The opinion
Millard, J.
(concurring) — I concur in the result for the reasons, given in dissenting opinion in
Mulhausen v. Riley, post
p. 811, 157 P. (2d) 938 , and in
Washington Recorder Pub. Co. v. Ernst,
199 Wash. 176 , 91 P. (2d) 718 .
It is stated in one of the opinions in
Mulhausen v. Riley, supra,
which is in irreconcilable conflict with the case at ’bar, and
Curtis v. Riley, post
p. 951, 157 P. (2d) 975 , that the doctrine of
Washington Recorder Pub. Co. v. Ernst, supra,
limiting the relationship of employer and employee, as defined in the unemployment compensation act, within the- bounds of common-law concepts relating to master and servant, had been overruled.
The position of respondent commissioner on the facts and in principle logically must be accepted or rejected in all three of the following cases: The case at bar,
Curtis v. Riley, supra,
and
In re Coppage, post
p. 802, 157 P. (2d) 977 . Those three cases, in principle, are indistinguishable from
Washington Recorder Pub. Co. v. Ernst, supra.
Any attempted distinction is
quibbling
and accentuates the confusion now in the minds of bench and bar as to what we may hold when another unemployment compensation case is brought to this court.
September 12, 1943, Honorable Pat McCarran, Senior United States Senator from Nevada, delivered at the commencement exercises of Georgetown University, Washington, D. C., an address entitled “Our American Constitutional Commonwealth — Is It Passing?”
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I quote the following apt challenging statements made by Senator McCarran in his able and informative address which was printed in the Congressional Record of September 15, 1943:
“My friends of the graduating class, you today go out into a world of trouble; each of you in civilian clothes for the last time, perhaps, for some months. Regardless of the particular school from which you graduate, and no matter where your footsteps may lead you in the months to come, it behooves us to remind you of the fact that you are Americans, and, being Americans, remember that your brothers are in arms today on many battle fronts of the world. You, too, will take up the battle; you, too, will carry on the obligations; but, with God’s will, you will return to a Nation that looks to you in the post-war period for its sustenance, its continuation, and its future guidance. So today, that you may take with you at your graduating hour some of the things that are in the minds of those who carry the responsibility in government, I have attempted to formulate some thoughts that might impress upon you the fineness and the splendor of the government that gave you freedom of life. Then I would bring to your attention a few of the dangers that appear to be imminent, threatening the very existence of that Government. Those of us who take the responsibility of government seriously realize and see those dangers, and, seeing them, would militate against them, so that on your return from military fields you may have and enjoy the freedoms that have abided in this great country for a century and a half.
“Public administration is never so difficult, and good public administration is never so important, as in time of war. In wartime it becomes the appropriate function of Congress to vote vast lump-sum appropriations, and to make the broad delegations of power which the Executive needs. But the fact that we are engaged in a war does not mean that we must revise our form of government. We are making war as an organized Nation, and one of the purposes for which we fight is the preservation of our constitutional liberties and our constitutional form of government. We must not let that essential truth escape us.
“The founders of this Republic, the framers of our Constitution, were passionately devoted to the principle of government by consent of the governed. Adherence to this principle presupposes an orderly procedure under which laws are enacted by the elected representatives of the
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people, interpreted impartially by the courts in the light of our great basic law, and administered by public servants in accordance with such interpretation. Nothing could be more violative of the principle of government by consent of the governed than a system under which laws are made by appointive officials, interpreted by the same or other appointive officials, and administered by the same or still other appointive officials.
“It is no fallacy, and it is no quibble, to say that a large body of our law today is so made, so interpreted, and so administered. Not only by Executive order, but by a constant stream of ‘directives’ issued by various administrative agencies of the Government, rules and regulations are continually being put in force and given effect which have had no sanction by the Congress. Yet, without such sanction, and often without color of support from any constitutional source, these rules and regulations have all the force of law; more than that, they are law; and frequently they actually supersede laws passed by the Congress.
“Statutory provisions enacted by the Congress, in the exercise of powers clearly constitutional, have been expanded or contracted, added to or subtracted from, by the Executive branch of the Government, without hesitation. As an example of expanding a congressional act, we may cite the Anti-Inflation Act. An example of adding to statutory authority is the Executive order setting up the War Manpower Commission, section 5 of which provides that ‘no employer shall retain in his employ any worker whose services are more urgently needed in any establishment, plant, facility, occupation, or area designated as more essential’ by the Chairman of the War Manpower Commission. We have been unable to discover anything in the Selective Service Act, or in either of the War Powers Acts, or in any other Act of Congress with which we are familiar, which can be cited as the basis for that decree.
