# State Ex Rel. Robinson v. Fluent

> Washington Supreme Court · March 18, 1948 · 30 Wash. 2d 194

URL: https://www.frixlaw.com/law-library/cases/3995986

## Case

- **Full name:** The State of Washington, on the Relation of Dana T. Robinson, Plaintiff, v. Russell H. Fluent, as State Treasurer, Respondent, Washington Pension Union, Intervener
- **Court:** Washington Supreme Court
- **Decided:** March 18, 1948
- **Citations:** 30 Wash. 2d 194; 191 P.2d 241; 1948 Wash. LEXIS 381
- **Precedential status:** Published
- **Opinion:** Dissent by Schwellenbach
- **Judges:** Millard, Schwellenbach, Simpson
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3995986

## Opinion text

Schwellenbach, J.
(dissenting) — In order to better explain my position, I am quoting certain sections of the state constitution, which have already been quoted by the majority.
Art. II, § 1, provides:
“The legislative powers shall be vested in a senate and house of representatives, which shall be called the legislature of the state of Washington.”
Art. II, § 12, provides:
“The first legislature shall meet on the first Wednesday after the first Monday in November, A. D. 1889. The second legislature shall meet on the first Wednesday after the first Monday in January, A. D. 1891, and sessions of the legislature shall be held biennially thereafter, unless specially convened by the governor, but the times of meeting of subsequent sessions may be changed by the legislature. After the first legislature the sessions shall not be more than sixty days.”
The biennial sessions of the legislative branch of the state government are thus limited to sixty days. When any such session of the legislature adjourns
sine
die, its functions, as the legislative branch of the government, entirely cease. Its members lose all powers as legislators; true, they are still
*227
senators and representatives, entitled to hold their offices during the remainder of the two- or four-year terms for which they were elected, but they are senators and representatives without any power to act as such. They cannot make laws; they cannot reconvene, unless called into special session by the governor; they cannot perpetuate themselves in power; they cannot, unless by an
act
of the legislature, appoint committees to serve subsequent to adjournment. The adjournment
sine die
ends their labors for that particular session. The constitutional provision above quoted, prohibits their subsequent functioning. It is an express limitation upon their right to subsequently function. A man may lock his safe by closing the door and twisting the dial. Five minutes later, by manipulating the dial to the proper combination, he may reopen the safe. But if there is a time lock on the safe, he cannot reopen it until the time set on the time lock. The adjournment
sine die
closes the legislative session. The constitutional provision limiting that session to sixty days, prohibits that particular session from ever reconvening. It is a limitation and a prohibition on the right of that legislative session to again function as such.
House concurrent resolution No. 10 was adopted by the thirtieth session of the Washington legislature. The thirtieth session convened January 13, 1947 and adjourned
sine die,
March 13, 1947. There is no question but that the reason it adjourned March 13th was because that date happened to be the sixtieth day subsequent to its convening, on January 13th. Art. II, § 12,
supra,
provides: “After the first legislature the sessions shall not be more than sixty days.”
Chapter 1, section 1, of the thirtieth session provided:
“There is hereby appropriated out of the general fund of the State of Washington the sum of four hundred seventy-five thousand dollars ($475,000), or so much thereof as may be necessary, to be used for the purpose of paying the expenses, except legislative printing, of the Thirtieth Legislature of the State of Washington.”
It will thus be seen that so much as might be necessary of the sum of $475,000 was appropriated for the purpose of paying the expenses of the thirtieth legislature. When the
*228
thirtieth legislature adjourned
sine die
March 13, 1947, any moneys remaining unexpended for the purposes of that session, reverted back to the general fund. The
act
creating the state legislative council, approved by this court in
State ex rel. Hamblen v. Yelle,
29 Wn. (2d) 68, 185 P. (2d) 723 , provided that the expenses of the council might be drawn upon funds appropriated for legislative purposes. There was thereby a reappropriation of so much of this $475,000 fund as was necessary for the purposes of the council,
by an act of the legislature itself.
