I am not unmindful of the merits of the objectives sought by the joint resolution which is under consideration in this case. However, the merits of the resolution afford no ground for abandoning our system of constitutional government, and having recourse to arbitrary measures not authorized by the constitution of this state.
I concur in all that Judge Schwellenbach has said in his dissent, except that portion which states that the legislature made a reappropriation for the expenses of the state *Page 239 legislative council. This additional dissent is written for the purpose of pointing out that the manner in which the majority of this court interprets our constitution allows the legislature to drift away from its constitutional moorings and enter into a practice of accomplishing by indirection that which it cannot accomplish by direction.
The experience of the past has shown that the natural tendency and the usual result of evading the evident purpose and intent of the framers of our constitution, is to deprive the people of the protection given by the constitutional provisions. Our constitution is a tablet upon which the people have written their will, and they have expressed their determination that their will shall never be changed, save in the manner they have appointed. To put it in another way, our constitution is complete in itself, to which no addition can be made, and from which no declaration can be taken, except by a specific amendment, pursuant to a special provision of that instrument.
In determining the meaning of the provisions of the constitution, we should not depart from the usual meaning of words and phrases, or of language in general, in search of a rule to accommodate a present desirable accomplishment; for to do so will result in adding to, or subtracting from, the basic law, and will result in an instrument remade by judicial interpretation.
Judge Cooley, in his work on Constitutional Limitations (5th ed.) 156, says:
"It is a necessary attribute of sovereignty that the expressed will of the sovereign is law; and while we may question and cross-question the words employed, to make certain of the real meaning, and may hesitate and doubt concerning it, yet, when the intent is made out, it must govern, and it is idle to talk of forms that should have surrounded the expression, but do not. But when the legislative power of a State is to be exercised by a department composed of two branches, or, as in most of the American States, of three branches, and these branches have their several duties marked out and prescribed by the law to which they owe their origin, and which provides for the exercise of their powers in certain modes and under certain forms, there are other questions to arise than those of *Page 240 the mere intent of the law-makers, and sometimes forms become of the last importance. For in such case not only is it important that the will of the law-makers be clearly expressed, but it is also essential that it be expressed in due form of law; since nothing becomes law simply and solely because men who possess the legislative power will that it shall be, unless they express their determination to that effect, in the mode pointed out by the instrument which invests them with the power, and under all the forms which that instrument has rendered essential."
And in the well-considered case of State v. Platt,2 S.C. 150, 16 Am. Rep. 647, we find it said:
"Under the Constitution, the question whether an Act of legislation has the force of law, does not depend merely upon the constitutional majorities of the two Houses having so determined, but upon the performance of certain acts, in part legislative and in part executive, and following each other in a certain order. By Section 21, Art. II, it must have been read three times, and on three several days, in each House; it must have the Great Seal of the State affixed to it, and it must be signed in the Senate-House by the President of the Senate and the Speaker of the House of Representatives. By Section 22, Article III, it must have been presented to the Governor, and have been approved and signed by him. But the Governor's signature is not indispensable. If after being returned with his objections, it shall have been reconsidered and approved, in each House, by two-thirds of such House, or if, after being presented for his approval, he shall neither approve it nor return it with his objections, within three days — when these prerequisites are complied with, the Act acquires the force of law under the terms of the Constitution. If either one fails, there cannot be a compliance with the conditions upon which, under the express terms of the Constitution, the force of the Act, as law, depends."
In considering a proposition such as presented here, we should pay heed to the constitutional admonition contained in Art. I, § 32, of our state constitution itself:
"FUNDAMENTAL PRINCIPLES. — A frequent recurrence to fundamental principles is essential to the security of individual rights, and the perpetuity of free government." *Page 241
Our system of constitutional government is well explained in the following paragraph from Kilbourn v. Thompson,103 U.S. 168, 26 L. Ed. 377:
"It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to thesuccessful working of this system that the persons intrusted withpower in any one of these branches shall not be permitted toencroach upon the powers confided to the others, but that eachshall by the law of its creation be limited to the exercise ofthe powers appropriate to its own department and no other." (Italics mine.)