“This trend toward greater centralization of governmental power, with and through the growing tendency to legislate by directive, is either a sound and logical development within the framework of our American constitutional commonwealth, or it is a departure from that framework, a movement away from the basic principles of true democracy. If the latter, it is either justified by events and results, or it is unjustifiable. It will profit us to examine just what is the case.
“When the framers of our Constitution rested from their labors, they rested firm in the conviction that the document
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which they had drawn would forever preserve and protect those rights which must remain in the States, and those rights which must remain in the people, in order to preserve that happy balance of government which would insure our national security and perpetuity.
“The system of checks and balances provided by the Constitution, with three branches of government, the legislative, the executive, and the judicial, was regarded by those constitutional founders, with what seemed to them unassailable logic, as a perfect protection against too great an accumulation of power under any one authority; for they considered it unthinkable that any one branch should ever be able to usurp the powers of another branch.
“But that was in 1787. In July 1935 a President of the United States wrote to the chairman of a House Subcommittee on Ways and Means urging passage of a certain bill and concluding with the statement: T hope your committee will not permit doubts as to its constitutionality, however reasonable, to block the suggested legislation.’
“Only a few decades ago the Congress reprimanded most severely a Cabinet member who had the unprecedented temerity to send to the Senate the text of a bill which he wished to see enacted. Today this procedure not only is common practice but is by no means confined to Cabinet members. If you list the major bills which have been enacted into law by the Congress in recent years, you will find that a substantial number of them originated, not in response to popular demand expressed through the duly elected representatives of the people, but in the brain of some one member of the executive branch of the Government, or some small group within that branch; and were drafted, not in the Halls of Congress but in some administrative office, or executive conference room, or in the cubbyhole of some second assistant supervisor of auxiliary functions. Such a bill, however brilliantly written, cannot be an expression of the will of the people, but only a mirror of the ideas and ideals of its author and of the mood of his executive and administrative superiors.
“In a few of their objectives, in some of their attitudes, and in many of their excesses, no small number of these wearers of the bureaucratic purple are reincarnated Romans in full accord with the traditions primarily responsible for the fall of the Roman Empire.
“When you give any man unlimited power, it is like giving a schoolboy a gun; he wants to go out and shoot it off.
“When a man rises to an important position it is custom
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ary to suppose that his advancement has been due, at least in part, to some special merit; but this is not always true even in private business and industry, and certainly it is not always true in government. Still, most people are likely to believe it. Usually, the one who believes it most strongly is the man himself. As a result of this rather common failing, most of the men who write our administrative law, and who interpret it and administer it, have come to regard themselves as rather superior beings. In some cases they are. In many cases they are not. This feeling of superiority is manifested in a great many ways, ranging all the way from the petty dilatory tactics with which sundry petty bureaucrats seek to bolster their own petty egos, to the complete disregard of ordinary civil rights and established democratic processes and procedures which every now and then is evidenced by some new executive promulgation or administrative interpretation.
“The Constitution contains many provisions intended as safeguards against too much centralization of authority in the executive (or administrative) branch of the Government.
“In article I, section 2 provides that ‘all legislative powers herein granted shall be vested in a Congress of the United States.’ Is there anything unclear about the meaning of that?
“Paragraph 2 of section 6 provides that ‘no person holding any office under the United States shall be a Member of either House of Congress during his continuance of office.’ Why this provision, except to avoid any overlapping of executive or administrative functions, on the one hand, and legislative functions, on the other?
“Paragraph 18 of section 7 specifically delegates to Congress the power ‘to make all laws which shall be necessary and proper for carrying into execution . . . all . . .
powers vested by this Constitution in the Government of the United States or in any department or office thereof.’ This is an expansion and reiteration of the second section, but it is also important because it covers specifically the situation which the average ‘directive’ purports to meet, that is, a need for additional ‘law’ — rule or regulation — necessary and proper for implementing some power or powers already granted to some department or office of the Government. We see that the Constitution says Congress shall make such laws. Do we hear the voices of a chorus of administrative lawmakers saying: ‘Congress is too slow, so we’ll do it;
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Congress can’t be trusted, so we’ll do it’? Or is that only their actions speaking for them?
“We are minded on occasion to call to the attention of one or another Government administrator the fact that Members of the Congress are not alone in taking oath to support the Constitution. Paragraph 3 of article 6 requires that not only Senators and Representatives, but the members of all State legislatures, ‘and all executive and judicial officers both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution.’ Compliance with that paragraph is just about 100 per cent. That is, everybody takes the oath.
“It is not only in the body of the Constitution that we find provisions bearing on this question.
