The opinion
Finley, J.
(dissenting in part and concurring in part) — I dissent and strongly disagree with the majority views respecting the constitutionality of the delegation of legislative power in initiative 178. I concur in some of the views, and in the disposition of the consolidated cases indicated in the majority opinion. This may be further explained as follows:
I agree with the majority view that this court should consider the constitutional questions relating to initiative 178. This is based upon convictions that questions of large public importance are involved; that the views of this court might very well be of some considerable importance and perhaps of some assistance to the other two co-ordinate branches of state government, and that procedural hurdles and legal technicalities should not be allowed to impede *178 this court in the performance of this service. The references in the majority opinion to the declaratory judgment act and the possible equity powers of courts, accompanied by citations of authority, are concurred in by me.
Delegations of legislative authority have been accorded constitutional validity consistently by the courts, provided the delegations are limited by some reasonably definitive statement of policy, or standards, constituting some restraint, a guide or boundary relative to administrative activity permitted or directed by the statute. The kind of policy statement or standard required by the courts, its extent or detail, its degree of clarity, and its definiteness, has varied. Seemingly, the variation depends upon the particular field of administrative activity, the newness of administrative activity in the field, and necessities involved —to mention only a few of the factors considered by the courts in passing upon delegations of legislative power. The trend in judicial thinking clearly is to approve delegations of broad discretion to administrative agencies. In some cases, this has been true almost to the point of requiring the barest minimum by way of policy statement or standard. The majority cites ample and acceptable authority for the foregoing. A possible minor digression may be in order at this point.
It is only being realistic to recognize the creation of administrative agencies- and the evolution of administrative law as a natural development and outgrowth of our dynamic democracy. The interstate commerce commission, later the Federal trade commission, along with other agencies at Federal level, now accepted and accorded general approval, were most severely criticized for several years, both from the standpoint of their creation and with respect to their subsequent operations. Realistically again, the interstate commerce commission was a result of quite a basic change in our way of life, rather than a causative factor in itself. In other words, somewhat antedating creation of the commission, steam engines had been invented and railroads had been established. The commission was the outgrowth *179 of that basic change in American life — a natural and proper development in the field of government to meet a changed and changing situation in the relationships of citizens.
Against the foregoing backdrop, let us now consider specific provisions of initiative 178. Subsequent references relate to initiative 178, unless otherwise indicated. The statement of policy in § 2, namely, that such public assistance shall be made available “as is necessary to insure to recipients thereof a reasonable subsistence compatible with decency and health,” considered alone, might, in my judgment, meet judicial tests of constitutionality, and result in approval of the delegation of legislative authority. This is even more persuasive if, in addition to the policy statement, we consider (1) the necessity for state administrative conformance to Federal requirements (initiative 178, § 2; initiative 172, §17); (2) the requirement that grants shall be awarded on a uniform statewide basis (§5); and (3) the fact, possibly not emphasized too clearly by the majority, that the policy statement of chapter 6, Laws of 1949 (initiative 172), is nowhere specifically repealed by initiative 178, and still could be controlling as to administrative activity pursuant to initiative 178. All of this might spell out a policy or guide restricting administrative excesses or plenary power, and by the same token might confer constitutional plausibility on the delegation of power here involved. But several factors detract from the constitutional plausibility of the above-mentioned policy statement in § 2.
First, there is language in § 2 which states:
“This act recognizes that there are possibilities of serious abuses of such a program whereby those least deserving of public aid will benefit at the expense of the deserving, and of the state and its political subdivisions, and it is intended hereby to make possible sufficient administrative control of the program of assistance to curb or at least minimize such abuses without at the same time depriving qualified applicants and recipients of the assistance to which they are rightfully entitled.”
*180 This quoted language possibly conflicts with, strengthens, or weakens the policy compulsion of the words, “. . . reasonable subsistence compatible with decency and health,” depending upon a particular administrator’s notion of what constitutes an abuse in public assistance administration.