Continuing the elucidation, this court stated in Blanchard v.Golden Age Brewing Co., 188 Wash. 396, 63 P.2d 397:
"The constitution of this state, modeled upon the supreme law of the land, has `blocked out with singular precision, and in bold lines' the distribution and limitation of governmental powers to the executive, legislative, and judicial departments of the state, respectively. The legislative powers are vested in the two bodies composing the legislature, with the power of initiative and referendum reserved to the people. Art. II, § 1 (seventh amendment). The executive department consists of the governor and a number of elective officials, Art. III, § 1, but with supreme executive power vested in the governor. Art. III, § 2."
While not expressly included in the constitution of this state, the concept of government as provided by our three co-ordinate departments of government, is well stated in the Massachusetts constitution of 1780, Art. XXX, § 31:
"In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." *Page 242
In order to ascertain the powers of the legislature, it is necessary to bring to mind many of the provisions of our basic law.
Art. II, § 19, provides that no bill shall embrace more thanone subject, and that shall be embraced in the title.
In Art. II, § 23, we find:
"COMPENSATION OF MEMBERS. — 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."
"EXTRA COMPENSATION PROHIBITED. — 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." Art. II, § 25.
LIMITATION ON AMENDMENTS. — No amendment to any bill shall be allowed which shall change the scope and object of the bill." Art. II, § 38.
Art. III, § 12, provides:
"Every act which shall have passed the legislature shall be, before it becomes a law, presented to the governor."
The balance of the section states in detail the method in which the governor shall act, and the manner in which the legislature may, if it so desires, overrule the governor.
"ART. VIII, § 4. NO MONEYS SHALL EVER BE PAID OUT OF THE TREASURY OF THIS STATE, OR ANY OF ITS FUNDS, OR ANY OF THE FUNDS UNDER ITS MANAGEMENT, EXCEPT IN PURSUANCE OF AN APPROPRIATION BY LAW; NOR UNLESS SUCH PAYMENT BE MADE WITHIN ONE CALENDAR MONTH AFTER THE END OF THE NEXT ENSUING FISCAL BIENNIUM, AND EVERY SUCH LAW MAKING A NEW APPROPRIATION, OR CONTINUING OR REVIVING AN APPROPRIATION, SHALL DISTINCTLY SPECIFY THE SUM APPROPRIATED, AND THE OBJECT TO WHICH IT IS TO BE APPLIED, AND IT SHALL NOT BE SUFFICIENT FOR SUCH LAW TO REFER TO ANY OTHER LAW TO FIX SUCH SUM." Amendment 11. (Emphasis mine.)
"The style of the laws of the state shall be: `Be it enacted by the legislature of the state of Washington;' and no laws *Page 243 shall be enacted except by bill." Art. II, § 18. (Italics mine.)
The action of the legislature, as approved by the majority opinion, violates every principle of government based upon the theory of co-ordinated departments. The reason is that it makes of the Senate and House of Representatives an exclusive organization, and gives it power to formulate and put into execution any policy desired, this without regard, as I shall demonstrate later, to the wishes of the governor, or of the people. Bear in mind that the majority opinion holds that house concurrent resolution No. 10 is an act of the legislature. In other words, the majority opinion approves as law, concurrent resolutions. I maintain that a resolution is not an act or a law, and that state funds cannot be disbursed by virtue of its provisions.
I view the case of State ex rel. Mullen v. Howell, 107 Wash. 167,181 P. 920, in a different manner than the majority. In my opinion, the question in that case was, whether the initiative provision of our constitution was broad enough to allow the people to review an action of the legislature which was not a law. My conclusion is borne out by the following excerpt from the opinion:
"This amendment was submitted to, and ratified by, the legislature of the state of Washington by joint resolution passed January 13, 1919. On March 20, 1919, relator tendered a petition for a referendum to the respondent secretary of state; he asked that it be filed and a ballot title be supplied. Respondent refused to receive it upon the grounds, (a) that the amendment, having been adopted by a joint resolution and not by an act, bill or law, was not within the terms of the seventh amendment; and (b) that it was not a subject for referendum under article V of the constitution of the United States.
