Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1975 No. 41 - Apr 15 1975
Attorney General Slade Gorton


Discussion of constitutional criteria to be applied under Article VIII, § 5 of the state constitution with respect to appropriations made by the legislature for the relief of certain individuals or organizations for legally unenforceable claims against the state.

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                                                                   April 15, 1975

Honorable Frank Woody
Chairman, Senate Subcommitteeon Small Claims
Legislative Building
Olympia, Washington 98504

Honorable George Clarke
Vice‑Chairman, Senate Subcommitteeon Small Claims
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 41


            By recent letter you have advised us that the subcommittee on small claims of the senate ways and means committee is currently considering various and sundry claims for relief against the state of Washington. Among those claims are two which you have described as follows:

            "(1) Payment in lieu of pensions to police widows whose husbands were deceased before the effective date of chapter 140, Laws of 1961.  State ex rel. Bolen v. Seattle, 61 W. 2d 196 (1962) holds that the legislature could not constitutionally grant pensions to surviving spouses whose husbands died prior to the enactment of the law.  This case was based on Article 2, section 25 of the State Constitution which provides that increases in pensions after the granting of a pension are permitted but does not contain any provision for granting a pension retroactively.

            "(2) Payment of a judgment against the Circle Bar J Boys Ranch (now Circle Bar J Ministries) for a boy who was injured while living at the Ranch in 1965.  Circle Bar J Ministries is a nonprofit corporation which provides a residential situation for juveniles who have legal problems.  The State of Washington now contributes about $500 per month per person sent to the ranch and provides an insurance policy covering this  [[Orig. Op. Page 2]] institution and similar institutions.  The incident which resulted in a $165,000 tort judgment against the boys ranch occurred prior to such state involvement.  The specific claim covers the tort judgment against the ranch which resulted from a boy being seriously injured as a passenger in a truck used to transport persons to and from the ranch.  The judgment against the driver and the boys ranch was in the sum of $165,000 plus costs on appeal."

            You have asked for our opinion as to whether any constitutional provisions would prevent the payment of either or both of these two claims for relief.


            Question (1):

            The situation giving rise to your first question is described at some length in AGO 1969 No. 12 [[to F. Pat Wanamaker, State Representative on July 15, 1969]], copy enclosed.  Prior to 1958, Article II, § 25 of our state constitution provided, in full, that:

            "The legislature shall never grant any extra compensation to any public officer, agent, servant, or contractor, after the services shall have been rendered, or the contract entered into, nor shall the compensation of any public officer be increased or diminished during his term of office."

            At the 1958 state general election, however, the voters approved an amendment which added the following qualifying sentence:

            ". . .  Nothing in this section shall be deemed to prevent increases in pensions after such pensions shall have been granted."

            Thereafter, in two related cases, the state supreme court considered the constitutionality of a certain statute (§ 1, chapter 140, Laws of 1961) which provided for the payment of pension benefits to the widows of certain retired former city police officers.  InState ex rel. Bolen v. Seattle, 61 Wn.2d 196, 377 P.2d 454 (1963), the court held that this 1961 pension legislation couldnot constitutionally be applied in the case of a  [[Orig. Op. Page 3]] widow whose husband had both retired and died prior to its effective date, saying:

            "While the constitution as amended authorized legislation increasing existing pensions, it does not authorize the legislature to grant a widow a pension when there was no right thereto at the time of the death of the husband.  The respondents were widows when the statute was enacted, at which time they had no pension rights.  A subsequent act granting a pension to such a class is not an increase of an existing one."

            However, a year later, inState ex rel. Albright v. Spokane, 64 Wn.2d 767, 394 P.2d 231 (1964), the court upheld the constitutionality of the same statute as applied to the surviving spouse of a police officer who had retired before its effective date but who did not die until some time later.  The court's explanation of this ruling was, in essence, as follows:

            "We think it is clear that the legislature, in making pension benefits payable to a widow of a police officer, did not create a new pension but simply increased the pension of the officer by making its benefits payable to his widow after his death.  This is within the area of legislative action permitted by the 35th amendment."

            As you have described it, the first of the two relief claims upon which you have requested our opinion represents an attempt by that class of widows to which theBolen case applies to obtain some form of monetary payment from the legislature in lieu of the pension benefits for which they were held to be constitutionally ineligible by the supreme court.  The issue raised, as we view it, is whether an appropriation by the legislature to honor this claim would be in violation of Article VIII, § 5 of the constitution which provides that:

            "The credit of the state shall not, in any manner be given or loaned to, or in aid of, any individual, association, company or corporation."

             [[Orig. Op. Page 4]]   This constitutional provision has been held by the supreme court to prohibit gratuitous expenditures of state funds as well as extensions of the state's credit.  See,Highway Commission v. Pacific NW Bell Tel. Co., 59 Wn.2d 216, 367 P.2d 605 (1961);State v. Guaranty Trust Co., 20 Wn.2d 588, 148 P.2d 323 (1944); andMorgan v. Dept. of Social Security, 14 Wn.2d 156, 127 P.2d 686 (1942).

            There are, however, two judicially recognized exceptions to this prohibition which could, possibly, bear upon the constitutional validity of an appropriation made to honor the instant claim.  First, the court has, in effect, read into Article VIII, § 5, supra, the "poor and infirm" exception which is expressly stated in Article VIII, § 7 of the constitution with regard to municipal corporations as follows:

            "No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation."  (Emphasis supplied.)

            See,State v. Guaranty Trust Co., supra, andMorgan v. Dept. of Social Security, supra.  Secondly, the court in sustaining the payment of war veterans' bonuses has indicated that at least certain expenditures made in the discharge of a "moral" ‑ as opposed to legal ‑ obligations are not violative of Article VIII, § 5,supraGruen v. State Tax Commission, 35 Wn.2d 1, 31, 211 P.2d 651 (1949).

            If the legislature finds that all of the widows who would be benefited by the appropriation being sought to honor the first claim described in your letter are in economic "need" by reason of their lack of sufficient financial resources to provide, adequately, for themselves, then it would appear to us possible to justify the resulting expenditures on the basis of the first of these two judicially recognized exceptions to the prohibition of Article VIII, § 5,supra.  On the other hand, if such a finding cannot properly be made the only basis for the appropriation would be a determination by the legislature that the state, somehow, has amoral obligation to compensate the class of  [[Orig. Op. Page 5]] widows involved for the services rendered by their husbands as city police officers even though no pension benefitsperse can, constitutionally, be paid to those widows under the holding of the supreme court in the Bolen case,supra.

            Question (2):

            Essentially the same line of reasoning is applicable, as well, to the second claim described in your letter.  In this case, however, there would appear to be no basis for an invocation of the "poor and infirm" exception to the prohibition of Article VIII, § 5, supra.  Therefore, theonly possible basis for honoring this claim would be a recognition by the legislature of a "moral" obligation on the part of the state to pay a tort judgment running against a private corporation.  In view of the facts described in your letter, it would be most difficult for us to find any such obligation since, apparently, the state had no contact with the situation whatsoever at the time the tort in question occurred.  Therefore, in the final analysis this office would have to express substantial doubt as to the constitutionality of an appropriation made by the legislature to honor this particular claim for relief.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General