I concur in all that Judge Simpson has said in his dissenting opinion. It seems to me also that, while the majority recognize the rules, so often stated, to the effect that courts will presume that an act regularly passed by the legislature, is a valid law, and will not inquire into what may have been its motive or the purpose or intention of those who enacted it, but will determine the question of its constitutionality only from what appears on the face of the act, or aided, if necessary, by facts or matters of which the court may take judicial notice, the conclusion reached in the majority opinion is not justified when those rules are applied to the act before us. Such rules are founded upon the theory that the enactment of a statute being a prerogative of the other two co-ordinate *Page 601 branches of the government, the legislative and the executive, the judicial branch must presume that each department must have been mindful of its obligations and its duties and actuated by proper and lawful motives, purposes, and intention in the enactment and approval of legislation, and not reach a conclusion that either department has acted otherwise, unless it is compelled to do so from what appears on the face of the enactment itself, aided as heretofore stated.
In view of the respective positions occupied by the three departments in our scheme of government, much has been said as to the proper attitude to be taken by the courts when the motive and intent of the other departments are questioned. One of the most clear and lucid expressions I have found is what was said by the United States supreme court in McCray v. United States,195 U.S. 27, 53, 49 L. Ed. 78, 24 S. Ct. 769, 1 Am. Eng. Ann. Cas. 561:
"Whilst, as a result of our written constitution, it is axiomatic that the judicial department of the government is charged with the solemn duty of enforcing the Constitution, and therefore in cases properly presented, of determining whether a given manifestation of authority has exceeded the power conferred by that instrument, no instance is afforded from the foundation of the government where an act, which was within a power conferred, was declared to be repugnant to the Constitution, because it appeared to the judicial mind that the particular exertion of constitutional power was either unwise or unjust. To announce such a principle would amount to declaring that in our constitutional system the judiciary was not only charged with the duty of upholding the Constitution but also with the responsibility of correcting every possible abuse arising from the exercise by the other departments of their conceded authority. So to hold would be to overthrow the entire distinction between the legislative, judicial and executive departments of the government, upon which our system is founded, and would be a mere act of judicial usurpation.
"It is, however, argued if a lawful power may be exerted for an unlawful purpose, and thus by abusing the power it may be made to accomplish a result not intended by the Constitution, all limitations of power must disappear, and *Page 602 the grave function lodged in the judiciary, to confine all the departments within the authority conferred by the Constitution, will be of no avail. This, when reduced to its last analysis, comes to this, that, because a particular department of the government may exert its lawful powers with the object or motive of reaching an end not justified, therefore it becomes the duty of the judiciary to restrain the exercise of a lawful power wherever it seems to the judicial mind that such lawful power has been abused. But this reduces itself to the contention that, under our constitutional system, the abuse by one department of the government of its lawful powers is to be corrected by the abuse of its powers by another department.
"The proposition, if sustained, would destroy all distinction between the powers of the respective departments of the government, would put an end to that confidence and respect for each other which it was the purpose of the Constitution to uphold, and would thus be full of danger to the permanence of our institutions. As aptly said by the court, speaking through Mr. Justice Miller, in Kilbourn v. Thompson, 103 U.S. 168, P. 190:
"`It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to the 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 the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.'
"It is, of course, true, as suggested, that if there be no authority in the judiciary to restrain a lawful exercise of power by another department of the government, where a wrong motive or purpose has impelled to the exertion of the power, that abuses of a power conferred may be temporarily effectual. The remedy for this, however, lies, not in the abuse by the judicial authority of its functions, but in the people, upon whom, after all, under our institutions, *Page 603 reliance must be placed for the correction of abuses committed in the exercise of a lawful power. This was aptly pointed out inChampion v. Ames, 188 U.S. 321, where, speaking through Mr. Justice Harlan, it was said (p. 363):
"`But if what Congress does is within the limits of its power, and is simply unwise or injurious, the remedy is that suggested by Chief Justice Marshall in Gibbons v. Ogden, when he said: "The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments."'
"The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted. As we have previously said, from the beginning no case can be found announcing such a doctrine, and on the contrary the doctrine of a number of cases is inconsistent with its existence."
In 1 Cooley's Constitutional Limitations (8th ed.) 379, the author states the following:
"Inquiry into Legislative Motives. From what examination has been given to this subject, it appears that whether a statute is constitutional or not is always a question of power; that is, a question whether the legislature in the particular case, in respect to the subject-matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept within the constitutional limits and observed the constitutional conditions. In any case in which this question is answered in the affirmative, the courts are not at liberty to inquire into the proper exercise of the power. They must assume that legislative discretion has been properly exercised. If evidence was required, it must be supposed that it was before the legislature when the act was passed; and if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such finding. And although it has sometimes been urged at the bar that the courts ought to inquire into the motives of the legislature where fraud and corruption *Page 604 were alleged, and annul their action if the allegation were established the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon. The reasons are the same here as those which preclude an inquiry into the motives of the governor in the exercise of a discretion vested in him exclusively. He is responsible for his acts in such a case, not to the courts, but to the people."