"Addressing ourselves to the first contention of the respondent, Is the resolution an act, bill or law, within the meaning of those terms as employed in our constitution; whether the people intended an act, bill, or law to be statutes enacted by the legislature, or whether they meant action by the legislature which affected them as law?" (Italics mine.) *Page 244
And this court indicated the scope of its investigation by saying:
"It is well known that the power of the referendum was asserted, not because the people had a willful or perverse desire to exercise the legislative function directly, but because they had become impressed with a profound conviction that the legislature had ceased to be responsive to the popular will. They endeavored to, and did — unless we attach ourselves to words and words alone, reject the idea upon which the referendum is founded, and blind ourselves to the great political movement that culminated in the seventh amendment — make reservation of the power to refer every act of the legislature with only certain enumerated exceptions.
"Guided by these considerations, we are satisfied that the people used the words `act, bill or law' in no restricted sense, but in a sense commensurate with the political evil they sought to cure.
"And why should not the amendment be a law within the meaning of the seventh amendment? No reason is assigned other than that `law' as there used is synonymous with `bill' or `act.' We may well argue and be within sound rules that, if the people had so intended, they would not have used the word `law' at all, as was done in the state of Oregon. We can conceive of no more sweeping law than the proposed amendment. Certainly no amendment has ever been proposed that goes deeper into the vitals of the American idea of government. It surrenders pro tanto the sovereignty of the state, gives to the Federal government a right to enact laws and to enforce them through the Federal courts, and it will deny the citizen the protection of some of those guarantees that we have written out of the travail of time into our own Bill of Rights. Upon construction, we hold that the amendment to the constitution of the United States is a law within the meaning of the seventh amendment, and is subject to referendum."
This court then considered the cases of Boyers v. Crane, 1 W. Va. 176, State ex rel. Attorney General v. Kinney, 56 Ohio St. 721,47 N.E. 569, and Barry v. Viall, 12 R.I. 18, which held that a legislature cannot give a matter the force and effect of law by passing resolutions, and that the statute law of the state cannot be repealed or amended by joint resolutions of the general assembly. *Page 245
Speaking of the rules announced in the above decisions, this court stated:
"And were we considering a matter involving private right arising in or out of the laws of this state, we could not question the authorities just cited; but they are not applicable for the reason that the authority to act in the matter of a proposed amendment to the constitution of the United States does not arise in or out of the constitution of the state, but arises out of the Federal constitution, and any act, whether it be by resolution or by bill, on the part of the state legislature must be held to be a sufficient expression of the legislative will unless Congress itself challenges the method or manner of its adoption."
It is crystal clear that the above opinion did not confirm resolutions, or acts or laws as usually understood, but simply held that the actions of the legislature, except those relating to emergency acts, were subject to referendum.
Another defect in the procedure taken by the legislature is that it violated the constitutional provision giving the governor the power of veto. This provision relative to the power of veto given to the governor, is a valuable one. It should be given the same consideration as any other portion of our constitution.
"In approving and disapproving laws, in the exercise of his constitutional prerogative, the executive is a component part of the legislature." Spokane Grain Fuel Co. v. Lyttaker,59 Wash. 76, 109 P. 316.
"In the first place, and to clear away immaterial matters, it should be said that the governor's veto of parts of the measure now means nothing whatsoever. In exercising the veto power, the governor acts as a part of the legislative bodies, and the act is to be considered now just as it would have been if the vetoed provisions had never been written into the bill at any stage of the proceedings." State ex rel. Stiner v. Yelle, 174 Wash. 402,25 P.2d 91.
