legislature may properly act in the matter, but, if the respondent is right, and the Constitution allows 10 cents per mile as expenses, the exclusio rule does or may apply, and, if it does, the power of the Legislature is thereby limited. Neither construction is so ungrammatical as to cause its rejection, and we must look to other rules for guidance. Compensation in the most common and ordinary use of the word means pay, but it also includes restitution or a balancing of accounts, so that the title words of the section may cover both pay for services and the repayment of amounts expended. The framers of the Constitution must have had in mind the conditions which then existed. This was then a territory about to be admitted into the sisterhood of the states. It was traversed from east to west by but one line of railroad. Many of the legislators then coming from the northeasterly and the southeasterly portions of the new state might and would have to travel many miles by stage or private conveyance before they could reach a line of railway, and then perhaps 400 or more miles of railway travel to reach the seat of government. Days would be consumed in the journey. Not only were railway fares then high, but stage fares were perhaps higher per mile traveled, meals and lodgings must necessarily be procured along the way, and it seems reasonable to...