State v. Clausen

• Decision Date: 11 February 1914
• Citation: 78 Wash. 103,138 P. 653
• Parties: STATE ex rel. JONES v. CLAUSEN, State Auditor.
• Court: Washington Supreme Court

138 P. 653

78 Wash. 103

STATE ex rel. JONES v. CLAUSEN, State Auditor.

Supreme Court of Washington

February 11, 1914

Original application for mandamus by the State, on relation of E. F Jones, against C. W. Clausen, as Auditor of State of Washington. Writ ordered to issue.

A. J. Falknor and R. G. Sharpe, both of Seattle for plaintiff.

W. V Tanner and Lindsay L. Thompson, of Olympia, for defendant.

CHADWICK J.

Relator alleges that he is now, and ever since the 1st day of September, 1909, has been, the Deputy State Auditor. He brings this proceeding against his principal, whose duty it is to audit all claims and draw warrants in payment of all salaries provided by law, to issue unto him a warrant for his November, 1913, salary at the rate of $1,800 per year, or $150.

The state Legislature at its first session passed an act fixing the salary of the Deputy State Auditor at $1,200 per year, payable quarterly. Laws 1890, p. 635; Rem. & Bal. Code, § 9005. The Legislature at its last session (Laws 1913, p. 8) passed a general appropriation bill. The title of the act is as follows:

'An act making appropriations for the purchase of land for, construction of buildings at; for maintenance of and sundry expenses at the various state institutions, schools and state offices, and for the sundry civil expenses of the state government and for miscellaneous purposes for the fiscal term beginning April 1, 1913, and ending March 31, 1915, except as otherwise provided, and making an appropriation for certain deficiencies, and declaring this act shall take effect April 1, 1913.

'Be it enacted by the Legislature of the state of Washington: * * * For office of State Auditor * * * salary of Deputy State Auditor, $3,600.'

Acting under the advice of the Attorney General, respondent has refused to audit and allow relator's salary voucher for a greater sum than the $100 per month, as provided by the act of 1890. Many other officers and employés of the state are similarly affected, and this proceeding has been brought to obtain the judgment of this court.

Whether the Legislature can provide in a general appropriation bill for an increase of salary to any officer whose salary has been theretofore fixed by a general law, and, if so, whether the title of the general appropriation bill of 1913 is sufficient under article 2, §§ 19 and 37, of the state Constitution, are the questions to be decided. These questions so blend that we will not attempt to discuss them separately but will treat the case in the order in which it most naturally presents itself.

Before going into the law of the case, a résumé of the practice of the Legislature in the matter of providing salaries for the employés of the state will not be out of place, for no safer guide to legislative intent is to be found than the settled practice of the former legislative bodies. Keeping in mind the act of 1890, fixing a salary of $1,200 per year, reference to the general appropriation bills from that time to the present reveals the fact that the Legislature appropriated and the State Auditor has paid to the Deputy State Auditor salaries as follows: 1891, $1,800 per year; 1893, $1,800 per year; 1895, $1,500; 1897, $1,200; 1899, $1,200; 1901, $1,500; 1903, $1,800; 1905, $1,800; 1907, $1,800; 1909, $1,800; 1911, $3,600 for the biennium; 1913, $3,600. This practice has pertained not alone to the office of Deputy State Auditor. It has been pursued with reference to almost every employé of the state, especially those who occupy subordinate positions and whose salaries were fixed at a time when they seemed sufficient, but which are admittedly meager when measured by present conditions. The assistants to the Attorney General, State Treasurer, State Auditor, State Land Commissioner, and Secretary to the Governor are but a few of the instances that might be cited. To this practice the State Auditor has hitherto subscribed and has issued warrants for the amounts fixed in the appropriation bill, notwithstanding the several acts of 1890 fixing the salaries of state officers and their deputies. All of this was within the knowledge of the Legislature at the time the act of 1913 was passed. For 20 years and more it has been the settled practice of the Legislature and executive departments of the state to create offices and employments and to fix salaries of new and old officers by simple reference to the office in the general appropriation bill. It has been, and it well should be, the policy of the courts in construing statutes to ascertain the intent of the legislative branch of the government. No surer searchlight can be found than the settled practice of the legislative body, for a habit, if tolerated and acquiesced in for a period of years by the people, and if it in no way offends against any provision of the Constitution, becomes a quasi custom, and of custom it is said there can be no higher law.