"When referring to what the legislature intended, we must not forget that the governor, when acting upon bills passed by both houses of the legislature, is a part of the legislature, and acting in a legislative capacity, and we cannot therefore consider the intent of the house and the senate apart from the intent of the governor." Shelton Hotel Co., Inc. v. Bates,4 Wash. 2d 498, 104 P.2d 478. *Page 246
In Lynch v. Department of Labor Industries, 19 Wash. 2d 802, 145 P.2d 265, this court had before it a question dealing with whether a statute, which sought to give to widows of deceased workmen who had been engaged in extrahazardous occupations an additional widow's allowance, was retrospective. In that case, it was necessary to ascertain the legislative intent in passing the act. In doing so, we considered the history of the act, traced its legislative travels, and then stated:
"The attorney general is the legal adviser of the governor and other state officers. Washington Constitution, Art. III, § 21; Rem. Rev. Stat., § 11032 [P.C. § 6574-14]. It is reasonable to assume, under the circumstances here shown, that in approving the bill the governor acted upon the advice which he had sought and obtained from the attorney general. If he had exercised his power of veto, the bill would of course not have become a law. In so considering and approving the bill, the governor acted in his legislative capacity."
Resolution No. 10 was fatally defective in that it was not referred to the governor of the state of Washington for his consideration as provided by our constitution. The legislative procedure was not complete, hence invalid.
The resolution cannot be considered as a completed act, or bill, or law, for another reason, and that is that it did not have a title as required by Art. II, § 19. This section has been considered by this court in over fifty cases, which, of course, I cannot consider in this dissent, except to say that in each and every one of them there is a definite holding that there must be a title which indicates the subject considered in the body of the act. For a complete discussion of this subject, and the necessity of having a valid title, I refer to Petroleum Lease PropertiesCo. v. Huse, 195 Wash. 254, 80 P.2d 774. Admitting for the purpose of argument that the resolution was an enforcible act or law, it still remains that it is void because it did not have a title which expressed the subject matter of the resolution.
Another fatal defect is that state funds may not be appropriated or spent, except by an "appropriation by law." A *Page 247 resolution is not an act, or law, or statute. Generally speaking, resolutions of legislative bodies are used for the purpose of: (1) expressing opinion or sentiment; (2) to carry out the inner administration of the legislative body; and, (3) to establish procedure for constitutional amendments. Passing upon this subject, this court said in State ex rel. Todd v. Yelle, 7 Wash. 2d 443, 110 P.2d 162:
"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 repassed over his veto (Art. III, § 12). Section 18 of Art. 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 nolaws shall be enacted except by bill.' (Italics ours.)
"This section alone necessitated the result arrived at in theBanker case, and the result would have been completely justified by merely citing it, had the court preferred to summarily dispose of the matter.
"The court might also have summarily disposed of the matter by pointing out that the resolution, upon which the relator founded his claim to the writ prayed for, attempted to carve out of the general appropriation made by the legislature for the expenses of that legislative session, five dollars per day, not for the expenses of the members of the legislature, but for the expenses of the members of the house of representatives only. This attempted diversion of funds was so plainly illegal that the court might well have found, without further consideration, that the relator could claim no legal right by virtue of the resolution."
Following are examples of resolutions held void as attempts at general legislation:
Appointments of committees to continue beyond session of the legislature. Dickinson v. Johnson, 117 Ark. 582, 176 S.W. 116, Ann. Cas. 1916B, 1067, L.R.A. 1915E, 496; Gilbreath v. Willett,148 Tenn. 92, 251 S.W. 910, 28 A.L.R. 1147; *Page 248
Employment of agents to present state claims against the United States. Mullan v. State, 114 Cal. 578, 46 P. 670, 34 L.R.A. 262;
Making appropriations. Henderson v. Collier C. Lith. Co.,2 Colo. App. 251, 30 P. 40; Matter of Moran v. LaGuardia,270 N.Y. 450, 1 N.E.2d 961, 104 A.L.R. 1160; Collier C. Lith.Co. v. Henderson, 18 Colo. 259, 32 P. 417; In re AdvisoryOpinion to Governor, 43 Fla. 305, 31 So. 348; Advisory Opinionto the Governor, 156 Fla. 45, 22 So. 2d 397.