“The Bill of Rights sets up further safeguards. Sometimes we fear there is a tendency to overlook some of the provisions in these first 10 amendments to our Constitution. We wonder, for instance, if all the rules and regulations of the O. P. A., and their enforcement, are in strict conformity with the fourth amendment which provides that: ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’
“We wonder, whether the provision of the fifth amendment that: ‘No person shall be deprived of life, liberty, or property, without due process of law,’ ever contemplated, in the intention of its framers, a process of administrative law under which a ‘hearing commissioner’ of some executive branch of the Government will sit as judge and jury over a citizen charged with violation of some order promulgated by an executive officer of the Government without any specific authority from the Congress of the United States.
“We wonder how such a procedure, under administrative law, comports with the provision of the sixth amendment that: ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.’
“The last two items in the Bill of Rights are of tremendous importance. They are sentinels against overcentralization of government, monuments to the wisdom of the constitutional framers who realized that for the stable preservation of our form of government, it is essential that local governmental functions be locally performed.
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■ “The ninth amendment to. the Constitution provides that ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’
“The tenth amendment to the Constitution provides that: .‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’
“Many signs today seem to indicate that the wisdom of the philosophy which guided the framing of these amendments is being forgotten. We have heard it said that the belief is spreading in this country ‘That the people are not .capable of governing themselves; that the problems of today are so complex that the citizen at large must of necessity be detached from his own difficulties.’ If such a belief ever becomes the prevailing political philosophy of these United States, we cannot predict what type of government we shall then get. Perhaps a benevolent dictatorship, perhaps a dictatorship not so benevolent; perhaps national socialism; perhaps even a monarchy; but certainly not a democracy.
“Fully centralized control of all governmental functions, in a bureaucracy founded upon administrative law, is the very antithesis of that democracy in which all our rights are rooted; the democracy from which spring all our hopes, not only for a better future, but even for a maintenance of the unnumbered freedoms which we as a Nation have enjoyed since the foundation of our Republic.
“The Governor of a great American State, who afterward became President of the United States, once said: ‘To bring about government by oligarchy, masquerading as democracy, it is fundamentally essential that practically all authority and control be centralized in our national Government. The individual sovereignty of our States must first be destroyed. We are safe from the danger of any such departure from the principles by which this country was founded just so long as the individual home rule of the States is scrupulously preserved and fought for whenever it seems in danger.’ That statement is as true now as when it was made, 13 years ago.
“Dictatorship is not always a creature of war; sometimes it comes tiptoeing stealthily upon an unsuspecting people in time of peace; and sometimes it is builded secretly by the people themselves, unknowing the potentialities of what they create; until like Frankenstein’s monster, similarly builded, it is unleashed to accomplish the enslavement or destruction of its creator.
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“It has been said that true statesmanship must know a higher purpose than vote getting. We cannot argue with that thesis. But we say to you that if every Member of both Houses of Congress guided his every action by the criterion of whether what he did would win him votes or lose him votes at the next election, the body of law enacted by such a Congress would be vastly preferable to a body of law created by men owing no allegience to any group of voters, and giving no particular thought or weight to public opinion, either in the country as a whole or within any particular section of it.
“With every upsurge in the power of the administrative lawmaker and his alter ego, the bureaucrat, there is a concomitant slackening of initiative, a mushrooming of inertia, in the handling of State and local problems. This is more than a temporary tilting of the scales; it is a derangement of the fundamental balance which has maintained our form of government for over 150 years as the outstanding example of a free democracy. It may be a tipping of the chute down which, if it be not righted, we may eventually plummet toward the abyss of fascism. May God forbid!
“Government by administrative law breeds opportunity for personal arrogance; evades the courts; sneers at the rules of stare decisis; affords no precedents; and fortifies itself by pointing ridicule at Congress and other lawmaking bodies of our Nation.
“Administrative law has its seat of justice in the fiber and temperament of the individual administrator who may, if he chooses, recognize individual human rights and freedoms; or who may ignore or abrogate such rights with relative impunity, protecting himself with the law he has made and the law which is his to make.
“The growth of legislation by administrative directive is the step between democracy, with constitutional guaranties protecting the body of the law in the people, and a government by men with their backs to the wall, hurling defiance at constitutional and substantial changes prompted by progress and founded on the spirit of the law.
“Is this the bridge upon which we as a Nation now stand? If so, which way are we facing? The one end rests on the glory of the spirit of the law; the other on the popularity or prudence of the administrator. On one hand is democracy; on the other is autocracy, the bondmaid of dictatorship.
“I could not close my expressions to you, my young friends, without bringing back to you the words of that great priest, prince, and philosopher, James Cardinal Gib
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bons, when he said: ‘The law is not the people; the people is not the law. The law is the spirit of justice governing the people, and its application to individuals, to associations, to every form of civil life, must be so hedged around with reverence and security that the civil courts may, in an hour of popular passion, protect all the people from the tyranny of what might be a lawless majority.’ ”