Second, the above-quoted policy language regarding “abuses,” coupled with language in §§ 3 through 8, for example in § 4, the terms (1) “maximum values,” (2) “maximum units,” (3) “unit value,” and (4) “ceiling values,” which relate to recipient-owned homes, personal property, and belongings, might not add up-to an objective standard.
At the risk of losing the interest of the reader, but so that the significance and impact of the above-quoted terms may be better understood, some very pertinent language from § 4 is quoted, at some length, as follows:
“The department shall, by rule and regulation, fix maximum values for both a home as defined in paragraph (a) and the personal property and belongings as defined in paragraph (b); and shall also fix maximum units of personal property, regardless of value. If the reasonable value of such home property or personal property and belongings exceeds the maximum values so established or the unit value, then the person owning such property shall be deemed to have a resource available to meet his needs over and above the amount necessary for home ownership or ownership of personal property and belongings, or both, as established by the department, and which can be utilized toward meeting his need by investment, and it shall be deemed that such excess value is capable of producing an income to such person at a return of not less than four per cent per annum. In the computation of income and resources for the purpose of determining need, such person shall be charged with an annual income equal to four per cent of such excess valuation or the actual earnings therefrom, whichever is the greater.
“The department shall also, by rule and regulation, fix ceiling values on both home property and personal property and belongings, and if any applicant for, or recipient of, public assistance possesses home property or personal property and belongings, or both, of a value in excess of such *181 ceiling values, such person shall be ineligible for public assistance.
“Value shall be the current fair market value, less liens and encumbrances of record.”
Apparently, under the above-quoted language, the administrator would fix (1) maximum values and (2) ceiling values. If the “reasonable value” (perhaps, this means “current fair market value, less liens and encumbrances of record”) of a home, or other property (real and personal) owned by a recipient of public assistance, exceeds (1) the maximum value or (2) the ceiling value, his grant would be reduced by a fixed percentage in the first case, or canceled in the second.
To recapitulate: An administrator’s ideas as to (1) “abuses,” coupled with his ideas as to (2) “maximum values,” “maximum units,” “unit value,” or “ceiling values,” and the influence of the one upon the other, might easily result in grants being increased, reduced, or canceled altogether. Thus, too much would depend upon subjective criteria of that individual official. It could be merely a matter of subjective emphasis. ■ Furthermore, the first-described policy of § 2 as to “. . . reasonable subsistence compatible with decency and health,” might too easily be affected, and fluctuate with the tenure of administrators.
Thus, the first-described policy statement of § 2, even though strengthened by some provisions of initiative 178, could be so eroded by other provisions of the initiative, and so weakened, it would become little more than “window dressing.” This might add up to constitutional defects, but such defects are not past possible correction.
Our democracy, in its dynamics, has turned its back upon the almshouse system of providing assistance to the needy. Admittedly, we are in a period of evolution and relatively new experimentation in this field of governmental operations. Social security and public assistance programs have been' criticized severely, and, in some respects, perhaps, justifiably. Of one thing we may be sure, some type of public assistance program will be with us for some time *182 to come. Initiative 178, like its predecessors, contemplates the providing of grants to those in need of public assistance; grants which the recipients may spend somewhat as they choose. This being understood, the provisions of initiative 178, relative to internal administrative problems (§§ 3 through 8, and possibly part of § 9), become most important. It is these provisions which purport to regulate the methods by which the size of particular grants will finally be determined and find their way to the individual recipients. It is here that the statements of policy contained in § 2 of initiative 178 break down. The policy could very well become meaningless in view of my evaluation of the so-called standards for internal administrative activity. Each examined administrative guide or standard appears to lack objectivity. For example, “need,” and “maximum value on such conveyance,” relate finally, in each instance, to subjective determinations of the administrator or the agency. The language of § 3, relative to “need,” illustrates the point quite well, and is quoted as follows:
“Section 3. (e) ‘Need’ — The amount by which the requirements of an individual for himself and the dependent members of his family, as measured by the standards of the department, exceed all income and resources available to such individual in meeting such requirements.”