Here the funds were attempted to be provided by joint resolution. Such an attempt'was invalid.
Amici curiae,
by an appendix to their brief, furnished a list of states having constitutional limitations to legislative sessions, taken from the Index Digest of State Constitutions Prepared for the New York State Constitutional Convention Committees, by the Legislative Drafting Fund, of Columbia University. That list follows:
40 days, Wyoming, III 6;
45 days without the concurrence of two-thirds of the members elected to each house, West Virginia, VI 22;
50 days, Alabama, IV 48;
50 days unless an impeachment trial pending at the end of that period, Georgia, III Sec. IV 3;
60 days (except special sessions), Nebraska, III 4;
60 days, Louisiana, 23; Montana, V 25; Nevada, IV 29; New Mexico, IV 5; Washington, II, 12;
60 days, but with concurrence of three-fifths of members elected to each house may be extended not exceeding 30 days, Virginia, IV 46;
60 days unless two-thirds vote of members elected to each house (not applied if impeachment pending) Arkansas, V 17;
60 days exclusive of Sundays and legal holidays, not applicable when sitting as court of impeachment, Kentucky, 42;
60 days except in cases of impeachment, North Dakota, II 56; South Dakota, III 6; Utah, VI16;
61 days, Indiana, IV 29;
90 days, Colorado, V 6; Maryland, III 15;
90 legislative days, Minnesota, IV 1.
*229
In addition to the above, Art. II, § 4, of the constitution of Pennsylvania, provides:
“The General Assembly shall meet at twelve o’clock, noon, on the first Tuesday of January every second year, and at other times when convened by the Governor,
but shall hold no adjourned annual session after the year one thousand eight hundred and seventy-eight.
In case of a vacancy in the office of United States Senator from this Commonwealth, in a recess between sessions, the Governor shall convene the two Houses, by proclamation on notice not exceeding sixty days, to fill the same.” (Italics mine.)
Brown v. Brancato,
321 Pa. 54 , 184 Atl. 89 , was an action to restrain a committee appointed by the Pennsylvania house of representatives from investigating a board of city trusts. The general assembly adjourned
sine die
June 21, 1935, and demand was made by the committee on September 5, 1935, for access to the records, books, and accounts of the trust. The court held:
“Legislative power is vested in the General Assembly composed of the Senate and the House of Representatives: Article II, section 1, PS, Constitution, page 176. Members of the Senate are elected for four years, members of the House for two years: Article II, section 3. The Assembly shall meet in regular session on the first Tuesday of January every second year and at other times when convened by the Governor, but no adjourned annual session shall be held: Article II, section 3. No power is vested in the House to act independently of the Senate after the Assembly adjourns sine die. The Constitution contemplates the exercise of Legislative power by concurrence of both House and Senate.
The legislative action
of
the General Assembly, in virtue of the session which convened, as required by Article II, section 3, ended with its adjournment.
After adjournment the power of this committee of the House, if it had any power before, was effectually ended. There is no implied power in the exercise of which the House may sit after adjournment of the Assembly and therefore no power in the House to create a committee to do what the House itself may not do. From and after the adjournment, the power of the House complained of in this suit, was done once and for all.” (Italics mine.)
The precise issue in that case was the power of one house to act subsequent to the adjournment of the assembly, but
*230
the principle that the legislature had no power to function after adjournment, was clearly stated.
The majority quotes from
Ex parte Caldwell,
61 W. Va. 49 , 55 S. E. 910 , 10 L. R. A. (N.S.) 172, where it was held that one branch of the legislature alone had no power to create an interim committee to sit after adjournment, but recognized the power of both houses to do so. At the time that opinion was rendered, the West Virginia constitution provided that no session should continue longer than forty-five days, without the concurrence of two thirds of the members elected to each house. In answer to the question as to why both branches could pass a resolution to operate after adjournment, the court, in the
Caldwell
case said:
“The other answer is that the legislature may meet again after adjournment.”
(Italics mine.)
Art. VI, § 19, of the West Virginia constitution provides:
“The Governor may convene the Legislature by proclamation whenever, in his opinion, the public safety or welfare shall require it.
