I also concur to the effect that, if a crime were charged, the evidence does not establish the charge.
ON REHEARING. [En Banc. October 25, 1943.] STEINERT, J.
On July 26, 1943, a department of this court rendered a decision, reported ante p. 590, 140 P.2d 298, reversing a judgment of the superior court for King county convicting and sentencing defendant, Carroll Carter, of and for the crime of collecting or receiving a rebate of employees' wages. That decision was encompassed in two separate written *Page 614 opinions contemporaneously filed. One of the opinions, signed by the author thereof and concurred in by a second judge, was rested solely upon the ground that the allegations of the information against the defendant and the evidence in support of the charges did not constitute or establish a crime as defined by the applicable statute. A third judge concurred merely in the result of the reversal. A fourth judge, author of the other written opinion in the case, concurred in the result of the first opinion, but solely and expressly upon the ground that the state had failed to prove that the defendant had in fact collected or received from any employee a rebate of such employee's wages. The fifth judge concurred in the latter opinion. The second judge referred to above also concurred in that opinion to the extent of what was said therein with reference to the insufficiency of the state's evidence.
Upon the filing of the two opinions, the prosecuting attorney for King county filed a petition for rehearing, upon several alleged grounds: (1) that the opinion of only three judges holding the applicable statute ineffective as to the charges involved in the information does not constitute a decision by the supreme court in accordance with the requirements of Art. IV, § 2, of the Washington constitution; (2) that another charge of a similar nature is pending against the defendant, and public interest requires that the question of the effectiveness of the pertinent statute be decided by the entire court after a hearingEn Banc; and (3) that the concurring written opinion referred to above failed to take into consideration certain vital evidence upon which the jury was entitled to find the defendant guilty of the charges contained in the information.
The petition for rehearing was granted; the cause was subsequently reargued before the entire court; and the matter was thereafter assigned for a further opinion. *Page 615
The information in this case contained eight counts, each of which charged the defendant, Carroll Carter, with the commission of the crime of collecting or receiving from an employee in the office of the county treasurer of King county a rebate of a part of the wages theretofore paid to such employee by the county. The evidence adduced by the state in support of the charges may be summarized as follows:
On January 11, 1943, the defendant took office as county treasurer of King county. Immediately prior to that time he had been holding the office of county clerk of the same county. During a period of many years preceding his most recent induction into office, he had contracted an indebtedness of approximately thirty-five hundred dollars, the greater part of which was for political expenditures. In consequence of his financial condition, an arrangement had been made whereby a finance company in Seattle received the checks for salary earned by the defendant as county clerk and made payments therefrom upon his indebtedness.
Throughout the fall of 1942, Ernest A. Geisert, right-of-way agent in the county engineer's office, managed the defendant's campaign for the office of county treasurer. During that same period, and for many years prior thereto, Earl S. Kline had been employed in the county treasurer's office, in charge of the warrant department, at a salary of two hundred dollars a month. When the defendant took office as county treasurer on January 11, 1943, he appointed Geisert as one of his deputies and elevated Kline to the position of chief clerk in that office, at an increased salary of two hundred sixty-five dollars a month. The other employees, including those who had been permitted to retain their former connection with the county treasurer's office, were also given increases in salary. These increases were effected by reducing the total number of employees in the office as provided for in the existing *Page 616 budget and dividing among the remaining employees the amount thus saved.
In the latter part of January, 1943, Geisert at the instance of the defendant called on the finance company to ascertain the amount of defendant's outstanding indebtedness and learned that it approximated thirty-five hundred dollars. The purpose at that time was to secure from a bank a loan in the necessary amount, upon defendant's promissory note which Geisert was to execute as cosigner.
About that same time, Kline, learning from general rumor that defendant was heavily involved financially, conceived the idea of having the employees in the county treasurer's office raise, among themselves, a fund with which to pay off a substantial part of defendant's indebtedness.
In a conversation with Geisert on Friday, January 29th, Kline learned what the amount of that indebtedness was, and on the same day he posted notice of a meeting of the office employees to be held the next afternoon.