I find too little in the above terms and too little in the definition of such terms in initiative 178 to cause them to mean the same thing to the minds or to the experience of two' different administrators. Recognizing the fact that some of our sister states employ little or no standards in the enactment of public assistance legislation (see Illinois statute — Smith-Hurd, Illinois Annotated Statutes (Perm, ed.), chapter 23, § 394, as commented upon in the majority opinion), this does not convince me that the procedure used was either desirable, necessary, or that it should be followed in the state of Washington. More clearly definitive statements of policy or standards appear to be more justified in the field of public assistance legislation and activity because of the new and evolutionary nature of the subject *183 matter. A large segment of the citizens of the state of Washington may obtain benefits through initiative 178. A large portion of the tax revenue of the state may be required to carry out this public assistance program, with no inconsiderable influence upon the availability of tax revenue for other equally important governmental activities. It is only good policy and good government that the basic legislation developed to establish the public assistance program be framed in such a manner as to provide the administrator not only a statement of policy, but also administrative “guides” which can be tested objectively.
As discussed above, the subjective criteria of the individual administrator, as he interprets and applies the administrative “guides” contemplated by initiative 178, will significantly determine the economic status and living conditions of recipients. The same subjective criteria could allow Mr. X, administrator in 1951, or Mr. Y, the successor administrator, in 1961, to disburse in one year or less a fund appropriated and intended by the legislature to last for an entire biennium; similarly, subjective criteria could allow him to spend only one-half the appropriation, or less, throughout an entire biennium. The one could be magnanimous, the other miserly and wretched. Could it be said that either would add up to sound or desirable state policy?
My acceptance of the majority’s view relative to (1) the contemplated delegation of legislative power, (2) the statement of policy, or (3) the contemplated standards contained in initiative 178, that is, constitutionality, depends upon factors hereinafter discussed. These factors involve the possible elimination of constitutional defects mentioned above and hereafter. The principal factor to be considered in this connection is that initiative 178 is not complete in itself. Section 9 specifically anticipates and requires complementary legislation. Some elaboration may be pertinent at this point.
In our state, basic legislation may be enacted by (1) initiative, and by (2) legislative bill; these are the two familiar procedures. A third, somewhat less obvious, pro *184 cedure, is possible. It consists of a complementary combination of the first two procedures.
Initiative 178 provides a certain statutory framework contemplating a complicated administrative program relative to public assistance. Amendment 11 to the state constitution relates to appropriations. It reads in part: “No moneys shall ever be paid out of the treasury . . . except in pursuance of an appropriation by law.” This point is pertinent because initiative 178 does not purport to make an appropriation. By its scheme of things, as pointed out above, the important matter of appropriations is left for action by the state legislature.
Now as a practical matter, the legislature will unquestionably take some action to continue a reasonable program of public assistance, tailored to time, circumstance, public interest and desires, the financial status of the state, public interest and desires respecting other governmental activities or services. What will the legislature do? That is the crucial question, and my concurrence with the majority opinion depends upon the answer.
It has occurred to me, without exploring all possibilities, that the legislature might, on its own initiative, consider and act upon any one of three courses of action:
1. The legislature might refuse to appropriate funds to implement initiative 178. It might disregard initiative 178 and enact a complete substitute statute appropriating funds exclusively for the implementation of such substitute legislation. (No opinion is expressed here as to the constitutionality of this procedure.)
2. The legislature might appropriate a certain amount of money for the implementation of initiative 178, without any strings whatsoever on such appropriation.
3. The legislature might appropriate funds for the implementation of initiative 178, with strings attached, providing administratively flexible, but clearly definitive and restrictive, budgetary guides for the disbursement of such funds.