It shall he his duty to convene it, on application in writing, of three-fifths of the members elected to each House.”'
(Italics mine.)
It will thus be seen that the legislature has a right to reconvene after adjournment and is not limited to its forty-five day sessions.
In ruling on a writ of
habeas corpus
sued out by Frank Hague, Vice Chancellor Fallon, in
In re Hague,
105 N. J. Eq. 134, 147 Atl. 220 , said:
“The legislative power vests in a senate and general assembly.
State Const., art. 4 § 1 Par. 1.
Said bodies meet separately on the second Tuesday in January, at which time of meeting the legislative year commences.
State Const., art. 4 § 1 Par. 3.
Neither of said bodies are continuous; they expire annually.
State v. Rogers, 56 N. J. Law 480 (at p. 631).
Although the senate — providing an always-existent membership — may be considered as having a permanent existence,- it does not have continuous vitality.
State v. Rogers, supra (at p. 622).
It is only when the senate and general assembly are lawfully assembled that they constitute the legislature — the law-making body of the state. Each of said bodies are subject, in their action, to constitutional limitations and laws, in common with all other
*231
bodies, officers and tribunals within the state.
In re Gunn, 50 Kan. 155 ; 19 L. R. A. 519; Kilbourn v. Thompson, 103 U. S. 168 ; Burnham v. Morrissey, 80 Mass. 226 .
All powers of the legislature, as such, cease upon the final adjournment of said body. All powers delegated to a committee appointed by a joint resolution of the senate and general assembly also cease.
Fergus v. Russel, 270 Ill. 304, 343, 344 ; Bank v. Worth, 117 N. C. 146 .
The legislative committee appointed under the aforesaid joint resolution had no authority after the final adjournment of the 1928 legislative session, except to make a report.
Bank v. Worth, supra.
The legislature constituted for the year 1929 was without power to amend or supplement the aforesaid joint resolution. The power of the legislature is distinguishable, in this respect, from its conceded authority to amend or supplement a law. A joint resolution adopted by a state legislature is not a law. It is of less solemnity than a law, and clearly distinguishable therefrom.”
The majority questions this decision as being in conflict with an earlier opinion of the highest court of New Jersey. Here is the history of this litigation.
The 1928 legislature, by joint resolution No. 13, appointed an investigating committee. The 1929 legislature amended the 1928 resolution. On April 18, 1929, the court of errors and appeals in
Ex parte Hague,
104 N. J. Eq. 369, 145 Atl. 618 , in a per curiam opinion, answered certain questions submitted to it, among which was:
“Is joint resolution No. 13, taken as a whole, a valid exercise of legislative power, even if some one or more of the inquiries suggested therein may be unlawful?”
That question was answered in the affirmative.
Upon Hague’s failure to answer certain questions submitted by the committee, he was arrested. He then applied to Vice Chancellor Fallon for a writ of
habeas corpus.
August 27, 1929, Fallon, vice chancellor, in the above-quoted case, in deciding whether joint resolution No. 13 had any vitality after the final adjournment of the legislature, rendered the above opinion in
In re Hague,
105 N. J. Eq. 134, 147 Atl. 220 , and discharged the petitioner.
On May 19, 1930, in
Ex parte Hague,
9 N. J. Misc. 89, 150 Atl. 322 , upon appeal, the court of errors and appeals af
*232
firmed the order of Fallon, vice chancellor, rendered August 27, 1929.
The majority quotes from the Alabama case,
In re Opinion of the Justices,
248 Ala. 591 , 29 So. (2d) 10 , decided January 18, 1947. An amendment to the Alabama constitution had been ratified November 5, 1946, providing that the legislature should convene on the second Tuesday in January, next succeeding their election, and should remain in session for not more than ten consecutive days, at which session no business could be transacted except the organization of the legislature and work incidental thereto. A request was made for an advisory opinion as to the constitutionality of a joint resolution proposing to create six interim committees
“to serve during the interim between this organizational session of the legislature and the Regular Session of the Legislature to be held in May, 1947.”