The last case cited is of special importance. Art. IX, § 4, of the constitution of Florida provides that, "no money shall be drawn from the treasury except in pursuance of appropriation made by law." In 1943, the Florida legislature passed an act (F.S.A. §11.12), which was in the following terms:
"(1) The state treasurer is authorized to pay the per diem, mileage and expenses of the members of the legislature, together with such expenses of the legislature as the same accrue, and the per diem of employees of the senate and the house of representatives as the same accrues, also such expenses of the legislature as shall be authorized by a resolution of either house, upon the presentation to the state treasurer of an order of the comptroller, countersigned by the governor, for the stated amount, which order shall, at the close of the legislative session or in due course, be presented to the comptroller, who shall issue to the state treasurer a warrant or warrants therefor.
"(2) The sum of three hundred thousand dollars biennially, or so much thereof as is necessary, is appropriated out of the general revenue fund, out of the moneys not otherwise appropriated, to carry out and cover the expenditures provided under this section, and the same is made available as needed at any time during the session of the legislature."
Thereafter the legislature passed a resolution which directed payment of expenses of an interim committee on commerce and reciprocal trade out of the amount of money provided for legislative expenses. The supreme court of Florida said:
"The subject matter of this letter, Resolution No. 17, 1945 session, is to be differentiated from House Resolution No. 27 *Page 249 because House Resolution No. 17, supra, shows on its face that it is proposed to pay the expenses of a legislative committee, the activities of which were performed and are to be performed outside the legislative session.
"We are, therefore, of the opinion that the items suggested by Resolution No. 17 are not such as to be payable as a part of the legislative expense and that the purpose of the resolution may only be accomplished by a statute duly enacted by the Legislature making the appropriation for the payment of the items contemplated in this resolution."
Even in a jurisdiction where the governor has the veto power over joint resolutions, it has been held that:
"With respect to the appropriation made by the resolution. In the light of the provisions of the Constitution, and the authorities cited in relation thereto, an appropriation cannot be made otherwise than by a bill. It must be enacted as a law and any attempt to make an appropriation otherwise than provided in our constitution is a violation thereof and such action is a nullity." Scudder v. Smith, 45 Dauph. Co. Rep. 209.
This case was appealed to the supreme court of Pennsylvania, which affirmed the decision of the lower court in the following language:
"The fact that the joint resolution went through the mode ofpassage prescribed by the Constitution for bills, does not supply the constitutional deficiencies of its conception. The purpose of the constitutional requirements relating to the enactment of laws was to put the members of the Assembly andothers interested, on notice, by the title of the measure submitted, so that they might vote on it with circumspection. What was attempted to be done by the sponsers of this challenged measure was something utterly alien to the proper subject matter of a `joint resolution.' Its deceptive nomenclature is fatal to its validity as a law. [The court's italics.]" Scudder v. Smith, 331 Pa. 165, 200 A. 601.
In view of these decisions, and the definite provisions of the constitution, I can see no escape from the conclusion that public funds cannot be expended by virtue of a resolution.
But, it is argued that the appropriation was made by law at the time chapter 1, Laws of 1947 (the legislative expense *Page 250 bill), was passed, and that therefore the money was subject to disposition by Senate and House resolution. This argument cannot withstand the constitutional provision that appropriations must be made by law, which distinctly specifies the objects to which the appropriation is to be applied. Further, that act of appropriation cannot refer to any other law to fix the sum. Chapter 1 did not directly or indirectly refer to, or indicate that any portion of the $475,000 should be spent for, the expenses of interim committees.
Transfers of appropriated funds, such as made here, have in this state been prohibited.