*185 No funds for the payment of benefits are appropriated directly by, or in, initiative 178. Now, if the legislature should follow the first course of action mentioned above, and should not appropriate funds for the implementation of initiative 178, benefits thereunder could not be paid by the department. It is doubtful if appellants would have any legally cognizable claims to benefits under initiative 178 if there were no funds or appropriations available to the department for payment of such claims. Any interests or suggested rights of appellants under initiative 178 would be speculative or inchoate. In such an event, it is my opinion that the questions involving payment of benefits under initiative 178 in the consolidated cases would be moot. Nonavailability of funds is not a result beyond the realm of possibility, because the legislature might interpret the words, “ . . . the legislature shall appropriate such funds as are necessary to carry out the purposes of this act . . .,” in § 9 of initiative 178, as a request with moral or political suasion, but lacking legal compulsion. No practical method occurs to me whereby the legislature could be forced to appropriate funds, under the foregoing hypothesis.
Should the legislature follow the course of action numbered (2) above, I must conclude that the combined legislation (initiative 178, plus an appropriation statute) would fail to provide a sufficient statutory policy or standard for the guidance of the director of the state department of social security, and thus would be an unconstitutional delegation of legislative power. In other words, granting initiative 178 certain euphemistic qualities, nevertheless, the conflicting policy statements in § 2, as discussed above; the language of §§ 3 through 8 as it conflicts with the statements of policy in § 2, as discussed above; and the utter lack of true objectivity in §§ 3 through 8 of initiative 178; all such considerations lead me to the foregoing conclusion.
Should the legislature follow the course of action numbered (3) above, it could supply the missing link in initiative 178. In other words, by providing an administratively flexible, but clearly definitive and restrictive, over-all policy *186 or standard relative to the disbursement of funds, administrative discretion and activity unquestionably would be channeled. Reasonably precise policy or desires of the legislature then would clearly be paramount and controlling rather than elastic discretion or subjective criteria of-an administrator and the state department of social security. In connection with this last, the legislature, after carefully considering (1) the total estimated tax revenue and (2) the funds required by other state governmental operations, might appropriate “x” amount of dollars which it would feel would be appropriate to give effect to its desires or policy relative to public assistance. By the use of qualifying language relative to the appropriations, the director of the state department of social security could be required to spread the appropriations throughout the entire biennium and to spend the entire appropriation, except perhaps some small percentage of the appropriation determined by the legislature to be adequate to cover contingencies in the last few months of the biennium. Budgeting, on a quarterly or perhaps semiannual basis, and consequent revisions in the interpretation and application of internal administrative standards (§§ 3 through 8 particularly), could permit administrative flexibility to accommodate variations in case load, changed circumstances of recipients, and other changing factors inherent in any public assistance program. At the same time, administration could be geared to conform to the over-all biennial standard requiring disbursement of “x” amount of dollars, no more, no less. The effect on the state treasury and on the individual recipient would be the result, then, of legislative discretion, desires, or policy (as well it should), and not the result of some subjective criteria or some idea of an administrator.
In this manner, reasonably precise meaning and effect might be given to the statements of policy in § 2 of initiative 178.
By thus according an over-all controlling effect to statements of policy in § 2 in terms of “x” dollars available and required to be spent, it might be that' §§ 3 through 8, plus *187 those provisions of chapter 6, Laws of 1949, not repealed, could be related to and applied in compliance with the revitalized policy of § 2 and used administratively without constitutional difficulty.
Now, in conclusion, initiative 178 is an incomplete, inoperative piece of legislation, or statutory administrative program. Further complementary legislation is necessary. At this time any interests or suggested rights of appellants are speculative or inchoate. Any possible danger or damage to appellants seemingly pursuant to administrative activity under initiative 178, could be characterized similarly. All is contingent upon legislative action; namely, (1) appropriation of funds, and (2) the manner in which that is to be consummated. When the legislature acts, as it will do, appellants may have interests entitled to constitutional protection by the courts.
I have attempted to outline my views relative to constitutional questions pertinent to initiative 178 when coupled with complementary legislation which I believe the legislature might enact. This appears to me to be justified because of (1) the nature of appellants’ interests, and (2) the important questions of public policy involved.
On the basis of the views expressed herein, differing as they do from those of the majority, it is my opinion that the trial court properly dismissed the actions.