There could be no question but that these interim committees were legal, because they were operating as a part of the 1947 session of the legislature.
In every state having a constitutional limitation similar to ours, in which the question of the constitutional right to appoint, by joint resolution, an interim committee with power to function subsequent to the adjournment
sine die
of the legislature, has been presented, such right has been denied.
The majority has cited cases from a number of states, not having any constitutional limitation on the length of legislative sessions, which have approved the right of the legislature to appoint interim committees with power to serve after adjournment. However, of those states, Texas, Kansas, Tennessee, and North Carolina have constitutional provisions requiring that resolutions be treated in the same manner as bills. In those states, resolutions have the same solemnity as acts of the legislature.
The majority states that the question whether the legislature may project its
investigatory
function into the interim and until the next session of the legislature is foreclosed by our opinion in
State ex rel. Hamblen v. Yelle,
29 Wn. (2d) 68. The only question before us in the
Hamblen
*233
case was whether or not members of the legislative session which created
by an act of the legislature,
the “State Legislative Council,” with authority to function after the adjournment of the legislative session, could serve on such council.
The right of the legislature to appoint interim committees by joint resolution was not before us.
We should be extremely careful not to enlarge our previous holdings in subsequent decisions.
In
Dickinson v. Johnson,
117 Ark. 582 , 176 S. W. 116 , L. R. A. 1915E, 496, the Arkansas court was considering the following question: “Did the General Assembly have power, by concurrent resolution, to continue its committees for the purposes expressed in the resolutions, after the adjournment
sine die?”
In answering the question in the negative, the court said:
“For the purpose of obtaining information looking to the enactment of laws to meet the requirements of Government, the appointment of committees by either branch of the Legislature, or by the concurrent action of both branches, is absolutely necessary for the efficient discharge of legislative functions, and is recognized under our systems of Government, both State and National. Ordronaux Constitutional Legislation, p. 373.
“When such resolutions are constitutionally adopted concerning a subject-matter within the proper sphere for such resolutions they may have the force and effect of a law. Our own Constitution has recognized concurrent resolutions as one form in which the Legislature may express its will, and when it is expressed in the manner prescribed,, and concerning those matters within the legitimate scope of concurrent resolutions, such resolutions may have the force and effect of law. Yet they were not regarded by the framers of our Constitution as of the same dignity and importance as a bill. The same solemnity and strictness is not required for the adoption of resolutions, as is to be observed in the passage of bills, except when the resolutions are disapproved by the Governor. Const, of Ark., art. 6, sec. 16. Concurrent resolutions are necessary, but have the force and effect of law only within the limited sphere incident , to the work or legislation which the Legislature may complete before its final adjournment.
“In congress a joint resolution is regarded as a bill. See Cushing’s Law and Practice of Legislative Assemblies, p.
*234
93. And in many of the States joint resolutions are recognized as equivalent to laws enacted by bill. See
State ex rel. Peyton v. Cunningham,
18 Am. & E. Ann. Cas., p. 707, case note.
“But such is not the case under our Constitution, [quoting constitutional provisions.] . . .
“Thus a clear distinction is made between bills and concurrent resolutions. The one can not take the place of the other. All laws must be passed by bill. Concurrent resolutions can not be used to enact laws.
“As the only efficient method of making the investigation and procuring the information desired, the General Assembly, by concurrent resolution, appointed its committees, and these committees reported that they were not able to complete their work and make report before the time for the expiration of the session under the Constitution. The committees were the agencies of the General Assembly which created them, and so long as the Legislature was in session, it had full control over them. When it became apparent near the close of the session that the committees would not have time to make the investigation and procure the information contemplated for the purposes of any present legislation it was not only within the power of the Legislature, but was a proper exercise of that power, for it to continue the work of the investigation for the information of the Governor and the people generally, and as a guide for any future legislation that might be necessary.
But this continuation or reappointment of the committees for the important work outlined for them after the adjournment of the Legislature was not a proper subject-matter for concurrent resolution. It could only be done by a bill enacting a law to that effect.
