State Ex Rel. Burt v. Hutchinson , 173 Wash. 72 ( 1933 )

The effect of the majority decision is to restore to effectiveness the principles laid down in State ex rel. Brislawnv. Meath, 84 Wn. 302, 147 P. 11, with which I heartily concur. However, its effect is also, without discussing some of our cases, to overrule them sub silentio. For instance, while I dissented from the decision in State ex rel. Short v. Hinkle,116 Wn. 1, 198 P. 535, together with some of my associates, which was a decision declaring an emergency clause valid as to the immediate necessity of the effectiveness of legislation merely transferring the duties of some forty state departments to other state departments, the effect of the decision, in which, although it was attempted to distinguish the Brislawn case, was to overrule the principle of the Brislawn case.

This decision also, in effect, overrules State ex rel.Anderson v. Howell, 106 Wn. 542, 181 P. 37, holding an emergency clause valid respecting the operation of the motor vehicle code of 1919. That act provided funds for the support of the highways of the state merely by a different system of license fees than had been provided by the motor vehicle act of 1915. This decision is also in conflict with the decision in State exrel. Reiter v. Hinkle, 161 Wn. 652, 297 P. 1071, involving the emergency clause to a law passed by the legislature of 1931, chapter 23 (Laws of 1931, p. 77, Rem. Rev. Stat., § 8358-1), which was an entirely new statute requiring distributors of butter substitutes to secure licenses and pay a tax of fifteen cents per pound on each pound of butter substitute sold in this state. We there held the emergency clause valid, and denied the right of referendum. Shortly thereafter, inState ex rel. Shelor v. Hinkle, 162 Wn. 702, 298 P. 1070, by a per curiam opinion involving a referendum sought upon chapter 140, Laws of 1931, p. 430 (Rem. Rev. Stat., § 6326), which was an act amending the law relating to motor vehicle licenses and the gasoline tax, which reduced the automobile license fee to three dollars, we denied a referendum by holding the emergency clause valid under the rule of the Reiter case,supra.

Our cases are now in hopeless confusion. One of the objects of a court of last resort in determining constitutional questions and in statutory construction, should be consistency. Although I vigorously objected to the decision in the Short case, supra, it became the law, and should be followed or at least discussed and distinguished, if possible. I can see no distinction between the principles I contended for in that case and those in theBrislawn case, supra.

Regardless of the merits or demerits of the Old Age Pensions law and whether it should be subjected to referendum (as to which there is no present indication), and the possible diversity of opinion as to the morality or wisdom of chapter 55, Laws of 1933, p. 290, commonly known as the Horse Racing act, with which this court should have no concern, the Old Age Pension act had, in fact, been passed and approved by the governor before the Horse Racing act was enacted. The Old Age Pensions act was therefore an existing law, requiring the expenditure of public money by the counties for the support of those specified therein. A substantial part of the funds to be derived from license fees under the Horse Racing act is to be allocated to the counties for the support of the aged poor. The state has not provided other funds for the support of such poor, whom "we have always with us." (Rummens v. Evans, 168 Wn. 527, 13 P.2d 26). But whether the "old age pensions" be an existing state institution or not, is beside the question. The state itself has a primary duty of providing for its indigent citizens. It must raise money to enable it so to do. In performing the duty, it is performing a governmental duty where the counties have heretofore acted as the agents of the state. Hence, this fund is for the support of the state government, whatever the machinery of the distribution may be. The fund is for the support of state government in the performance of a primary duty. The Horse Racing act in question provides revenue for the counties for a duty imposed upon them by the Old Age Pensions act.

Deploring as I do the effect of vacillation in our rule of decision, I feel impelled to dissent from the decision of the majority.

TOLMAN, J., concurs with HOLCOMB, J.