AGLO 1971 No. 15 - Feb 1 1971
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February 1, 1971
Honorable R. Frank Atwood
State Senator, 42nd District
Olympia, Washington 98501
Cite as: AGLO 1971 No. 15 (not official)
This is written in response to your recent letter requesting our opinion as to the constitutionality of a certain proposed bill which (in addition to enclosing a copy) you have briefly described as follows:
". . . In brief, the proposed bill would authorize and empower the Legislative Budget Committee to conduct management surveys of state agencies, officers and employees subject to the provisions of RCW 43.09.290 through 43.09.340. Also, the proposed bill would preclude a like authority to the Office of the State Auditor.
"In addition, the proposed bill would eliminate the State Auditor's authority to make determinations as to whether agencies, in making expenditures, complied with the will of the Legislature and would restrict his power to determining whether agencies, in making expenditures, complied with the laws of the state."
The bill which you have enclosed consists of three substantive sections. The first of these would amend RCW 43.09.050, relating to the duties of the state auditor, by adding to subsection (2) thereof the language which we will underscore in quoting this amendatory section in pertinent part:
"The auditor shall:
". . .
"(2) Except as otherwise specifically provided by law, audit, settle, and adjust the accounts of all collectors of the revenue and other holders of public money required by law to pay the same into the treasury;
". . ."
[[Orig. Op. Page 2]]
Section 2 of the bll would add the following new section to chapter 44.28 RCW, relating to the legislative budget committee:
"The legislative budget committee may make management surveys as to every public body, officer or employee subject to the provisions of RCW 43.09.290 through 43.09.340. Management surveys for the purposes of this section shall be an independent examination for the purpose of providing the legislature with an evaluation and report of the manner in which any officer, administrator, or employee of a state agency subject to RCW 43.09.290 through 43.09.340 has discharged his responsibilities to faithfully, efficiently, and effectively administer any legislative purpose of the state. The authority in this section conferred excludes a like authority in the state auditor."
Lastly, § 3, in so far as is material to your question, would amend RCW 43.88.160 (dealing with the duties and functions of various offices under the state budget and accounting act) to provide in material part as follows:
". . .
"(3) The state auditor shall:
". . .
"(c) Make his official report on or before the thirty-first of December which precedes the meeting of the legislature. The report shall be for the last complete fiscal period and shall include at least the following:
"(i) Determinations as to whether agencies, in making expenditures, complied with the ((will of the legislature)) laws of this state; . . ."
The basic constitutional issue which is raised by this proposal is whether such qualifications or limitations upon the existing post-audit functions of the state auditor as might, arguably, result from its enactment would violate the following provisions of Article III, § 20 of our state Constitution:
[[Orig. Op. Page 3]]
"The auditor shall be auditor of public accounts, and shall have such powers and perform such duties in connection therewith as may be prescribed by law. . . ."
In view of the analysis of this section which appears in Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959), we answer this question in the negative. The Yelle case, as you may recall, involved the constitutionality of chapter 328, Laws of 1959 ‑ the budget and accounting act (now codified as chapter 43.88 RCW). Among the arguments which were made against the validity of this enactment was the argument that its transfer of certain preauditing functions from the state auditor to the budget director was contrary to Article III, § 20 for the reason that under this section, only the auditor could be called upon to perform these functions.
However, after a detailed discussion of the history of Article III, § 20, and other related sections of Article III, as revealed by the Journal of the Constitutional Convention of 1889, the supreme court rejected this argument. The court's opinion on this point reads, in material part, as follows:
"With this attitude of the framers of our constitution toward these offices, we do not believe it reasonable to conclude they intended any powers for the office of state auditor, except as they specifically provided by the express language of Art. III, § 20:
"'. . . The auditor shall be auditor of public accounts, and shall have such powers and perform such duties in connection therewith as may be prescribed by law. . . .' (Italics ours)
"We believe the words 'in connection therewith' relate directly to his duty as auditor of public accounts to be fixed by the lawmaking body; that his powers and duties as auditor, by this language, are within the exclusive discretion of the legislature, which may be fixed, enlarged, or diminished by that body at any time.
"This conclusion is further supported by the well-established rule of constitutional construction 'expressio unius est exclusio alterius.' The express mention of one thing implies the exclusion of the other. State ex rel. Banker v. [[Orig. Op. Page 4]] Clausen, 142 Wash. 450, 253 Pac. 805 (1927). By the application of this principle, it is only when the constitution is silent as to these duties that constitutional duties may be implied. . . .
"In the instant case the Washington constitution is not silent as to the powers and duties of the office of auditor and the common-law duties or implied powers cannot attach to the office, but only those as may be prescribed by law. Moreover, the Washington constitution is a limitation upon the powers of the legislature, instead of a grant of powers, and so far as the power of the legislature is not limited by the constitution it is unrestrained. Union High School Dist. No. 1, Skagit County v. Taxpayers of Union High School Dist. No. 1, 26 Wn.2d 1, 172 P.2d 591 (1946). This being so, in view of the affirmative direction that the powers and duties of the state auditor shall be as prescribed by law, it cannot be reasonably concluded that Art. III, §§ 1 and 20, was intended as a limitation upon the powers of the legislature.
". . .
"We do not find it necessary to further discuss the cases cited from other jurisdictions since Washington is the only state in the Union which has the constitutional provision providing for the abolishment of the office of state auditor. This unique provision is singularly significant in view of the fact that the framers of our constitution questioned the necessity of establishing such an office. We are satisfied that Art. III § 20, considered in the light of the state of mind of our convention delegates at the time of the adoption of this section, nullifies any inference that this office was to have any powers other than statutory powers, as they specifically provided." (double emphasis supplied.)
In so far as the present proposal is concerned, we may say, first, that it is somewhat doubtful that its [[Orig. Op. Page 5]] enactment would result in any meaningful diminution in the statutory powers of the state auditor under existing law. See, in this regard our opinion to you of October 6, 1970, in which we detailed the extent of these existing powers and functions in so far as post-audits of state agencies are concerned. However, even if it were to be concluded that the bill would transfer to the legislative budget committee some significant aspect of the current post-audit functions of the auditor,1/ we believe that it still would follow that the bill would be constitutional for the fundamental reason that under Article III, § 20, as construed in Yelle v. Bishop, supra, the only powers which the state auditor may, in any event, be said to have as the "auditor of public accounts" are those in connection therewith which have been prescribed by the legislature.
It is hoped that the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General
*** FOOTNOTES ***
1/Our difficulty at this point, which we would be remiss not to point out, arises not from the standpoint of constitutionality but rather from that of urging clarity of expression wherever possible in a statute. In § 2 of the bill, defining the key term "management surveys," the following phrase appears:
". . . and effectively administer any legislative purpose . . ." (Emphasis supplied.)
We must confess, in all humility, a total lack of understanding as to just what concrete standard this phrase is intended to establish, in terms of the scope and extent of a "management survey."