“Under our Constitution, the Legislature has no power,
by concurrent resolution,
to appoint committees or to continue committees already appointed for the purpose of making investigations after the Legislature has adjourned. The principle controlling this question was announced by this court in
Tipton v. Parker,
71 Ark. 193 -196. There the question was as to whether the Senate had authority to direct a committee to make certain investigations after the adjournment of the Legislature and report its findings to the Governor. In that case we said: ‘The committee, being the mere agency of the body which appointed it, dies when the body itself dies, unless it is continued by law; and it is not within the power of either house of the General
*235
Assembly to separately enact a law, or pass a resolution having the force and effect of a law. To do this requires a majority of each house voting in its favor. Const. 1874, art. 5, sec. 23.
“ ‘The only legitimate office, power or duty of a committee of the Senate, in the absence of a law, prescribing other functions and duties, is to furnish the Senate which appointed it with information, and to aid it in the discharge of its duties.’
“It was there distinctly ruled that the committee dies when the body creating it dies, unless the committee is continued by law. The court, by the language used in that case, did not mean to hold or indicate, even by indirection, that a committee of the Legislature could be continued by a concurrent resolution beyond the adjournment
(sine
die) of the Legislature.” (Italics mine.)
The majority criticizes this opinion because it relies for sustaining authority on
Tipton v. Parker,
71 Ark. 193 , 74 S. W. 298 , which held that neither house, by separate resolution, has power to create interim committees to sit after adjournment. However, the court, in the
Dickinson
case, approved the principle outlined in the
Tipton
case, saying:
“While the writer is the only member of the present court who participated in that decision, yet the majority of us concur in the view therein expressed, that to continue or appoint a committee whose work of investigation is to go on beyond the session of the body which created it, requires the enactment of a law by bill, passed in the manner prescribed by the Constitution.
“The principle announced in Tipton v. Parker, supra, and here reiterated, is not only sound, but it is supported by the weight of authority in this country having Constitutions similar to our own.
See
State ex rel. Peyton v. Cunningham,
18 A.
&
E. Ann. Cas. 705, and authorities cited in note.
“In jurisdictions where the Constitution expressly recognizes joint resolutions as equivalent to laws enacted by bill, such resolutions, when duly passed under the Constitution, are given the force and effect of laws. Such is the case under the Constitution of the United States and some of the States. As a fair illustration of this may be mentioned
Olds v. State Land Commissioner,
134 Mich. 442 , 86 N. W. 956 . There the Constitution provides: ‘Every bill and joint resolution shall be read three times in each house before final passage thereof. No bill or joint resolu
*236
tion shall become a law without the concurrence of a majority of all the members elected to each house.’ Of course, under such constitutional provision a concurrent resolution, when constitutionally passed, becomes a law the same as a law enacted by bill. But, as we have already observed, under a Constitution like ours, a concurrent resolution duly passed is not a law, and can not be used as a substitute for a bill.
Mullan v. State,
114 Cal. 578 -587;
Lithographing Co. v. Henderson,
18 Col. 259 ;
Boyers v. Crane, Auditor,
1 W. Va. 176 ;
May v. Rice,
91 Ind. 546 . See, also,
Hiram B. Burritt v. Commissioners of State Contracts,
120 Ill. 322 .” (Italics mine.)
In Fergus v. Russel,
270 Ill. 304 , 110 N. E. 130 , Ann. Cas. 1916B, 1120, the court said:
“With the sine die adjournment of the Legislature all its functions as a legislative body cease. Its work is ended. It will not again be called into existence, except on the call of the chief executive for a special purpose, and no presumption will be indulged that it will be again so called into being. During the sessions of the Legislature either house may appoint separate committees, and the two houses, acting concurrently, may appoint joint committees for any proper purpose, which may exercise such powers as the house or houses appointing them may lawfully delegate or impose. The only powers which can be conferred upon and. delegated to such committees are such powers as are possessed by the house or houses making'the appointment. As all the powers of the Legislature, as such, cease upon its final adjournment, it must follow that all the powers which have been delegated by it, or either house thereof, to a committee by mere resolution cease also. In
Tipton v. Parker,
71 Ark. 193 , 74 S. W. 298 , it was held that neither house of the General Assembly, by separate resolution, has the authority to appoint a committee to make any investigation after the final adjournment of the Legislature. We
perceive no reason why the holding in that case, of which we approve, should not apply to a joint resolution of both houses appointing such committee.