In State ex rel. Govan v. Clausen, 108 Wash. 133, 137,183 P. 115, we said:
"Exactly what is sought by respondent is to have the court, as triers of facts, impeach the judgment of another and co-ordinate branch of the government, as triers of facts. In declining to do so, we rely not alone upon a consideration of the well-recognized delicacy of judicial interference with legislative powers, but also upon the cold and manifest reason that, by the clearly-defined and respected form of co-ordinate departments of our government, we have no power to do so. Courts may declare legislative enactments invalid in some cases, but not because judicial power is superior in degree or dignity to the legislative; and it will be found, according to the general rule, that such declarations are the results of consideration of the enactments as they appear upon their faces, or influenced by facts within common knowledge and of which courts take judicial notice. State v. Sommerville, 67 Wash. 638, 122 P. 324;Stevenson v. Colgan, 91 Cal. 649, 27 P. 1089. The act in question is fair upon its face."
That case has a distinguishing feature from the one before us, in that the court was asked to inquire into allegations of fraud set out in the answer; but what was said, with reference to the approach the court must make to the action of the legislature when it is attacked, is applicable to the instant case.
We have before us an act which has as its objective the gathering and recording of certain data relative to those who are, or have been, in service in the armed forces of the United States, which the lawmakers have considered necessary to obtain in order to aid in carrying out plans for their rehabilitation and reconversion when they return to civilian life. It does not seem to be questioned that the *Page 605 legislature had the power to so provide. A commission is created in each county of the state, and it is directed to gather and record such data. This, likewise, is an exercise of lawful power. The personnel of the commission is composed of elective officers of the county. I do not gather from the majority opinion that such officers are not eligible to serve on the commission. The act provides for, and fixes, the amount of compensation each commissioner shall be paid for the services to be rendered. The law is well established that, in addition to creating public offices and fixing and defining the duties of the officers, the legislature may provide they shall be paid for their services in performing such duties and the amount thereof. The duties the members of the commission are to perform are entirely different from, and bear no relation to, those performed by any of the county elective officers. The duties prescribed are not additional duties required of any of the county officers beyond those they perform in their official capacities. A new office is created, and new duties prescribed. There is no law against one person holding two public offices if they are not incompatible. It is no concern of the court whether the getting and recording of the data are necessary or desirable, or whether it will involve much or little work on the part of the commissioners, or whether it will ever be used. These and other similar considerations are legislative and not judicial.
It may be that, taking the whole setup by its four corners, there can be said to be a reasonable ground of suspicion that the objective was to assist elective county officers in a financial way until the act increasing their salaries could become operative. But this does not warrant the court in saying such is the fact and was the motive and intent of the legislature and the executive. If we do so, we must put ourselves in the position of drawing an inference and arriving at a conclusion therefrom without any factual basis, so far as the face of the act discloses, and there are no facts or matters of which we may take judicial notice to support any inference. *Page 606
It seems to me that we must accept the act at its face value and not impute to the other departments of government a motive or intent to evade the inhibitions of the constitution. My concern is that, if we do otherwise, we impliedly extend an invitation to those who may feel, in a given case, the motives and intent of the legislature were contrary to what its action on the face of a statute discloses, to ask us to declare such statute unconstitutional by the use of a process of reasoning and deduction, and, if we should follow such a course, it would be a distinct departure from that contemplated by our governmental plan.
A new office having been created and new and different duties prescribed from those performed by the respective county officers, the inhibitions of the constitution relating to increase of salaries or compensation do not apply. 43 Am. Jur. 153, Public Officers, § 366. This is a rule in regard to which I find no dissent, and is the same as is pronounced in those cases where additional duties were required of a public officer after his election to an office not incidental or germane to those of his office, and compensation was provided therefor.
In addition to the cases cited by Judge Simpson, I refer to:Moore v. Moore, 147 Va. 460, 137 S.E. 488, 51 A.L.R. 1517;Springer v. Board of Education, 117 W. Va. 413, 185 S.E. 692; 46 C.J. 1017, Officers, § 242; 43 Am. Jur. 151, Public Officers, § 364.
The case of Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133, is of special interest. A statute was enacted creating a judicial council and making circuit judges members thereof, and provided compensation for the performance of their duties as such members. The court held that the duties prescribed by the act were wholly outside those of a circuit judge, and that the constitutional provision against increase of salary or compensation of a public officer during the term for which he was elected was not violated. The statute was not considered objectionable because those already holding a public office were made members of the council. The court declined to adopt the view that the purpose *Page 607 of the act was merely to increase the salaries of the circuit judges.
Viewing the case from any of the angles discussed, I think the judgment should be affirmed.
MALLERY, J., concurs with GRADY, J.
BEALS, C.J., concurs with SIMPSON and GRADY, JJ.
October 5, 1945. Petitions for rehearing denied.