Believing that chapter 179, Laws of 1935, p. 705, violates § 4, Art. XI of the state constitution, and § 5 of the same article as revised by the twelfth amendment, I find myself unable to concur in the majority opinion. *Page 217
Section 4, Art. XI, of the constitution reads, in part:
"The legislature shall establish a system of county government, which shall be uniform throughout the state, . . ."
Section 5, Art. XI, before amendment, read, in part:
"The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys, and other county, township, or precinct and district officers, as public convenience may require, and shall prescribe their duties and fix their term of office."
In State ex rel. Maulsby v. Fleming, 88 Wn. 583,153 P. 347, the court held unconstitutional an act of the legislature abolishing the office of coroner in all counties of the state except counties of the first class. Quoting §§ 4 and 5 of Art. XI, the court said:
"It is apparent from the section last quoted that the legislature is authorized to classify counties by population for the purpose of regulating the compensation of such officers. This is plain. Section 4 of the constitution, above quoted, provides, that the legislature shall establish a system of county government which shall be uniform throughout the state. . . . It seems too plain to admit of serious dispute that a system of county government which permits certain officers in one county which are not permitted in another county is not a uniform system. If the legislature may abolish coroners in counties of all classes except the first, it may abolish such officers in any one class and retain them in another. It may, by the same rule, require certain officers in one county, and entirely different officers with entirely different duties in another. It cannot be reasonably contended that this would be a uniform system. If this law is a valid exercise of legislation, then counties of the first class are provided with an officer known as a coroner, with certain defined duties, while all other classes of counties have no such officer. The duties which usually fall upon such officer are distributed to prosecuting attorneys and certain *Page 218 justices of the peace, thereby imposing duties upon justices of the peace and upon prosecuting attorneys in all counties except the first class, which duties are not imposed upon justices of the peace and prosecuting attorneys in counties of the first class. It is plain that this is not a uniform system.
"We have no doubt that the legislature has the power to entirely abolish the office of coroner in all counties of the state, and to impose the duties of that office upon some other officer. But the legislature certainly has no right under the constitutional provision quoted to provide for officers in counties of the first class which are not provided for in other counties. In order that the system may be the same, the officersmust be the same; and their duties must be the same; otherwisethe system is different." (Italics mine.)
To meet the situation created by the decision in State exrel. Maulsby v. Fleming, the legislature submitted amendment 12 to the people of the state at the 1924 election, at which it was adopted. The amended § 5 is as follows:
"The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys and other county, township or precinct and district officers, as public convenience may require, and shall prescribe their duties, and fix their terms of office: Provided, that the legislature may, by general laws, classify the counties by population and provide for the election in certain classes of counties certain officers who shall exercise the powers and perform the duties of two or more officers. It shall regulate the compensation of all such officers, in proportion to their duties, and for that purpose may classify the counties by population. And it shall provide for the strict accountability of such officers for all fees which may be collected by them and for all public moneys which may be paid to them, or officially come into their possession."
It will be seen that, down to the proviso, § 5, as revised in amendment 12, is in the language of the original *Page 219 section. The proviso authorized the legislature, by general laws, to classify the counties by population and to provide for the election in certain classes of counties of officers who shall exercise the powers and perform the duties of two or more officers. This is all the change made by the revision. It will thus be seen that the power of the legislature with respect to county government is enlarged by amendment 12 only to the extent that it may, by general law, after the classification of counties by population, provide for the election in certain counties of officers who are to perform the functions of two or more officers. The purpose of this amendment is illustrated by chapter 148, Laws of 1925, Ex. Ses., p. 411, where the counties are classified by population, and provision made for the election in certain classes of certain officers who are to perform the functions of two or more officers, which are abolished.
The law before us does not, in the language of amendment 12, "provide for the election in certain classes of counties certain officers who shall exercise the powers and perform the duties of two or more officers." It continues the offices of engineer and county commissioners in counties of the first class, but transfers to the county engineer, by what the majority opinion admits is a special law, part of the duties assigned in all other counties of the state to the county commissioners. Clearly, this is not a uniform law within the intent of §§ 4 and 5.
The legislature has abolished the office of county engineer in all counties of the state except those of class A and first class, transferring the duties of the engineer to the board of county commissioners. Conceivably, under the authority conferred by the twelfth amendment, the legislature could abolish county commissioners and transfer their functions to other officers of the county. But as I read the amendment in the *Page 220 light of this court's decision in State ex rel. Maulsby v.Fleming, I do not think the legislature can continue the offices of county commissioner and engineer in first class counties and transfer from the commissioners to the engineer duties vested, in all other counties, in the commissioners.
The majority opinion attaches importance to the phrase in amendment 12 authorizing the legislature to "prescribe the duties" of all the officers named therein. But this language is used in the original § 5 and was in the mind of the court when it rendered its decision in State ex rel. Maulsby v. Fleming.
In specially stressing the requirement for uniformity in legislation affecting the organization of county government, the makers of the constitution undoubtedly had in mind the practice of state legislatures, then too common, in passing special laws transferring functions of county government from one officer to another, wholly upon considerations of political expediency. It was the salutary purpose of §§ 4 and 5 to prevent this practice in the new state of Washington by requiring that all laws having relation to county government should be uniform and general in their application. These provisions were salutary when first adopted; they remain equally so today. *Page 221