Such committees may be appointed, and they may act and may lay before the succeeding General Assembly the result of their investigations, but in so doing they are acting under no authority, but by mere request, and they have no authority delegated to them which they may exercise. In such a case the act is not that of a committee authorized by the Legislature or either house thereof, but is the voluntary
*237
act of mere private individuals. The Legislature has no power to make an appropriation to pay the expenses of such persons who may thus voluntarily perform services, even though same may be performed at the request of the Legislature. The expenses so incurred are the private and individual debts and liabilities of such persons. Section 20 of article 4 of our Constitution provides:
“ ‘The state shall never pay, assume or become responsible for the debts or liabilities of, or in any manner give, loan or extend its credit to or in aid of any public or other corporation, association or individual.’ ” (Italics mine.)
In
Swing v. Riley,
13 Cal. (2d) 513, 90 P. (2d) 313 , the court said:
“ ‘Another and complete answer to this contention is that we are of the opinion that under our Constitution the legislature has no power by concurrent resolution to create a committee with power to sit after adjournment
sine die.
As far as the question of power is concerned there is no difference in this regard between a single house and a concurrent resolution. It is true that on this subject there is a conflict of authority. The cases both ways are noted in the assembly committee case, L. A. No. 16753
(ante,
p. 497 ,[ 90 Pac. (2d) 304 ]). As was pointed out in the assembly committee opinion,
several of the cases holding that by a concurrent resolution the legislature may validly create an interim committee, are in fact not authority for that holding, for the reason that in the particular jurisdiction there is no legal distinction between a concurrent resolution and a statute, both requiring the governor’s signature.
The reasoning of the several cases holding that a concurrent resolution is ineffectual to validly create such a committee seems to us to be unanswerable. If such a committee cannot lawfully be created by single house resolution (and on this point all state courts agree) it cannot be created by concurrent resolution. Every argument fully set forth in the assembly committee case, L. A. No. 16753
(ante,
p. 497 [ 90 Pac. (2d) 304 ]) is equally applicable here. Legislative powers of the legislature cease upon adjournment
sine die. Such powers cannot be continued after adjournment by either single house or concurrent resolution. The power to investigate by committees is subsidiary to the legislative power. When the main power ceases, the auxiliary power dies with it. If such committee or commission is to function lawfully after adjournment it can be created only by statute.’ ”
(Italics mine.)
*238
Finally, the majority contends that the concurrent resolution adopted was an
act
of the legislature, and therefore valid, relying upon
State ex rel. Mullen v. Howell,
107 Wash. 167 , 181 Pac. 920 . There, the 1919 legislature, by joint resolution, ratified the eighteenth amendment to the Federal constitution. Application was made to refer the matter to the people under the seventh amendment to the Washington constitution, and this court held that, although the proceeding was designated as a joint resolution, it was, in fact, the
act
of the legislature by which it ratified the eighteenth amendment. For that reason, the court allowed the matter to be referred.
The rule in the
Howell
case has never been extended. On March 27, 1947, application was made to this court to refer, under the seventh amendment, this identical house concurrent resolution No. 10, now being considered by us. Re-lators in that proceeding claimed that under the authority of the
Howell
case a concurrent resolution was an act. By order issued April 11, 1947, we denied the petition. This precise issue has been determined by this court. By no process of legal reasoning can the concurrent resolution under consideration be considered an
act
of the legislature.
The constitution prohibits the legislature, as such, from functioning after the adjournment of its regular session,
sine die,
by and through a committee appointed by concurrent resolution.
The writ should be denied.
Mallery, C. J., concurs with Schwellenbach, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3995986. Public record. Not legal advice.