Cotemporaneous construction of an appropriation bill for a period of 30 years by the Legislature and the executive was held in Harrison v. Mutual Ben. Soc., 61 Kan. 134, 59 P. 266, to be enough to compel a holding of a legislative intent to increase the fees of an officer notwithstanding a prior law fixing his fees. This method of meeting the demand for new places and of increasing the salaries of offices created by former acts has never been challenged in this state. Wherever questioned it has been generally sustained.

In United States v. Fisher, 109 U.S. 143, 3 S.Ct. 154, 27 L.Ed. 885, the salary of the Chief Justice of the territory of Wyoming was fixed at $3,000 per annum. Act June 17, 1870, c. 130, 16 Stat. 152. On March 31, 1877, Congress passed an appropriation bill appropriating for the salary of the Chief Justice $2,600 per annum. Subsequent appropriation bills made the same provision. It was contended that the salary was fixed by the original act, and that, notwithstanding the appropriation bill, the Chief Justice was entitled to a greater salary. It was held: 'Not only do the words of the statute make the intention of Congress manifest, but that intention is plainly repugnant to the former statute, which fixes the yearly salary of the Chief Justice at $3,000. It is impossible that both acts should stand. No ingenuity can reconcile them. The later act must therefore prevail, and the earlier act must for the time covered by the appropriation acts above referred to be considered as suspended.'

The salary of interpreters in the Indian country was fixed by Congress at $400 per annum. In subsequent appropriation bills an appropriation of only $300 was made to meet this salary. It was held: 'This course of legislation, which was persisted in for five years, distinctly reveals a change in the policy of Congress on this subject, namely, that instead of establishing a salary for interpreters at a fixed amount, and cutting off all other emoluments and allowances, Congress intended to reduce the salaries and place a fund at the disposal of the Secretary of the Interior, from which, at his discretion, additional emoluments and allowances might be given to the interpreters. The purpose of Congress to suspend the law fixing the salaries of interpreters in Nebraska at $400 per annum is just as clear as its purpose to suspend the section forbidding any further emoluments and allowances. Our opinion is, therefore, that the intention of Congress to fix, by the appropriation acts to which we have called attention, the annual salaries of interpreters for the time covered by those acts at $300 each is plain upon the face of the statute. The whole question depends on the intention of Congress as expressed in the statutes. Whether a simple failure by Congress to appropriate any or a sufficient sum to pay the salary of an officer fixed by previous law is of itself an expression of a purpose of Congress to reduce the salary we do not now decide. That is not this case. On the contrary, in this case Congress has in other ways expressed its purpose to reduce, for the time being, the salaries of the interpreters. This purpose is, of course, irreconcilable with the provisions of the Revised Statutes on the same subject, and those provisions must be considered as having been suspended until they were finally repealed by the act of May 17, 1882.' United States v. Mitchell, 109 U.S. 146, 3 S.Ct. 151, 27 L.Ed. 887.

The salary of our minister to Turkey was fixed at $10,000. Act March 3, 1875, c. 153, 18 Stat. 483 (U. S. Comp. St. 1901, p. 1150). In 1882, 1883, and 1884 Congress appropriated the sum of $7,500 to meet this salary. It was contended by General Lew Wallace, who was immediately affected, that he was entitled to receive the salary fixed by the general law and was not bound to receive as full compensation the amount appropriated, and he brought suit in the Court of Claims to recover the difference, or $2,500. From an adverse decision General Wallace appealed, and the court affirmed the judgment. The reasoning of the court does not help us, but the result of the decision, when considered with other decisions, of the same court, permits it to stand as a sustaining authority.

The salary of certain Indian agents was fixed by the general statute at $1,800 per year. Congress for a term of years appropriated no more than $1,500 per year. It was held 'Congress, in the ten appropriation acts passed after the Revised Statutes and before the close of appellant's term of service, did not recognize the salary of $1,800 in respect to any one of the agencies in California. It discriminated between them, giving different salaries to different agencies; some of these being in excess of any prescribed by section 2052. The fact of discrimination, and the constant disregard of section 2052 in respect to all agencies,...