At that meeting, which was attended by all of the appointive office employees, Kline opened the discussion by stating that their "new boss," the defendant, had taken steps to see that they were well treated, and that they should all feel satisfied to work for "a man like that." Then, after explaining that the defendant had contracted a "political debt" of about thirty-five hundred dollars, Kline stated that the meeting had been called to ascertain the opinion of those present "as to liquidating the debt for Mr. Carter." After some general discussion, it was suggested that the amount be raised by contributions from the employees in proportion to their respective salaries. The suggestion was adopted and Kline agreed to compute the amount of each employee's proposed contribution and make the collections accordingly. The defendant was not present at that meeting, and it was understood by *Page 617 those in attendance that the matter was to be kept secret from him until the full amount was raised, his outstanding debts paid, and receipts therefor presented to him.
Pursuant to the understanding previously had, Kline computed the amounts of the expected contributions on the basis of a sum equivalent to ten per cent of each employee's salary during each of the next three months. On the following Monday and Tuesday, February 1st and 2nd, Kline collected from a number of the employees a total sum of about twelve hundred dollars, and turned the amount over to Geisert, who placed it in the county treasurer's vault, in a safe deposit box, or compartment, to which Geisert alone had a key. Some of the employees, however, being or becoming dissatisfied with the proposed arrangement for contribution, declined thereafter to take part, and later voluntarily resigned their positions.
Because of rumors that in the meantime had been circulating in the courthouse concerning the meeting of the previous Saturday, Kline on Tuesday, February 2nd, went to the defendant privately and explained to him fully all that had been done in the way of raising the intended contribution. The defendant expressed his surprise, but at the same time voiced his deep appreciation.
About this same time, some one, whose identity was not revealed at the trial other than that he was in the treasurer's office, made complaint to the chief deputy prosecuting attorney that the employees in the office of the treasurer were rebating a portion of their wages to the defendant. The chief deputy at once called on the defendant and asked for an explanation. Defendant admitted the fact of his personal indebtedness; admitted that he knew that a meeting of his employees had been held and a fund raised; and admitted that twelve hundred dollars thus collected was then in the treasurer's office safe. He denied, however, that he *Page 618 had authorized the meeting, or that he had known anything about it prior to, or during, the time it was held, or that he had anything to do with raising the funds.
Thereafter, the prosecuting attorney himself called on the defendant and was given the same version of the matter. The prosecutor, however, took the position that the money should be returned at once to the employees and so advised the defendant. The prosecutor then further stated that, unless the money was returned, he would be compelled to file charges against the defendant. Throughout that conversation, defendant insisted that the contributions did not constitute rebates, and that there had been no violation of law. About two weeks later, the money not having been returned to the employees, the prosecutor filed the information involved in this appeal. Thereafter, Kline continued to make collections from the employees, down to the time of the trial in the superior court. The total amount collected by him and turned over to Geisert was $1,428.
The jury returned a verdict finding defendant guilty upon each of the eight counts of the information. From the judgment on the verdict, the defendant appealed.
The question to be determined in this opinion is whether the evidence as outlined above is sufficient, under the particular statute here involved, to convict the defendant appellant of the crime of collecting or receiving from a county employee a part of the wages theretofore paid by the county to such employee.
The statute on which this prosecution is based is § 1, chapter 72, p. 187, Laws of 1941, now appearing as Rem. Supp. 1941, § 7612-21. That section is embodied in a legislative act dealing with the rebate of wages and entitled:
"An Act relating to labor; declaring the rebating of wages, underpayment of agreed wages and certain deductions from wages to be unlawful; providing penalties; and amending section 1 of chapter 195 of the Laws of 1939." *Page 619
To make clear our subsequent discussion, we quote the body of the act in its entirety:
"Section 1. Section 1 of chapter 195 of the Laws of 1939 (section 7612-21 of Remington's Revised Statutes, supplement; section 3552-31 of Pierce's Code) is hereby amended to read as follows:
"Section 1. Any employer or officer, vice-principal or agentof any employer, whether said employer be in private business oran elected public official, who
"(1) Shall collect or receive from any employee a rebate ofany part of wages theretofore paid by such employer to suchemployee; or
"(2) Wilfully and with intent to deprive the employee of any part of his wages, shall pay any employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance, or contract; or
"(3) Shall wilfully make or cause another to make any false entry in any employer's books or records purporting to show the payment of more wages to an employee than such employee received; or
"(4) Being an employer or a person charged with the duty of keeping any employer's books or records shall wilfully fail or cause another to fail to show openly and clearly in due course in such employer's books and records any rebate of or deduction from any employee's wages; or
"(5) Shall wilfully receive or accept from any employee any false receipt for wages;
"Shall be guilty of a misdemeanor." (Italics ours.)