In 1922, this court had before it the case of State ex rel.Bloedel-Donavan Lbr. Mills v. Clausen, 122 Wash. 531,211 P. 281. In that case, a writ of mandate was sought to compel the transfer of a sum of money from the general fund to the accident fund created by the workmen's compensation act. The general appropriation laws of 1921 appropriated a sum of $506,147 from the general fund for the purpose of paying for the operation of the department of labor and industries. At the same time, $215,535 was appropriated from the accident fund for the administrative expenses of the department of labor and industries. After the appropriations were available, warrants were drawn upon the accident fund in an amount which exhausted the fund appropriated by the legislature. It was sought by the mandamus action to compel a transfer, from the general fund to the accident fund, of an amount sufficient to reimburse that fund. In passing, this court held:
"Unless, then, it was the duty of the respondents [state auditor and state treasurer] to make the transfer sought in this action, the writ cannot be issued by the court directing them to do so. No statute has been called to our attention which imposes any such duty upon the respondents. The legislative expression is to the contrary; to cover the administrative expenses, one appropriation was made from the general fund and the other from the accident fund."
We quoted Art. VIII, § 4, of the state constitution, and then said:
"Under this provision, no moneys can be paid out of the state treasury, or any of its funds, except in pursuance of *Page 251 an appropriation by law, and such law must distinctly specify the sum appropriated and the object to which it is to be applied. The money in the general fund appropriated for the administrative expenses was not by the legislature appropriated for the purpose of replenishing the industrial fund, even though the expenditures from that fund may have been illegally made. The relators, in the affidavit supporting the application, state that unless the respondents are required to transfer the $215,535 from the general fund to the accident fund, they, as employers of men engaged in extra-hazardous employment, `will be required and compelled to pay into the said accident fund, as premiums, assessments and contributions, a large sum in excess of the amount necessary and proper to make good the legitimate depletion and drain upon said accident fund from the payment of accident claims and other proper and lawful disbursements, exclusive of the expense of administration.' It therefore plainly appears that, if the transfer was made, it would be into a fund not authorized by the legislature and for an object not specified in the appropriation act. It is not a sufficient answer to this to say it would only in effect compensate the relators for money which they had paid into the accident fund and which had been wrongfully paid out. The purpose of the transfer, if made at this time, would operate to decrease the sum which the relators would be required to pay into the accident fund in the future as premiums and assessments."
This rule was followed in State ex rel. Shuff v. Clausen,131 Wash. 119, 229 P. 5.
Another reason for holding that the resolution does not have the force and effect of law is that it has no enacting clause as provided in Art. II, § 18, and because such section also prohibits the passage of acts or bills by resolution by stating that no law shall be enacted except by bill.
As I view the situation, the majority opinion gives the legislature unrestricted control over funds originally appropriated by statute duly passed by both Houses and signed by the governor.
In this case, the appropriation for legislative expenses was in the amount of $475,000. It was declared to be an emergency, as it surely was, and the governor signed it. Then the amount was made available for the stated purpose *Page 252 of meeting the legislative expenses of the thirtieth legislature. The legislative expenses were $245,068.51. The committee created by resolution No. 10 spent to February 1, 1948, the sum of $49,502.42. Other interim committees expended $12,648.32, leaving a balance of $167,780.75. Legislative expenses, according to the majority, are still accruing.
I will give another illustration to show what legislatures in the future may do. Let us assume that a legislature will pass a bill providing for large expenditures for the purpose of building highways. An emergency clause will be attached, the governor will be satisfied of the merits of the bill, and sign it. The people will favor the expenditure for the purpose mentioned in the act, and will not seek referendum. Then just before adjournment, the legislature can pass a resolution, such as we have here, and defeat the purposes in whole, or in part, of the act. It may be argued, however, that the people will challenge the resolution by referendum. The answer is, as pointed out by Judge Schwellenbach, the people tried to do that with the present resolution No. 10, and this court refused to compel the secretary of state to accept the filing of the referendum petition.
The writ should not issue.
MALLERY, C.J., and SCHWELLENBACH, J., concur with SIMPSON, J.
May 14, 1948. Petition for rehearing denied. *Page 253