# State Ex Rel. Livingston v. Ayer > Washington Supreme Court · August 24, 1945 · 23 Wash. 2d 578 URL: https://www.frixlaw.com/law-library/cases/4001197 ## Case - **Full name:** The State of Washington, on the Relation of Harry Livingston Et Al., Respondents, v. Ellis C. Ayer, as Auditor of Thurston County, Appellant - **Court:** Washington Supreme Court - **Decided:** August 24, 1945 - **Citations:** 23 Wash. 2d 578; 161 P.2d 429; 1945 Wash. LEXIS 272 - **Precedential status:** Published - **Opinion:** Concurrence by Millard - **Judges:** Jeffers, Millard, Simpson, Grady - **Cited by:** 6 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/4001197 ## Opinion text *595 Millard, J. (concurring) — I concur in the holding that for performing additional duties provided by an act passed subsequent to his election, a public officer may not be paid additional salary or compensation during the term for which he was elected, even if such additional duties are extrinsic and foreign to the duties required of him at the time of his election, which is the sole question answered by the majority opinion. To hold otherwise would nullify the plain, unambiguous language of the constitution which forbids the increase in the case at bar. Anything that we have said which tends to nullify the constitutional prohibition against increasing or diminishing the compensation of any public officer during his term of office should be overruled. One will take an oath to support the constitution, and then readily, and even eagerly, breach that oath if he thinks it politically expedient for him to do so. Like Herod, who, for a good and sufficient political reason closely affecting the permanence of his reign in Judea, set aside the law and committed wholesale murder in his endeavor to effect the physical death of the Son of God. History proves that merely taking the oath of office does not change human nature and cannot make honest men out of born knaves. Faith plighted is ever to be kept, was a maxim and an axiom even among pagans. The virtuous Roman said that either let not that which seems expedient be base, or if it be base, let it not seem expedient. What is there which that so-called expediency can bring, so valuable as that which it takes away, if it robs you of your integrity and honor? Throughout the ages, he who violates his oath has been held unspeakably base. Legislative recreancy may not be absolved by judicial cowardice and intellectual jugglery. We may not, unless false to our oath, look with an indifferent eye upon the legislature’s attempt to breach the constitution. It is true, as observed in one of the dissenting opinions, that presumption of constitutionality is one of the aids employed in interpretation and construction of statutes. The author of that dissenting opinion should have listed another aid no less frequently invoked: The faculty to sense the *596 voting strength for or against constitutionality of a legislative enactment. The characteristic — “double talk” — of the Japanese nation is too often utilized by judges in their attempt to excuse evasion of an unambiguous constitutional mandate which is so plain that a grammar school pupil would be classified as subnormal did he misunderstand its meaning. The constitutional mandate is simple, intelligible. To agree with the minority view is to wander from the true theory by reason of want of the logical faculty or transgress against the constitutional mandate on the plea of necessity or expediency. In either case, did I so act I would deem I had offended against first principles and had been false to my oath to support the constitution. That portion of the act creating the county statistics commission, I do not challenge as unconstitutional. That portion of the act increasing the compensation of the county officials is invalid as it offends against the state constitution. The opinion in State ex rel. Seattle v. Carson, 6 Wash. 250 , 33 Pac. 428 , should be overruled. The legislative enactment challenged in that case is clearly unconstitutional, as it permitted the legislature, which may not impose taxes upon any municipal corporation for municipal purposes, to indirectly do the thing forbidden by the constitution; it was a flagrant by-passing of the constitution. The evil that men do lives after them. ■ For little moré than a decade it has been the vogue to contemn the Federal and state constitutions. That practice should be discontinued. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4001197. Public record. Not legal advice.