The information in this case charges a violation of that portion of the statute appearing above in italics.
Section 2 of the original act, passed in 1939 (Laws of 1939, chapter 195, p. 648, § 2; Rem. Rev. Stat. (Sup.), § 7612-22 [P.C. § 3552-32]), was not affected by the 1941 act. It provides that § 1 of the act shall not make it unlawful for an employer to withhold or divert any portion of an employee's wages when required or empowered so to do by state or Federal law or when adeduction has been expressly authorized in writing in advance by the employee for a lawful purpose accruing to the benefit of such employee, nor shall § 1 *Page 620 make it unlawful for an employer to withhold deductions for medical, surgical, or hospital care or service, pursuant to any rule or regulation, provided that the employer derives no financial benefit from such deduction and the same is openly, clearly, and in due course recorded in the employer's books.
[2] One of the questions presented upon the appeal is whether the appellant herein is an "employer" within the meaning of the act here involved. Since that question is fundamental to a further consideration of the case, we give it our first attention.
The comprehensive scope of the term "employer" as used in the act is indicated by the accompanying phrase "whether said employer be in private business or an elected public official." Giving that phrase its full significance, we think it is plain that the antecedent word "employer" is used in the act in a two-fold sense: (1) as referring to the individual, association of individuals, or corporation engaged in private business, for whom an employee performs the services for which he is hired; and (2) as referring to a person, such as an elected public official, who is authorized to appoint or hire another person to perform services for a municipality or governmental agency of which the elected official is the head.
The county treasurer, who is an elected public official, is by law authorized to appoint deputies and to remove them at his pleasure. Rem. Rev. Stat., § 4108 [P.C. § 1822]. In the one sense, then, the county is the employer of appellant's deputies, and in the other sense the appellant himself is the employer. By specific inclusion in the statute itself, and by accepted definition as well, the appellant was, and is, an "employer" within the meaning of the legislative act.
[3] The crucial, as well as the difficult, question presented by this case concerns the word "rebate," taken in connection with the word "wages," as those words appear in the statute. *Page 621
It will be noted that the legislative act in question relates to labor and wages, and that the fundamental purpose of the legislation, as expressed in both the title and the body of the act, is to protect the wages of an employee against any diminution or deduction therefrom by rebating, underpayment, or false showing of overpayment of any part of such wages. The act is thus primarily a protective measure, rather than a strictly corrupt practices statute. In other words, the aim or purpose of the act is to see that the employee shall realize the full amount of the wages which by statute, ordinance, or contract he is entitled to receive from his employer, and which the employer is obligated to pay, and, further, to see that the employee is not deprived of such right, nor the employer permitted to evade his obligation, by a withholding of a part of the wages, or by a device calculated to effect a rebate of a part of them, or by having the employer's books purportedly show an overpayment of compensation.
Following somewhat the thought above expressed, appellant contends that the word "rebate" means the return of something to the source from which it originally came, and that since, in this instance, the wages of the employees were paid by the county, there can be no rebate thereof unless the portion returned finds its way back into the funds of the county. Dictionaries are resorted to by appellant for etymological definition of the word.
It is at once apparent, of course, that if appellant's contention be upheld, then no "elected public official" could ever be guilty of the crime defined in the Laws of 1941, chapter 72, § 1 (1), (Rem. Supp. 1941, § 7612-21 (1)), because all elected public officials pay their employees from tax funds rather than from their own money. It is hardly to be supposed, however, that the legislature intended to stultify itself by enacting into the law a provision which on its face could have no possible application or effect. It is quite clear to *Page 622 us, from the language of the statute itself, that the legislature intended to, and did, make it unlawful for an elected public official to collect or receive a rebate, or return, of any part of an employee's wages, whether the money so rebated or returned goes into the coffers of the county or into the pocket of the elected public official who has the authority to appoint and to remove the employee. A ball may rebound without bouncing all the way into the hand of the one who threw it.
While the appellant in this case may not be an employer in the sense that the services performed by the employees in his office are rendered for him personally, he is an employer, in the sense indicated above, that he is authorized to appoint and discharge the employees in that office. If, then, there is in fact and law a "rebate," or return, of a part of the wages of a county employee, it is within the inhibition of the statute, regardless of whether the money resumes its character as part of the funds of the county, or whether it stops midway, in the hands of the particular elected public official.
[4] However, this conclusion does not entirely solve the problem with which we are here concerned. Adverting again to the language of the legislative act here involved, we find that the statute does not expressly nor impliedly forbid the making ofdonations or contributions by the employee to the employer, whether the latter be engaged in private industry or be an elected public official.
While occasion for the manifestation of such generosity on the part of the employee may not be frequent nor the privilege often exercised, there is nothing in the statute which proscribes such efforts. Having once received his wages in full, the employee is at liberty to do what he will with his earnings, so long as he does not violate some positive rule of law governing his action. He may keep the money in his pocket, invest it, spend it, or give it away. He may donote a *Page 623 part of it to a private charity or he may, in the absence of a statute forbidding him to do so, contribute it to the cause of one seeking election to public office. He may likewise give it to one who has already been elected to such office. If the contribution be in fact a voluntary donation, it does not necessarily constitute a rebate of wages merely because it moves to, or for the benefit of, the employer.
In such transactions, there is always involved, of course, the question whether the act has been voluntary or involuntary; that is, whether the transaction in reality is a donation or whether it has assumed that aspect merely to cloak a form of compulsion. While the circumstances in one case may be such as to demonstrate that the act of the apparent donor was the product of some form of duress, the circumstances surrounding another case may show that the person making the gift acted freely and without constraint. If an employee exercises his free choice in making a contribution, even though in response to a request, his act does not amount to a rebate of his wages within the meaning of the statute above quoted.
Had the legislature intended to put its stamp of disapproval upon all forms of contribution of money or other property by county employees to elected public officials, it could have done so easily in language clear and explicit. It could have provided that it shall be unlawful for any county employee to give, contribute, or even lend to any elected public official, or for any such official to solicit, demand, or receive any gift, payment, contribution, assessment, subscription, or promise, of money, property, or other thing of value from any county employee, for any political or private purpose whatever. In fact, the cases on which the state largely relies herein did contain similar provisions with respect to acts of public officials. SeeUnited States v. Curtis, 12 Fed. 824; Ex Parte Curtis,106 U.S. 371, 27 L. Ed. 232, 1 S. Ct. 381; United States v. Wurzbach, *Page 624 280 U.S. 396, 74 L. Ed. 508, 50 S. Ct. 167; Commonwealth v.McCarthy, 281 Mass. 253, 183 N.E. 495, 85 A.L.R. 1141. Our legislature did not see fit to incorporate into the present law any provisions comparable to those mentioned above, nor is it permissible by interpretation to read such provisions into the statute.
[5] The evidence in this case establishes nothing more than that the so-called "rebates" were voluntary contributions by the employees to, or for the benefit of, the appellant. In fact, it does not appear from the evidence that the contributions were made by the employees out of their wages. For aught that is shown, the amounts paid by them may have come from other personal funds in their possession. However that may be, there is no evidence that the employees were laboring under any duress or that their contributions were in any respect other than voluntary. Conceding, even, that they were made upon request, there is still no evidence that their response was not of their own free choice.
We affirm the result of our former decision, and therefore reverse the judgment of conviction, with direction to the trial court to dismiss the information.
SIMPSON, C.J., MILLARD, ROBINSON, and GRADY, JJ., concur.